[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
OVERSIGHT OF ICE DETENTION FACILITIES: IS DHS DOING ENOUGH?
=======================================================================
HEARING
before the
SUBCOMMITTEE ON
OVERSIGHT, MANAGEMENT,
AND ACCOUNTABILITY
of the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 26, 2019
__________
Serial No. 116-39
__________
Printed for the use of the Committee on Homeland Security
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
40-455 PDF WASHINGTON : 2020
COMMITTEE ON HOMELAND SECURITY
Bennie G. Thompson, Mississippi, Chairman
Sheila Jackson Lee, Texas Mike Rogers, Alabama
James R. Langevin, Rhode Island Peter T. King, New York
Cedric L. Richmond, Louisiana Michael T. McCaul, Texas
Donald M. Payne, Jr., New Jersey John Katko, New York
Kathleen M. Rice, New York Mark Walker, North Carolina
J. Luis Correa, California Clay Higgins, Louisiana
Xochitl Torres Small, New Mexico Debbie Lesko, Arizona
Max Rose, New York Mark Green, Tennessee
Lauren Underwood, Illinois Van Taylor, Texas
Elissa Slotkin, Michigan John Joyce, Pennsylvania
Emanuel Cleaver, Missouri Dan Crenshaw, Texas
Al Green, Texas Michael Guest, Mississippi
Yvette D. Clarke, New York Dan Bishop, North Carolina
Dina Titus, Nevada
Bonnie Watson Coleman, New Jersey
Nanette Diaz Barragan, California
Val Butler Demings, Florida
Hope Goins, Staff Director
Chris Vieson, Minority Staff Director
------
SUBCOMMITTEE ON OVERSIGHT, MANAGEMENT, AND ACCOUNTABILITY
Xochitl Torres Small, New Mexico, Chairwoman
Dina Titus, Nevada Dan Crenshaw, Texas, Ranking
Bonnie Watson Coleman, New Jersey Member
Nanette Diaz Barragan, California Clay Higgins, Louisiana
Bennie G. Thompson, Mississippi (ex Van Taylor, Texas
officio) Mike Rogers, Alabama (ex officio)
Lisa Canini, Subcommittee Staff Director
Katy Flynn, Minority Subcommittee Staff Director
C O N T E N T S
----------
Page
STATEMENTS
The Honorable Xochitl Torres Small, a Representative in Congress
From the State of New Mexico, and Chairwoman, Subcommittee on
Oversight, Management, and Accountability:
Oral Statement................................................. 1
Prepared Statement............................................. 3
The Honorable Dan Crenshaw, a Representative in Congress From the
State of Texas, and Ranking Member, Subcommittee on Oversight,
Management, and Accountability:
Oral Statement................................................. 3
Prepared Statement............................................. 5
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Committee on
Homeland Security:
Prepared Statement............................................. 5
WITNESSES
Panel I
Ms. Jenni Nakamoto, Founder and President, The Nakamoto Group,
LLC:
Oral Statement................................................. 6
Prepared Statement............................................. 8
Ms. Katherine Hawkins, Senior Legal Analyst, Project on
Government Oversight (POGO):
Oral Statement................................................. 10
Prepared Statement............................................. 12
Panel II
Ms. Diana R. Shaw, Assistant Inspector General, Special Reviews
and Evaluations, Office of the Inspector General, U.S.
Department of Homeland Security:
Oral Statement................................................. 28
Prepared Statement............................................. 30
Mr. Tae Johnson, ERO Assistant Director for Custody Management,
U.S. Immigration and Customs Enforcement, U.S. Department of
Homeland Security:
Oral Statement................................................. 35
Prepared Statement............................................. 37
FOR THE RECORD
The Honorable Xochitl Torres Small, a Representative in Congress
From the State of New Mexico, and Chairwoman, Subcommittee on
Oversight, Management, and Accountability:
Article From ACLU.ORG.......................................... 46
Statement of Detention Watch Network........................... 48
Statement of American Immigration Council...................... 51
Statement of the National Immigrant Justice Center............. 55
Statement of Dana L. Gold, Esq., Government Accountability
Project...................................................... 64
Letter From Miscellaneous Organizations, August 29, 2019....... 69
Letter From Miscellaneous Organizations, September 25, 2019.... 71
Statement of Asian Americans Advancing Justice--AAJC........... 82
Article From Pogo.org, March 12, 2019.......................... 88
Article From Pogo.org, May 21, 2019............................ 91
Article From Pogo.org, August 14, 2019......................... 94
Article From Pogo.org, September 12, 2019...................... 103
APPENDIX I
Statement of Peter E. Mina, Deputy Officer for Programs and
Compliance, Office for Civil Rights and Civil Liberties, U.S.
Department of Homeland Security................................ 109
APPENDIX II
Question From Ranking Member Mike Rogers for Diana R. Shaw....... 113
Questions From Ranking Member Mike Rogers for Tae Johnson........ 113
OVERSIGHT OF ICE DETENTION FACILITIES: IS DHS DOING ENOUGH?
----------
Thursday, September 26, 2019
U.S. House of Representatives,
Committee on Homeland Security,
Subcommittee on Oversight, Management,
and Accountability,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:04 p.m., in
room 310, Cannon House Office Building, Hon. Xochitl Torres
Small [Chairwoman of the subcommittee] presiding.
Present: Representatives Torres Small, Titus, Watson
Coleman, and Crenshaw.
Ms. Torres Small. The Subcommittee on Oversight,
Management, and Accountability will come to order.
The subcommittee is meeting today to receive testimony on
``Oversight of ICE Detention Facilities: Is DHS Doing Enough?''
Good afternoon. We are here to discuss the Oversight of
Immigration and Customs Enforcement's detention facilities and
whether DHS is doing enough to ensure that ICE's own detention
standards are being met.
Before we start, I would like to take a moment to
acknowledge some of the challenges the subcommittee had in
arranging today's hearing.
We are holding two panels this afternoon because ICE
declined to sit on the same panel with Nakamoto, the contractor
it chose to conduct inspections on its behalf since 2011.
The Department's lack of cooperation makes it more
challenging for Congress to do its job. As I recently stated at
a meeting with DHS leaders, it is important to the subcommittee
to bring everyone's voices together. That is how we can best
identify challenges and find ways to solve them.
This issue is particularly important to me as two of ICE's
facilities, the Otero ICE Processing Center and the Cibola
County Correctional Center, detain upwards of 1,300 migrants in
my home district. I have visited these facilities and I have
concerns about some of the conditions of confinement. I am not
alone in having these concerns. DHS's own Office of Inspector
General last year found that these processes--that ICE's
processes--for oversight of confinement were insufficient to
sustain compliance with ICE's own standards.
It might be that inspectors are set up to fail. For
example, ICE's contractor, which conducts about 100 inspections
annually, is responsible for evaluating compliance with up to
42 standards composed of over 600 elements over the course of
just a few days. As a result, these inspectors end up missing
some clear violations of detention standards, like a phone not
working properly.
The OIG also observed inspectors misreporting that
detainees knew how to obtain assistance from ICE officers when
those detainees had indicated the exact opposite.
Of additional concern is the fact that even when these
deficiencies are identified, ICE's processes have not ensured
that they are corrected.
For example, ICE has detention service monitors on-site at
several detention facilities to monitor compliance with
detention standards. However, these monitors told the OIG that
when they identify violations they have no means of enforcing
corrective action.
Instead of pressuring facilities to correct deficiencies or
issuing financial penalties for noncompliance, in some cases
ICE grants waivers so the facilities don't have to abide by
these standards.
For example, as the OIG reported, from October 2015 to June
2018, ICE only issued two financial penalties and granted 65
waivers, 63 of which of those waivers had no end date.
One of these waivers, at Otero in my district, permitted
low-custody individuals with no criminal history to commingle
with individuals with more serious criminal records.
The standard that typically keeps these detainees separated
is an important one that directly impacts the safety of people
in detention.
Finally, I have concerns that inspections by ICE's
contractor are announced far in advance, giving facilities
ample opportunity to clean things up just in time for
inspection.
I understand that the OIG made several recommendations to
ICE to correct these issues, and I look forward to hearing what
steps ICE has taken and whether they are leading to more
sustained compliance with standards.
I also look forward to hearing about the oversight work
that the OIG conducts at ICE facilities. The OIG's oversight
work in this space has been critical in shining a light on the
conditions of confinement. Recent reports have identified
serious violations of ICE's standards, including food and
service issues endangering the health of detainees and
inappropriate segregation practices infringing on detainee
safety.
However, the scope of OIG's inspections is limited by its
lack of subject-matter experts, like medical doctors to
evaluate the quality of medical care.
I am encouraged by the fact that the OIG is developing a
plan to contract with such experts who could engage in this
oversight work, and I hope to hear that this plan is being put
into action.
I want to thank the witnesses who are here today, and I
look forward to your testimony.
The Chair now recognizes the Ranking Member of the
subcommittee, the gentleman from Texas, Mr. Crenshaw, for an
opening statement.
[The statement of Chairwoman Torres Small follows:]
Statement of Chairwoman Xochitl Torres Small
September 26, 2019
We are here to discuss the oversight of Immigration and Customs
Enforcement's detention facilities and whether DHS is doing enough to
ensure that ICE's own detention standards are being met. Before we
start, I'd like to take a moment to acknowledge some of the challenges
the subcommittee had in arranging today's hearing. We're holding two
panels this afternoon because ICE declined to sit on the same panel
with Nakamoto, the contractor it chose to conduct inspections on its
behalf since 2011. The Department's lack of cooperation makes it more
challenging for Congress to do its job.
As I recently stated at a meeting with DHS leaders, it's important
to this subcommittee to bring voices together at the same table to
engage in a problem-solving discussion. This issue is particularly
important to me as two of ICE's facilities, the Otero ICE Processing
Center and the Cibola County Correctional Center, detain upwards of
1,300 migrants in my home district. Upon visiting these facilities, I
have become increasingly concerned about the conditions of confinement.
I am not alone in having these concerns.
While ICE has processes in place to conduct oversight of these
facilities, DHS's Office of Inspector General last year found that
these processes were insufficient to sustain compliance with ICE's own
standards. For example, ICE's contractor, which conducts about 100
inspections annually, is responsible for evaluating compliance with up
to 42 standards composed of over 600 elements over the course of just a
few days. As a result, these inspectors end up missing some clear
violations of detention standards, like a phone not working properly.
The OIG also observed inspectors misreporting that detainees knew how
to obtain assistance from ICE officers when those detainees had
indicated that exact opposite. Of additional concern is the fact that
even when these deficiencies are identified, ICE's processes have not
ensured that they are corrected.
For example, ICE has Detention Service Monitors on-site at several
detention facilities to monitor compliance with detention standards.
However, these monitors told the OIG that when they identify
violations, they have no means of enforcing corrective action. Instead
of pressuring facilities to correct deficiencies or issuing financial
penalties for noncompliance, in some cases ICE grants waivers so the
facilities don't have to abide by certain standards. For example, as
the OIG reported, from October 2015 to June 2018, ICE only issued 2
financial penalties and granted 65 waivers--63 of which had no end
date. One of these waivers, at Otero in my district, permitted low-
custody individuals with no criminal history to comingle with
individuals with more serious criminal records. The standard that
typically keeps these detainees separated is an important one that
directly impacts the safety of migrants in detention.
Finally, I have concerns that inspections by ICE's contractor are
announced far in advance giving facilities ample opportunity to clean
things up just in time for the inspection. I understand that the OIG
made several recommendations to ICE to correct these issues, and I look
forward to hearing what steps ICE has taken and whether they are
leading to more sustained compliance with standards. I also look
forward to hearing about the oversight work that the OIG conducts at
ICE facilities. The OIG's oversight work in this space has been
critical in shining a light on the conditions of confinement. Recent
reports have identified serious violations of ICE's standards,
including food service issues endangering the health of detainees and
inappropriate segregation practices infringing on detainee rights.
However, the scope of OIG's inspections is limited by its lack of
subject-matter experts, like medical doctors to evaluate the quality of
medical care. I am encouraged by the fact that the OIG is developing a
plan to contract with such expert experts who could engage in this
oversight work, and I hope to hear that this plan is being put into
action.
Mr. Crenshaw. Thank you, Chairwoman Torres Small.
Thank you to all of our witnesses on both panels for being
here today.
I am pleased we are holding this hearing regarding the
oversight of ICE detention facilities. It is extremely
important.
I am also pleased we were able to work together and resolve
some of the problems coordinating witnesses and panels to have
the key stakeholders necessary for the productive hearing this
issue deserves.
It should be noted that it is long-standing practice not to
have the agency and the contractors for that agency on the same
panel, which is why we ended up having two different panels.
I am also hopeful that the Office of Civil Rights and Civil
Liberties will still provide their testimony prepared for this
hearing even though they were disinvited earlier this week.
I hope that in the future that the agency over which we are
conducting oversight in this case, ICE, would be the first to
be invited to testify.
This is an important issue to examine. I share the
Majority's concern regarding the necessity of enforcing the
standards for safety and security of ICE detainees. The health
and well-being of those detained in the United States is not a
partisan issue.
I have been very public in my praise for the Department of
Homeland Security and the individuals who work each day to keep
our country safe. The men and women of U.S. Immigration and
Customs Enforcement have some of the toughest jobs in the
Department. ICE is tasked with enforcing U.S. immigration law
and removing individuals who pose a threat to the National
security, public safety, or seek to exploit our immigration
system.
Their job is made even more difficult when they are
publicly and unfairly vilified by public figures. The false
narratives spread about ICE are utterly reprehensible.
Individuals primarily targeted for removal by ICE include
convicted criminals, gang members, repeat immigration
violators, and those ordered to be removed by an immigration
judge.
As the flow of immigrants increases, the job of ICE becomes
even more difficult. They must devote their resources to
rooting out those that pose the biggest threat; however, those
resources are stretched thin.
The safe and secure detention of individuals prior to
removal from the country is one of the most important duties
that ICE devotes resources to. Although detention is primarily
done through contractors, as the agency responsible for these
individuals ICE must ensure that proper care is provided.
ICE must use its oversight authorities as well as its
contracting authorities to ensure its detention standards are
met. ICE does its own inspections every 3 years and hires
private contractors to do inspections annually.
Additionally, ICE has individuals in a number of facilities
who are tasked with on-site review of the daily operations.
All this seems like the recipe for conducting vigorous
oversight. Unfortunately, however, it seems, as is frequently
the case with Government agencies, there was a lack of
communication and coordination among the divisions within ICE.
It is my understanding that ICE has agreed with the
recommendations of the inspector general's office and is
working to address these issues. I look forward to hearing from
our witnesses today on how we can ensure ICE detention
standards are met in the future.
I yield back the balance of my time.
[The statement of Ranking Member Crenshaw follows:]
Statement of Ranking Member Dan Crenshaw
September 26, 2019
Thank you, Chairwoman Torres Small and thank you to all of our
witnesses on both panels for being here today.
I am pleased we are holding this hearing today regarding oversight
of ICE detention facilities.
I am pleased we were able to work together and resolve some of the
problems coordinating witnesses and panels to have the key stake
holders necessary for the productive hearing this issue deserves. I am
hopeful the Office of Civil Rights and Civil Liberties will still
provide their testimony prepared for this hearing, even though they
were disinvited earlier this week.
This is an important issue to examine. I share the Majority's
concern regarding the necessity of enforcing the standards for safety
and security of ICE detainees.
The health and well-being of those detained in the United States is
not a partisan issue.
I have been very public in my praise for the Department of Homeland
Security and the individuals who work each day to keep our country
safe. The men and women of U.S. Immigration and Customs Enforcement
have some of the toughest jobs in the Department. ICE is tasked with
enforcing U.S. immigration law and removing individuals who pose a
threat to National security, public safety, or seek to exploit our
immigration system.
Their job is made ever more difficult when they are publicly and
unfairly vilified by public figures. The false narratives spread about
ICE are utterly reprehensible.
Individuals primarily targeted for removal by ICE include convicted
criminals, gang members, repeat immigration violators, and those
ordered to be removed by an immigration judge. As the flow of
immigrants increases, the job of ICE becomes even more difficult. They
must devote their resources to rooting out those that pose the biggest
threat. However, those resources are stretched thin.
The safe and secure detention of individuals prior to removal from
the country is one of the most important duties that ICE devotes
resources to.
Although detention is primarily done through contractors, as the
agency responsible for these individuals, ICE must ensure that proper
care is provided. ICE must use its oversight authorities, as well as
its contracting authorities to ensure its detention standards are met.
ICE does its own inspections every 3 years and hires private
contractors to do inspections annually.
Additionally, ICE has individuals in a number of facilities who are
tasked with on-site review of the daily operations.
All this seems like the recipe for conducting vigorous oversight.
Unfortunately, however, it seems, as is frequently the case with
Government agencies, there was a lack of communication and coordination
among the divisions within ICE.
It is my understanding that ICE has agreed with the recommendations
of the Inspector General's office and is working to address these
issues.
I look forward to hearing from our witnesses today on how we can
ensure ICE detention standards are met in the future.
I yield back the balance of my time.
Ms. Torres Small. Other Members of the committee are
reminded that under the committee rules opening statements may
be submitted for the record.
[The statement of Chairman Thompson follows:]
Statement of Chairman Bennie G. Thompson
September 26, 2019
In recent years, the number of people in ICE custody has been
steadily rising and now exceeds 50,000. Too often, ICE turns a blind
eye to the conditions at its facilities. Indeed, several recent reports
have shone a light on deplorable conditions at facilities holding
migrants in ICE custody. For example, in California, at the Adelanto
ICE Processing Center, an unannounced inspection by the Office of
Inspection General (OIG) found a number of disturbing conditions,
including: Nooses hanging in several detainee cells, a detainee never
leaving his wheelchair for sleep or to brush his teeth for 9 days, and
detainees waiting months for basic medical treatment.
In New Jersey, at the Essex County Correctional Facility, the OIG
found that cafeteria workers were serving visibly moldy and foul-
smelling food to migrant detainees resulting in likely food poisoning.
How, one might ask, did these blatant violations of detention standards
and, for that matter, human decency, continue under ICE's watch? ICE
has processes in place to conduct oversight of these facilities, but
the OIG has found, they have been insufficient to ensure compliance
with ICE's own standards. Contracted inspectors are stretched too thin
and are missing obvious deficiencies during inspections.
Even when deficiencies are identified, many are left uncorrected or
the standards themselves are waived. This is unacceptable. While I am
encouraged by the work that the OIG is doing to identify and correct
deficiencies at ICE detention facilities, the OIG faces constraints in
conducting oversight work in a meaningful manner. I recently heard from
the newly-confirmed DHS inspector general that the OIG currently lacks
the ability to evaluate certain detention standards absent subject-
matter experts on staff. The OIG has described the beginnings of a plan
to contract with subject-matter experts who could engage in this work,
and I hope to hear that this plan is being put into action. I also look
forward to hearing more from OIG's witness about the steps ICE must
take to ensure its detention facilities comply with its own detention
standards.
In closing, I would like to take a moment to share my concern
regarding the resistance this subcommittee has faced in conducting
oversight on these important issues. While I am pleased that they are
here today, the Nakamoto Group has refused several attempts by the
committee to engage through meetings or briefings about its work. I
would like to remind everyone that ICE pays its contractors, including
Nakamoto, with taxpayer dollars. As Congress, it is our responsibility
to conduct oversight to ensure they are being spent wisely.
Unfortunately, it was only under threat of subpoena that the Nakamoto
Group agreed to testify today. I also share Chairwoman Torres Small's
disappointment regarding the Department's unwillingness to to sit on
this panel with its own contractor, Nakamoto.
What does it say about the Department or its contractor that they
refuse to have a seat at the table together and discuss these important
issues? Such behavior shows a complete lack of respect for Congress and
its oversight responsibilities as well as a disregard for the spirit of
bipartisan problem solving that the Chairwoman fosters on this
subcommittee. I hope the Department takes the concerns raised here
today seriously and acts on them promptly.
Ms. Torres Small. I welcome our first panel of witnesses
and thank them for joining today.
Our first witness is Ms. Jenni Nakamoto, president and sole
owner of the Nakamoto Group, Inc. Ms. Nakamoto has provided
professional and administrative support to the Federal
Government and private industry since 1990. Her company
contracts with ICE to conduct inspections of ICE's detention
facilities.
Our second witness, Ms. Katherine Hawkins, is the senior
legal adviser for the Constitution Project at the Project On
Government Oversight. Her work focuses on National security,
immigration, and human rights. Prior to her work at POGO, she
served as a National security fellow for Open the Government.
Without objection, the witnesses' full statements will be
inserted in the record. I now ask each witness to summarize her
statement for 5 minutes, beginning with Ms. Nakamoto.
STATEMENT OF JENNI NAKAMOTO, FOUNDER AND PRESIDENT, THE
NAKAMOTO GROUP, LLC
Ms. Nakamoto. I want to first apologize. Sorry. Thank you
for the invitation to appear before this committee. I want to
first apologize for what appeared to be our resistance to come
to this hearing to discuss the details of our work with ICE.
Our contract has a clause within the contract, Federal
regulations, that forbids disclosure of these details and we
were hesitant to get involved at the risk of our contract.
The Nakamoto Group is a woman-owned, minority-owned small
disadvantaged business headquartered in Frederick County,
Maryland. My great-grandparents immigrated to the United States
from Japan.
My maternal grandparents were both born in California,
making them United States citizens. After Pearl Harbor, the
Presidential order was issued to incarcerate all Japanese
regardless of their citizenship status. My maternal family were
living in California and had to relinquish all of their
property, including any businesses that they had. They were
given one trash bag to fill of personal items to take with them
and had to leave everything else behind.
Our family was spread out to various internment camps
across the country. My maternal grandparents were incarcerated
in a Japanese internment camp in Arizona. They were there long
enough to meet, fall in love, get married, have a baby, my
mother, and become pregnant again with my aunt.
Since they had to start over, they were offered employment
at a food processing factory before they were released, and
they chose to move to a small town called Seabrook in southern
New Jersey, where ultimately I was born.
My father was born and raised in Hilo, Hawaii. My
grandfather returned to Japan soon after he was born. My father
was the youngest in a large broken home and he was raised by
several of his older brothers.
My father served for more than 20 years in the United
States Army. He served 2 tours during Vietnam and served on
what was one of the first all Japanese American Green Beret
units.
Upon his retirement from Fort Ritchie, Maryland, we
relocated to Frederick, where I grew up. Because my parents did
not have a lot of money, I worked during high school and have
been working since I was 15 years old.
Shortly after high school, I was able to obtain a
secretarial job with the Government at the Department of Health
and Human Services. I worked there for over 6 years before
leaving to work for 3 other successful minority-owned
Government contracting firms. I learned about Government
contracting during those 7 years and I decided to take a chance
and start my own company.
I started this company in 2003. It was the same year that I
lost my late husband to police suicide. I still volunteer for
his Fraternal Order of Police and have volunteered for them for
over 20 years, serving as their executive assistant to the
executive board.
The Nakamoto Group was certified in the Small Business
Administration's 8(a) program in 2004. We successfully
graduated certification in 2013.
The first contract awarded to my company was in 2004 to
maintain a hotline entitled Insure Kids Now, which is a hotline
that provides either free or low-cost health care to kids
through State Children's Health Insurance Program within the
United States and its territories. We still maintain that
contract after 15 years, and it now includes another hotline
entitled 311-BABY, which helps expectant and new mothers,
providing information via phone and text.
For the last 15 years, we have obtained logistics contracts
with the Food and Drug Administration and the Department of
Health and Human Services. From 2006 to 2007, we had a contract
with the Food and Drug Administration to help them hire
Hispanics to increase diversity within their work force. We
continue to provide logistics support for FDA's CDER advisory
committees.
Our most current and long-standing logistics contracts have
been with the Office of Rural Health Policy to run logistics
for their National Advisory Committee on Rural Health and Human
Services. We also provided logistics for several of their
policy meetings regarding telehealth in rural America from 2010
to 2013.
In 2005, we obtained a contract with the now-dissolved
Office of the Federal Detention Trustee, which was a department
under the Department of Justice. We won a place within a
blanketed purchase agreement to provide detention expert
support services to the Office of the Federal Detention
Trustee.
Using performance-based detention standards, we sent teams
to provide expert specialized service consultation by
conducting facility reviews of non-Federal contract jails and
detention facilities which house U.S. Marshal Service and
Immigration and Customs Enforcement detainees.
In 2007, we were asked to attend a meeting at ICE
headquarters where we were asked to perform on-site monitoring
services and provide monthly technical assistance and included
full-time monitors for 40 of the largest ICE detention
facilities, and monthly, quarterly, biannual reviews of other
small ICE detention facilities. The goal was to ensure that the
facilities were in compliance with the standards.
ICE piggybacked on that existing contract that we had at
the time at the Department of Justice and we did this type of
work for them from 2007 to 2010.
Ms. Torres Small. Ms. Nakamoto, your time is up. If you
want to include a few seconds of concluding remarks or we can
just--the rest can be entered into the record.
Ms. Nakamoto. OK.
[The prepared statement of Ms. Nakamoto follows:]
Statement of Jenni Nakamoto
September 26, 2019
Madam Chairwoman Small, Mr. Crenshaw, thank you for the invitation
to appear before this committee.
The Nakamoto Group is a woman-owned, minority-owned small
disadvantaged business, headquartered in Frederick County, Maryland. My
great-grandparents immigrated to the United States from Japan. My
maternal grandparents were both born in California making them United
States citizens. After Pearl Harbor, a Presidential order was issued to
incarcerate all Japanese regardless of their citizenship status. My
maternal family were living in California and had to relinquish all of
their property including any businesses that they had. They were given
one trash bag to fill of personal items to take with them and had to
leave everything else behind. Our family was spread out to various
internment camps across the country. My maternal grandparents were
incarcerated in a Japanese internment camp in Arizona. They were there
long enough to meet, fall in love, get married, have a baby, my mother,
and become pregnant again with my Aunt. Since they had to start over,
they were offered employment at a food processing factory before they
were released and they chose to move to a small town called Seabrook in
Southern New Jersey, where ultimately I was born.
My father was born and raised in Hilo, Hawaii. My grandfather
returned to Japan soon after he was born. My father was the youngest in
a large broken home and he was raised by several of his older brothers.
My father served more than 20 years in the United States Army, served 2
tours during Vietnam and served on what was one of the first all
Japanese-American Green Beret units.
Upon his retirement from Ft. Ritchie, Maryland, we relocated to
Frederick, Maryland, where I grew up. Because my parents did not have a
lot of money, I worked during high school and have been working since I
was 15 years old. Shortly after high school, I was able to obtain a
secretarial job in the Government at the Department of Health and Human
Services. I worked there for 6 years before leaving to work for 3 other
successful minority-owned Government contractor firms. I learned about
Government contracting during those 7 years and I decided to take a
chance and start my own company.
I started this company in 2003. It was the same year that I lost my
late husband to police suicide. I still volunteer for his Fraternal
Order of Police Lodge No. 91 and have volunteered for them over 20
years serving as the executive assistant to the executive board.
The Nakamoto Group, Inc. was certified in the Small Business
Administration's 8(a) program in 2004, and successfully graduated the
certification in 2013. The first contract awarded to my company was in
2004, to maintain a hotline entitled Insure Kids Now, which is a
hotline that provides either free or low-cost health care to kids
through the State's Children's Health Insurance Program, within the
United States and its territories. We still maintain that contract
after 15 years and now it also includes another hotline entitled 311-
Baby which helps expectant and new mothers by providing information via
phone. 311-BABY also works in conjunction with a program called
text4baby that text messages throughout the pregnancy and up to age
one. The information provided helps inform where the mother is within
her pregnancy and the baby milestones up to age 1. It also provides
helpful detailed bi-weekly tips such as what the mother may be feeling,
how big the baby should be, check-ups, poison control, vaccinations,
nutrition with suggestions on what to eat to stay healthy for mother
and child.
For the last 15 years, we have obtained logistics contracts with
the Food and Drug Administration and the Department of Health and Human
Services. From 2006-2007 we had a contract with the Food and Drug
Administration to help them hire Hispanics to increase diversity within
their workforce. We continue to provide logistics support for FDA's
Center for Drug Evaluation Research (CDER) advisory committees.
Our most current and long-standing logistics contracts has been
with the Office of Rural Health Policy to run logistics for their
National Advisory Committee on Rural Health and Human Services. We also
provided logistics support for several of their policy meetings
regarding telehealth in rural America from 2010-2013.
In 2005, we obtained a contract with the now-dissolved Office of
the Federal Detention Trustee, which was a department under the
Department of Justice. We won a place within a Blanket Purchase
Agreement (BPA) to provide Detention Expert Support Services to the
Office of the Federal Detention Trustee. Using Performance-Based
Detention Standards, we sent teams to provide an expert specialized
service consultation by conducting facility reviews of Non-Federal
contract jails and detention facilities which housed United States
Marshals Service (USMS) and Immigration and Customs Enforcement (ICE)
detainees.
In 2007, we were asked to attend a meeting at ICE Headquarters
where we were asked to perform on-site monitoring services and to
provide monthly technical assistance and included full-time monitors
for 40 of the largest ICE detention facilities and Monthly, Quarterly,
and bi-annual reviews of other smaller ICE detention facilities. The
goal was to ensure that the facilities were in compliance with the
standards. ICE piggy-backed onto the existing contract we had at the
time with the Department of Justice and we did this type of work for
them from 2007-2010. In 2009, we won a full and open competition to
perform these same duties for 5 years. However, after year 1, in 2010,
the Government chose not to exercise any more years of the contract and
instead chose to in-source that program. In effect, terminating our
contract. As a result, Nakamoto laid off over 150 employees and
absorbed over $100,000.00 worth of contract closing costs. Due to those
costs, I was on the brink of losing my company altogether. We stayed
afloat only because of the hard work of the few determined and
dedicated staff that I had left.
Also in 2007, my company was approached by ICE and the Juvenile
Family Residential Unit (JFRMU) to help them coordinate a cadre of
experts: A former senior Federal official with experience in providing
health care services to indigent women and children, a daycare
provider, licensed social worker, medical doctor, Educator with a
Ph.D., Juvenile corrections expert, to create the standards for JFRMU
and to inspect the family residential facilities. We held that contract
from 2007-2015.
I am telling you my story to ensure that the correct story goes on
record today. Recently, because of our association with the Department
of Homeland Security (DHS), I have been personally attacked via social
media and news outlets; attacks that have disparaged my Mother, who
passed away in 2008; myself; and my heritage. We have been victimized
by inaccurate accountings of our work, I can only guess, for the
purpose of discrediting ICE.
Fortunately, the facts speak for themselves and we have factually
refuted every negative assertion against us. Nevertheless, some have
chosen to ignore the facts and continue to reference disproven
allegations for their political purposes and to further their agenda
against ICE. Because of my background and upbringing, I insist that
this company be diverse and multi-cultural for employees and clients
alike, always ensuring that the principles of fairness and equity are
our priorities.
We have less than 15 full-time employees and 45 part-time employees
at any given time. The majority of my employees, who are inspectors,
have an average of over 35 years of detention monitoring experience. In
the years since 2003, we have worked hard and have succeeded in
building a reputation of a conscientious company that provides great
value and service to our clients.
As president of the company, I involve myself with overseeing the
various employees that manage our contracts, provide our administrative
support, and perform human resource and budgetary functions. I do not
necessarily work day-to-day with any specific contract. The ICE annual
inspection contract has a very specific statement of work that provides
the direction and methods for us to conduct inspections. We have no
room or opportunity for variance from the provisions of the contract. I
have submitted the statement of work as part of my testimony and ask
the committee Members to refer to that document for any specific tasks
or instructions that are required of us. Because we deal with multiple
contracts at any given time, I am not able to memorize any one
contract; but rather explore specifics when required to do so to
address questions from the contract managers. That being said, should
you have questions about specific duties or requirements of the
Statement of Work, the answers should be therein. If not, I must defer
to ICE, as we have no direction or discretion outside of the Statement
of Work.
Facilities are inspected under 1 of 3 different sets of ICE
immigration standards. We use the set as specified by the contract
between each individual facility and ICE. We may inspect as many as 42
standards with as many as 680 components, and never less than 39
standards with 641 components. Every requirement of every standard is
inspected no less than annually at every qualifying facility.
Qualifying facilities are primarily those who house ICE detainees for
longer than 72 hours and house more than 50 ICE detainees. ICE requires
an exhaustive inspection of processes, policies, services, and
privileges during every inspection. They also demand that the results
are documented as required by the Statement of Work. While the
standards do not specifically address every aspect of a facility
operation, the great majority of potential liabilities are scrutinized.
Those issues not specifically covered by a component within a standard
are always reviewed by my inspectors. Those issues not specifically
covered by the standards are included in a general sense, as quality of
life issues, and reported on as such.
In 2017, we were asked by the Immigration Health Service Corp. to
also provide an additional medical expert to review the medical records
to determine whether or not the detainees held at the facility have had
access to medical services in accordance with best practices.
To the question posed within the title of this hearing, ``Oversight
of ICE Detention Facilities: Is DHS Doing Enough?'' From our
perspective, YES, ICE is efficient and thorough in their oversight of
detention facilities as far as the annual inspection contract goes,
which is the extent of our knowledge.
This concludes my statement. Thank you.
Ms. Torres Small. Ms. Hawkins.
STATEMENT OF KATHERINE HAWKINS, SENIOR LEGAL ANALYST, PROJECT
ON GOVERNMENT OVERSIGHT (POGO)
Ms. Hawkins. Chairwoman Torres Small, Ranking Member
Crenshaw, and Members of the subcommittee, thank you for the
opportunity to testify today.
I am a senior legal analyst for the Constitution Project at
the Project on Government Oversight. POGO is a nonpartisan
watchdog that investigates Government abuses of power.
As part of that work, my colleagues and I have done a
series of investigations into conditions in ICE detention. We
found evidence of inadequate medical care, inadequate mental
health care, and overuse of solitary confinement. These are
chronic problems, but they have grown worse as ICE has detained
more and more people.
ICE detention centers are subject to various forms of
oversight by DHS. There are annual inspections by the Nakamoto
Group, onsite monitors, inspections by different offices within
ICE, and inspections by the DHS Inspector General and the
Office of Civil Rights and Civil Liberties. This sounds like a
lot of inspections, but the system is failing to ensure
compliance with ICE's own detention standards.
The Nakamoto Group's inspections occur most often and are
the only ones that can trigger a loss of a detention facility's
contract, but they often fail to uncover serious violations.
Other inspections are more thorough, but they often remain
hidden from Congress and the public and ICE fails to make
changes they recommend.
As a result, inhumane and unsafe conditions can persist for
years. In some cases, the violations rise to the level of
deliberate indifference to detainees' medical needs, which is
unconstitutional.
To illustrate the problems, I will describe our findings on
3 of ICE's largest detention facilities.
In September 2018, the DHS Inspector General reported on an
unannounced inspection of the Adelanto Detention Center in
California. They found sheets braided into nooses in 15
detainees' cells, inadequate medical care, and overuse of
solitary confinement.
The next month, the Nakamoto Group conducted its own
previously-announced inspection of Adelanto. Nakamoto not only
found that Adelanto was in compliance with 40 of 40 ICE
detention standards, but accused the inspector general of
writing an erroneous and inflammatory report. They dismissed
the nooses as a housekeeping violation, not a suicide risk,
disregarding the fact that an Adelanto detainee used a bed
sheet to hang himself in March 2017.
We recently uncovered a third investigation of Adelanto by
the Office of Civil Rights and Civil Liberties, or CRCL. CRCL
visited Adelanto in December 2015 and November 2017. In 2015,
CRCL had warned ICE that Adelanto's medical leadership was not
competent. In 2017, they found no evidence that corrections
were made to address this issue. This led to, in their words,
inadequate detainee medical care that resulted in medical
injuries, including bone deformities and detainee deaths.
CRCL also found that mentally ill detainees were being
placed in solitary confinement instead of being treated,
sometimes for shocking lengths of time.
Overuse of solitary is a problem throughout the ICE system.
Sometimes it has fatal consequences, as it did for 2 men who
committed suicide at the Stewart Detention Center in Georgia in
May 2017 and July 2018. Both Jean Carlo Jimenez-Joseph and
Efrain De La Rosa suffered from schizophrenia. Instead of
receiving psychiatric treatment, both were placed in solitary
confinement for weeks as their symptoms grew more and more
alarming. Both hanged themselves in their isolation cells.
Despite the 2 deaths, Nakamoto Group inspectors found that
Stewart was in compliance with all 39 applicable ICE detention
standards in both 2017 and 2018.
Inadequate medical care led to another death at the ICE
Detention Center in Aurora, Colorado. Kamyar Samimi went into
methadone withdrawal when he arrived there. For 2 weeks his
symptoms grew worse and worse, but the medical staff believed
he was faking or exaggerating them, even when he became too
weak to sit up.
There were many other credible reports of medical neglect
at Aurora, including one case where a detainee's untreated
bedsores became so severely infected that his leg had to be
amputated.
Despite all this evidence, Nakamoto Group inspectors found
that Aurora was in compliance with 41 of 41 applicable
detention standards in both 2017 and 2018.
Let me close with some steps Congress can take to improve
oversight of ICE detention.
No. 1, Congress should require DHS to impose financial
consequences for documented violations of detention standards
no matter which type of inspection uncovers them.
No. 2, in 2017, DHS suspended a policy that limited
detention of individuals known to be suffering from serious
physical or mental illness who are disabled, elderly, pregnant,
or nursing, or whose detention is otherwise not in the public
interest. Congress should require DHS to reinstate it.
No. 3, Congress should place binding restrictions on DHS's
ability to transfer funds in order to expand detention.
No. 4, Congress should strengthen the authority and
transparency of the Office of Civil Rights and Civil Liberties.
Thank you very much. Happy to take any questions.
[The prepared statement of Ms. Hawkins follows:]
Prepared Statement of Katherine Hawkins
September 26, 2019
Chairwoman Torres Small, Ranking Member Crenshaw, and Members of
the subcommittee, thank you for the opportunity to testify today on
oversight of immigration detention centers.
I am Katherine Hawkins, a senior legal analyst for The Constitution
Project at the Project On Government Oversight. The Project On
Government Oversight (POGO) is a nonpartisan independent watchdog that
investigates and exposes waste, corruption, and abuse of power, and
when the Government fails to serve the public or silences those who
report wrongdoing. We champion reforms to achieve a more effective,
ethical, and accountable Federal Government that safeguards
Constitutional principles.
As part of that work, my colleagues and I have done a series of
investigations into conditions in Immigration and Customs Enforcement
(ICE) detention centers.\1\ I will briefly explain our findings and
suggest actions Congress can take to improve oversight of these
facilities.
---------------------------------------------------------------------------
\1\ Nick Schwellenbach, ``Confidential Report Warned ICE of
`Inhumane' Use of Solitary Confinement,'' Project On Government
Oversight, September 12, 2019. https://www.pogo.org/investigation/2019/
09/confidential-report-warned-ice-of-inhumane-use-of-solitary-
confinement/; Nick Schwellenbach, Mia Steinle, Katherine Hawkins, and
Andrea Peterson, ``Isolated: ICE Confines Some Detainees with Mental
Illness in Solitary for Months,'' Project On Government Oversight,
August 14, 2019. https://www.pogo.org/investigation/2019/08/isolated-
ice-confines-some-detainees-with-mental-illness-in-solitary-for-months/
; Katherine Hawkins, ``Medical Neglect at a Denver Immigration Jail,''
Project On Government Oversight, May 21, 2019. https://www.pogo.org/
investigation/2019/05/medical-neglect-at-a-denver-immigration-jail/;
Katherine Hawkins, ``Outsourced Oversight,'' Project On Government
Oversight, March 12, 2019. https://www.pogo.org/investigation/2019/03/
outsourced-oversight/; Ken Silverstein, ``Death Valley: Profit and
Despair Inside California's Largest Immigrant Detention Camp,'' Project
On Government Oversight, December 22, 2018. https://www.pogo.org/
investigation/2018/12/death-valley-profit-and-despair-inside-
californias-largest-immigrant-detention-camp/.
---------------------------------------------------------------------------
pogo's investigations of ice detention facilities
We found serious flaws in ICE's inspection and oversight system and
inhumane conditions in ICE detention centers, including the Adelanto,
Aurora, and Stewart facilities. Department of Homeland Security (DHS)
and ICE documents reveal inadequate medical care, inadequate mental
health care, and overuse of solitary confinement.
These problems are chronic, but they have grown worse with the
rapid expansion of ICE detention over the last 2\1/2\ years. ICE is
currently detaining over 52,000 people, in a patchwork of over 200
facilities across the country.\2\ This is an increase of over 51
percent from an average daily population of 34,376 in fiscal year
2016.\3\
---------------------------------------------------------------------------
\2\ Emily Kassie, ``Detained: How the US built the world's largest
immigrant detention system,'' The Guardian, September 24, 2019. https:/
/www.theguardian.com/us-news/2019/sep/24/detained-us-largest-immigrant-
detention-trump.
\3\ Kate Morrissey, ``Operator moves to expand detention center for
migrants in San Diego County,'' Los Angeles Times, June 24, 2018.
https://www.latimes.com/local/lanow/la-me-ln-detention-center-
expansion-20180624-story.html.
---------------------------------------------------------------------------
ICE detention facilities range in size from county jails that hold
only a few immigration detainees at a time, to large facilities
dedicated exclusively to immigration custody that hold well over 1,000
people. All facilities that hold over 10 ICE detainees are subject to
various forms of oversight by DHS. These include annual inspections by
an ICE contractor, the Nakamoto Group; inspections by ICE's Office of
Detention Oversight; reviews of detainee deaths by ICE's Office of
Professional Responsibility; unannounced inspections by the DHS Office
of Inspector General; and on-site investigations of detention
conditions by DHS's Office for Civil Rights and Civil Liberties (CRCL).
While this may appear to be a rigorous system of inspection and
oversight, the system is failing to adequately protect detainees or
ensure that facilities comply with detention standards. The Nakamoto
Group's inspections, which occur most frequently and can trigger loss
of detention facility's contract with ICE, often fail to uncover
serious violations. Other inspections are more thorough, but remain
hidden from Congress and the public, and ICE fails to implement their
recommendations.\4\
---------------------------------------------------------------------------
\4\ Department of Homeland Security Office of Inspector General,
ICE's Inspections and Monitoring of Detention Facilities Do Not Lead to
Sustained Compliance or Systemic Improvements, OIG-18-67 (June 26,
2018). https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-
18-67-Jun18.pdf.
---------------------------------------------------------------------------
As a result, inhumane and unsafe conditions persist for years,
sometimes with fatal consequences.
This is not only wrong, but potentially unconstitutional. The Bill
of Rights applies to everyone in the United States, not only to
citizens. The Supreme Court has held that deliberate indifference to a
prisoner's serious medical needs violates the Eighth Amendment's
prohibition on cruel and unusual punishment, and circuit courts have
held that excessive use of solitary confinement is cruel and unusual.
ICE detention is civil, rather than criminal, which means that
detainees cannot be subjected to any harmful treatment for the purpose
of punishment.
The following are some examples from POGO's investigations of
systemic failures in ICE's oversight of detention facilities.
Inadequate Inspections and Mental Health Care at Adelanto
This spring, POGO reported on a dispute between Nakamoto Group
inspectors and the Department of Homeland Security inspector general
regarding conditions at the Adelanto Detention Facility in
California.\5\
---------------------------------------------------------------------------
\5\ Hawkins, ``Outsourced Oversight'' [see note 1].
---------------------------------------------------------------------------
In September 2018, the DHS inspector general released an alarming
report about conditions uncovered at Adelanto during an unannounced
inspection in May 2018. Inspectors found braided bedsheets, which they
called ``nooses,'' in 15 of the 20 cells they visited; seriously
inadequate medical care; and improper use of solitary confinement.\6\
---------------------------------------------------------------------------
\6\ Department of Homeland Security Office of Inspector General,
Management Alert--Issues Requiring Action at the Adelanto ICE
Processing Center in Adelanto, California, OIG-18-86 (September 27,
2018). https://www.oig.dhs.gov/sites/default/files/assets/2018-10/OIG-
18-86-Sep18.pdf.
---------------------------------------------------------------------------
Weeks later, in October 2018, the Nakamoto Group conducted its own
scheduled inspection of Adelanto. Nakamoto inspectors found that
Adelanto was in compliance with 40 of 40 ICE detention standards, just
as they had in 2017. They dismissed the nooses as a ``housekeeping
infraction,'' and accused the inspector general of writing an
``erroneous'' and ``inflammatory''\7\ report--although an Adelanto
detainee had, in fact, used a bedsheet to hang himself in March
2017.\8\
---------------------------------------------------------------------------
\7\ Memorandum from Lead Compliance Inspector, The Nakamoto Group,
Inc., to Assistant Director for Detention Management, about ``Annual
Detention Inspection of the Adelanto ICE Processing Center East,''
October 11, 2018, 2-3. https://www.ice.gov/doclib/facilityInspections/
adelantoEastCa_CL_10_11_2018.pdf
\8\ Hawkins, ``Outsourced Oversight'' [see note 1].
---------------------------------------------------------------------------
Earlier this month, POGO reported on a third investigation of
Adelanto, by the Office for Civil Rights and Civil Liberties, obtained
through an on-going Freedom of Information Act lawsuit.\9\ That
document was even more disturbing than the inspector general's report,
because it demonstrated that violations at Adelanto had gone
unaddressed for years.
---------------------------------------------------------------------------
\9\ Schwellenbach, ``Confidential Report Warned ICE of `Inhumane'
Use of Solitary Confinement'' [see note 1].
---------------------------------------------------------------------------
CRCL reported that in November 2017, it had conducted an
investigation into conditions at Adelanto as a follow-up to a prior
investigation in December 2015. CRCL wrote,
``In 2015, CRCL clearly informed Adelanto that clinical leadership was
not competent and that problematic medical care was occurring as a
result. In 2017--2 years since the 2015 on-site--the experts found no
evidence that corrections were made to address this issue. The failure
to hire an effective and qualified clinical leader contributed to the
inadequate detainee medical care that resulted in medical injuries,
including bone deformities and detainee deaths, and continues to pose a
risk to the safety of other detainees.''\10\
---------------------------------------------------------------------------
\10\ Memorandum from Veronica Venture and Dana Salvan-Dunn, Office
for Civil Rights and Civil Liberties, to Enforcement and Removal
Operation Executive Associate Director Matthew Albence, about Adelanto
Correctional Facility Complaints, April 25, 2018, 2. https://
www.pogo.org/document/2019/09/dhs-office-for-civil-rights-and-civil-
liberties-review-of-adelanto-sent-to-ice-in-april-2018/.
CRCL recommended that until new medical leadership could be put in
place, ``at-risk detainees should immediately be removed from the
facility and transferred to other facilities with well-functioning
medical programs.''\11\
---------------------------------------------------------------------------
\11\ Memorandum from Veronica Venture and Dana Salvan-Dunn about
Adelanto Correctional Facility Complaints, 2. [see note 10].
---------------------------------------------------------------------------
CRCL made equally stark findings with regard to mental health care
and the overuse of segregation, particularly for detainees with serious
mental illness. CRCL's mental health expert wrote that ``at the time of
our on-site, 26 of the 50 detainees in segregation had serious mental
disorders (such as Schizophrenia or other primary psychotic
disorders),'' and documented ``shockingly high'' lengths of stays in
segregation. These included one detainee who cumulatively spent over
904 days in solitary.\12\
---------------------------------------------------------------------------
\12\ On-Site Investigation Report--Adelanto Correctional Facility,
November 2017, 3, enclosed in Memorandum from Veronica Venture and Dana
Salvan-Dunn about Adelanto Correctional Facility Complaints [see note
10].
---------------------------------------------------------------------------
ICE did not respond to our request for comment on the CRCL report.
An ICE spokesperson told another reporter that ICE ``disagreed with
much of'' CRCL's review, citing Nakamoto's October 2018 inspection.\13\
Moreover, we cannot find evidence that any of the problems with medical
and mental health care at Adelanto have been corrected.
---------------------------------------------------------------------------
\13\ Schwellenbach, ``Confidential Report Warned ICE of `Inhumane'
Use of Solitary Confinement'' [see note 1].
---------------------------------------------------------------------------
Excessive Use of Solitary Confinement
Adelanto is not the only immigration detention facility that has
used solitary confinement as a substitute for adequate treatment of
detainees suffering from severe mental illness. In August, POGO
published a report that examined records of over 6,500 solitary
confinement placements across the ICE detention system, from January
2016 to May 2018. We found that ``about 40 percent of the records show
detainees placed in solitary have mental illness. At some detention
centers, the percentage is much higher.''\14\
---------------------------------------------------------------------------
\14\ Schwellenbach et al., ``Isolated: ICE Confines Some Detainees
with Mental Illness in Solitary for Months'' [see note 1].
---------------------------------------------------------------------------
Placing detainees with severe mental illness in segregation instead
of providing adequate treatment can have fatal consequences, as
illustrated by 2 recent suicides at the Stewart Detention Center in
Lumpkin, Georgia. As POGO reported in August:
``Jean Jimenez-Joseph was taken into ICE custody around the beginning
of March 2017. In the months before, he had been involuntarily
hospitalized multiple times for schizophrenia and psychosis, and made
repeated threats of and attempts at suicide. Jimenez-Joseph's family
has alleged in a lawsuit that contrary to agency policies, when ICE
officers took custody of him, initially at a county jail, they did not
transfer over his `prior detention records, medical records, and his
vitally necessary prescription medication for schizophrenia and
psychosis.'
``He was transported to ICE's Stewart Detention Center. There,
according to the lawsuit, Jimenez-Joseph eventually did receive an
antipsychotic medication but he repeatedly requested that the dosage be
increased because `the voices in his head were getting worse.'
``But due to `systemic, chronic understaffing' at Stewart, the lawsuit
states, particularly for medical and mental health positions, this
never occurred. Instead, he was placed in solitary confinement multiple
times as his psychiatric symptoms worsened, including for the 20 days
before he died. Jimenez-Joseph hanged himself shortly after midnight on
May 15, 2017. According to the lawsuit, on the eve of his death, there
were ample warnings that his psychological state was dire. The lawsuit
states, `Jean had written ``Hallelujah The Grave Cometh'' in large,
dark letters on the wall' of his solitary confinement cell.
``Efrain De La Rosa, another detainee with a history of severe
schizophrenia and psychosis, hanged himself in solitary confinement at
Stewart in July 2018. An employee of ICE's Health Service Corps wrote
in an email to agency leadership later that year that De La Rosa `could
have been saved' if ICE had responded adequately to `a total of 12 SEN
[Significant Event Notifications] reports prior to his death, depicting
suicidal ideation and psychosis.' ''\15\
---------------------------------------------------------------------------
\15\ Schwellenbach et al., ``Isolated: ICE Confines Some Detainees
with Mental Illness in Solitary for Months'' [see note 1].
The official ICE review of Jimenez-Joseph's death corroborates his
attorney's allegations.\16\ De La Rosa's death review still has not
been made public.
---------------------------------------------------------------------------
\16\ Erin Donaghue, ``ICE review found failures in care of mentally
ill detainee who died by suicide,'' CBS News, August 22, 2019. https://
www.cbsnews.com/news/jean-carlos-jimenez-joseph-ice-review-documented-
failures-in-care-of-mentally-ill-detainee-who-died-by-suicide/.
---------------------------------------------------------------------------
Nakamoto Group inspectors found that Stewart was in compliance with
39 of 39 applicable detention standards in both 2017 and 2018.\17\
---------------------------------------------------------------------------
\17\ Memorandum from Lead Compliance Inspector of The Nakamoto
Group, Inc., to Assistant Director for Detention Management about
``Annual Detention Inspection of the Stewart Detention Center,'' May 3,
2018, 2. https://www.ice.gov/doclib/facilityInspections/
stewartDetCtrGA_CL_05_03_2018.pdf.
---------------------------------------------------------------------------
Inadequate Medical Care at Aurora
In May, POGO published an investigation of inadequate medical care
at the Aurora Contract Detention Center in Colorado, which a Government
source alleged had contributed to the death of Kamyar Samimi in
December 2017.\18\ Soon after we published our report, ICE released its
internal review of Samimi's death, which confirmed our source's
account.\19\
---------------------------------------------------------------------------
\18\ Hawkins, ``Medical Neglect at a Denver Immigration Jail'' [see
note 1].
\19\ ICE Office of Professional Responsibility, Detainee Death
Review--Kamyar Samimi, May 22, 2018. https://www.documentcloud.org/
documents/6019213-Samimi-Death-Review.html.
---------------------------------------------------------------------------
Samimi, an Iranian citizen who received a U.S. green card in 1979,
was arrested by ICE in November 2017 based on a 12-year-old drug
possession conviction.\20\ He had been prescribed methadone treatment
for opioid addiction for years. In ICE custody, he was abruptly cut off
from the drug, and began experiencing increasingly severe withdrawal
symptoms. According to the internal review of Samimi's death, medical
staff at Aurora never physically examined Samimi, nor did they evaluate
his symptoms using a standard medical assessment for opioid withdrawal.
They also dismissed his increasing and eventually fatal physical and
mental deterioration--including ``tremors, pain and weakness, nausea
and vomiting, refusing meals, inability to sit up in bed or in a
wheelchair, incontinence and signs of dehydration''--as ``malingering
and seeking drugs.''\21\ Multiple detention officers told investigators
they did not believe Samimi was faking his symptoms, and that ``all
officers were troubled by what they perceived was a lack of care and
concern for Samimi.''\22\
---------------------------------------------------------------------------
\20\ ICE Office of Professional Responsibility, Detainee Death
Review--Kamyar Samimi, 1-2 [7-8 in PDF] [see note 19].
\21\ Memorandum from Office of Professional Responsibility
Assistant Director Jennifer Fenton to Enforcement and Removal
Operations Executive Associate Director Matthew Albence, about
``Findings--Death of ICE Detainee Kamyar Samimi, May 22, 2018. https://
www.documentcloud.org/documents/6019213-Samimi-Death-Review.html
\22\ Creative Corrections, Detainee Death Review: Kamyar Samimi
Healthcare and Security Compliance Review, March 6, 2018, 58-9 [103-4
in PDF]. https://www.documentcloud.org/documents/6019213-Samimi-Death-
Review.html.
---------------------------------------------------------------------------
We found numerous other credible reports of inadequate medical care
at Aurora, including one case in which a detainee's untreated bedsores
became so severely infected that his leg had to be amputated.\23\
---------------------------------------------------------------------------
\23\ Hawkins, ``Medical Neglect at a Denver Immigration Jail'' [see
note 1].
---------------------------------------------------------------------------
Nakamoto Group inspectors found that Aurora was in compliance with
41 of 41 applicable detention standards in both 2017 and 2018.\24\
---------------------------------------------------------------------------
\24\ Memorandum from Lead Compliance Inspector, The Nakamoto Group,
Inc., to Assistant Director for Detention Management about ``Annual
Inspection of the Aurora Ice Processing Center,'' October 4, 2018, 2.
https://www.ice.gov/doclib/facilityInspections/denverCdfCo_-
CL_10_04_2018.pdf.
---------------------------------------------------------------------------
recommendations
In closing, POGO offers a non-exhaustive set of recommendations for
improved oversight of ICE detention facilities.
1. As previously recommended by the inspector general's office, DHS
should revise its methodology for annual inspections to ensure
that the inspection procedures are adequate to evaluate actual
conditions at facilities.\25\ DHS should consider whether to
replace its annual contract inspections with increased
resources for in-house inspections by the Office of Detention
Oversight. Finally, DHS should impose financial penalties for
violations of detention standards regardless of whether they
are uncovered by CRCL experts, spot checks by the inspector
general, detainee death reviews, or annual inspections.
---------------------------------------------------------------------------
\25\ Department of Homeland Security Office of Inspector General,
ICE's Inspections and Monitoring of Detention Facilities Do Not Lead to
Sustained Compliance or Systemic Improvements, 15 [see note 4].
---------------------------------------------------------------------------
2. Given ICE's pattern of providing inadequate mental health and
medical care to individuals in custody, Congress should
reinstitute and codify the Department of Homeland Security's
previous policy limiting detention of individuals: ``who are
known to be suffering from serious physical or mental illness,
who are disabled, elderly, pregnant, or nursing, who
demonstrate that they are primary caretakers of children or an
infirm person, or whose detention is otherwise not in the
public interest.''\26\
---------------------------------------------------------------------------
\26\ Memorandum from Secretary of Homeland Security Jeh Charles
Johnson to Acting Director of Immigration and Customs Enforcement
Thomas S. Winkowski et al., about ``Policies for the Apprehension,
Detention and Removal of Undocumented Immigrants,'' November 20, 2014,
5. https://www.dhs.gov/sites/default/files/publications/
14_1120_memo_prosecutorial_dis- cretion.pdf.
---------------------------------------------------------------------------
3. Congress should place binding restrictions on DHS's ability to
transfer funds in order to expand ICE detention capacity. ICE
has increased the number of people it detains by over 50
percent in the last 2\1/2\ years. It is detaining over 10,000
more people than its appropriated budget allows,\27\ an
expansion that has clearly outstripped the agency's capacity to
provide adequate oversight of detention conditions.
---------------------------------------------------------------------------
\27\ Letter from Senator Chris Van Hollen et al. to Senator Mitch
McConnell et al. about diversion of DHS funds, September 13, 2019.
https://www.vanhollen.senate.gov/imo/media/doc/Van_Hollen_CR_and_ICE-
CPB_Transfers%20_Letter_to_Leadership.pdf.
---------------------------------------------------------------------------
4. Congress should strengthen the authority of the Department of
Homeland Security's Office for Civil Rights and Civil Liberties
to maximize its effectiveness and transparency. POGO would be
happy to provide more detailed recommendations for increasing
CRCL's effectiveness to Members of Congress and their staffs
upon request.
5. Congress should ensure that the DHS Office of Inspector General
has sufficient resources to continue its unannounced
inspections of ICE and Customs and Border Protection detention
facilities.
6. Members of Congress and their staffs should visit detention
facilities, and these visits should include interviews with
detainees.
7. Congress should pass legislation ensuring that Members cannot be
denied access to immigration detention facilities.
8. Congress should request, by subpoena if necessary, and publicly
release copies of
Reports from on-site investigations by the Office for
Civil Rights and Civil Liberties, including recommendations
by the office's subject-matter experts; and
Detainee death reviews by the ICE Office of Professional
Responsibility and the ICE Health Service Corps.
9. Congress should require ICE to conduct investigations and
publicly release death reviews for individuals who are released
from immigration custody during or shortly before their final
hospitalization. Congress should seek information about
previous cases of detainees who died soon after their release
from ICE custody, including Teka Gulema, Mariee Juarez, Jose
Luis Ibarra Bucio, and Johana Medina Leon.\28\
---------------------------------------------------------------------------
\28\ Tina Vasquez, ``Report: In-Custody Deaths of Immigrants Were
`Preventable,' '' Rewire News, March 2, 2016. https://rewire.news/
article/2016/03/02/report-custody-deaths-immigrants-preventable/; Joel
Rose, ``A Toddler's Death Adds To Concerns About Migrant Detention,''
NPR, August 28, 2018. https://www.npr.org/2018/08/28/642738732/a-
toddlers-death-adds-to-concerns-about-migrant-detention; Amy Taxin,
``Family seeks answers in immigrant's death after detention,''
Associated Press, April 10, 2019. https://www.apnews.com/
8775303f79ee4d44a5959c34a8f3d99d; Sam Levin, ``Trans woman who died
after illness in US custody had asked to be deported, family says,''
The Guardian, June 12, 2019. https://www.theguardian.com/us-news/2019/
jun/12/trans-woman-death-us-custody-ice-deportation.
---------------------------------------------------------------------------
10. Congress should pass legislation to ensure that the private
corporations that participate in the ICE detention system are
subject to Freedom of Information Act requests.
Thank you again for the opportunity to testify. I am happy to take
your questions.
Ms. Torres Small. I thank all the witnesses for their
testimony.
I will remind each Member that he or she will have 5
minutes to question the panel, and I now recognize myself for
questions.
Ms. Nakamoto, thank you for being here today, and I
recognize your concern about the contracts, but your ICE
contract does not prohibit you from testifying at this
Congressional hearing, correct?
Ms. Nakamoto. Correct. It is just--but this is public.
Ms. Torres Small. Thank you.
As I noted in my opening statement, you are responsible
for--Nakamoto inspectors are responsible for reviewing 42
standards that include over 600 elements in just a few days.
The OIG is not the only or even the first entity to raise
concerns about that process. In fact, more than 3 years ago,
the Homeland Security Advisory Council recommended that ICE
move away from a broad checklist for inspections.
Ms. Nakamoto, does ICE's current statement of work allow
your company to conduct thorough inspections?
Ms. Nakamoto. They do. All of my staff have to not only go
through the checklist, but they have to know the standards.
They have to know the actual information within the standards,
within the components within those standards.
Ms. Torres Small. The 600 elements in 3 days, you have
enough time to get that done?
Ms. Nakamoto. Yes.
Ms. Torres Small. You have enough inspectors?
Ms. Nakamoto. Yes.
Ms. Torres Small. OK. You don't need a narrower scope to
make sure you are verifying all of those items?
Ms. Nakamoto. No. The 3 days on-site are to perform
interviews with detainees, staff, and to see the facility
itself. The rest of our report writing, we are pulling all of
it together, happens after we leave.
Ms. Torres Small. How then do you explain the reports in
the OIG report that, for example, a phone wasn't working and
they just neglected to check and see if there was a phone--if
the phone directed them to or gave them the ability to make a
complaint?
Ms. Nakamoto. I don't--I don't know all of--I don't have
the OIG report memorized, but I know that my staff checked into
it.
Ms. Torres Small. What about A-file documentation being
reported as complete without actually checking the A-file?
Ms. Nakamoto. My staff check the files according to the
standards.
Ms. Torres Small. You are disputing the OIG report on that?
Ms. Nakamoto. I am not disputing it. I am telling you that
my staff know what they have to look at within the standards.
Ms. Torres Small. What about CDL licenses being reported as
existing without confirming the documentation?
Ms. Nakamoto. I don't agree with that. My staff always
check for the--the credentials that are required within the
standards are always checked by the staff.
Ms. Torres Small. The OIG was incorrect in making that
observation?
Ms. Nakamoto. I believe--I guess, if they said that we
didn't, then----
Ms. Torres Small. What about only in interviewing detainees
who speak English or using a guard to interpret in Spanish,
someone who is in charge of guarding the facility?
Ms. Nakamoto. I think there is different ways to find out
information of what is going on at the facility, and some of
the interview process is informal, some of it is formalized. We
have, in fact, since the OIG report came out, we have since
formalized the interview process as they suggested.
Ms. Torres Small. Have you formalized the process for
making sure that you have enough Spanish-speaking inspectors?
Ms. Nakamoto. Yes. We have a language line that we are also
able to use at any facility.
Ms. Torres Small. In terms of Spanish-speaking inspectors
and certifying that they do actually speak Spanish, do you have
a system for that?
Ms. Nakamoto. I don't understand what you are asking me.
Ms. Torres Small. OK. So you don't have a system for
establishing if someone--if an inspector actually does speak
Spanish, if they are claiming to?
Ms. Nakamoto. We have about a quarter of our staff that
speaks Spanish.
Ms. Torres Small. It says they speak Spanish. How do you
confirm it?
Ms. Nakamoto. They ask the detainees questions in Spanish.
Ms. Torres Small. But you don't--do you speak Spanish?
Ms. Nakamoto. I do not.
Ms. Torres Small. Can you then determine that they are
using correct language?
OK. Just quickly to move on, ICE has concurred with OIG's
recommendations for finding--redefining the scope of work. Why
hasn't Nakamoto?
Ms. Nakamoto. Why hasn't Nakamoto----
Ms. Torres Small. Concurred with those--the recommendation
to revise the statement of work.
Ms. Nakamoto. To revise the statement of work?
Ms. Torres Small. So that you have more time or are more
targeted in your--in evaluating those elements?
Ms. Nakamoto. I mean, we have been doing this for a long
time. We do this for other agencies. The same amount of time is
on-site. It is--there is--I don't--we have never said that we
needed more time.
Ms. Torres Small. Thank you.
I will recognize my colleague, Mr. Crenshaw from Texas, for
5 minutes.
Mr. Crenshaw. Thank you, Chairwoman.
I am going to follow up with that exact line of questioning
about the more time issue, because it seems from our
perspective that Nakamoto inspectors said to, I believe, the
inspector general that there is more time required. Is that not
what you have heard?
Ms. Nakamoto. That there is more time?
Mr. Crenshaw. More time per inspection. More time for
inspection in order to meet the criteria for all of those
bullet points that you have to hit.
Ms. Nakamoto. I mean, we have--my staff have not complained
about the amount of time that they have. They have to--they
have the 3 days on-site and that is how long it is.
Mr. Crenshaw. They haven't complained to you specifically
about it? Because it is--from other reports they have said
that. So it is at least something to think about or at least
get feedback from your own staff on, I believe, because there
does seem to be quite a few requirements that perhaps there is
not enough time to look into.
If that is the case, then restructuring the requirements is
certainly in line. Four days instead of 3 days is not exactly a
huge stretch of the imagination. It is something we could
easily do.
But aside from the time difference, do your employees, do
your inspectors come to you with any other issues regarding the
inspection process? Is it not clear enough? OK, we have already
established you think they have enough time, but what else?
Ms. Nakamoto. We work very closely with ICE. My team works
very closely with ICE. If there is any issues that come up,
then we have a good relationship with letting ICE know what the
issues are.
Mr. Crenshaw. What about the OIG report? Just generally
speaking, do you think that report is valid? You don't have to
go into specifics, because, like you say, you don't have it in
front of you, but generally speaking, what issues do you agree
with or disagree with in that report?
Ms. Nakamoto. I think that what they see at the time that
they are there or what they looked at could be different from
what we are looking at. We are looking at things from a
different perspective because our team kind-of knows what to
look for when they go on-site, so they--based off of whatever
they are seeing, based off of their past experience, our team
has, you know, over 35 years' experience in detention
management, so they know kind-of what they are looking at when
they walk into a room.
Mr. Crenshaw. OK. Ms. Hawkins, I will go to you, because
you said some things that were very shocking. For instance, the
nooses. You said that you all found nooses which the Nakamoto
Group did not find.
You want to expand on that? Are you implying--how many
nooses are we talking about? What is the implication there?
Ms. Hawkins. Sure. So just as a point of clarification,
that was--I was conveying the OIG report's findings.
Mr. Crenshaw. OK. Do you know how many nooses we are
talking about, what the implication of that is?
Ms. Hawkins. I think it was 15 or 20. I do think that----
Mr. Crenshaw. OK. You proceeded to connect that to suicide.
So the implication is that there is like--that there is almost
a factory line of nooses being created for suicides. Probably
not the case, right?
Ms. Hawkins. Yes.
Mr. Crenshaw. But that was the implication in your
statement.
Ms. Hawkins. So my statement was brief, but if you look at
the report my organization did on this dispute----
Mr. Crenshaw. Would it be maybe logical to think that the
sheets were being braided for the reasons that Nakamoto Group
claimed they were, which was privacy within the cells? Is that
possible?
Ms. Hawkins. Yes. I think----
Mr. Crenshaw. Would it be important to maybe clarify that
when we say something like there is a bunch of nooses found in
a facility?
Ms. Hawkins. Yes.
Mr. Crenshaw. I mean, it is a pretty important
clarification, right?
Ms. Hawkins. Yes, if I could respond, please.
My organization said that and the inspector general said
that they were primarily used for privacy. But----
Mr. Crenshaw. Just an important clarification, because this
stuff gets really out of hand.
You also mentioned some suicides in other facilities, which
are absolutely terrible. Were you connecting the--were there
deficiencies that were noted later which were not caught by the
inspectors that were directly connected to those incidents?
Ms. Hawkins. Yes.
Mr. Crenshaw. Like what?
Ms. Hawkins. I think chronic understaffing of medical care
and mental health care.
Mr. Crenshaw. According to ICE standards or according to
your standards?
Ms. Hawkins. According to ICE standards.
Mr. Crenshaw. OK. So do you have any more detail on exactly
what we are talking about here?
Ms. Hawkins. I would refer you to the detainee death review
for the Jimenez-Joseph case, which became public recently. I
don't know if the detainee death review for the other detainee
who committed suicide at Stewart is publicly available. I would
definitely encourage the committee to request a copy of that to
get details on that.
Mr. Crenshaw. OK. Thank you.
Ms. Torres Small. Thank you.
The Chair recognizes for 5 minutes the gentlewoman from New
Jersey, Mrs. Watson Coleman.
Mrs. Watson Coleman. Thank you, Chair.
Thank you very much for being here. Thank you for your
testimony.
Ms. Nakamoto, how many employees do you have that are
inspectors?
Ms. Nakamoto. I have about 45 part-time employees.
Mrs. Watson Coleman. Could you put your microphone on,
please?
Ms. Nakamoto. I am sorry. Sorry. Sorry.
We have 45 part-time employees and 12 full-time employees.
Mrs. Watson Coleman. How many facilities do you have a
contractual relationship with ICE to do whatever it is that I
am going to ask you that you do? How many facilities?
Ms. Nakamoto. So our contract is with ICE.
Mrs. Watson Coleman. For how many facilities?
Ms. Nakamoto. As many as they ask us to inspect.
Mrs. Watson Coleman. Do you have any limit in your contract
that says you were being contracted to do 50 of the 200
facilities or whatever?
Ms. Nakamoto. The way they do it is in intervals and we
inspect at least about 120 a year.
Mrs. Watson Coleman. Of facilities?
Ms. Nakamoto. Facilities.
Mrs. Watson Coleman. With 45 part-time inspectors and 12
full-time?
Ms. Nakamoto. Uh-huh.
Mrs. Watson Coleman. What are the credentials of these
inspectors and the experience that they are supposed to have?
Ms. Nakamoto. They have to have--there is a--within our
Statement of Work it declares what the credentials have to be.
Mrs. Watson Coleman. What I am asking you, what do they
have to be?
Ms. Nakamoto. They have to have 10 years' experience in a
correctional setting. They have to be wardens. We have wardens.
We have superintendents of corrections. We have----
Mrs. Watson Coleman. Do they actually do the inspections or
do they oversee other inspections that are done?
Ms. Nakamoto. No, they actually do the inspections.
Mrs. Watson Coleman. So what is this 3-day limitation? Is
this something that the contract calls for? Is this something
that you all decided was the best practice? Is this----
Ms. Nakamoto. It is within the contract. We have a similar
contract with the Department of Justice and it is the same
thing.
Mrs. Watson Coleman. When does your contract run out with
ICE?
Ms. Nakamoto. It just--I believe March 2020.
Mrs. Watson Coleman. March.
What is the value of your contract?
Ms. Nakamoto. I don't have that in front of me.
Mrs. Watson Coleman. What do you estimate it to be about?
Who do you have with you on staff?
Ms. Nakamoto. I am sorry?
Mrs. Watson Coleman. Who is with you from your staff?
Ms. Nakamoto. My vice president and my chief financial
officer.
Mrs. Watson Coleman. Can your chief financial officer be
able to whisper in your ear what the value of your contract is?
Ms. Nakamoto. Three million dollars.
Mrs. Watson Coleman. That is a lot of money. OK.
Ms. Hawkins, some of the--first of all, you are only
testifying about the OIG report, nothing that you or your
organization have seen for yourself, right?
Ms. Hawkins. One of my colleagues has gone to Adelanto, but
my reporting relies mainly on Government documents and a whole
lot of phone interviews.
Mrs. Watson Coleman. OK. So in the facilities that you
mentioned there was inadequate mental health services,
inadequate other health care services, inadequate food, and
inadequate something else, I don't remember, just something
else. Are any of those the facilities that the Nakamoto Group
has a contract to inspect?
Ms. Hawkins. Yes. They are some of ICE's largest
facilities, so I think they are inspected on an annual basis.
Mrs. Watson Coleman. OK.
Ms. Nakamoto, in 2009 ICE detention facilities, they
frequently failed inspections, and beginning in 2009
appropriations law precluded DHS from continuing contracts for
facilities if the 2 most recent overall performance ratings,
evaluations received are less than adequate.
In the last 5 years, are you aware of any of the over 72-
hour facilities that has received an overall final rating of
less than 2, adequate? Less than adequate? Did your
inspections----
Ms. Nakamoto. Are you asking me if we have any----
Mrs. Watson Coleman. I am asking you if you have knowledge
of any of these facilities--of any facilities that you all are
responsible for inspecting that has received an overall final
rating of less than adequate.
Ms. Nakamoto. Yes.
Mrs. Watson Coleman. How many?
Ms. Nakamoto. Six this year alone.
Mrs. Watson Coleman. What did do you with those findings?
Ms. Nakamoto. We put them in the report and submit it to
ICE.
Mrs. Watson Coleman. What has happened in those facilities?
Ms. Nakamoto. Well, one that I know off of the top of my
head had a follow-on that we went back after they established a
corrective action plan and our team goes back in after so many
days and we have to go in and inspect it again.
Mrs. Watson Coleman. Let me ask you a question real quick.
Do you know----
Ms. Torres Small. I apologize.
Mrs. Watson Coleman. I have 16 seconds--19 seconds----
Ms. Torres Small. Actually you are 20 over.
Mrs. Watson Coleman. Oh, over. Oh.
Ms. Torres Small. I am sorry. Thank you so much, Mrs.
Watson Coleman.
Mrs. Watson Coleman. Thank you. I yield back.
Ms. Torres Small. The Chair recognizes for 5 minutes the
gentlewoman from Nevada, Ms. Titus.
Ms. Titus. Thank you. I will yield some time to Mrs. Watson
Coleman so she can finish her question.
Mrs. Watson Coleman. Thank you to my colleague.
I just wanted to know any of these facilities were
facilities that had 2 ratings, 2 sequential ratings of less
than adequate. If so, are they not supposed to lose their
ability to serve in this capacity and, to your knowledge, have
any of them? That is my question. Thank you.
Ms. Nakamoto. I don't know. I could get that information
and submit it for the record.
Mrs. Watson Coleman. Thank you.
Ms. Nakamoto. I don't have that information in front of me.
Mrs. Watson Coleman. Thank you.
Thank you.
Ms. Titus. Reclaiming my time. Thank you.
Ms. Hawkins, last month your organization POGO released a
report on the increased use of solitary confinement or
segregation, it is called by ICE. According to the report, the
Henderson Detention Center, which is in southern Nevada, was
among the top 15. They used segregation 121 unique times, 121
unique placements, and 16 of those placements lasted more than
75 days.
I wonder if you could explain what ICE detention standards
dictate regarding the use of segregation and if you are aware
of any waivers that were granted by ICE for compliance with the
standards?
Ms. Hawkins. Thank you for your question. I can probably
speak more generally to ICE's waiver process and segregation
standards than specifically in regard to the Hendersonville
facility.
Ms. Titus. OK.
Ms. Hawkins. In general, in 2013 ICE directed that
facilities reform their practice on segregation, improve
reporting on when vulnerable detainees are placed in
segregation or anyone is placed for a long period, and try to
use it only as a last resort.
They also recommended that facilities try to--when a
detainee is held in administrative segregation, protective
custody, or for health reasons or other reasons that are not
punishment for a disciplinary infraction, that they should
receive the same privileges that detainees in the general
population receive, which would mean they don't spend 23 hours
locked in their cell.
We have found, speaking to former ICE officials and
inspectors and others, that that exception has--that has not
been implemented. Most facilities say that it is just not
practical for them to give people privileges in administrative
segregation. You know, most ICE facilities are jails, and
county jails, you know, they just continue to have segregation,
meaning solitary. So that provision isn't being adequately
implemented.
Ms. Titus. So is that when they grant a waiver? Are there
any standards for granting waivers?
Ms. Hawkins. I don't know if--I think I would need to
examine the more detailed inspections on the use of solitary. I
don't know if there in--I know that on DHS's website there is
now a list of waivers, and I don't know if it is one of those
or if it is just a general practice where it is found to be
technically compliant with the standard, because the detention
standards do tend to have some flexibility in their language.
Ms. Titus. Is there something, Ms. Nakamoto, that you check
when your inspectors go out to look into the use of solitary
confinement?
Ms. Nakamoto. We do. There are standards--within ICE
standards, there are standards that are for segregation. Our
staff go through and ensure that the standards are within
compliance at the facilities.
Ms. Titus. Do you find those numbers kind-of high, 121
placements and 16 of them lasted more than 75 days over just a
year and a half?
Ms. Nakamoto. Well, segregation and solitary confinement
are not the same.
Ms. Titus. OK. Well, how about explaining to me what the
difference is?
Ms. Nakamoto. Well, segregation is--there is different
variances of segregation. It could be for disciplinary, it
could be for administrative. There is different types. Then
within those types, there is different components within the
standards.
Ms. Titus. It doesn't seem to me you know very much about
this business.
My time is up.
Ms. Torres Small. We will do another round. I would
appreciate it if folks would stay if they have other questions.
I want to follow up on announced versus unannounced visits.
Ms. Nakamoto, when you conduct an inspection for ICE, how
much notice does a facility get?
Ms. Nakamoto. I believe--60 days? Thirty days.
Ms. Torres Small. Ms. Hawkins, when conducting an
inspection of a detention facility, is it better to announce
the visit ahead of time or to conduct the inspection
unannounced?
Ms. Hawkins. Other things being equal, it is better to
conduct an unannounced inspection. There is, as you mentioned
in your opening statement, there is a tendency to clean things
up before the inspectors arrive.
One caveat to that. I know that the Office of Inspector
General conducts unannounced inspections that have been very
valuable in bringing poor conditions to light.
The Office of Civil Rights and Civil Liberties does tend to
announce their inspections further in advance, but they do so
in part because they bring independent experts along. So part
of why they announce the inspection is to request that medical
files be pulled for the medical inspector to interview, to make
sure that they are able to speak with the clinical staff. They
are doing a really in-depth look. They do many fewer
inspections than Nakamoto Group does.
So there can be a place for inspections announced in
advance, but if it is going to be a quick check to, you know,
check the food, check the cleanliness of the cells, things of
that nature, it is much better to be unannounced.
Ms. Torres Small. Thank you, Ms. Hawkins.
Committee staff recently visited a few ICE detention
facilities in Mississippi and Louisiana. Staff heard from
detainees that prior to their arrival, walls were painted, new
curtains were put up, and even flower beds were placed outside.
Do you think it is wise to give facilities advanced notice
when conducting these inspections, Ms. Nakamoto?
Ms. Nakamoto. Well, currently we have another contract with
the U.S. Marshals Service where we don't announce.
Ms. Torres Small. Do you think that is better?
Ms. Nakamoto. We just do what the--that contract does
unannounced visits, and these are unannounced inspections, and
this contract does announced inspections. It is ICE's--we kind-
of do what it says in our contract. So they announce. That is
there----
Ms. Torres Small. Given your experience inspecting
facilities, do you find that you more regularly determine the
true conditions of a facility if you are unannounced?
Ms. Nakamoto. I think so.
Ms. Torres Small. Thank you.
I will yield the rest of my time and recognize the
gentleman from Texas for 5 minutes, Mr. Crenshaw.
Mr. Crenshaw. Thank you, Madam Chairwoman.
Ms. Nakamoto, have you ever recommended that a facility no
longer be utilized by ICE or made specific recommendations
about what must be improved at a facility? Just trying to get a
sense of the process there.
Ms. Nakamoto. OK. So what we do is we provide a
recommendation based on whether or not the facility met the
standards, the components within the standards met the
standards.
To answer Ms. Titus' question, I believe, none of the
failed 2 consecutive inspections, we have never had that, but
we have had where all of the detainees were removed after a
failed inspection. So we recommend on every--all of our
reports--what the final recommendation is based on however many
components they met or did not meet.
Mr. Crenshaw. OK. What were some of the more serious
examples that you would cite? It is good for everybody to
understand the----
Ms. Nakamoto. Like life safety issues, medical issues,
their food safety, food. Those are the major things. If there
is a life safety issue, then it would----
Mr. Crenshaw. What would be an example of a life safety
issue?
Ms. Nakamoto. Well, I don't know the standards by heart,
but if there is--there are certain rules within the life safety
issue that--or the life safety standards that--like, for
example, fire drills. They are supposed to do fire drills a
certain way, a certain time, a certain amount of times
throughout the year.
Mr. Crenshaw. OK.
Ms. Nakamoto. So, I mean, that is just like an example of
one of the things that they have----
Mr. Crenshaw. OK.
Mr. Nakamoto [continuing]. Their safety inspector has to go
through.
Mr. Crenshaw. The reason I asked, for example, is because
it is important to realize when you say the words life safety,
that can mean something very extreme. When you say fire drills,
it is a little less extreme. So I am just really trying to--
that is what I am trying to get at, some examples here.
Ms. Nakamoto. OK.
Mr. Crenshaw. If you don't have any, we don't have any.
Going back to the scope, I mean, one of the main problems,
it seems, and one of the reasons there was a report in the
first place is because the Office of Detention and Oversight
finds additional deficiencies in the same facilities that the
Nakamoto Group did not. You have a much broader scope than they
do.
Can you speak to that? Is that the right way to do things?
Should the scopes be similar? Is it better that they are
different in order to--because there is overlap? What is your
general take on the scope of inspection for Nakamoto Group as
per the contract?
Ms. Nakamoto. Well, comparing our inspection compared to
their inspection, it is my understanding that their inspection
is more targeted based off of something that we--if our report
says that it doesn't--they don't meet the standards within this
many standards or whatever, then they send their team in. But
there the difference is is that they are sending in more people
to inspect for less standards and less components because it is
a more targeted inspection of----
Mr. Crenshaw. I see. Does that make your job more difficult
when you have a much broader scope?
Ms. Nakamoto. I don't think it makes our job difficult. We
have access to those reports. If there has been an ODO
inspection at the facility we are going to, we get their report
so we can see whatever findings they found to make sure that
they have----
Mr. Crenshaw. Yes. I guess the question is about
thoroughness, you know. If your scope is so much more broad
than ODO's, is there a lack of depth within the inspection that
is subsequent to that scope?
Ms. Nakamoto. I think the scope, for our scope of work, it
talks to the whole amount of standards, all of the ICE
detention standards. They created all of these standards, and
they all must be reviewed annually. The targeted inspections
are just that, targeted, so they are only looking at a
certain----
Mr. Crenshaw. I see. You are saying that you are comparing
apples and oranges----
Ms. Nakamoto. Yes.
Mr. Crenshaw [continuing]. To an extent?
OK. Thank you.
Thank you, Madam Chair. I yield the rest of my time.
Ms. Torres Small. Thank you.
The Chair now recognizes for 5 minutes the gentlewoman from
New Jersey, Mrs. Watson Coleman.
Mrs. Watson Coleman. Thank you.
Ms. Nakamoto, your inspections are annual, which means that
these facilities know that you are coming just once a year,
right, and you are there for 3 days?
Ms. Nakamoto. Yes.
Mrs. Watson Coleman. Do you go like clockwork? Is it a year
from the time you went before? They can sort-of anticipate when
you are coming even if you don't call them and tell them?
Ms. Nakamoto. We receive our schedule from ICE.
Mrs. Watson Coleman. Oh, OK.
Tell me--can you tell me really quickly, can you list the
other Federal agencies you have a similar contract with, some
of which you do inspections without notifying people in
advance? What other agencies do you have contracts with?
Ms. Nakamoto. U.S. Marshals Service.
Mrs. Watson Coleman. And? That is it?
Ms. Nakamoto. Yes.
Mrs. Watson Coleman. That is the only other one?
Ms. Nakamoto. Yes.
Mrs. Watson Coleman. OK.
In a December 2018 letter to Members of the Senate, you
quite aggressively disputed some of OIG's reporting. In fact,
the letter pulls quotes from your inspection of the Adelanto
facility directly in response to some of the OIG findings. For
example, you allege that the OIG's findings in the Adelanto
facility regarding hanging nooses, or whatever you want to call
them, and inadequate dental care was inaccurate and an
embarrassment to their office and ICE.
Is it part of your contract with ICE to refute findings
that the OIG or other groups find in their inspections of
facilities? That is a yes or a no.
Ms. Nakamoto. No.
Mrs. Watson Coleman. You also said in your letter that: Our
reports can only include that which was verified while we were
on-site notwithstanding any changes that may have occurred
before or after the inspection.
If your inspectors were at Adelanto in October 2018, how
could you then dispute that which was observed by the OIG 5
months earlier?
For example, you claim the OIG was wrong in noting that a
detainee in a wheelchair had not left his wheelchair since his
recent arrival and had not accessed any of the hygiene products
in the bag given to him. But your inspectors were not present
for that inspection, so how could you possibly claim that the
OIG's findings were not true?
Ms. Nakamoto. Because my staff went back and looked at the
actual records.
Mrs. Watson Coleman. Did you see the man sitting in the
wheelchair, or had he been moved?
Ms. Nakamoto. They asked----
Mrs. Watson Coleman. Five months later, ma'am, 5 months
later.
Finally, your letter says that DHS ICE detention program
has dedicated significant resources--and they certainly have--
to ensure the proper care of ICE detainees in compliance with
the standards.
Do you think that it is appropriate for your company to
make that kind of statement that suggests ICE is doing
everything properly, even though I know that you are
particularly a beneficiary of their resources? Do you believe
that that is a reasonable position for you to take? It is kind-
of a yes or a no.
Can I take your silence as a yes or a no?
Ms. Hawkins, are you familiar with the Nakamoto letter?
Ms. Hawkins. Yes, I am.
Mrs. Watson Coleman. Did you all have a position on whether
or not it raised concerns about their objectivity?
Ms. Hawkins. It did strike me as strange to see a criticism
of a previous inspection in the Nakamoto inspection.
I looked into this a bit when I wrote an article on ICE
inspections which was published earlier this year, and one of
the criticisms that Nakamoto made of the OIG inspections were
that OIG didn't have people with experience in detention or
corrections. When I asked around, people said, well, that is
true, it is possible that OIG got certain details wrong or
misunderstood things.
But then--so that is why it was so striking to see the
reports from the Office of Civil Rights and Civil Liberties,
which were from before both the OIG report and the subsequent
Nakamoto report. If anything, they were more critical than the
OIG was.
Mrs. Watson Coleman. Thank you. I yield back.
Ms. Torres Small. Thank you both for your testimony.
I am now going to welcome our second panel of witnesses,
and thank you for joining us today.
Our first witness is Ms. Diana Shaw, assistant inspector
general for special reviews and evaluations at the DHS Office
of the Inspector General. Prior to serving in this role, Ms.
Shaw served--oh, OK. I am sorry. I apologize. We will wait
until you are seated.
All right. Thank you so much. I apologize for the early
jump start here.
I now welcome our second panel of witnesses, and thank you
for joining today.
Our first witness is Ms. Diana Shaw, assistant inspector
general for special reviews and evaluations at the DHS Office
of Inspector General. Prior to serving in this role, Ms. Shaw
served in several leadership positions within the OIG,
including AIG for legal affairs, acting counsel to the IG,
director of the special reviews group, and acting AIG for
external affairs.
Our second witness, Mr. Tae Johnson, is the assistant
director for custody and management, enforcement and removal
operations at ICE. Mr. Johnson began his career with former
Immigration and Naturalization Service in 1992. Since
transferring to ICE headquarters in 2007, he has served in a
number of leadership roles, including as chief of staff for the
Office of Detention Policy.
Without objection, the witnesses' full statements will be
inserted into the record. I now ask each witness to summarize
his or her statements for 5 minutes, beginning with Ms. Shaw.
STATEMENT OF DIANA R. SHAW, ASSISTANT INSPECTOR GENERAL,
SPECIAL REVIEWS AND EVALUATIONS, OFFICE OF THE INSPECTOR
GENERAL, U.S. DEPARTMENT OF HOMELAND SECURITY
Ms. Shaw. Chairwoman Torres Small, Ranking Member Crenshaw,
and Members of the subcommittee, thank you for inviting me to
discuss OIG's recent work regarding oversight of ICE detention
facilities.
ICE is responsible for overseeing the administrative
detention of tens of thousands of removable aliens. As of this
summer, ICE had approximately 54,000 beds occupied across
approximately 200 detention facilities Nation-wide. These
facilities are governed by standards that aim to establish
consistent conditions of confinement in the ICE detention
system.
In an effort to ensure compliance with these standards, ICE
has developed a multi-layered approach to detention oversight,
which includes a combination of on-site monitoring and
inspections performed by ICE personnel and contracted service
providers.
These oversight activities have resulted in the
identification and correction of numerous instances of
noncompliance with detention standards. However, the volume of
new and repeat deficiencies identified through the OIG's
independent inspections raises questions about the overall
effectiveness of ICE's multi-layered oversight approach.
Since fiscal year 2016, the OIG has been conducting
unannounced inspections of ICE detention facilities. These
unannounced inspections have identified a range of
deficiencies, including unreported security incidents,
dangerous mishandling of food, dilapidated physical conditions,
and unaddressed security risks.
For instance, the OIG staff found that staff at the Essex
County correctional facility in New Jersey had failed to report
to ICE a loaded handgun discovered by a detainee in a facility
bathroom. At the Adelanto Processing Center in California, a
facility at which at least 7 suicide attempts by hanging were
made in less than a year, OIG inspectors observed braided bed
sheets, referred to as nooses by center staff and detainees, in
15 of the 20 cells we visited.
Serious issues like these raise questions about the
effectiveness of ICE's multi-layered approach and prompted the
OIG to review the entities involved in providing oversight at
each layer.
At one layer is the Nakamoto Group, a private company with
which ICE contracts to annually inspect facilities holding ICE
detainees. At the time of our review, Nakamoto was inspecting
about 100 facilities per year to evaluate compliance with 39 to
42 detention standards.
ICE's Office of Detention Oversight, or ODO, provides
another layer of oversight. At the time of our review, ODO was
inspecting approximately 30 facilities per year to determine
compliance with 15 to 16 core standards.
Finally, ICE stations detention service managers, or DSMs,
on-site at select facilities to continuously monitor compliance
with standards.
The OIG's work has revealed shortcomings within each layer
of the system. For instance, the inspection scope outlined in
ICE's contract with Nakamoto is much too broad to ensure
thorough inspections. As a result, Nakamoto's inspections do
not always fully examine actual conditions at the facilities or
identify all compliance deficiencies.
In contrast, ODO inspections are narrower in scope and use
effective methods to thoroughly inspect facilities. However,
ODO's inspections are relatively infrequent, making it
difficult for ODO to ensure that facilities are addressing all
deficiencies.
Finally, while the DSMs providing on-site monitoring at
facilities frequently identify deficiencies and propose
corrective actions, they have no authority to compel
implementation of those actions. As a result, it falls to ICE
field offices, some of which may be resistant to working with
the DSMs, to implement necessary changes.
The challenges the OIG has identified at each layer of
ICE's oversight system render the overall approach less
effective than it otherwise could be. Meanwhile, ICE continues
to spend millions of dollars on detention oversight without
achieving comprehensive, consistent compliance.
ICE can and should be doing more. For instance, ICE does
not fully utilize tools available to it to drive compliance
among its contractors. Our recent review of ICE's management of
detention contracts found that ICE is failing to use quality
assurance tools and impose consequences for contract
noncompliance. Moreover, we found that instead of holding
facilities accountable through available financial penalties,
ICE frequently issued waivers to deficient facilities,
exempting them from having to comply with detention standards.
Until ICE fully implements appropriate corrective action,
ICE's multi-layered approach to oversight will not be as
effective as it needs to be.
Ms. Chairwoman, this concludes my testimony, and I am happy
to answer any questions you or the subcommittee may have.
[The prepared statement of Ms. Shaw follows:]
Prepared Statement of Diana R. Shaw
September 26, 2019
Chairwoman Torres Small, Ranking Member Crenshaw, and Members of
the subcommittee, thank you for inviting me here today to discuss
oversight of U.S. Immigration and Customs Enforcement (ICE) detention
facilities and the results of the Department of Homeland Security (DHS)
Office of Inspector General's (OIG) recent reviews of ICE programs and
efforts aimed at detention oversight. My testimony today will focus on
the OIG's recent evaluations and inspections of ICE detention
facilities and its oversight of those facilities, and our related
recommendations for improvement.
While ICE has developed a multi-layered approach to detention
oversight, the shortcomings and challenges the OIG's work has
identified render ICE's overall approach less effective than it
otherwise could be. Until ICE fully addresses the issues identified in
our work, it will continue to struggle to ensure comprehensive,
consistent compliance with detention standards.
background on oig reviews of ice detention facilities and detention
facility oversight
ICE Enforcement and Removal Operations (ERO) apprehends removable
aliens, detains these individuals when necessary, and removes them from
the United States. ICE detainees are held in civil, not criminal,
custody. ICE detention is administrative in nature, aimed to process
and prepare detainees for removal. At the end of fiscal year 2017, ICE
held nearly 38,000 detainees in custody. As of the summer of 2019, ICE
had approximately 54,000 beds occupied Nation-wide.
During our reviews, these beds were spread across more than 200
facilities, only 5 of which ICE owns. ICE contracts for use of the
other 200 facilities through contracts with private entities, inter-
governmental service agreements (IGSA), or inter-governmental
agreements. For example, at the end of fiscal year 2017, ICE maintained
8 Contract Detention Facilities, or facilities owned and operated by
private companies and contracted directly by ICE, and 87 IGSAs, or
facilities, such as local and county jails, housing ICE detainees (as
well as other inmates).
ICE began operating its detention system under the National
Detention Standards (NDS), issued in 2000 to establish consistent
conditions of confinement, program operations, and management
expectations in immigration detention. Along with stakeholders, ICE
revised the NDS and developed Performance-Based National Detention
Standards 2008 (PBNDS 2008) to improve safety, security, and conditions
of confinement for detainees. With its Performance-Based National
Detention Standards 2011 (PBNDS 2011), ICE aimed to enhance immigration
detention conditions while maintaining a safe and secure detention
environment for staff and detainees. ICE also uses Family Residential
Standards for Family Residential Centers holding families and
juveniles. ICE's detention facility contracts and agreements identify
the detention standards that apply to those facilities.
As early as 2006, when the OIG first reported on inadequate
treatment of ICE detainees in its facilities,\1\ and more recently, in
response to Congressional mandates, concerns raised by immigrant rights
groups, and complaints to the OIG Hotline, the OIG has conducted
inspections of detention facilities to evaluate compliance with ICE
detention standards. We generally limit the scope of our inspections to
the relevant standards for health, safety, access to medical and mental
health care, grievances, classification and searches, use of
segregation, use of force, and language access. We focus on the
elements of the detention standards that can be observed and evaluated
by OIG staff who do not have specialized training in the fields of
medicine, mental health, or corrections. In addition to a physical
inspection of areas used by detainees, during our visits to facilities
we also review written documentation and interview ICE and detention
facility staff members and detainees. Our public reports about these
inspections discuss facility conditions at the time of our visits, and
include analysis and conclusions based on our direct observations,
review of documentary evidence, and interviews.
---------------------------------------------------------------------------
\1\ Treatment of Immigration Detainees Housed at Immigration and
Customs Enforcement Facilities (OIG-07-01).
---------------------------------------------------------------------------
The OIG's inspections in 2016 and 2017 raised concerns about
detainee treatment and care. For example, in March 2017, we issued a
Management Alert after an unannounced inspection of the Theo Lacy
Facility (TLF) in Orange, California, raised serious concerns, some
that posed health risks and others that violated PBNDS 2008 and
resulted in potentially unsafe conditions at TLF.\2\ We recommended
that ICE take immediate action to ensure compliance with PBNDS 2008 and
strengthen its oversight of TLF. ICE concurred with our
recommendations.
---------------------------------------------------------------------------
\2\ Management Alert on Issues Requiring Immediate Action at the
Theo Lacy Facility in Orange, California (OIG-17-43-MA). Management
Alerts are a unique product issued by DHS OIG in relatively rare
circumstances in which we identify an issue so serious that we deem it
necessary to report on the issue before completing our standard
inspection or review process. In such instances, we prepare a
``Management Alert'' to notify the Department of the issue so it can
take immediate action to mitigate and/or correct the situation.
---------------------------------------------------------------------------
Our unannounced inspections of detention facilities in fiscal year
2016 also gave rise to significant concerns about the treatment and
care of detainees at 4 of the facilities visited.\3\ For instance, some
facilities had misclassified some detainees with high-risk criminal
convictions and, as a result, housed them with low-risk detainees. At
one facility, all detainees entering the facility were strip-searched
in violation of ICE standards. We also observed potentially unsafe and
unhealthy detention conditions, including delayed medical care, mold on
walls and showers, and spoiled food.
---------------------------------------------------------------------------
\3\ Concerns about ICE Detainee Treatment and Care at Detention
Facilities (OIG-18-32).
---------------------------------------------------------------------------
ice's inspections and monitoring of detention do not lead to sustained
compliance or systemic improvements
The deficiencies and concerns identified in our detention facility
inspections raised questions about the effectiveness of ICE's oversight
of these facilities. ICE uses a multi-layered approach to oversight of
detention facilities, with various entities--including ICE ERO, ICE's
Office of Professional Responsibility (OPR), and private contractors--
conducting inspections and on-site monitoring to determine compliance
with ICE detention standards. We reviewed the adequacy of these
oversight activities, as well as ICE's use of contracting tools to hold
detention facilities to applicable detention standards. In 2018, we
published a review evaluating whether ICE's immigration detention
inspections ensure adequate oversight and compliance with detention
standards. Our report found deficiencies in both types of immigration
detention inspections ICE uses, as well as in ICE's post-inspection
follow-up processes.\4\
---------------------------------------------------------------------------
\4\ ICE's Inspections and Monitoring of Detention Facilities Do Not
Lead to Sustained Compliance or Systemic Improvements (OIG-18-67).
---------------------------------------------------------------------------
ICE uses two inspection types to examine detention facility
conditions: (1) Inspections performed by a private company, Nakamoto
Group, Inc. (Nakamoto), contracted by ICE ERO Custody Management, and
(2) inspections performed by personnel and contractors from ICE's
Office of Detention Oversight (ODO) within ICE OPR. ICE also uses
Detention Service Managers (DSMs) to provide on-site monitoring of day-
to-day facility conditions, and report on and seek to correct issues as
they arise.
In conducting our review, we evaluated policies, procedures, and
inspections practices. We also observed Nakamoto and ODO inspections
and reviewed a judgmental sample of both types of inspection reports.
We concluded that neither type of inspection nor the on-site monitoring
ensure consistent compliance with detention standards or promote
comprehensive deficiency corrections.
We found that the inspections performed by Nakamoto do not fully
examine actual conditions or identify all compliance deficiencies,
because the Nakamoto inspection scope is too broad and inspection
practices are not consistently thorough. Also, although ICE provides
Nakamoto with the scope for the inspections, detention review summary
forms, and inspection checklists, it does not provide clear procedures
for evaluating detention conditions. In contrast, ODO inspections are
narrower in scope and use effective methods and processes to thoroughly
inspect facilities and identify deficiencies, but the inspections are
too infrequent to ensure the facilities implement all corrections.
Moreover, ICE does not adequately follow up on identified
deficiencies and, at the time of our review, did not have a
comprehensive process to verify that facilities had implemented all the
corrective actions. Without holding facilities accountable for
correcting deficiencies, the usefulness of both Nakamoto and ODO
inspections was further diminished.
In addition, ICE ERO field offices, which are responsible for
implementing corrective actions, do not provide consistent support for
the DSMs who work on-site and monitor detention conditions in more than
50 facilities. Thus, while DSMs, who identify thousands of deficiencies
though their work, have the expertise to propose corrective actions,
they do not have the authority to implement them. The lack of
consistent support for DSMs hinders implementation of needed changes.
ice does not fully use contracting tools to hold detention facility
contractors accountable for failing to meet performance standards
Another way in which ICE could hold detention facilities to
applicable detention standards is through contracting tools. We
reviewed how ICE manages and oversees its contracts with the contracted
detention facilities housing ICE detainees.\5\ Between fiscal year 2016
and fiscal year 2018, ICE paid more than $3 billion to the contractors
operating these facilities. We found that ICE is failing to use quality
assurance tools and impose consequences for contract noncompliance,
such as failure to meet performance standards. Moreover, instead of
holding facilities accountable for noncompliance through financial
penalties, ICE frequently issued waivers to facilities with deficient
conditions, effectively exempting them from having to comply with
certain detention standards.
---------------------------------------------------------------------------
\5\ ICE Does Not Fully Use Contracting Tools to Hold Detention
Facility Contractors Accountable for Failing to Meet Performance
Standards (OIG-19-18).
---------------------------------------------------------------------------
In fact, ICE generally is not imposing financial penalties, even
for serious deficiencies such as significant understaffing, failure to
provide sufficient mental health observations, and inadequate
monitoring of detainees with serious criminal histories. From October
2015 to June 2018, various inspections and DSMs found 14,003
deficiencies at the 106 contract facilities we focused on for our
review. Deficiencies included those that jeopardize the safety and
rights of detainees, such as failing to notify ICE about sexual
assaults and failing to forward allegations regarding misconduct of
facility staff to ICE ERO. Despite the quantity and seriousness of the
deficiencies, ICE only imposed financial penalties twice.
ICE also has no formal policies and procedures to govern the waiver
process, thereby allowing officials to grant waivers without clear
authority, and failing to ensure key stakeholders have access to
approved waivers. In some cases, officials may violate Federal
Acquisition Regulation requirements because they seek to effectuate
unauthorized changes to contract terms. Further, contract facilities
may be exempt from compliance with otherwise applicable detention
standards indefinitely, as waivers generally do not have an end date
and ICE ERO does not reassess or review waivers after it approves
them.\6\
---------------------------------------------------------------------------
\6\ Following the OIG's reporting on the issue of ICE's use of
waivers, Congress passed the Consolidated Appropriations Act, 2019--
House Report 116-9, which established that the ``ICE Director shall
have sole authority to approve waivers, and shall notify the Committees
of such waivers within 3 business days of such approval.''
---------------------------------------------------------------------------
results of oig's recent unannounced inspections of ice detention
facilities
Continuing the OIG's program of unannounced inspections of ICE
detention facilities, we recently issued Management Alerts regarding
our findings from unannounced inspections of the Essex County
Correctional Facility in Newark, New Jersey (Essex Facility)\7\ and the
Adelanto ICE Processing Center in Adelanto, California (Adelanto
Center).\8\ We issued these reports because, in the course of our
review, we identified significant health and safety risks that violated
ICE standards and required immediate action by ICE.
---------------------------------------------------------------------------
\7\ Issues Requiring Action at the Essex County Correctional
Facility in Newark, New Jersey (OIG-19-20).
\8\ Management Alert--Issues Requiring Action at the Adelanto ICE
Processing Center in Adelanto, California (OIG-18-86).
---------------------------------------------------------------------------
At the Essex Facility, one of the issues we identified was
unreported security incidents. According to ICE standards, the Essex
Facility must report to ICE any incidents involving detainees. However,
the facility failed to do so following a detainee's discovery and
reporting of a guard's loaded handgun left in a facility staff bathroom
that the detainee was cleaning. This marked the fourth time in less
than a year that the facility failed to notify ICE of incidents
involving detainees, and raised serious concerns about the facility's
ability to handle security issues.
Interviews with detainees and facility management revealed facility
leadership completed a review of the incident, but did not interview
the detainee who found the weapon. Rather, facility leadership reported
to us that they told the detainee not to discuss the matter with anyone
else. The review documented by the facility does not mention that the
detainee found and reported the loaded weapon.
During our site visit, we notified ICE of the incident and ICE
later issued a contract discrepancy report. The discrepancy report
outlined this incident as the fourth time in less than a year that the
Essex Facility had failed to notify ICE of detainee-related incidents.
On February 27, 2019, ICE imposed a 5 percent deduction of invoiced
amounts, the highest penalty allowed under the contract.
Our inspections also revealed health and safety concerns at both
the Essex Facility and the Adelanto Center. At the Essex Facility, we
observed extreme mishandling of meats, which can spread salmonella,
listeria, and E. coli, leading to serious foodborne illnesses. We also
observed facility staff serving potentially spoiled meat to detainees.
Over a 7-month period in 2018, detainees filed approximately 200
kitchen-related grievances (about 12 percent of all grievances filed)
with comments such as:
``For dinner, we were served meatballs that smell like fecal
matter. The food was rotten.''
``The food that we received has been complete garbage, it's
becoming impossible to eat it. It gets worse every day. It
literally looks like it came from the garbage dumpster; I have
a stomach infection because of it and the nurse herself told me
it was caused by the food.''\9\
---------------------------------------------------------------------------
\9\ Issues Requiring Action at the Essex County Correctional
Facility in Newark, New Jersey (OIG-19-20).
---------------------------------------------------------------------------
We observed violations of the ICE standards at the Adelanto Center
that were equally concerning, including braided bedsheets--referred to
as ``nooses'' by center staff and detainees--hanging from vents in 15
of the 20 cells we visited.\10\ Interviews with detainees provided a
variety of reasons for braiding and hanging bedsheets, with one
detainee noting, ``I've seen a few attempted suicides using the braided
sheets by the vents and then the guards laugh at them and call them
`suicide failures' once they are back from medical.'' In fact, in March
2017, a 32-year-old male died at an area hospital after being found
hanging from his bedsheets in an Adelanto Center cell. In the months
after this suicide, ICE compliance reports documented at least 3
suicide attempts by hanging at the Adelanto Center, 2 of which
specifically used bedsheets. Media reports based on 9-1-1 call logs
indicate at least 4 other suicide attempts at the Adelanto Center from
December 2016 to July 2017.\11\ In total, these reports represent at
least 7 suicide attempts at the Adelanto Center from December 2016 to
October 2017. Nation-wide, self-inflicted strangulation accounts for 4
of the 20 detainee deaths reported between October 2016 to July 2018,
according to ICE news releases.
---------------------------------------------------------------------------
\10\ Management Alert--Issues Requiring Action at the Adelanto ICE
Processing Center in Adelanto, California (OIG-18-86).
\11\ Paloma Esquivel, `We don't feel OK here': Detainee deaths,
suicide attempts and hunger strikes plague California immigration
facility, LOS ANGELES TIMES (Aug. 8, 2017), http://www.latimes.com/
local/lanow/la-me-ln-adelanto-detention-20170808-story.html.
---------------------------------------------------------------------------
In addition to the serious issues highlighted in our reports on the
Essex Facility and the Adelanto Center, our program of unannounced
inspections identified other instances of noncompliance with standards
at these facilities, as well as two others: the LaSalle ICE Processing
Center in Louisiana, and the Aurora ICE Processing Center in
Colorado.\12\ Overall, our inspections of the 4 detention facilities
revealed violations of ICE's detention standards and raised concerns
about the environment in which detainees are held. Although the
conditions varied among the facilities and not every problem was
present at each, our observations, interviews with detainees and staff,
and reviews of documents revealed several common issues. All 4
facilities had issues with expired food, which puts detainees at risk
for food-borne illnesses. At 3 facilities, we found that segregation
practices violated standards and infringed on detainee rights. Two
facilities failed to provide recreation outside detainee housing units.
Bathrooms in 2 facilities' detainee housing units were dilapidated and
moldy. Our observations confirmed concerns identified in detainee
grievances, which indicated unsafe and unhealthy conditions to varying
degrees at all of the facilities we visited.
---------------------------------------------------------------------------
\12\ Concerns about ICE Detainee Treatment and Care at Four
Detention Facilities (OIG-19-47).
---------------------------------------------------------------------------
ice has taken action to address oig recommendations aimed at improving
oversight of ice detention
Since fiscal year 2017, we have made 10 recommendations to improve
ICE's oversight of detention and 7 recommendations aimed at improving
detention conditions. In response to these recommendations, ICE has
implemented a number of changes and has initiated others, some of which
are nearing completion, including:
With respect to oversight of detention facilities, we
recommended that ICE develop a follow-up inspection process for
select facilities where ODO identifies egregious or numerous
deficiencies.\13\ ICE reported in May 2019 that it has begun
the follow-up inspection process and has issued 2 completed
reports from follow-up inspections conducted in fiscal year
2018. ICE also provided a schedule for fiscal year 2019 follow-
up inspections.
---------------------------------------------------------------------------
\13\ ICE's Inspections and Monitoring of Detention Facilities Do
Not Lead to Sustained Compliance or Systemic Improvements (OIG-18-67).
---------------------------------------------------------------------------
In response to our recommendation that ICE conduct a full
review of the Adelanto ICE Processing Center and the GEO Group,
Inc.'s management of the facility to ensure compliance with
PBNDS 2011,\14\ ICE provided documentation in March 2019 that
it has completed a Special Assessment Review of the Adelanto
facility, identified deficiencies, and completed corrective
actions.
---------------------------------------------------------------------------
\14\ Management Alert--Issues Requiring Action at the Adelanto ICE
Processing Center in Adelanto, California (OIG-18-86).
---------------------------------------------------------------------------
In response to our recommendation regarding the waiver
process (and consistent with the Department of Homeland
Security Appropriations Act, 2019 (H.R. 6776)), ICE drafted a
Detention Standards Waiver Policy, which will require that the
ICE director have sole authority to approve waivers.
Additionally, in May 2019, ICE made a complete list of all 181
waivers available on ICE's public website.\15\
---------------------------------------------------------------------------
\15\ ICE, Facility Inspections, https://www.ice.gov/facility-
inspections.
---------------------------------------------------------------------------
Although ICE has been responsive to our recommendations and is
taking steps in the right direction, challenges remain. Fully
implementing changes and resolving the underlying issues that make ICE
detention oversight challenging will require a multi-year commitment
and depend heavily on adequate funding and staffing.
on-going oig work related to ice detention
In fiscal year 2020, the OIG will continue its on-going program of
unannounced inspections of facilities holding ICE detainees. We will
report on the results of the fiscal year 2019 inspections later this
year. We are happy to brief you and your staff on the results of these
inspections when they are finalized.
Chairwoman Torres Small, this concludes my testimony. I am happy to
answer any questions you or other Members of the subcommittee may have.
APPENDIX A.--LIST OF OIG REPORTS
OIG REVIEWS OF ICE DETENTION FACILITIES AND DETENTION FACILITY OVERSIGHT
----------------------------------------------------------------------------------------------------------------
Report Number Report Title Date Issued Status of Recommendations
----------------------------------------------------------------------------------------------------------------
OIG-07-01......................... Treatment of Immigration December 2006........ 12 Recommendations; all
Detainees Housed at Closed.
Immigration and Customs
Enforcement Facilities.
OIG-17-43-MA...................... Management Alert on Issues March 2017........... 3 Recommendations; all
Requiring Immediate Closed.
Action at the Theo Lacy
Facility in Orange,
California.
OIG-18-32......................... Concerns about ICE December 2017........ 1 Recommendation;
Detainee Treatment and Resolved and Open.
Care at Detention
Facilities.
OIG-18-67......................... ICE's Inspections and June 2018............ 5 Recommendations; 1, 2,
Monitoring of Detention 4, and 5 are Resolved
Facilities Do Not Lead to and Open; Recommendation
Sustained Compliance or 3 is Closed.
Systemic Improvements.
OIG-18-86......................... Management Alert--Issues September 2018....... 1 Recommendation; Closed.
Requiring Action at the
Adelanto ICE Processing
Center in Adelanto,
California.
OIG-19-18......................... ICE Does Not Fully Use January 2019......... 5 Recommendations; 1, 2,
Contracting Tools to Hold 3, and 4 are Resolved
Detention Facility and Open; Recommendation
Contractors Accountable 5 is Closed.
for Failing to Meet
Performance Standards.
OIG-19-20......................... Issues Requiring Action at February 2019........ 1 Recommendation;
the Essex County Resolved and Open.
Correctional Facility in
Newark, New Jersey.
OIG-19-47......................... Concerns about ICE June 2019............ 1 Recommendation;
Detainee Treatment and Resolved and Open.
Care at Four Detention
Facilities.
----------------------------------------------------------------------------------------------------------------
Ms. Torres Small. Thank you.
I now recognize Mr. Johnson to summarize his statement for
5 minutes.
STATEMENT OF TAE JOHNSON, ERO ASSISTANT DIRECTOR FOR CUSTODY
MANAGEMENT, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, U.S.
DEPARTMENT OF HOMELAND SECURITY
Mr. Johnson. Chairwoman Torres Small, Ranking Member
Crenshaw, and distinguished Members of the subcommittee, thank
you for the opportunity to testify today regarding ICE's
oversight of its detention facilities.
ICE's Enforcement and Removal Operations manages and
oversees the Nation's immigration detention system, one of the
most highly transient and diverse populations of any detention
or correctional system in the world. Detainees placed in ICE
custody represent virtually every Nation on Earth, have various
security classification and threat levels, and often arrive in
ERO custody with complex detention and medical needs.
ERO takes the health, safety, and general welfare of its
detained population extremely seriously and is committed to
continually evaluating and improving the care detainees
receive. Through a robust inspections program, the agency
ensures detention facilities used to house ICE detainees do so
in accordance with ICE National detention standards, which are
often much more rigorous than those that apply to other
detained populations. These standards were promulgated in
cooperation with ICE stakeholders, the American Correctional
Association, and representatives of non-Governmental
organizations to ensure that all individuals in ICE custody are
treated with dignity and respect and provided the best possible
care.
ICE uses 3 sets of detention standards for its adult
detained population, the National Detention Standards, NDS
2000, Performance-Based National Detention Standards, PBNDS
2008, as well the PBNDS 2011. All ICE detention standards must
specify the living conditions appropriate for detainees and
help to ensure a safe and secure environment and cover such
areas as medical care, food service, environmental health and
safety, segregation, access to legal and religious services, as
well as visitation.
ICE's requirements exceed industry standards, which is
evident from the large number of local jails who are unwilling
to meet ICE's more rigorous requirements and have instead
elected to detain other populations.
PBNDS 2011 was recently revised in 2016 to include
important updated standards on disability identification,
assessment, and accommodation, as well as medical care for
women.
To ensure ICE's detention facilities meet the requisite
standards, ICE provides oversight through a multi-layered
inspections and monitoring program. ICE conducts annual and
biannual inspections of all facilities over a certain
population and utilizes a self-inspection process for
facilities with small populations or those that house detainees
for under 72 hours.
Additionally, the ICE Office of Detention Oversight, the
DHS CRCL, and the DHS OIG all conduct reviews and inspections
and have open access to ICE detention facilities.
ICE has also enlisted the services of the Nakamoto Group to
inspect facilities around the country. This includes annual
inspections, preoccupancy inspections, special reviews as
ordered by ICE using the applicable detention standards.
Contract inspectors typically spend 3 days auditing each
facility, and in addition to an environmental health and safe
subject-matter expert, they also employ the services of a
health professional and a detainee rights subject-matter
expert.
When deficiencies are found during any type of inspection,
ERO works with field offices and facilities to ensure timely
and corrective actions are implemented.
ICE greatly appreciates the work conducted by the OIG
regarding the inspection process and carefully evaluates its
recommendations. In a June 26, 2018, report entitled ``ICE's
Inspection and Monitoring of Detention Facilities Do Not Lead
to Sustained Compliance or Systemic Improvements,'' the IG made
5 recommendations with which ICE concurred and which have been
used to implement improvements to our inspections process.
In response to OIG's finding, ICE is reevaluating the
existing inspection scope and methodology in the statement of
work for its inspections contract to ensure inspections
procedures are adequately and appropriately resourced to fully
evaluate detention conditions.
ICE has also created a quality assurance team consisting of
seasoned Federal employees to perform quality assurance reviews
of ICE's contract inspections during each annual inspection.
ICE is also developing follow-up inspections processes for
select facilities where egregious or numerous deficiencies are
identified, updating and enhancing current procedures to ensure
verification of all corrective actions, including better
tracking of all corrective actions by facility and responsible
field office, as well as developing protocols for ERO offices
to require facilities to implement formal corrective action
plans resulting from deficiencies identified from its on-site
monitors.
ICE understands that immigration----
Ms. Torres Small. Mr. Johnson.
Mr. Johnson. Yes?
Ms. Torres Small. Your time has expired. If you want to
conclude with a sentence.
Mr. Johnson. Sure. Thank you for the opportunity to testify
today regarding this important matter, and I look forward to
answering any questions you guys may have. Thanks.
[The prepared statement of Mr. Johnson follows:]
Prepared Statement of Tae Johnson
September 26, 2019
introduction
Chairwoman Torres Small, Ranking Member Crenshaw, and distinguished
Members of the subcommittee, thank you for opportunity to testify today
regarding U.S. Immigration and Customs Enforcement (ICE) oversight of
its detention facilities. ICE Enforcement and Removal Operations (ERO)
manages and oversees the Nation's immigration detention system, one of
the most highly transient and diverse populations of any detention or
correctional system in the world. Detainees placed into ICE ERO custody
represent virtually every Nation on earth, have various security
classifications and threat levels, and often arrive in ERO custody with
complex detention needs, including medical care. ERO takes the health,
safety, and general welfare of its detained population extremely
seriously and is committed to continually evaluating and improving the
care detainees receive.
ice detention standards
ERO detains individuals to ensure their presence for immigration
proceedings and for removal from the United States after they are
subject to an executable final order of removal. Detention is an
important and necessary part of immigration enforcement, and ICE ERO
provides a range of comprehensive services to ensure the welfare of all
those in its custody. Through a robust inspections program, the agency
ensures detention facilities used to house ICE detainees do so in
accordance with ICE National detention standards, which are often much
more rigorous than those that apply to other detained populations.
These standards were promulgated in cooperation with ICE stakeholders,
the American Correctional Association (ACA), and representatives of
non-governmental organizations (NGO's) to ensure that all individuals
in ICE custody are treated with dignity and respect and are provided
with the best possible care.
ICE utilizes a Nation-wide network of detention facilities,
including 5 ICE-owned, contractor-operated Service Processing Centers
(SPCs), 8 privately-owned and/or operated Contract Detention Facilities
(CDFs), 12 Intergovernmental Service Agreement (IGSA) facilities which
are dedicated to housing ICE detainees, and approximately 200 shared-
use IGSAs.
ICE uses 3 sets of detention standards for its adult-detained
population Nation-wide the National Detention Standards (NDS) 2000,
Performance-Based National Detention Standards (PBNDS) 2008, and PBNDS
2011. All ICE detention standards specify the living conditions
appropriate for detainees and help to ensure a safe and secure
environment and cover areas such as medical care, food service,
environmental, health and safety, the use of segregated housing, access
to legal and religious resources, and visitation. These standards are
included in contracts or agreements with both publicly- or privately-
operated detention facilities and exceed industry standards--which is
evident from the number of local jails who are unwilling to meet ICE's
more rigorous requirements and have instead elected to detain other
populations.
When ICE was formed, the agency operated its detention system under
a set of National Detention Standards (NDS), which were based upon the
policies and procedures that existed at the time of its issuance in
September 2000. The NDS were drafted to govern every aspect of the
detention operations at the ICE-owned SPCs and CDFs and were designed
to establish consistent conditions of confinement, programming, and
management expectations within the agency's detention system. For many
of the requirements, local jails needed to meet the objective of the
standard. ICE subsequently undertook a revision of these standards to
more clearly delineate the results or outcomes to be accomplished by
adherence to their requirements. PBNDS 2008 revised the NDS to outline
the results or outcomes to be achieved and to improve the safety,
security, and conditions of detainee confinement. PBNDS 2008 prescribed
both the expected outcome of each detention standard and the expected
practices required to achieve them. Four new standards were added under
PBNDS 2008: Searches of Detainees; Sexual Abuse and Assaults Prevention
and Intervention; News Media Interviews and Tours; and Staff Training.
In keeping with its commitment to improve the immigration detention
system, ICE further revised its detention standards in 2011. PBNDS 2011
reflect ICE's on-going effort to tailor the conditions of immigration
detention to its unique purpose while maintaining a safe and secure
detention environment for staff and detainees and represent an
important step in detention reform. They were drafted with the input of
many ICE personnel across the Nation, as well as the perspectives of
DHS's Office for Civil Rights and Civil Liberties (CRCL) and various
NGO's. PBNDS 2011 were crafted to improve medical and mental health
services, increase access to legal services and religious
opportunities, improve communication with detainees with limited
English proficiency, improve the process for reporting and responding
to complaints, reinforce protections against sexual abuse and assault,
and increase recreation and visitation. PBNDS 2011 was recently revised
in 2016 to include important updated standards on disability
identification, assessment, and accommodation, as well as medical care
for women. These facilities vary in size, composition, operator, and
contract mechanism, and different versions of these 3 sets of National
detention standards currently apply to ICE's various detention
facilities, as provided for in the applicable contract or agreement.
ice detention facility inspections
The safety, health, and rights of individuals in ICE's custody are
paramount, and ICE remains committed to continually improving detention
operations to promote a safe and secure environment for both detainees
and staff. To ensure ICE's detention facilities meet the requisite
standards, ICE and DHS provide oversight through a multi-layered
inspections program. ICE conducts annual or biennial reviews of all
facilities over a certain population and utilizes a self-inspection
process for facilities with very small populations or where detainees
are held under 72 hours. At many ICE facilities, oversight is also
provided by on-site ICE detention service managers who work full-time
at detention facilities to monitor conditions. Additionally, the ICE
Office of Detention Oversight (ODO), the DHS CRCL and the DHS Office of
Inspector General (OIG), all conduct reviews and inspections and have
open access to ICE detention facilities.
ICE ensures that its facilities comply with existing policies and
standards through its comprehensive and multi-layered inspections
program, which provides assurance that detainees in ICE custody are
housed in the least restrictive environment consistent with the safety
and security of the detained population and orderly facility
operations. The annual detention inspection, conducted by an
independent third-party contractor, ensures that facilities remain in
compliance with ICE's standards and that any deficiencies noted are
resolved by facility management, while periodic follow-up inspections
help ensure on-going compliance throughout the year.
Contractually, ICE has enlisted The Nakamoto Group, Inc. to conduct
inspections for facilities around the United States that house ICE
detainees. This includes annual inspections, pre-occupancy inspections,
and special inspections as ordered by ICE using the applicable set of
detention standards. Contract inspectors typically spend 3 days
auditing each facility, and in addition to an environmental health &
safety subject-matter expert, each inspection team includes a health
professional (i.e., physician, physician's assistant, registered nurse,
or nurse practitioner) and a Detainee Rights subject-matter expert.
When deficiencies are found during any type of inspection or review,
ERO works with the field offices and facilities to ensure timely
corrective actions are implemented and maintained.
ICE has also developed and utilizes a standardized checklist during
its inspections to ensure that the most critical elements of the
various detention standards are always assessed. This detailed
checklist helps inspection teams focus on the most critical elements of
the ICE detention standards, about 700 key areas that ensure conditions
are appropriate. The ICE detention standards have about 4,000
measurable requirements in total. While the checklist allows for a more
standardized review process, it also provides an opportunity for data
to be captured in a way that allows for comparative analysis and
monitoring of trends and eliminates human errors associated with memory
issues and/or attention deficits.
Further, in addition to the checklist, inspectors are required to
provide ICE a written report that includes, at a minimum, an Inspection
Summary, a Facility Snapshot/Description, Areas of Concern/Significant
Observations, and Recommended Rating and Justification. Additionally,
the inspectors must submit a completed Significant Incident Summary
form that identifies any significant incidents such as assaults, uses
of force, deployment of special reaction teams, escapes, grievances,
psychiatric/medical referrals, and detainee deaths.
In addition to these inspections, ICE detention facilities are
subject to ERO special assessments, audits, reviews, and site visits by
the ICE ODO and DHS CRCL, while other unannounced visits and
inspections are also periodically conducted by the DHS OIG and the U.S.
Government Accountability Office.
dhs office of the inspector general reporting
ICE continues to work daily with its field offices, the ICE ODO,
and DHS CRCL to ensure that facilities comply with ICE detention
standards, to take corrective actions when needed, and to address
recommendations provided by the DHS OIG. ICE greatly appreciates the
work conducted by the DHS OIG regarding the inspection process and
carefully evaluates its recommendations for ensuring the welfare of its
detained population.
In a June 26, 2018, report entitled, ICE's Inspection and
Monitoring of Detention Facilities Do Not Lead to Sustained Compliance
or Systemic Improvements, the DHS OIG made 5 recommendations, with
which ICE concurred, and which have been used to implement significant
improvements to the inspections process.
In response to OIG's findings, ICE is re-evaluating the existing
inspection scope and methodology in the statement of work for annual
and biennial contracted inspections to ensure inspection procedures are
adequate and appropriately resourced to fully evaluate detention
conditions at facilities. Upcoming new contract requirements include,
but are not limited to, the extension of the annual facility inspection
by an additional day (from 3 to 4 days), an increase in the number of
subject-matter experts on inspection teams (to include 2 health
experts), and interviews with detainee volunteers (teams must include
either a bilingual inspector or access to interpretive services) along
with a list of major grievance areas or concerns that arise during
these discussions.
ICE has also created a Quality Assurance Team (QAT) consisting of
seasoned Federal employees to perform quality assurance reviews of
ICE's contract inspectors during each annual inspection. QAT members
review contractor performance, interview detainees, review grievances
and complaints, evaluate use of force, and review segregation
practices, among other things. ICE employees also attend and observe
inspections to monitor The Nakamoto Group, Inc. inspection teams on a
regular, but random, basis to ensure compliance.
Furthermore, ICE is also developing a follow-up inspection process
for select facilities where egregious or numerous deficiencies are
identified; updating and enhancing current procedures to ensure
verification of all corrective actions for identified deficiencies,
including better tracking of all corrective actions by facility,
responsible field office, and status of resolution; and developing
protocols for ICE ERO field offices to require facilities to implement
formal corrective action plans resulting from deficiencies identified
from on-site monitors.
In conclusion, ICE has made significant changes to inspection
protocols following the release of several relevant OIG reports and
continues to reshape and reevaluate the detention inspection and
oversight process where necessary, including with regard to its
contract inspection provider. ICE also notes that where relevant, it
has held contractor-appropriate discussions about necessary
improvements and will continue to enforce its detention standards and
procedures for the safe, secure, and humane treatment of aliens in ICE
custody.
conclusion
ICE understands that immigration enforcement actions, including
detention, often have a significant impact on individuals and their
families. However, the agency's mission requires it to uphold the
Nation's immigration laws as passed by Congress, many of which require
the detention of those individuals whose presence is necessary for
immigration proceedings or for removal from the United States. ICE is
committed to carrying out this process with the highest level of
professionalism and welcomes the opportunity to discuss the care
provided to its detained population, as well as the oversight
mechanisms in place in order to ensure detainee welfare and agency and
contractor accountability.
Thank you again for the opportunity to testify regarding this
important matter and I look forward to answering any questions you may
have.
Ms. Torres Small. I thank all of the witnesses for their
testimony. I will remind each Member that he or she will have 5
minutes to question the panel.
I will now recognize myself for questions.
We have been talking a lot about these 600 elements in the
scope of work, and this differs, this process for Nakamoto
differs from the Office of Detention Oversight, or ODO, which
has a much narrower scope of inspection and allows them to more
deeply assess the health and safety of detainees.
OIG's recommendations for ICE is to revise the inspection
scope and methodology for contracted inspectors within ICE's
statement of work.
Ms. Shaw, do you believe that ICE's current statement of
work keeps its contractors from fully complying with its
oversight responsibilities?
Ms. Shaw. So based on our observations related to that
report, we found that it was an incredibly challenging goal
that had been set for the inspectors to try to review the full
scope of the 39 to 42 applicable standards in a 3-day period
with a 4- to 5-person team is a tall order.
Based on, you know, our experienced and highly-trained
staff, I think they felt that they, too, would have struggled
to try to meet those goals.
So the statement of work, the breadth of the statement of
work makes it very difficult to get any sort of a deep dive
into some of these issues.
Ms. Torres Small. Should ICE revise its statement of work
to ensure quality inspections to assess compliance with
detention standards? You don't have to--you can just say yes if
that is----
Ms. Shaw. Yes. That is our recommendation.
Ms. Torres Small. Great.
Have you seen any plans to amend the new statement of work
that satisfies your recommendations?
Ms. Shaw. That recommendation continues to be open and
treated resolved, meaning that we are continuing to work with
ICE on their corrective action. We have seen iterations,
possible ways that they might revise the scope, but nothing
definitive has been decided at this point.
Based on our most recent update, because they are putting
out requests for proposals on that contract, I think that will
potentially slow down the process slightly, but we would
continue to suggest that regardless of who their contractor is,
they need to revise that statement of work to ensure that they
are getting detailed findings.
Ms. Torres Small. Now, when you say it would slow down the
process, you mean the RFP would go out without changing the
scope of work and there might be a new contract without
changing the scope of work?
Ms. Shaw. So I am speaking based on our understanding from
what we have been hearing from ICE, but the latest update that
we received was that they were putting out a request for
proposal. So they had not provided a new update on the status
of their revisions to the statement of work.
Ms. Torres Small. Does that concern you?
Ms. Shaw. I think just based on the little bit that I know
about how contracts are done, I think it is important to have a
clearly defined statement of work, at least in mind, when you
are going through that process.
Ms. Torres Small. Thank you.
Ms. Shaw. But I defer to ICE.
Ms. Torres Small. Thank you.
Mr. Johnson, what is the status of the plans identified by
Ms. Shaw?
Mr. Johnson. As Ms. Shaw stated, we are in the middle of a
recompete, and the plan to increase the--or make the needed
improvements in our statement of work have been sort-of drafted
in the current competition or in the new competition that is
coming, and we expect to do an award within the next 3 months.
Ms. Torres Small. So will you commit to finishing revising
the scope of work before finishing the RFP process?
Mr. Johnson. Yes. The new requirements will be included in
the new contract going forward, correct.
Ms. Torres Small. Ms. Shaw, are you planning any follow-up
work to evaluate whether Nakamoto's inspections have been
improved?
Ms. Shaw. We currently don't have planned work in that
area, but it is the case that as part of our recommendation
follow-up process we are consistently obtaining updates from
ICE based on how well they are implementing their corrective
action plan. So we would expect to get some updates through
that process.
We will continue our unannounced inspections program next
year and visit facilities, many of which will have been
reviewed by Nakamoto, and that will give us another
opportunity. As part of our pre-inspection scoping work, we do
look at what Nakamoto has found to evaluate whether we are
seeing corrections when we are on-site or not.
Ms. Torres Small. Thank you.
In the short time I have left, I just want to bring up the
issue of penalties versus waivers. So in 2\1/2\ years ICE has
issued only 2 financial penalties but offered 65 waivers,
including allowing the use of a spray that is 10 times more
toxic than pepper spray, strip searches in 9 different
facilities that don't comport to ICE standards, and, in my own
district, permitting the commingling of detainees with varying
criminal histories, including, which as you mentioned, threat
levels.
Mr. Johnson, what is the point of standards if ICE simply
uses waivers to sanction noncompliance?
Mr. Johnson. So I think first it is important to note that
the only provisions that ICE has ever issued waivers on are
things that are certainly not health----
Ms. Torres Small. Mixed threat levels doesn't affect health
and safety?
Mr. Johnson. So classification is really important for
housing and for recreation.
Ms. Torres Small. I apologize. I am out of time. Thank you.
I now recognize the Ranking Member of the subcommittee, the
gentleman from Texas, Mr. Crenshaw, for 5 minutes of questions.
Mr. Crenshaw. Thank you, Madam Chairwoman.
Do you want to just continue your answer, Mr. Johnson?
Mr. Johnson. Sure. Thank you, sir.
So historically, classification is generally sort-of held
for housing as well as recreation. Those are the areas where
detainees or inmates generally are most vulnerable.
In your specific instance, the only waiver of sort-of a
classification requirement had to do with whether an individual
who was going from their housing unit or to the medical area
needed to be escorted by an officer during as the standards
require.
So that is an area that we have sort-of waived in the past
because, you know, it sort-of cuts against the whole idea of
civil detention to escort Level 3s, and it should be really
based on the threat that the particular detainee sort-of poses
as opposed to just the fact that he may have had a marital
dispute with his wife, and that is why the individual was
classified as a Level 3.
So I really think you have to just look at the specific
circumstances of the waiver before you can just sort-of
conclude that ICE's waiver has somehow made an individual
unsafe or vulnerable because we would never grant----
Mr. Crenshaw. OK. So in an example, it is not necessarily
the case that a violent criminal was put in a cell with a
nonviolent immigrant.
Mr. Johnson. That is correct. Classification--housing would
always be----
Mr. Crenshaw. Is there additional explanation,
circumstances, to the other waivers?
Mr. Johnson. Sure. There is a number of waivers. I mean, a
lot of the waivers that we have granted are for things that
were sort-of written in our standards 20 years ago that are no
longer sound detention practices.
The most popular waiver that we grant has to do with the
barber shop provision, which requires that the barber shop be
in a dedicated area of the facility, that the barber shop
have----
Mr. Crenshaw. Well, I know about those. I meant
specifically what the Chairwoman had alluded to. Was there
additional explanation that would explain those particular
waivers? I think she mentioned pepper spray and----
Mr. Johnson. Yes. I am not familiar with the pepper spray
waiver. I am happy to take a close look at it.
Mr. Crenshaw. Let's move on to the discussion of scope. So
the IG report talks about there is too much scope for the
contractors. There is very narrow scope for the ODO. Is the
recommendation in particular to do everything like the ODO, to
narrow the scope, or is there some middle ground that was
recommended by the IG?
Ms. Shaw. So our recommendation specific to ODO was higher
frequency of inspections.
Mr. Crenshaw. Higher frequency, but maintain the scope that
they use?
Ms. Shaw. Correct.
Mr. Crenshaw. Do you recommend that that same scope be used
for Nakamoto as well?
Ms. Shaw. We did not. We left it to ICE to revise the
statement of work according to what they felt would allow them
to achieve compliance in their standards.
Mr. Crenshaw. Mr. Johnson, so what is ICE's position on
that?
Mr. Johnson. I mean, I think our position is that we have
39 or 42 standards, depending on which version of the standards
are applicable. We have----
Mr. Crenshaw. What differentiates between those standards?
Mr. Johnson. So the more robust standards, the PBNDS 2011,
which are generally applicable at our dedicated facilities or
facilities that house only or for the most part close to nearly
all ICE detainees, our more robust standards are sort-of
tailored to those facilities. We have our lower version of the
standards, which are the National Detention Standards, which
are generally for our local jails where we have shared
populations and in many instances a relatively small ICE
population compared to the overall large inmate population.
Mr. Crenshaw. Is there any benefit to sort-of commingling
the contractors with ODO to ensure, I guess, more consistency
in inspections?
Mr. Johnson. From my perspective, no. I mean, I think, from
ICE's, you know, we are getting exactly what we expect out of
our inspections. We have to inspect against all of the
requirements. We have sort-of developed that checklist to sort-
of hot identify what we believe are the most critical elements
of each.
Mr. Crenshaw. You like keeping those separate.
Mr. Johnson. Correct.
Mr. Crenshaw. Now, just getting to the root causes of this,
given the vast amount of detainees in custody that peaked this
summer to 54,000, to what extent has that put increased
pressure on your operations in these facilities?
Mr. Johnson. Well, I mean, we had to activate a lot of new
facilities. Many facilities had never held ICE detainees
previously. So for those it was a huge learning curve for them
to sort-of figure out and learn what the inspections required.
So, I mean, I am sure for some of those folks, it was a little
challenging at times. So it did impact the operations.
Mr. Crenshaw. Thank you.
Mrs. Watson Coleman [presiding.] Thank you.
Thank you, Mr. Johnson and Ms. Shaw, for your testimony.
Mr. Johnson, how many employees do you have that oversee or
work with these facilities that have detainees?
Mr. Johnson. I have about 200 or so direct reports, and the
folks that actually focus on detention, I would say about half
of those, about 100, 120.
Mrs. Watson Coleman. One hundred to what? I am sorry.
Mr. Johnson. I said 100 to 120.
Mrs. Watson Coleman. They do what? You are distinguishing
them as?
Mr. Johnson. Detention operations.
Mrs. Watson Coleman. OK. How many facilities are you
responsible for ensuring that the standards of care are
appropriate?
Mr. Johnson. So today we use about 250 facilities.
Mrs. Watson Coleman. So your 120 inspectors, inspection
people, how do they determine which facilities? They do the
smaller facilities and Nakamoto does the larger facilities?
Mr. Johnson. So Nakamoto inspects all the facilities that
we use that house people for over 72 hours. I have detention--
on-site detention service managers at our largest facilities,
and they cover about 50 facilities and reach about 70 percent
of our population.
Mrs. Watson Coleman. I am sorry, did you tell me there are
250 facilities altogether?
Mr. Johnson. That is correct.
Mrs. Watson Coleman. Of those, have you had occasion to
close any for deficiency in service, unsafe conditions?
Mr. Johnson. We have closed several facilities.
Mrs. Watson Coleman. How many is several?
Mr. Johnson. Over the last 10 years, I would say----
Mrs. Watson Coleman. Tell me about the last 3 years.
Mr. Johnson. Three years? I don't recall off-hand how many
we have shut down.
Mrs. Watson Coleman. So Nakamoto's group provides a report
of their findings, right?
Mr. Johnson. Right.
Mrs. Watson Coleman. Those are recommendations to your
Department?
Mr. Johnson. That is correct.
Mrs. Watson Coleman. OK. Do you under any circumstances
ignore their findings and recommendations?
Mr. Johnson. Generally, no.
Mrs. Watson Coleman. Generally no or never no?
Mr. Johnson. Generally, no. I mean----
Mrs. Watson Coleman. You have then?
Mr. Johnson. I mean, I recall one instance where we
disagreed with a particular recommendation, and we went back to
them and had a discussion and explained our position.
Mrs. Watson Coleman. So there is a mention in my briefing
here that there was an instance where ICE let recommendations
that came from Nakamoto to you all pend for an extended period
of time, over 100 days. Does that come to your recollection?
Mr. Johnson. So vaguely, I do remember a statement that
seemed to suggest that there was an inspection that was sort-of
sitting in a draft status for an extended period of time.
Mrs. Watson Coleman. What is the amount of time that those
recommendations stand waiting for a response from you all? Do
you have a requirement in terms of a response time?
Mr. Johnson. There is no requirement. I mean, I think folks
generally try to get those reports finalized sooner rather than
later, but there could have been a technical issue with the
report.
Mrs. Watson Coleman. So what is the follow-up on telling a
facility that it has X number of violations and that they have
to clean them up? What is the process for follow-up?
Mr. Johnson. So once the report is finalized, a uniform
corrective action plan is generated that is sent to the field
office and the facility for any serious life safety issue. They
are required to come up with a corrective action plan in short
order, I think it is a week, maybe 2 weeks, for any sort-of
regular sort-of----
Mrs. Watson Coleman. No, no. My question is when you have
these deficiencies brought to your attention and you tell the
facility you have X number of days or whatever to correct it,
what is your follow-up to ensure that what you tell them to do,
they do?
Mr. Johnson. So at our DSM staff facilities where we
actually have on-site staff, we have a presence there, and we
can ensure that the things they said they were going to do
were, in fact, done.
Mrs. Watson Coleman. How many facilities have on-site
staff?
Mr. Johnson. About 50.
Mrs. Watson Coleman. Are they like full-time in that one
facility?
Mr. Johnson. These are full-time folks that spend the
overwhelming majority of the time. Now, they could have another
facility close by that they have to provide roving coverage of,
but generally they are there the entire time.
Mrs. Watson Coleman. In the last couple of years, have you
all used your financial penalties to get a facility to do what
you needed them to do to meet the standards?
Mr. Johnson. We have.
Mrs. Watson Coleman. So how many?
Mr. Johnson. More than 2. I heard earlier that that had
only occurred twice. It has at least been 10, 15 that I am
aware of, but we could get you an exact number.
Mrs. Watson Coleman. I have asked Mr. Crenshaw if he wanted
a second round, and he said that it wasn't necessary, so I am
going to indulge myself a minute.
I am not quite sure why we are having all this
consternation about inspections of facilities, meeting
standards, and whether or not the standards are relevant,
whether or not the scope of the standards are doable and make
sense, and why we don't have the kind of follow-up that we are
supposed to have.
So my question to you, Ms. Shaw, do we need extra people?
Or do we need streamlining of operation? Or do we need better
commitment?
Ms. Shaw. I think based on our recommendations, the primary
issue that we have is really a process one, ensuring that there
is adequate follow-up, that there is documentation to support
claims by the facilities that they have implemented corrective
action. So they need a more robust process for ensuring follow-
up.
Mrs. Watson Coleman. Does that mean that you need more
staff, sir?
Mr. Johnson. I mean, I would like to have more staff at our
larger facilities to make sure we have that on-site presence to
monitor conditions each day. So certainly the staff would be
welcome.
Mrs. Watson Coleman. OK. My last question.
How do you do quality control checking of your contractee,
Nakamoto?
Mr. Johnson. So what I would say is 10 years ago the
Government used to inspect its own facilities, but after a lot
of criticism about----
Mrs. Watson Coleman. No. My question is, what do you do to
ensure that Nakamoto is doing the job you contracted them to
do?
Mr. Johnson. So today we have seasoned Federal employees
that accompany Nakamoto on every inspection. They have a role
in the inspections process, but they will from this point
forward be monitoring the inspector to make sure that they are
providing the services that we are paying for.
Mrs. Watson Coleman. Thank you, Mr. Johnson.
Thank you, Ms. Shaw and Mr. Johnson, to the witnesses in
our first panel. Thank you for being here and taking our
questions and giving us your testimony.
Before adjourning, I would ask for unanimous consent to
submit statements to the record from the American Civil
Liberties Union, the Detention Watch Network, the American
Immigration Council, the National Immigration Justice Center,
the Government Accountability Project, the Southern Poverty Law
Center, the Transgender Law Center, and the Asian American
Advancing Justice.
Without objection, so admitted.
[The information follows:]
Article From ACLU.ORG
the department of homeland security's own watchdog says ice detention
inspections are meaningless
By Victoria Lopez, Senior Staff Attorney, ACLU National Prison Project
& Madhuri Grewal, Federal Immigration Policy Counsel, ACLU
National Political Advocacy Department
July 3, 2018 11:15 PM
In response to its own nightmarish family separation and zero-
tolerance policies, the Trump administration is claiming that in order
to keep families together, it must jail them. This isn't only untrue--
it's expanding a system independent oversight agency.
A new report by the Department of Homeland Security's Office of
Inspector General confirms that Immigration and Customs Enforcement
jails are profoundly dangerous places with few safeguards to protect
the rights of those detained, much less children and families. The
inspector general's report details how ICE inspections and monitoring
of immigrant detention facilities fail on multiple levels.
Rather than address these abject failures, the Trump administration
is damningly taking the opposite tack. It now wants to detain tens of
thousands of immigrant children and families in ad hoc family jails,
including on military bases or in newly constructed facilities under
Department of Homeland Security control.
Over the last week alone, DHS asked the Department of Defense to
jail 12,000 immigrant children and parents on military bases and issued
a request for information to detain an additional 15,000 people in
family jails.
The Trump administration thinks it can get away with swiftly
expanding detention by building family jails and contracting with the
Bureau of Prisons because the existing patchwork of over 200
immigration detention facilities--including private prisons and county
jails--operates with impunity. Oversight and accountability of these
failed operations, reports the inspector general, is predictably scant.
Inspections of ICE jails are conducted by a private company,
Nakamoto Group, as well as ICE's own Office of Detention Oversight
(ODO). Notably, neither entity will investigate all 211 ICE facilities
in any given year. Nakamoto inspects an average of 100 facilities each
year, and ODO has inspected an average of 28 facilities each year in
the last 3 fiscal years. Finally, there is supposed to be a
``continuous'' monitoring program, which also does not occur at every
facility. The bottom line is that the inspector general found that none
of these inspections ensure compliance with detention standards.
The agency's watchdog also highlights that inspections do not occur
with enough frequency, do not meaningfully address facility conditions,
and are limited to review of a narrow set of standards. Even worse,
according to the report, when there are clear violations, ICE fails to
``systematically hold facilities accountable'' and ``some deficiencies
remain unaddressed for years.''
Some of the documented violations that were ignored for years are
shocking, including strip searches with no reasonable suspicion and
repeated failures by the facilities to notify ICE about sexual
assaults, both in violation of detention standards and legal
obligations. Furthermore, the report notes inspections are so
incomplete that they are ineffective at providing the necessary level
of oversight. One ICE official even suggested to the inspector general
that the Nakamoto inspections are ``useless.''
In one case, Nakamoto inspectors were required to conduct private
and confidential interviews with detained immigrants. They failed to do
so. Instead, they simply conducted brief group conversations, in
English, with no translators present, and asked only very basic
questions about food and recreation. In another case, 2 immigrants were
held in ``administrative segregation'' or solitary confinement simply
because there was no other space in which to detain them. The Nakamoto
inspector didn't even bother looking into whether policies on isolation
were followed.
Even more troubling, some inspectors actually lied.
In one instance, Nakamoto reported that immigrants in detention
``understood how to obtain assistance from ICE officers . . . [and had]
positive comments regarding access to library services.'' Yet the
inspector general's investigators did not witness a single Nakamoto
inspector asking about the law library, and they even heard immigrants
telling inspectors they didn't know the identity of ICE officers, let
alone how to contact them.
These inspections are a pantomime of Federal responsibility at
best. ICE has no real oversight and certainly no accountability. And
now, ICE wants to expand its massive network to jail even more people,
including thousands of children and families.
Our Nation now boasts, shamefully, the largest immigration
detention system in the world. The number of people impacted by the
immigration detention system has dramatically increased over the past
few decades despite the fact that there are clear alternatives to
jailing immigrants.
Today there are on average over 40,000 people locked up every day
by immigration authorities, costing taxpayers over $2 billion per year.
The treatment of immigrants in detention is nothing less than a human
rights crisis, and one that needs immediate action.
The OIG's report is damning, but it is not the first of its kind.
It is the latest condemnation after years of reporting that has made it
clear that the system of monitoring and inspections is woefully
inadequate and fails to address even the most serious issues, including
deaths.
In the whirlwind of announcements about the administration's zero
tolerance and family separation policies, CBP's statement clarified the
Trump administration's intentions: ``We're suspending prosecutions of
adults who are members of family units until ICE can accelerate
resource capability to allow us to maintain custody.''
If the Trump administration succeeds in expanding the failing
detention system it will accomplish 2 things: Hurt immigrant families
and line the pockets of private prison companies, like CoreCivic
(formerly CCA) and GEO Group. Already, the nation's two largest family
jails, located in Dilley and Karnes City, Texas, are operated by these
prison profiteers.
The jailing of immigrants is a cruel and harmful practice. We
cannot allow this administration to lock up more immigrants in a system
that is already so broken. We must demand Congress reduce the number of
detention beds, cut funding for Trump's massive deportation force, and
reject all funding and proposals for any new plans to jail immigrants
and families.
It's up to us to demand how our taxpayer dollars are being spent,
and we must collectively say: Not one more cent.
______
Statement of Detention Watch Network
Thursday, September 26, 2019
Detention Watch Network is a national membership organization building
power through collective advocacy, community organizing, and
strategic communications to abolish immigration detention in
the United States.
The Department of Homeland Security (DHS) operates a sprawling
network of more than 200 long-term (more than 72-hour) immigration
jails across the country that are managed and overseen by Immigration
and Customs Enforcement (ICE). As of September 14, 2019, ICE is
detaining 51,814 individuals after reaching a historic high of over
55,000 people in detention in August 2019.\1\ This rapidly expanding
and wholly unaccountable system arbitrarily detains tens of thousands
of people every day in cruel and punitive conditions. However, due to a
combined lack of transparency and sham inspections system, ICE can
operate detention centers without fear of having to answer for the
inhumane treatment of the people in its custody.
---------------------------------------------------------------------------
\1\ ICE posts current detention data on its website at https://
www.ice.gov/detention-management#tab2.
---------------------------------------------------------------------------
i. inhumane conditions
ICE capitalizes on its swelling resources with the explicit intent
to grow the system at a rapid rate rather than invest in improving
conditions or caring for those in its custody. Since 2003, 195 people
have died in ICE detention; and 8 people have died in ICE custody in
fiscal year 2019 alone.\2\ Studies conducted by independent medical
professionals confirm that approximately half of these cases were
attributable to medical negligence on behalf of the agency.\3\ Abuse
and neglect have proven endemic to the massive ICE detention system.\4\
The DHS OIG has released reports decrying ``egregious'' food quality
and safety issues, hygiene issues so severe that they cause health
risks for individuals in detention, and limited basic clothing and
hygiene supplies.\5\
---------------------------------------------------------------------------
\2\ Detention Watch Network, Another death in ICE custody after ICE
grabs $271 million from FEMA and other DHS agencies, September 13,
2019, https://www.detentionwatchnetwork.org/pressroom/releases/2019/
another-death-ice-custody-after-ice-grabs-271-million-fema-other-dhs.
\3\ Human Rights Watch et al., Code Red: The Fatal Consequences of
Dangerously Substandard Medical Care in Immigrant Detention, (June
2018), https://www.hrw.org/report/2018/06/20/code-red/fatal-
consequences-dangerously-substandard-medical-care-immigration.
\4\ Alice Speri, The Intercept, Detained then Violated; 1,224
Complaints Reveal a Staggering Pattern of Sexual Abuse in Immigration
Detention, (April 2018), https://theintercept.com/2018/04/11/
immigration-detention-sexual-abuse-ice-dhs/.
\5\ Department of Homeland Security Office of the Inspector
General, Concerns About ICE Detainee Treatment and Care at Four
Detention Facilities OIG-19-47, June 3, 2019, p. 4, https://
www.oig.dhs.gov/sites/default/files/assets/2019-06/OIG-19-47-Jun19.pdf.
---------------------------------------------------------------------------
This rampant abuse and neglect impact all individuals detained in
ICE jails, but disproportionately impacts vulnerable populations.
Autopsy reports from the death of trans asylum seeker Roxana Hernandez
Rodriguez found that she died due to lack of medical treatment but also
exhibited ``deep bruising'' indicative of physical abuse that she
likely endured while detained in the Cibola County Correctional Center
in New Mexico.\6\ Roxana's experience is not an anomaly, but rather
symptomatic of the callousness of an agency working on behalf of an
administration dedicated to cruel anti-immigrant policies.
---------------------------------------------------------------------------
\6\ Scott Bixby, Betsy Woodruff, Trans Woman Was Beaten Before
Death, Autopsy Finds, The Daily Beast, November 26, 2018, https://
www.thedailybeast.com/trans-woman-roxsana-hemandez-rodriguez-beaten-in-
ice-custody-before-death-pathologist-finds?source=TDB&via=FB-
_Page&fbclid=IwAR14MDowg4-
edLlHzaIzXo1tLkHIo4rlefMhLE5F5tIIPXi0bw3xmaxmE3c.
---------------------------------------------------------------------------
ii. perverse financial incentives and dubious contracting
In its current form, the system is largely operated by private
prison companies and local and county jails. As of 2017, approximately
71 percent of people in immigration detention were held in privately-
operated jails, and 29 percent were held in jails where ICE is
contracting with a local or county government, through an
Intergovernmental Service Agreement.\7\ In both cases, these entities
are motivated by profit rather than upholding human dignity.
---------------------------------------------------------------------------
\7\ Tara Tidwell Cullen, National Immigrant Justice Center, ``ICE
Released Its Most Comprehensive Immigration Detention Data Yet. It's
Alarming,'' (March 2018), https://immigrantjustice.org/staff/blog/ice-
released-its-most-comprehensive-immigration-detention-data-yet.
---------------------------------------------------------------------------
Private prison companies are incentivized to cut corners like
cutting medical staffing and denying care, putting migrant lives at
risk for a greater payout to shareholders.\8\ Despite this risk, the
agency's reliance on private prisons continues to grow. ICE relies on
the agility of private prison companies to move quickly--since just
February of this year, the agency has entered into 8 new contracts with
detention centers in Louisiana and Mississippi alone, all operated by
private prison companies.\9\ Local and county jails have the same
perverse incentives. The Department of Homeland Security's Office of
the Inspector General (OIG) found that conditions in county jails that
contract with ICE to augment municipal revenue are just as harsh, if
not worse, than in private prisons.\10\
---------------------------------------------------------------------------
\8\ Carl Takei, Michael Tan, Joanne Lin, American Civil Liberties
Union, ``Shutting Down the Profiteers: Why and How the Department of
Homeland Security Should Stop Using Private Prisons,'' (September
2016), https://www.aclu.org/sites/default/files/field_document/
white_paper_9-30-16_released_for_web-v1-opt.pdf.
\9\ Noah Lanard, ``Congress told ICE to Detain Fewer People.
Instead it Keeps Adding Private Prisons,'' Mother Jones, August 22,
2019: https://www.motherjones.com/politics/2019/08/congress-ice-
louisiana-mississippi-private-prisons/.
\10\ DHS Office of the Inspector General, Issues Requiring Action
at the Essex County Correctional Facility in Newark, New Jersey,
February 13, 2019, https://www.oversight.gov/sites/default/files/oig-
reports/OIG-19-20-Feb19.pdf.
---------------------------------------------------------------------------
ICE also regularly engages in dubious contracting practices to
massively expand the detention system. In July 2018, ICE modified the
existing Intergovernmental Service Agreement with the city of Eloy,
Arizona and private prison company CoreCivic to hold 1,000 additional
adults at the La Palma Conectional Center.\11\ ICE used the city of
Eloy as a ``middleman'' to broker this agreement between CoreCivic and
La Palma, repeating a technique the agency previously used to establish
the Dilley Family Residential Center and which the Department of
Homeland Security's Office of Inspector General deemed both improper
and unnecessary.\12\ In the same month of 2018, ICE also entered into a
contract with the Management and Training Corporation (MTC) to re-open
1,000 beds at the former Willacy County Correctional Center, in
Raymondville, Texas.\13\ This facility had previously been shuttered
twice, the last time due to a rebellion by those held there amid
accounts of poor medical care, sexual abuse, and oppressive
conditions.\14\ ICE renamed the facility to the El Valle Detention
Center, but it is unclear what, if any, changes were made to prevent
systemic abuse from plaguing the facility once again.\15\
---------------------------------------------------------------------------
\11\ Globe Newswire, CoreCivic Enters Into New Agreement With
Federal Government to Utilize the La Palma Correctional Center, July
24, 2018, https://globenewswire.com/news-release/2018/07/24/1541538/0/
en/CoreCivic-Enters-Into-New-Agreement-With-Federal-Government-to-
Utilize-the-La-Palma-Correctional-Center.html.
\12\ DHS Office of Inspector General, Immigration and Customs
Enforcement Did Not Follow Federal Procurement Guidelines When
Contracting/or Detention Services, February 21, 2018, https://
www.oig.dhs.gov/sites/default/files/assets/2018-02/OIG-18-53-Feb18.pdf.
\13\ Management Training Corporation, MTC Signs Contract with ICE
to Operate Detention Facility in Raymondville, July 18, 2018, https://
www.mtctrains.com/wp-content/uploads/2018/07/MTC-TO-OPERATE-FACILITY-
IN-RAYMONDVILLE.pdf.
\14\ Seth Freed Wessler, The True Story of a Texas Prison Riot, The
Nation, June 23, 2015, https://www.thenation.com/article/the-true-
story-of-a-texas-prison-riot/.
\15\ Jeremy Raff, ICE Is a Godsend for One Small Town in Texas, The
Atlantic, July 11, 2018, https://www.theatlantic.com/politics/archive/
2018/07/ice-prison-trump-immigration-crackdown/564539/.
---------------------------------------------------------------------------
iii. sham inspections and total lack of accountability
As the ICE detention system continues to be plagued by grossly poor
conditions, mounting deaths, and unaccountable abuses, the agency has
failed to invest in robust inspections or meaningful accountability.
Recent investigations into deaths in ICE detention have found that in
nearly half, violations of medical standards or medical neglect were
contributing, or even causal factors.\16\ \17\ \18\ Yet, in all but one
case, these same facilities passed an inspection immediately before and
immediately after the death occurred. The Department of Homeland
Security's Inspector General has found that ICE's inspections process
is entirely inadequate leaving deficiencies unaddressed for years,
despite numerous inspections of individual facilities revealing
deficiencies severe enough to threaten the health and safety of
detained people.\19\ \20\ \21\
---------------------------------------------------------------------------
\16\ Human Rights Watch, Code Red: The Fatal Consequences of
Substandard Medical Care in Detention, June 20, 2018, https://
www.hrw.org/report/2018/06/20/code-red/fatal-consequences-dangerously-
substandard-medical-care-immigration.
\17\ American Civil Liberties Union, Detention Watch Network,
National Immigrant Justice Center, Fatal Neglect: How ICE Ignores
Deaths In Detention, February 2016, https://
www.detentionwatchnetwork.org/sites/default/files/reports/
Fatal%20Neglect%20ACLU-DWN-NIJC.pdf.
\18\ Human Rights Watch, Systemic Indifference: Dangerous &
Substandard Medical Care in US Immigration Detention, May 8, 2017,
https://www.hrw.org/report/2017/05/08/systemic-indifference/dangerous-
substandard-medical-care-us-immigration-detention.
\19\ DHS Office of the Inspector General, ICE's Inspections and
Monitoring of Detention Facilities Do Not Lead to Sustained Compliance
or Systemic Improvements, June 26, 2018, https://www.oig.dhs.gov/sites/
default/files/assets/2018-06/OIG-18-67-Jun18.pdf.
\20\ DHS Office of the Inspector General, Concerns about ICE
Detainee Treatment and Care at Detention Facilities, December 11, 2017,
https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-32-
Dec17.pdf.
\21\ DHS Office of the Inspector General, Management Alert--Issues
Requiring Action and the Adelanto Processing Center in Adelanto,
California, September 27, 2018.
---------------------------------------------------------------------------
The entities that conduct inspections are contracted or directly
employed by ICE, resulting in a system that incentivizes positive
reports. This includes private companies like the Nakamoto Group, whose
inspections have been described as ``breez[ing] by standards'' and
``very, very, very difficult to fail'' by ICE staff.\22\ It also
includes oversight bodies within the agency itself, like the Office of
Detention Oversight and Enforcement and Removal Operation's Custody
Management office, that only conduct inspections about once every 3
years, which the DHS OIG has deemed insufficiently frequent to
meaningfully address concerns. They also provide facilities with
advance notice of these inspections, allowing staff to ``temporarily
modify practices to pass an inspection.'' Even when deficiencies are
found in inspections, ICE routinely issues waivers to provide
exemptions rather than penalizing contractors for failing to meet the
relevant detention standards.\23\
---------------------------------------------------------------------------
\22\ DHS Office of Inspector General, OIG-18-67: ICE's Inspections
and Monitoring of Detention Facilities Do Not Lead to Sustained
Compliance or Systemic Improvements, (June 2018), p. 7-12, https://
www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67-Jun18.pdf.
\23\ DHS Office of the Inspector General, ICE Does Not Fully Use
Contracting Tools to Hold Detention Facility Contractors Accountable
for Failing to Meet Performance Standards, January 29, 2019, https://
www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf.
---------------------------------------------------------------------------
In June 2018, DHS OIG released a report documenting the massive
failings of the inspections process, yet no changes have been enacted
in response. The current inspections process is broken--it is an
inexcusable pretense for oversight that paves a path for detention
center abuse and worsening conditions, while contractors profit off of
the human suffering and ICE evades accountability.
iv. growth of the system by manipulation of appropriations
The immigration detention system has expanded by over 60 percent in
the last 2 years, from an average of 34,000 people in detention per day
in 2016 to a current population of nearly 52,000 people as of September
14, 2019.\24\ Much of this growth has been facilitated by purposeful
financial mismanagement by the agency in an effort to rapidly expand
immigration detention, evade Congressional oversight, and avoid
accountability for detention abuses. Since 2015, ICE has perfected a
scheme to expand detention beyond its appropriation and has ignored
Congressional direction to live within its appropriated means and
improve its ``lack of fiscal discipline and cavalier management of
funding for detention operations.''\25\
---------------------------------------------------------------------------
\24\ For the most recent Average Daily Population Data, ICE
typically updates its Detention Management page every 2 weeks at:
https://www.ice.gov/detention-management#tab2.
\25\ See House Report, Division F (Homeland Security), Consolidated
Appropriations Act of 2017, 131 Stat. 135, Public Law No. 115-31, May
4, 2017, http://docs.house.gov/bills-thisweek/20170501/
DIVISION%20F%20HOMELAND%20SOM%20OCR%20FY17.pdf.
---------------------------------------------------------------------------
Truly, ICE's detention expansion is not an issue of aimless
mismanagement or lack of fiscal discipline, but rather a calculated and
practiced scheme to bypass Congressional power. Since 2015, ICE has
taken advantage of series of continuing resolutions to expand detention
by using either a lump sum bonus at the start of a continuing
resolution, known as an anomaly, or an advance of funding granted by
the Office of Management and Budget, known as an exception
apportionment. Congress then bases its negotiations for a final
spending bill upon this elevated detention level. During the course of
the fiscal year, ICE will subsequently overspend its already bloated
appropriated budget for detention and enforcement again, typically by
notifying Congress of their intent to transfer and reprogram funds from
other parts of DHS.
ICE is on track to use this scheme once more as we enter fiscal
year 2020. Throughout a series of continuing resolutions and a partial
Government shutdown from October through February of last year, ICE
used an exception apportionment to expand detention by approximately
8,000 people per day above its appropriated average daily population of
40,500.\26\ Then in mid-February, Congress signed the fiscal year 2019
supplemental appropriations act which appropriated a historic high
average daily population of 45,274.\27\ Congress made clear that the
elevated average daily population in the fiscal year 2019 supplemental
appropriations package was to course correct for ICE's overspending and
instructed the agency to ``glide down'' to 40,500 by the end of the
fiscal year. Yet, ICE expanded to a high of over 55,000 people detained
per day by August, precisely by using its transfer and reprogramming
authority to cover for the additional 16,000 beds above its
appropriated number.\28\
---------------------------------------------------------------------------
\26\ Julia Paisley and Heidi Przybyla, Why the Trump admin wants
more detention space for migrants and Democrats want a limit, NBC News,
February, 11, 2019, https://www.nbcnews.com/politics/immigration/why-
ice-wants-more-detention-space-migrants-democrats-want-cap-n970071.
\27\ Dara Lind, Congress's deal on immigration detention,
explained, Vox, February 12, 2019, https://www.vox.com/2019/2/12/
18220323/immigration-detention-beds-congress-cap.
\28\ Julia Ainsley and Frank Thorp V, ``Trump admin pulling
millions from FEMA disaster relief to send to southern border,'' NBC
News, August 27, 2019, https://www.nbcnews.com/politics/immigration/
trump-admin-pulling-millions-fema-disaster-relief-send-southern-border-
n1046691.
---------------------------------------------------------------------------
Instead of putting accountability measures in place that would
prohibit ICE from continuing to abuse its fiscal authorities by
overspending and transferring money, Congress has bailed ICE out every
year, permitting the agency to operate outside their legal dominion and
expand detention without restraint.
v. solutions
As the Oversight, Management, and Accountability Subcommittee of
the House Committee on Homeland Security considers the above testimony,
Detention Watch Network sincerely urges committee Members to consider
the reports of abuse, neglect, mismanagement, and callous cruelty not
as anomalies, but as basic tenets of the immigration detention system.
The alarming death toll in ICE detention underscores that the
immigration enforcement system is plagued by egregiously poor
conditions, a lack of accountability, and a culture of violence and
secrecy. As such, it is not a system that can be reformed through
additional funding or minor changes to policy. It is a system that
needs to be dismantled as the United States reimagines our approach to
migration and works to build a society that is centered on dignity,
freedom, and justice. Right now, Detention Watch Network strongly
encourages the committee to use its authority to engage in robust
oversight of this Government agency's facility operations, contracting
practices, accountability mechanisms, and funding implementation. We
also encourage Members of Congress to respond to the years of ICE
abuses by significantly cutting the agency's funding and by endorsing
the Dignity for Detained Immigrants Act, H.R. 2415, that would serve as
an important step to provide vital accountability for the health and
safety of those in ICE custody.
______
Statement of the American Immigration Council
September 26, 2019
The American Immigration Council (``Council'') is a non-profit
organization that has worked to increase public understanding of
immigration law and policy--and the role of immigration in American
society--for over 30 years. We write to thank the subcommittee for
scheduling this hearing to discuss ICE immigration detention facilities
and their impact on immigrants, their families, and communities across
the United States.
Immigration detention in the United States is rife with problems
that limit due process and negatively impact the ability of immigrants
to effectively defend themselves in court. In recent years, the Council
has submitted numerous complaints to the Department of Homeland
Security's Office of Civil Rights and Civil Liberties documenting wide-
spread abuse in ICE detention. Today, we write to share our knowledge
about these problems and inform the subcommittee of these systemic
human rights and due process violations. We hope that our perspective
provides insight context for this important hearing.
systemic failures: inadequate medical and mental health care treatment
for people detained in ice facilities
Far too frequently, immigrants in ICE detention experience civil
and human rights violations, including inadequate medical care, sexual
and physical abuse, exploitative labor practices, and even death.
The placement of ICE detention centers in rural areas--including
facilities used to detain children and families--creates significant
barriers to obtaining needed medical care.\1\ Moreover, even detention
centers that are located in urban areas are often understaffed and
inadequately prepared to meet the needs of the detained populations.\2\
The systemic understaffing of medical units in ICE detention centers
has serious consequences for the people detained in them.
---------------------------------------------------------------------------
\1\ Letter from American Immigration Council, American Immigration
Lawyers Association, and Catholic Legal Immigration Network, Inc. to
Cameron Quinn and John V. Kelly (February 28, 2019), https://
www.americanimmigrationcouncil.org/sites/default/files/
general_litigation/
complaint_urges_immediate_release_of_infants_from_immigration_detention.
pdf.
\2\ Letter from American Immigration Council and American
Immigration Lawyers Association to Assistant Director Stewart D. Smith,
Acting Inspector General Jennifer Costello, Officer Cameron Quinn, and
Acting Director Mark Morgan, 5-6 (June 11, 2019), https://
www.americanimmigrationcouncil.org/sites/default/files/
general_litigation/complaint_sup-
plement_failure_to_provide_adequate_medical_and_mental_health_care.pdf.
---------------------------------------------------------------------------
For example, in June 2019, the Council identified a 71-year-old
pre-diabetic man suffering from Parkinson's disease, a traumatic brain
injury, chronic kidney disease, heart disease, and dementia who was
detained by ICE in Aurora, Colorado (``Aurora''). The level of care in
this contract facility was so deficient that this man was forced to
rely on other detainees for help with day-to-day activities, such as
showering. He was also denied critical medication because--according to
the nurse--the facility did not have sufficient medicines in stock.\3\
His condition deteriorated considerably while he was detained in
Aurora. He told family members that he feared he would die in
detention. He ultimately lost the ability to walk.\4\
---------------------------------------------------------------------------
\3\ Id.
\4\ Id.
---------------------------------------------------------------------------
Another person--a 28-year-old man detained in Aurora for 5 months
in 2019--suffered from serious physical and emotional effects relating
to prior sexual trauma. He reported that, while he was detained in
Aurora, he experienced severe pain and bleeding stemming from his prior
experience. This man and his advocates reported difficulty in obtaining
medical treatment for his condition as well as his medical records. His
condition went untreated for the duration of his detention.\5\ He
described his experience in Aurora as follows:
---------------------------------------------------------------------------
\5\ Id. at 8-9.
``Being detained there was terrible. The guards don't treat people
well. They even say that they will not get us medical help unless we're
dying. Not until we are dead will they help us.''\6\
---------------------------------------------------------------------------
\6\ Id.
Further, another man detained in Aurora from August 2018 until June
2019 suffered from the effects of a traumatic brain injury, a seizure
disorder, depression, anxiety, bipolar disorder, and post-traumatic
stress disorder (PTSD). He experienced at least 2 seizures while in
custody in Aurora. He had a history of at least 2 suicide attempts
prior to being detained by ICE--both of which occurred while he was
held in segregation at other facilities in the past. He also attempted
suicide during his detention in Aurora. At the end of April, this man
suffered a mental health crisis prompted by his frustration with his
inadequate medical care. He injured his hand and yet did not receive
medical attention for 2 days; he had to elevate his request with a GEO
lieutenant in order to gain access to a medical provider. However, once
examined, the nurse mocked him, causing his mental stability to spiral.
Based on threats of self-harm, he was placed on suicide watch at the
Aurora facility.\7\
---------------------------------------------------------------------------
\7\ Id. at 3-4.
---------------------------------------------------------------------------
Similar issues are also prevalent in the family detention
context.\8\ In 2015, the Council filed a complaint regarding inadequate
medical treatment at the South Texas Family Residential Treatment
Center in Dilley, Texas, where women were required to wait for up to 14
hours in the sun to receive medical care. For example, a woman with 2
broken fingers and a child who was vomiting blood were both instructed
to ``drink water'' and were denied further care; more than 250 children
were improperly administered adult doses of the Hepatitis A vaccine;
intravenous fluids were administered through a bent needle; a 5-year-
old was denied prescription medication; and a woman with breast cancer
was repeatedly denied care.\9\ One woman described her experience with
medical staff at the South Texas Family Residential Center in these
words:
---------------------------------------------------------------------------
\8\ American Immigration Council, ``Deplorable Medical Treatment at
Family Detention Centers'' (Washington, DC: 2015), https://
www.americanimmigrationcouncil.org/news/deplorable-medical-treatment-
family detention-centers (last visited Sept. 23, 2019).
\9\ Id.
``Simply, they don't care. What is more important for them is control.
These are delicate situations when someone is sick and vulnerable. They
just care about control.''\10\
---------------------------------------------------------------------------
\10\ Id.
Four years after this complaint, the Council continues to document
on-going medical problems at the South Texas Family Residential Center.
After an alarming increase in the number of infants held in detention,
we raised the alarm about their treatment and urged their immediate
release.\11\
---------------------------------------------------------------------------
\11\ AIC, supra note 1.
---------------------------------------------------------------------------
Immigration detention facilities have also faced allegations of
physical and sexual abuse of people in their custody.\12\ In fiscal
year 2015, 729 reports of abuse by ICE personnel or the staff at
detention facilities were reported through ICE's Enforcement and
Removal Operations' Detention Reporting and Information Line.\13\ In
Aurora, the Council documented physical and sexual harassment,
including an instance when contract staff tackled and restrained a
detainee to remove his shoes and socks before placing him in solitary
confinement. The Council has also documented the confinement of a
transgender woman in men's housing, where she was denied critical
medical attention and subjected to extensive verbal and sexual
harassment.\14\ The woman said that:
---------------------------------------------------------------------------
\12\ Ian Peacock and Emily Ryo, The Landscape of Immigrant
Detention in the United States (Washington, DC: American Immigration
Council, 2018), 5, https://americanimmigrationcouncil.org/research/
landscape-immigration-detention-united-states.
\13\ Id. at 25-26.
\14\ AIC, supra note 2 at 6-7.
``People at Aurora Facility--both male detainees and guards--sometimes
think it is their right to harass and grope me.''\15\
---------------------------------------------------------------------------
\15\ Id. at 7.
For many, the failure to provide adequate medical care or
protection from abuse has dire consequences. ICE has acknowledged at
least 185 deaths of immigrants in detention between October 2003 and
July 2018.\16\ A whistleblower email obtained by the press indicates
that at least some of these deaths were preventable.\17\ Just this
year, 8 people have died in ICE custody.\18\
---------------------------------------------------------------------------
\16\ Peacock, supra note 12 at 5.
\17\ Ken Klippenstein, ``ICE Detainee Deaths Were Preventable:
Document,'' TYT, June 3, 2019, https://tyt.com/stories/
4vZLCHuQrYE4uKagy0oyMA/688s1LbTKvQKNCv2E9bu7h.
\18\ See, e.g. U.S. Immigration and Customs Enforcement, ``ICE
detainee from Mexico passes away at Illinois hospital,'' June 12, 2019,
https://www.ice.gov/news/releases/ice-detainee-mexico-passes-away-
illinois-hospital (last visited September 23, 2019).
---------------------------------------------------------------------------
systemic failures: due process violations
The over-detention of people across the country in jail-like
settings undermines due process and prevents thousands of people from
having their fair day in court.
Immigration detention is strictly civil in nature, which means that
it is supposed to be ``nonpunitive and merely preventative.''\19\
However, many aspects of immigration detention make it
indistinguishable from criminal incarceration.\20\ For example,
detainees' liberty is highly restricted by regimented daily scheduling:
There is constant surveillance, limited visitation hours and phone
calls, and required Government-issued uniforms and identification
wristbands.\21\ Additionally, immigration detainees can be disciplined,
subjected to limited contact with outsiders, and ultimately held in
segregation.\22\
---------------------------------------------------------------------------
\19\ Peacock, supra note 12 at 8.
\20\ Id.
\21\ Id.
\22\ Id.
---------------------------------------------------------------------------
Working with experienced and competent counsel significantly
impacts the likelihood of success in immigration removal proceedings,
and despite the fact that immigrants are subject to criminal-like
detention, they are not provided Government-appointed counsel.\23\
Immigrants in removal proceedings only have legal representation when
they are able to obtain counsel at their own expense.\24\ In the family
detention context, immigrants who are represented by attorneys are 14
times more likely to win their cases in court.\25\ While nearly 40
percent of immigrants Nationally are represented by counsel, less than
20 percent of immigrants in ICE detention are represented by
attorneys.\26\ Moreover, ICE detention facilities present several
unique and significant barriers that prevent immigrants from obtaining
attorneys.\27\
---------------------------------------------------------------------------
\23\ Id.
\24\ Ingrid Eagly and Steven Shafer, Access to Counsel in
Immigration Court (Washington, DC: American Immigration Council, 2016),
1, https://www.americanimmigrationcouncil.org/research/access-counsel-
immigration-court.
\25\ TRAC, Representation makes fourteenfold difference in outcome:
immigration court ``women with children'' cases, 2015, http://
trac.syr.edu/immigration/reports/396/ (last visited September 23,
2019).
\26\ Id. at 5.
\27\ Id. at 1.
---------------------------------------------------------------------------
As an example, contact with outsiders can be limited or
unnecessarily expensive for immigration detainees held in privately-run
detention facilities in which officials are permitted to control and
manipulate the price of phone calls, including calls to legal
counsel.\28\ These prices are often too high for detainees to
afford.\29\ Immigration detention facilities are often located in
rural, remote locations of the United States where it is difficult to
find competent and experienced legal counsel.\30\ Additionally, ICE
regularly transfers immigration detainees between facilities, sometimes
in different States. The Council has found that more than half of all
detained immigrants are subject to such transfers.\31\
---------------------------------------------------------------------------
\28\ PennState Law Center for Immigrants' Rights Clinic, Imprisoned
Justice: Inside Two Georgia Immigrant Detention Centers, 2017, 43,
https://projectsouth.org/wp-content/uploads/2017/06/
Imprisoned_Justice_Report-1.pdf.
\29\ Id.
\30\ Peacock, supra note 12 at 15-16, 21.
\31\ Id. at 18.
---------------------------------------------------------------------------
Because transfers can cross State and circuit-court jurisdictional
lines, it can be difficult for detainees to find legal counsel who can
represent them throughout the entirety of their cases.\32\
---------------------------------------------------------------------------
\32\ Id. at 19.
---------------------------------------------------------------------------
systemic failures: immigration detention is exceptionally expensive
Privately-run immigration detention centers cost the Government
exorbitant amounts of money each year. The average cost of detaining
someone in ICE custody is approximately $130 per day, although that
cost varies depending on prices set by private prison companies.\33\
Despite this high cost, the Federal Government has become more and more
reliant on immigration detention. At the end of 2018, the President's
budget request provided for 52,000 beds in immigrant detention
centers.\34\ And yet, detention is typically not necessary to ensure
that immigrants and families appear in court. Our research shows that
from January 2008--June 2019, less than 20 percent of all non-detained
immigrants in removal proceedings failed to appear in court.\35\ Of
those non-detained immigrants who were represented by counsel, 97
percent showed up in court.\36\
---------------------------------------------------------------------------
\33\ Southern Poverty Law Center, National Immigration Project of
the National Lawyers Guild, and Adelante Alabama Worker Center, Shadow
Prisons: Immigrant Detention in the South, 2016, 10, https://perma.cc/
2GMD-M9RD.
\34\ Peacock, supra note 12 at 7.
\35\ American Immigration Council, Immigrants and Families Appear
in Court: Setting the Record Straight (Washington, DC: 2019), 2,
https://www.americanimmigrationcouncil.org/sites/default/files/
research/immigrants_and_families_appear_in_court_setting_the-
_record_straight.pdf.
\36\ Id.
---------------------------------------------------------------------------
In contrast, the Executive Office for Immigration Review's Legal
Orientation Program, which provides help to detainees seeking legal
counsel, saved the Government nearly 18 million dollars.\37\ Similarly,
releasing individuals on parole, under Orders of Supervision
(electronic monitoring, periodic check-ins with ICE officers, or travel
restrictions), or on their own recognizance after they have signed
paperwork committing to attend scheduled immigration court hearings,
are viable alternatives to detention.\38\
---------------------------------------------------------------------------
\37\ Cost Savings Analysis--The EOIR Legal Orientation Program, 3
(2012), https://www.justice.gov/sites/default/files/eoir/legacy/2013/
03/14/LOP_Cost_Savings_Analysis_- 4-04-12.pdf.
\38\ American Immigration Council, Seeking Release From Immigrant
Detention (Washington, DC: 2013), 2, https://
www.americanimmigrationcouncil.org/sites/default/files/research/
seeking_release_from_immigration_detention.pdf.
---------------------------------------------------------------------------
In light of the foregoing facts, we urge the committee to demand
greater accountability from those tasked with enforcing our immigration
laws, and to work to foster a system with greater respect for due
process and the needs of vulnerable populations across the United
States.
We thank you for the opportunity to submit this statement, and for
the subcommittee's efforts to engage in a thoughtful conversation about
the impact of ICE detention on immigrants throughout the United States.
______
Statement of the National Immigrant Justice Center
September 26, 2019
Nearly 500,000 people have experienced incarceration in Immigration
and Customs Enforcement (ICE)'s jails and prisons this fiscal year.\1\
Taxpayers are footing a $3.2 billion annual bill for immigration
detention,\2\ but the greater cost is paid by the generations of
immigrants and their loved ones who bear the scars of an intentionally
opaque and abusive system. A system that is, maybe most tragically,
unnecessary.
---------------------------------------------------------------------------
\1\ As of September 14, 2019, ICE had detained 497,415 people in
fiscal year 2019, with 51,814 people in custody on that date. ICE
maintains detention data on its website at https://www.ice.gov/
detention-management#tab2, as required by section 226 of H.J. Res. 31,
Consolidated Appropriations Act of 2019, Feb. 15, 2019, https://
www.congress.gov/bill/116th-congress/house-joint-resolution/31/text.
\2\ See Conference Report to accompany H.J. Res. 31, Making Further
Continuing Appropriations for the Department of Homeland Security for
Fiscal Year 2019, and for Other Purposes, Feb. 13, 2019, https://
www.congress.gov/congressional-report/116th-congress/house-report/9/
1?overview=closed.
---------------------------------------------------------------------------
This statement begins by placing the recent dramatic expansion of
the immigration detention system in historical context. A slightly
wider frame helps us remember that the United States did not always
rely on incarceration for the management of migration processes, and
its commitment to doing so now is driven by politics and nativism, not
rational decision making. This statement also provides an overview of
the layers of corruption, abuse, and impunity that are the hallmarks of
ICE's detention operations. The National Immigrant Justice Center
(NIJC) calls on Members of Congress to pursue visionary and
transformative change to the United States' approach to immigration
policy--including an end to immigration detention and the development
of truly community-based alternative programming--while ensuring that
immediate changes are made to remedy these on-going rights violations.
NIJC is headquartered in Chicago and dedicated to ensuring human
rights protections and access to justice for immigrants, refugees, and
asylum seekers. NIJC's team works day in and day out to provide
meaningful legal services to hundreds of immigrants jailed by ICE
throughout the Midwest and nationally, but the task is daunting. As the
immigration detention system grows, the abuses and due process
violations that are endemic persist and become even more deeply rooted.
the history of america's failed experiment with the mass incarceration
of immigrants
The immigration detention system as we know it today--a sprawling
network consisting largely of contracted prisons and county jails
operating under the guise of ``administrative detention''--constitutes
a relatively new experiment in American history.\3\ It can be easy to
forget this perspective because of the Trump administration's
insistence that there is an ever-expanding ``need'' for immigration
detention capacity.\4\ Yet only decades ago, the use of detention for
the purpose of migration management was an anomaly in United States law
and policy, not the norm.
---------------------------------------------------------------------------
\3\ Ana Raquel Minian, The New York Times, ``America didn't always
lock up immigrants,'' Dec. 1, 2018, https://www.nytimes.com/2018/12/01/
opinion/sunday/border-detention-tear-gas-migrants.html.
\4\ For discussion, see Caitlin Dickerson, The New York Times,
``ICE Faces Migrant Detention Crunch as Border Chaos Spills Into
Interior of the Country,'' Apr. 22, 2019, https://www.nytimes.com/2019/
04/22/us/immigration-detention.html.
---------------------------------------------------------------------------
The first institutional detention of immigrants in the United
States began in the late 1800's on Ellis Island in New York and Angel
Island in the San Francisco Bay, where most who were detained were held
briefly for medical checks before being deported or allowed to continue
into the community.\5\ When Ellis Island closed in 1954, the
Immigration and Naturalization Service (INS) formally announced it
would be abandoning the policy of immigration detention and instead
releasing the vast majority of arriving immigrants into the United
States on conditional parole, bonds, or supervision.\6\ Then-Attorney
General Herbert Brownell, Jr. described this announcement as a ``step
forward toward humane administration of the immigration laws.''\7\ The
Supreme Court opined on the progressive nature of the change as well,
stating: ``Physical detention of aliens is now the exception, not the
rule . . . Certainly this policy reflects humane qualities of an
enlightened civilization.''\8\
---------------------------------------------------------------------------
\5\ Arthur C. Helton, Center for Migration Studies of New York,
Inc., ``The Imprisonment of Refugees in the United States,'' In Defense
of the Alien, Vol. 9 (1986), pp. 130-137, https://www.jstor.org/stable/
23140908?seq=1#metadata_info_tab_contents.
\6\ Id. at p. 131.
\7\ Id.
\8\ Leng May Ma v. Barber, 357 U.S. 185, 190 (1958).
---------------------------------------------------------------------------
This presumption of liberty for immigrants remained in place until
the 1980's, when the concept of immigration detention as we know it
today began to emerge and politics got in the way of the progress
Brownell had trumpeted. The flight of thousands of Haitian refugees
from the violence and repression of the Duvalier regime prompted a
reversal, one adopted by President Ronald Reagan's INS explicitly for
the purpose of deterring Haitians from attempting flight.\9\ The
formalization of a policy of detention for immigration processing was
met with litigation and alarm; those opposing the change included the
United Nations High Commissioner for Refugees, who noted that the
policy violated the United Nations Protocol relating to the Status of
Refugees, to which the United States is party.\10\
---------------------------------------------------------------------------
\9\ Forced by Court order to comply with rulemaking requirements,
the Immigration and Naturalization Service promulgated a regulation in
the Federal Register in 1982, stating: ``This interim rule, published
pursuant to an order of the District Court for the Southern District of
Florida, sets forth the Service's policy regarding the detention and
parole of aliens who seek to enter the United States illegally. The
administration has determined that a large number of Haitian nationals
and others are likely to attempt to enter the United States illegally
unless there is in place a detention and parole regulation meeting the
approval of the District Court.'' 47 Fed. Reg. 30,044 (1982).
\10\ Helton, supra n. v, at p. 134.
---------------------------------------------------------------------------
Over the course of the 1990's, this retrogressive policy change
became entrenched. The same policies and political rhetoric that
resulted in the mass incarceration of communities of color in American
jails and prisons fueled the expansion of the immigration detention
system into for-profit prisons and county jails.\11\ Scholar Cesar
Cuauhtemoc Garcia Hernandez describes that, ``[f]ollowing the model of
the policy reforms shaping criminal law and procedure in the late
1970's and 1980's--best illustrated by the `broken windows theory' of
criminal policing--the regulation of migrants and migration took a
punitive bent. Security became the prism through which migration was
examined, and policing became the key response of choice.\12\
---------------------------------------------------------------------------
\11\ For a chart mapping the growth of immigration detention on the
growth of the Federal prison system, see National Immigrant Justice
Center, A Better Way: Community-Based Programming as an Alternative to
Immigrant Incarceration (April 2019), at p. 2, https://
www.immigrantjustice.org/sites/default/files/uploaded-files/no-content-
type/2019-04/A-Better- Way-report-April2019-FINAL-full.pdf.
\12\ Cesar Cuauhtemoc Garcia Hernandez, Boston University Law
Review Vol. 97:245, Abolishing Immigration Prisons, 2017, http://
www.bu.edu/bulawreview/files/2017/03/GARCIA-HERNANDEZ.pdf.
---------------------------------------------------------------------------
From 1994 to 2000, the system nearly tripled--jumping from a
detained population of 6,785 to 19,458.\13\ In 2004, journalist Mark
Dow published a book exposing the depths of the secrets and abuses
occurring within what he referred to as the ``American gulag''--``a
particular prison system operated by the INS or, since early 2003, by
the BICE [Bureau of Immigration and Customs Enforcement, as it was
known]--with an astonishing lack of accountability, not only to outside
criticism, but to the rest of the Government as well.''\14\
---------------------------------------------------------------------------
\13\ See Congressional Research Service, Immigration-Related
Detention: Current Legislative Issues, Apr. 28, 2004, https://
trac.syr.edu/immigration/library/P2.pdf.
\14\ Mark Dow, American Gulag: Inside U.S. Immigration Prisons
(University of California Press, 2004), at p. 11.
---------------------------------------------------------------------------
Dow warned that the shifting of immigration enforcement functions
from INS to ICE, an enforcement-only agency within the newborn
Department of Homeland Security (DHS), would likely pull the
``secretive immigration prison world . . . even further from public
scrutiny.''\15\ A former INS District Chief of Detention and Removals
reinforced these concerns in interviews with Dow, noting that the
Federal immigration detention system was quickly becoming a ``mini-
BOP'' but lacking entirely in the infrastructure or expertise to safely
detain individuals in such numbers.\16\ Under the aegis of ICE and over
the course of administrations of both political parties, the system
ballooned. By 2016, ICE was jailing an average of 34,376 people
daily.\17\
---------------------------------------------------------------------------
\15\ Id.
\16\ Id. at p. 9.
\17\ Source data for the chart can be found at: Congressional
Research Service, Immigration-Related Detention: Current Legislative
Issues, Apr. 28, 2004, https://trac.syr.edu/immigration/library/P2.pdf
(for the years 1994-2000); Congressional Research Service, Immigration-
Related Detention: Current Legislative Issues, Jan. 12, 2012, https://
fas.org/irp/crs/RL32369.pdf (for the years 2001-2012); Immigration and
Customs Enforcement, Draft, Fiscal Year 2014 ICE Enforcement and
Removal Operations Report, https://www. prisonlegalnews.org/media/
publications/
Fiscal%20Year%202014%20ICE%20Enforcement%20and%20Removal%20Operations%20
- Report%20(Draft)%2C%20ICE.pdf (for the years 2013-2014); U.S.
Department of Justice, Report and Recommendations Concerning the Use of
Restrictive Housing, Jan. 2016, https://www.justice.gov/archives/dag/
file/815551/download (for 2015); Geneva Sands, ABC News, ``Immigration-
related arrests by ICE increase under President Trump,'' Apr. 17, 2017,
https://abcnews.go.com/US/immigration-related-arrests-ice-increase-
president-trump/story?id=4684- 7044 (for 2016); Fiscal Year 2019 ICE
Congressional Budget Justification, https://www.dhs.gov/sites/default/
files/publications/U.S.%20Immigration%20and%20Customs%20-
Enforcement.pdf (for 2017); Spencer Ackerman, Daily Beast, ``ICE is
imprisoning a record 44,000 people,'' Nov. 12, 2018, https://
www.thedailybeast.com/ice-is-imprisoning-a-record-44000-people (for
2018); and current data posted regularly on ICE's website at https://
www.ice.gov/detention-management#tab2.
---------------------------------------------------------------------------
massive expansion under the trump administration
Over the course of only 2\1/2\ years, this administration has grown
the already massive immigration detention infrastructure it inherited
by 50 percent.\18\ This growth has been achieved in direct violation of
Congressional intent. For 2 years running, Congressional appropriators
have explicitly instructed ICE to reduce its detained population,\19\
and both years ICE has responded with tremendous growth, even during
the 2018-2019 Government shut-down.\20\ As fiscal year 2019 concludes,
ICE is jailing 11,000 more immigrants on a daily basis than their
appropriated budget allows.\21\ This executive end-run around
Congressional intent has been achieved largely through the persistent
transfer of funds away from disaster relief and other domestic
priorities to compensate for ICE's over-spending on detention.\22\
---------------------------------------------------------------------------
\18\ See id.
\19\ See, e.g., U.S. House of Representatives, Committee on
Appropriations--Democrats, Fiscal Year 2018 Omnibus Appropriations Act:
Summary of Appropriations Provisions at p. 12, https://
appropriations.house.gov/sites/democrats.appropriations.house.gov/
files/wysiwyg_up- loaded/Summary%20of%20FY2018%20Omnibus_0.pdf
(outlining the fiscal year 2019 bill's provisions funding ``an average
daily population in detention of 40,354, which will require ICE to
reduce the number of detention beds in use between now and the end of
fiscal year 2018''); U.S. House of Representatives, Committee on
Appropriations, Consolidated Appropriations Act; Division-by-Division
Summary, https://appropriations.house.gov/sites/
democrats.appropriations.- house.gov/files/documents/
Summary%20of%20Conference%20Report.pdf (outlining the fiscal year 2019
spending bill's provisions establishing ``Congress's intent to reduce
the daily population in ICE detention to approximately 40,520 by the
end of the fiscal year, down from a current count of approximately
49,060.'').
\20\ Hamed Aleaziz, BuzzFeed, ``ICE Might Be Violating Federal Law
by Keeping Immigrants Detained During the Shutdown,'' Jan. 9, 2019,
https://www.buzzfeednews.com/article/hamedaleaziz/shutdown-ice-
detention-may-violate-Federal-law.
\21\ See FY19 Appropriations Act Summary, supra n. xix, requiring a
draw-down to a population of 40,520, contrasted with the current daily
population of 51,814 posted on ICE's website at https://www.ice.gov/
detention-management#tab2.
\22\ Julia Ainsley and Frank Thorp V, NBC News, ``Trump admin
pulling millions from FEMA disaster relief to send to southern
border,'' August 27, 2019, https://www.nbcnews.com/politics/
immigration/trump-admin-pulling-millions-fema-disaster-relief-send-
southern-border-n1046691; See DHS Fiscal Year 2018 Transfer and
Reprogramming Notification to Congress, available at https://
www.documentcloud.com/documents/4878224-CHC-REO-DHS-FY-2018-Transfer-
and-Reprogramming.html#document/p30.
---------------------------------------------------------------------------
Much of this growth is driven by the for-profit prison industry,
which has spent more than $25 million lobbying lawmakers and Federal
agencies over the past 10 years, including $3.8 million just in
2018.\23\ A recent analysis of Government contract data by Bloomberg
News found CoreCivic Inc. and GEO Group--the two largest private prison
companies operating immigration jails--to have received boosts of $85
million and $121 million respectively over the past 4 fiscal years as
Government contract spending for immigration enforcement and detention
has skyrocketed.\24\ As of 2017, approximately 70 percent of people in
immigration detention were held in privately-operated jails.\25\
---------------------------------------------------------------------------
\23\ Alan Zibel, Public Citizen, Detained for Profit: Spending
Surges Under U.S. Immigration Crackdown (Sept. 18, 2019), https://
www.citizen.org/article/detained-for-profit-spending-surges-under-u-s-
immigration-crackdown/, at p. 10.
\24\ Michaela Ross, Madi Alexander, and Paul Murphy, Bloomberg
News, ``Immigration Spending Surges as White House Calls for More
Funds,'' Jan. 25, 2019, https://about.bgov.com/news/immigration-
spending-surges/.
\25\ Tara Tidwell Cullen, National Immigrant Justice Center, ``ICE
Released Its Most Comprehensive Immigration Detention Data Yet. It's
Alarming,'' Mar. 2018, https://immigrantjustice.org/staff/blog/ice-
released-its-most-comprehensive-immigration-detention-data-yet.
---------------------------------------------------------------------------
The administration's commitment to expanding the incarceration of
immigrants was signaled from nearly Day 1. The White House's proposed
budget for fiscal year 2018 sought $2.7 billion to ramp up detention
capacity to 51,379, a number it has now surpassed with 51,814 behind
bars.\26\ It is important to ask: Why were these efforts so important
to the nascent administration? With 2\1/2\ years behind us, we now know
that the administration has carefully designed its immigration policies
to inflict maximum cruelty on immigrants in an effort to deter asylum
seekers and cause fear among immigrant communities.\27\ We also know
that the administration saw the decades-old experiment with the
incarceration of immigrants as one of its most powerful tools toward
those goals.
---------------------------------------------------------------------------
\26\ Department of Homeland Security, Fiscal Year 2018 Budget in
Brief, p. 4, https://www.dhs.gov/sites/default/files/publications/
DHS%20FY18%2OBIB%20Final.pdf.
\27\ Priscilla Alvarez, CNN, ``What the 2017 draft memo reveals
about the administration's family separations policy,'' Jan. 18, 2019,
https://www.cnn.com/2019/01/18/politics/draft-memo-significance/
index.html.
---------------------------------------------------------------------------
a system designed for cruelty: corruption, abuses, and impunity
It should stand as a sharp warning to Members of Congress that the
administration sees the immigration detention system as a critical
component of its efforts to make the American immigration system so
unbearable for immigrants as to deter them from coming in the first
place. But it is also not surprising. As noted above, today's
immigration detention system is a larger and more sprawling outgrowth
of the system the Reagan administration put in place with the stated
purpose of deterring Haitian migrants from fleeing to the United
States.\28\ From the start, the system was built to isolate immigrants
during their case proceedings, far from legal counsel, out of the
public eye and without sufficient mechanisms for redress or
accountability for abuses. Immigrants in custody are facing civil
proceedings and therefore many of the Constitutional protections
afforded in the criminal legal system to do not apply, creating a
dangerous legal space for immigrants in civil custody that is punitive
by every measure of the word.
---------------------------------------------------------------------------
\28\ See n. ix, supra.
---------------------------------------------------------------------------
As early as 1986, the late famed refugee advocate Arthur Helton
noted:
``The new detention policy is an initiative designed to mistreat all
equally . . . [Immigrants] are incarcerated in facilities owned and
operated or contracted for by the INS . . . The detainees, most of whom
do not speak English, are isolated from family and friends . . . The
physical conditions of confinement vary depending on the facility, but
are generally similar to prison conditions. There is little or no
social or educational programming available . . . Overcrowding is a
recurrent problem . . . The policy of long-term detention devastates
many of those who seek asylum in the United States. Prolonged
imprisonment affects detainees' psychological condition and ability to
present their cases. As it has in the past, frustration and despair
suffered during protracted asylum proceedings triggers suicide attempts
and mass hunger strikes.''\29\
---------------------------------------------------------------------------
\29\ Id.
---------------------------------------------------------------------------
Belton's description of the immigration detention system as it
existed in 1986 could literally be pulled from the pages of any of the
many reports on the state of immigration detention today. The system is
set up for impunity. This section explores a few key component parts of
the detention system, demonstrating how layers of corruption breed
abuses which are, by design, without accountability.
Corruption in contracting
ICE currently utilizes 222 facilities for the short-term and long-
term detention of immigrants during their immigration proceedings,
including dozens of private prisons, county jails, and 5 ICE-owned
processing centers.\30\ This vast network is held together by a
patchwork of contracts that ICE does not make public, leaving
organizations like NIJC to resort to protracted litigation and advocacy
efforts to expose underlying corruption and profiteering.\31\
---------------------------------------------------------------------------
\30\ For a detailed discussion of the types of facilities and
demographic break down jailed at each, see DHS Office of Inspector
General, OJG-19-18: ICE Does Not Fully Use Contracting Tools to Hold
Detention Facility Contractors Accountable for Failing to Meet
Performance Standards (Jan. 2019), https://www.oig.dhs.gov/sites/
default/files/assets/2019-02/OIG-19-18-Jan19.pdf, at p. 3.
\31\ NIJC's transparency work is documented on our website at
https://immigrantjustice.org/issues/transparencyandhumanrights.
---------------------------------------------------------------------------
There are no formal or enforceable regulations providing the
minimal standards of care for those detained by ICE. Instead, ICE
generally incorporates into its contracts with private prison companies
and county jails 1 of 3 sets of standards the agency itself has
developed, primarily based on correctional standards despite the civil
nature of immigration proceedings.\32\ Only about 60 percent of
detained immigrants are held in ICE jails that were last inspected
under the most recently updated set of guidelines, known as the
Performance-Based National Detention Standards of 2011 (PBNDS 2011),
and some immigration jails are not contractually governed by any
standards at all.\33\ Congressionally-imposed reporting obligations
require ICE to notify appropriators if it enters into new contracts or
extends contracts without requiring PBNDS 2011 compliance, but ICE
appears to see this process as a rubber stamp, providing Congress with
cursory notifications that merely note that compliance with higher
standards would be more costly.\34\
---------------------------------------------------------------------------
\32\ Dora Schriro, DHS, Immigration and Customs Enforcement,
Immigration Detention Overview and Recommendations (Oct. 2009), https:/
/www.ice.gov/doclib/about/offices/odpp/pdf/ice-detention-rpt.pdf.
\33\ See Tidwell Cullen, supra n. xxv.
\34\ See, e.g., DHS, ICE Notification of Non-Performance-Based
National Detention Standards 2011 Detention Contract (Webb County),
Fiscal Year 2018 Report to Congress, April 2, 2018, https://
www.dhs.gov/sites/default/files/publications/
ICE%20%20Notification%20of%20NON-
PBNDS%202011%20Detention%20Contract%20%20Webb%20County.pdf.
---------------------------------------------------------------------------
In early 2019, DHS's Inspector General issued a report finding that
ICE's contracting tools are inadequate to hold detention contractors
accountable for failing to meet standards.\35\ The report revealed a
particularly alarming practice in which ICE lets contractors get away
with violating contracted standards by granting waivers. The Inspector
General found the process to be essentially a sham designed to promote
loopholes: ``we found,'' the report states, ``that ICE has no formal
policies and procedures to govern the waiver process and has allowed
ERO officials without clear authority to grant waivers.\36\ In response
to new reporting requirements included in the fiscal year 2019 DHS
spending bill, ICE subsequently posted on its website a master
spreadsheet documenting the 181 waivers currently operational in 2019,
many of which implicate issues central to the health and safety of
immigrants in detention.\37\
---------------------------------------------------------------------------
\35\ Department of Homeland Security, Office of Inspector General,
OIG-19-18: ICE Does Not Fully Use Contracting Tools to Hold Detention
Facility Contractors Accountable for Failing to Meet Performance
Standards (Jan. 29, 2019), https://www.oig.dhs.gov/sites/default/files/
assets/2019-02/OIG-19-18-Jan19.pdf.
\36\ Id. at p. 9.
\37\ The spreadsheet is entitled ``Inspection Waivers Master File
(XLSX)'' and is downloadable from the ICE website at https://
www.ice.gov/facility-inspections.
---------------------------------------------------------------------------
A waiver provided to the Worcester County Jail in Maryland, for
example, permits the jail to utilize a far more lenient standard
regarding the use of strip searches than otherwise provided by
contracted standards, with no justification other than the jail's
``right'' to engage in strip searches when it deems reasonable.\38\ The
waiver was granted in June 2016 and remains operational today. The
excerpt of the waiver pasted here notes ICE's acceptance of the
proposition that, ``Staff should consider every inmate as a potential
carrier of contraband.'' In the context of a civil detention setting
where those in custody have not been charged with nor are they
suspected of committing any criminal offense, such a presumption of
criminality is jarring.
---------------------------------------------------------------------------
\38\ Memorandum for Tae D. Johnson, Assistant Director, Custody
Management, U.S. Immigration and Customs Enforcement, Re: Waiver for
Strip Searches--Worcester County Jail, undated, available via download
at https://www.ice.gov/facility-inspections.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Sham inspections
ICE's corrupt contract practices are protected in large part by a
layered system of inspections designed to allow deficiencies to go
uncorrected and abuses unresolved. Since 2009, a provision in the DHS
spending bill has precluded ICE from continuing to contract with a
facility that fails two consecutive inspections.\39\ This provision has
done little more than incentivize ICE to ensure that its inspections
are meaningless. In 2015, NIJC and Detention Watch Network released a
report analyzing 5 years of ICE inspections for more than 100
facilities, finding the inspections woefully inadequate in uncovering
deficiencies and designed to give facilities cover to get passing
ratings at all costs.\40\
---------------------------------------------------------------------------
\39\ See, e.g., H.J. Res. 31, supra n. 1, at sec. 210 (``None of
the funds provided under the heading `U.S. Immigration and Customs
Enforcement--Operations and Support' may be used to continue any
contract for the provision of detention services if the two most recent
overall performance evaluations received by the contracted facility are
less than `adequate' or the equivalent median score in any subsequent
performance evaluation system.'').
\40\ Detention Watch Network and National Immigrant Justice Center,
Lives in Peril: How Ineffective Inspections Make ICE Complicit in
Immigration Detention Abuse (2015), https://immigrantjustice.org/sites/
default/files/content-type/research-item/documents/2017-03/THR-
Inspections-FOIA-Report-October-2015-FINAL.pdf.
---------------------------------------------------------------------------
Last year, in June 2018, DHS's Inspector General issued a report
affirming most of our organizations' findings.\41\ Specifically, the
Inspector General found significant concerns regarding the procedures
used by Nakamoto--a private company that contracts with ICE to perform
regular inspections of many jails--and found ICE's own inspections
insufficiently frequent to meaningfully address concerns. ICE staff
told the Inspector General's investigators that Nakamoto inspectors
``breeze by the standards,'' and do not ``have enough time to see if
the [facility] is actually implementing the policies.''\42\ One ICE
employee went so far as to refer to Nakamoto inspections as being
``very, very, very difficult to fail.''\43\
---------------------------------------------------------------------------
\41\ DHS Office of Inspector General, OIG-18-67: ICE's Inspections
and Monitoring of Detention Facilities Do Not Lead to Sustained
Compliance or Systemic Improvements (June 2018), https://
www.oig.dhs.gov/sites/default/files/assets/2018-06/0IG-18-67-Jun18.pdf.
\42\ Id. at p. 4.
\43\ Id. at p. 7 n.12.
---------------------------------------------------------------------------
Abuses committed with impunity: Deaths, inadequate medical care, and
the systemic use of solitary confinement
The corruption in contracting and inspections throughout the ICE
detention system allows abuses to persist with little recourse for
those banned, and near complete impunity for those responsible.
There are frequent deaths in ICE custody, deaths that ICE's own
reviews reveal to be attributable to medical negligence in
approximately half of all cases.\44\ Independent medical experts'
analyses of ICE's death reviews have identified consistent elements of
substandard care that contribute to deaths in ICE custody, including
unreasonable delays in obtaining care, poor practitioner and nursing
care, and botched emergency response.\45\ Despite these findings, ICE
has failed to investigate or remedy the unsafe conditions putting human
lives in jeopardy. In the very same facilities where multiple deaths
have occurred, individuals in detention and their advocates continue to
report egregious lapses in medical care and unconscionable delays in
treatment.\46\
---------------------------------------------------------------------------
\44\ See Human Rights Watch et al., Code Red: The Fatal
Consequences of Dangerously Substandard Medical Care in Immigrant
Detention (June 2018), https://www.hrw.om/report/2018/06/20/code-red/
fatal-consequences-dangerously-substandard-medical-care-immigration
(examining ICE's own reviews of 15 deaths that occurred in custody from
December 2015 and April 2017, and finding substandard medical care to
have contributed or led to 8 of the 15; see similar findings in Human
Rights Watch et al., Systemic Indifference: Dangerous and Substandard
Medical Care in US Immigration Detention (May 2017), https://
www.hrw.org/report/2017/05/08/systemic-indifference/dangerous-
substandard-medical-care-us-immigration-detention.
\45\ Id.
\46\ See, e.g., ACLU of Colorado, Cashing in on Cruelty: Stories of
death, abuse and neglect at the GEO immigration detention facility in
Aurora (Sept. 2019), https://aclu-co.com/wp-content/uploads/2019/09/
ACLU_CO_Cashing_In_On_Cruelty_9-17-19.pdf, at pp. 13-14; Southern
Poverty Law Center, ``SPLC, allies sue ICE for ignoring medical, mental
health and disability needs of detained immigrants,'' Aug. 19, 2019,
https://www.splcenter.org/news/2019/08/19/splc-allies-sue-ice-ignoring-
medical-mental-health-and-disability-needs-detained-immigrants.
---------------------------------------------------------------------------
ICE's use of solitary confinement is another area in which
consistent reporting and even Government whistleblowing has raised
awareness of abuses to DHS brass, to little effect. A 2012
investigation into the uses and harms of solitary confinement in ICE
custody released by NIJC and Physicians for Human Rights \47\ was
followed by a 2013 New York Times expose on ICE's routine use of
solitary confinement.\48\ Dr. Terry Kupers, a psychiatrist and expert
in the use of solitary confinement who was interviewed for the article,
stated, ``ICE is clearly using excessive force, since these are civil
detentions . . . And that makes this a human rights abuse.'' In a nod
to the exposure of these abuses, ICE issued a directive on the use of
solitaiy confinement in 2013, nominally limiting the use of solitary
and requiring regular reporting on its use.\49\
---------------------------------------------------------------------------
\47\ National Immigrant Justice Center and Physicians for Human
Rights, Invisible in Isolation: the Use of Segregation and Solitary
Confinement in Immigration Detention (Sept. 2012), https://
immigrantjustice.org/sites/immigrantjustice.org/files/
Invisible%20in%20IsolationThe%20Use%-
20of%20Segregation%20and%20Solitary%20Confinement%20in%20Immigration%20D
eten- tion.September%202012_7.pdf.
\48\ Ian Urbina and Catherine Rentz, The New York Times,
``Immigrants held in solitary cells, often for weeks,'' Mar. 23, 2013,
https://www.nytimes.com/2013/03/24/us/immigrants-held-in-solitary-
cells-often-for-weeks.html.
\49\ U.S. Immigration and Customs Enforcement Policy Memo 11065.1:
Review of the Use of Segregation for ICE Detainees, Sept. 4, 2013,
https://immigrantjustice.org/sites/default/ files/
Segregation%2520Directive%2520%2528Sept%25202013%2529.pdf.
---------------------------------------------------------------------------
The directive has proven worth little more than the paper on which
it is written. In 2014, a DHS employee began a 5-year-long effort to
``raise the alarm'' about ICE's abusive use of solitary confinement,
making appeals from her position at the Office for Civil Rights and
Civil Liberties through several Government watchdogs including the
Office of Special Counsel, the DHS OIG, and ultimately the Senate
Judiciary and House Oversight and Government Reform committees, as a
whistleblower.\50\ Her efforts bore little fruit. Records recently
released by the Project on Government Oversight reveal 6,559 placements
of immigrants in solitary confinement from January 2016 to May
2018.\51\ About 40 percent of these placements involved individuals
with mental illness, and more than 4,000 of those records show
individuals suffering in solitary for more than 15 days. One person was
held for more than 2 years.\52\
---------------------------------------------------------------------------
\50\ Maryam Saleh and Spencer Woodman, The Intercept, ``A Homeland
Security whistleblower goes public about ICE abuse of solitary
confinement,'' May 21, 2019, https://theintercept.com/2019/05/21/ice-
solitary-confinement-whistleblower/.
\51\ Project On Government Oversight, Isolated: ICE Confines Some
Detainees with Mental Illness in Solitary for Months (Aug. 2019),
https://www.pogo.com/investigation/2019/08/isolated-ice-confines-some-
detainees-with-mental-illness-in-solitary-for-months/.
\52\ Id.
---------------------------------------------------------------------------
The United Nations Special Rapporteur on torture, Juan Mendez, has
called on States to ban the use of solitary confinement as a form of
punishment, noting scientific evidence showing that solitary
confinement can lead to lasting mental damage after only a few
days.\53\
---------------------------------------------------------------------------
\53\ United Nations News, ``Solitary confinement should be banned
in most cases, U.N. expert says,'' Nov. 18, 2011, https://news.un.org/
en/story/2011/10/392012-solitary-confinement-should-be-banned-most-
cases-un-expert-says.
---------------------------------------------------------------------------
Tragically, this persistent exposure of the abusive conditions in
the detention system has yet to make a difference for the individuals
who continue to suffer in ICE detention centers each day. NIJC client
Kelly, a transgender asylum seeker who has been detained by ICE since
late 2017, spoke with NBC News about her experiences in solitary
confinement months earlier: ``The only thing they told me was that it
was because of the way I looked . . . They claimed it was for security
reasons . . . I told them from day one that I didn't want to be locked
up almost 24 hours a day, alone in a cell, without medical attention.
Every time I closed my eyes, when I was trying to sleep, I began to
have nightmares, horrible memories, things that I didn't want to
remember . . . It's still happening to me.''\54\
---------------------------------------------------------------------------
\54\ Tara Tidwell Cullen, National Immigrant Justice Center,
``ICE's use of solitary confinement has gotten worse,'' May 21, 2019,
https://immigrantjustice.org/staff/blog/ices-use-solitary-confinement-
has-gotten-worse.
---------------------------------------------------------------------------
Right to counsel rendered meaningless
The systemic lack of accountability for abuses committed in ICE
custody is compounded by the isolated and remote location of ICE jails
and prisons. An NPR analysis recently found that more than half of
immigrants detained by ICE are in remote rural prisons.\55\ This is not
an accident: The administration is well aware that immigrants jailed
remotely, far from their loved ones and less likely to find
representation, are more likely to lose their cases regardless of the
strength of their claim to relief.\56\
---------------------------------------------------------------------------
\55\ Yuki Noguchi, NPR, ``Unequal outcomes: Most ICE detainees held
in rural areas where deportations risks soar,'' Aug. 15, 2019, https://
www.npr.org/2019/08/15/748764322/unequal-outcomes-most-ice-detainees-
held-in-rural-areas-where-deportation-risks.
\56\ Id.
---------------------------------------------------------------------------
Section 1362 of chapter 8 of the U.S. Code provides that immigrants
facing removal proceedings have the right to an attorney; however,
because there is no system of appointed counsel in immigration court,
this right is only meaningful for those who can afford an attorney or
are able to access free representation. It is a common saying among
immigration attorneys that the two biggest factors determining whether
a person will win or lose in immigration court are: (1) If the person
is detained, and (2) if the person has a lawyer. In 2016, a study came
out showing that only 14 percent of immigrants in detention were able
to find a lawyer, and that among immigrants in detention, those with
counsel were twice as likely as unrepresented immigrants to
successfully defend against their deportation.\57\
---------------------------------------------------------------------------
\57\ Ingrid Eagly and Steven Shafer, American Immigration Council,
Access to Counsel in Immigration Court (Sept. 2016), https://
www.americanimmigrationcouncil.org/research/access-counsel-immigration-
court.
---------------------------------------------------------------------------
The Trump administration's rapid expansion of the detention system
appears intentionally designed to worsen the access to counsel crisis.
ICE has clustered much of its expansion in the southeast United States,
including a recent push to open 3 new detention centers that can hold
about 4,000 individuals in Mississippi and Louisiana.\58\ In addition
to significant concerns about the conditions immigrants will face in
these privately-run prisons (including one prison with a history of
deaths following poor medical treatment), advocates and immigration
attorneys have called ICE on its transparent gambit to jail immigrants
in locations where the right to counsel is meaningless. The executive
director of one Louisiana legal aid organization told Mother Jones that
even immigrants who could afford lawyers would be unlikely to find one
if detained in Louisiana: ``ICE is saying they want to get to 15,000
[detainees] by the end of the summer in Louisiana . . . There's an
intentional, purposeful approach behind this of putting people where
they can't access counsel.''\59\
---------------------------------------------------------------------------
\58\ Noah Lanard, Mother Jones, ``ICE just quietly opened three new
detention centers, flouting Congressional limits,'' July 9, 2019,
https://www.motherjones.com/politics/2019/07/ice-just-quietly-opened-
three-new-detention-centers-flouting-congress-limits/.
\59\ Id.
---------------------------------------------------------------------------
Vulnerable populations in heightened danger
Under the Trump administration, little if any discretion is
utilized by ICE officers in determining who to detain. The
administration's application of the full force of a punitive and
harmful detention system on all immigrants regardless of
vulnerabilities has left many exposed to inordinate harm.
ICE reports that approximately 65 percent of its currently detained
population was transferred to ICE custody from the border or airport,
largely an asylum-seeking population.\60\ Additionally, nearly 9,000 of
those in custody have already been determined by DHS to have a credible
fear of persecution or torture if returned to their countries of
origin.\61\ For survivors of torture and trauma, the experience of ICE
detention can lead to quickly deteriorating mental health and a re-
living of the harms recently fled. The Center for Victims of Torture
and the Torture Abolition Survivor Support Coalition have found that,
``Detention is a daunting experience for anyone but particularly
egregious for survivors of torture. For survivors, given the long-term
impacts of torture and trauma, the fact of being detained at all is
often retraumatizing. Further, particular elements inherent in the
detention experience--including a profound sense of powerlessness and
loss of control--may recapitulate the torture experience. Beyond this,
the indefinite nature of immigration detention is a blanket over it
all, contributing to severe, chronic emotional distress.\62\
---------------------------------------------------------------------------
\60\ This data is maintained by ICE at https://www.ice.gov/
detention-management#tab2.
\61\ Id.
\62\ Center for Victims of Torture et al., Tortured and Detained:
Survivor Stories of U.S. Immigration Detention (Nov. 2013), https://
www.cvt.org/sites/default/files/Report_Tortured-
AndDetained_Nov2013.pdf..
---------------------------------------------------------------------------
LGBTQ individuals in detention similarly face heightened risk of
violence and harm. Data shared by ICE with Rep. Kathleen Rice in 2017
demonstrated LGBTQ people in ICE custody to be 97 times more likely to
be sexually victimized than non-LGBTQ people.\63\ LGBTQ people in
detention regularly report a wide array of abusive and dangerous
conditions, including routine sexual harassment and abuse from guards
and other detainees, the delay or denial of hormone therapy, and the
constant use of solitary confinement for so-called ``protection.''\64\
---------------------------------------------------------------------------
\63\ Sharita Gruberg, Center for American Progress, ``ICE's
rejection of its own rules is placing LGBT immigrants at severe risk of
sexual abuse,'' May 30, 2018, https://www.americanprogress.org/issues/
lgbt/news/2018/05/30/451294/ices-rejection-rules-placing-lgbt-
immigrants-severe-risk-sexual-abuse/.
\64\ Robert Moore, Washington Post, ``Gay and transgender detainees
allege abuse at ICE facility in New Mexico,'' Mar. 25, 2019, https://
www.washingtonpost.com/immigration/gay-transgender-detainees-allege-
abuse-at-ice-facility-in-new-mexico/2019/03/25/e33ad6b6-4f10-11e9-a3f7-
78b7525a8d5f_story.html.
---------------------------------------------------------------------------
Despite public outrage, the administration has also doubled down on
its commitment to the use of family detention, moving to abrogate the
Flores Settlement Agreement in favor of regulations providing for the
expansion and indefinite use of detention for families.\65\ Medical
professionals, child welfare professionals, and Government
whistleblowers have all decried the use of detention for asylum-seeking
families, which causes inevitable and potentially irreversible trauma
to children.\66\
---------------------------------------------------------------------------
\65\ See Michael D. Shear and Zolan Kanno-Young, The New York
Times, ``Migrant Families Would Face Indefinite Detention Under New
Trump Rule,'' Aug. 21, 2019, https://www.nytimes.com/2019/08/21/us/
politics/flores-migrant-family-detention.html.
\66\ See, e.g., Miriam Jordan, The New York Times, ``Whistle-
Blowers Say Detaining Migrant Families `Poses High Risk of Harm,' ''
July 18, 2018, https://www.nytimes.com/2018/07/18/us/migrant-children-
family-detention-doctors.html?; Julie M. Linton, Marsha Griffin, Alan
J. Shapiro, American Academy of Pediatrics, Policy Statement: Detention
of Immigrant Children (May 2017), https://
pediatrics.aappublications.org/content/139/5/
e20170483?utm_source=MagMail-
&utm_medium=email&utm_term=dmiller%40aap.org&utm_content=All-Member-
072618-
&utm_campaign=A%20Message%20from%20the%20AAP%20President%20on%20Fam-
ily%20Separation%20and%20Detention.
---------------------------------------------------------------------------
toward a better way
The United States' now-40-year-old experiment with the primary
reliance on jails and prisons for migration control has failed by any
measure. Arthur Helton's 1986 warning that the emerging immigration
detention system was an ``initiative designed to mistreat all equally''
echoes in the testimony of today's witnesses, more than 30 years later.
NIJC urges Members of Congress to begin doing the hard work of
laying a foundation to end the use of immigration detention, to stop
this system that unnecessarily deprives immigrants of their liberty and
disrupts their rights to access to counsel, family unity, and wellness.
There is a better way, through the adoption of community-based and
community-supported programming centered around case management that
supports immigrants through their case proceedings and provides them
the resources that allow them to flourish, rather than setting them up
to fail. Working toward this alternative vision will bring the United
States in line with our international legal and moral obligations, be
far less costly, and make great headway toward establishing a migration
processing system that actually works.\67\
---------------------------------------------------------------------------
\67\ See A Better Way, supra n. xi.
---------------------------------------------------------------------------
While working toward this long-term goal, NIJC also urges Members
of Congress to take immediate steps to mitigate the harmful impact of
the ICE detention system, including:
Engage in one or more unannounced visits to an ICE detention
center.\68\
---------------------------------------------------------------------------
\68\ NIJC and Detention Watch Network have prepared a step-by-step
Toolkit for Members of Congress interested in visiting an ICE facility,
available at https://www.immigrantjustice.org/research-items/toolkit-
immigration-detention-oversight-and-accountability.
---------------------------------------------------------------------------
For Members with an ICE facility in their State or district,
actively engage with that facility: Visit regularly, engage in
oversight steps, intervene when conditions are deficient, and
support local legal service providers and visitation groups in
maintaining access.
Invest in non-profit community-based alternative-to-
detention programs. Cut funding for ICE's detention and
enforcement account, and support restrictions in DHS's
authority to transfer and reprogram funds into that account.
Support changes necessary to move the immigration detention
facilities inspections regime out of ICE and into an
independent body such as the DHS Office of Inspector General.
Support H.R. 2415, the Dignity for Detained Immigrants Act,
which remedies many of the most harmful aspects of the
detention system, including:
Ending mandatory, or no-bond, detention;
Ensuring a presumption of liberty rather than a
presumption of detention for all immigrants; and
Ending the use of private prisons and county jails for
immigration detention.
The United States immigration detention takes so much from so many.
On our watch, our Government is incarcerating hundreds of thousands of
immigrants each year, depriving individuals of access to counsel,
tearing families apart and destabilizing communities, and it is not
necessary and it is not sound policy. Urgent action is needed, today.
______
Statement of Dana L. Gold, Esq., Government Accountability Project
September 26, 2019
Dear Committee Members: Thank you for the opportunity to submit
written comments in support of your hearing, ``Oversight of ICE
Detention Facilities: Is DHS Doing Enough?''
I serve as senior counsel for Government Accountability Project, a
national non-profit whistleblower protection and advocacy organization
founded in 1977. As Congress and the Nation have been reminded over the
past week with news about the intelligence community whistleblower who
used prescribed channels to raise the alarm about serious and urgent
issues related to abuses of authority of the highest order,
whistleblowers--ethical civil servants who discover information about
wrongdoing and choose to disclose those concerns--are one of the best
mechanisms to facilitate oversight, promote legal compliance and
accountability, and prevent or mitigate serious harm.
My organization currently represents 3 DHS whistleblowers, Drs.
Scott Allen and Pamela McPherson, and attorney Ellen Gallagher, all of
whom work or worked for DHS's Office of Civil Rights and Civil
Liberties (CRCL) at the time of their initial disclosures. All 3 raised
concerns about systemic problems in ICE detention facilities: Drs.
Allen and McPherson, CRCL's medical and mental health subject-matter
experts, raised concerns about the imminent risk of harm posed to
children in detention at Family Residential Centers; Ms. Gallagher, as
a senior policy advisor in CRCL's immigration section, blew the whistle
with extensive documentation on ICE's wide-spread use of solitary
confinement on mentally ill and medically vulnerable adult civil
detainees.
All 3 began raising concerns under the Obama administration
internally to CRCL leadership; they also brought their concerns to the
DHS Office of Inspector General (OIG), to Congress, and finally to the
press in increasingly desperate efforts to address the harms--life-
threatening physical and psychological damage to migrant detainees--
that they initially raised internally to DHS.
Despite the fact that these civil servants--DHS's own experts--have
communicated their specific and verified concerns with increasing
escalation, the detention practices they have warned as being harmful
to migrant detainees have not only continued, but have increased in the
surge of detention under the Trump administration's ``zero-tolerance''
immigration policy. As such, we remain gravely concerned that the
oversight mechanisms within DHS are so limited in investigative scope,
capacity, legitimacy, and authority that, rather than serve as checks
on abuses and preventers of harm, their ineffectualness enables the
very abuses and harms they are meant to check.
On June 27, 2019, we wrote a letter to this and other relevant
Congresssional committee chairs detailing our concerns regarding DHS's
failures to address serious concerns raised by its own whistleblowers
on matters of life and death, and we are grateful that this committee
is now conducting a hearing into this matter.
Below I have outlined both the nature of our whistleblower clients'
disclosures and the processes they used to seek redress for their
concerns that detention facilities pose the risk of harm to children
and vulnerable adult immigrant detainees. Over the past several months,
their disclosures have continued to be validated, yet remain
unaddressed. Taken together, they paint a picture of DHS oversight
weaknesses that demand Congressional intervention to remedy.
a. immigration expert and attorney ellen gallagher's disclosures of
ice's wide-spread use of solitary confinement on mentally ill and
medically vulnerable adult detainees
Attorney Ellen Gallagher, when working as a senior policy advisor
within the immigration section of DHS's Office of Civil Rights and
Civil Liberties, discovered in reading hundreds of ICE segregation
reports that ICE was regularly putting mentally ill and medically
vulnerable adult migrant civil detainees in solitary confinement across
dozens of ICE facilities in violation of statutory mandates and Federal
detention standards, practices that qualify as torture under United
Nations standards. Often segregation was used for reasons directly
related to their mental illness.
These practices revealed that detainees--notably in civil detention
which is by definition not punitive--were deprived of proper medical
care and attention, even when suicidal; many were shackled, strip-
searched, silenced, and brutalized; others missed immigration court
dates that otherwise might have enabled them to seek bond, legal
protection, and counsel.
Examples she discovered and disclosed were, often on the face of
the segregation reports and in their notes, egregious and troubling.
One detainee was diagnosed with schizoaffective disorder with
hallucinations and suicidal ideation, yet spent months in and out of
solitary confinement before being sentenced to 390 more days for
throwing his feces at a security guard. Another was sentenced to 45
days in ``24-hour lockdown'' because guards during a search of his cell
found a single anti-anxiety pill, hidden in a book he was reading.
Detainees on ``suicide watch'' were routinely placed in isolation
without information as to the length of time they would remain there,
whether or how frequently they would be monitored, or the medical
treatment they would receive. Reports from a regional jail showed
mentally ill immigration detainees naked in deplorable conditions and
denied reentry to the general population until they agreed to maintain
``proper hygiene.'' Other detainees were sentenced to periods from 15
to 45 days in disciplinary segregation for offenses including
``insolence,'' ``spitting,'' ``possession of a cellphone,'' ``failure
to follow an order,'' ``attempted horseplay'' and ``attempted
fighting.''
Ms. Gallagher began raising concerns in 2014 about ICE's practices
internally to CRCL management, which repeatedly chose not to
investigate the individual cases she raised that evidenced serious
violations of detention standards. She then raised concerns to DHS's
Office of Inspector General (OIG), and also filed a whistleblower
disclosure with the Office of Special Counsel (OSC). The OSC deferred
to the OIG, which failed to investigate the full scope of Ms.
Gallagher's disclosures. Despite 2 separate requests for
reconsideration to the OSC to independently review the disclosures and
supporting evidence, the OSC instead deferred to the OIG's own
incomplete investigation. During this period as well, Ms. Gallagher's
disclosures to Congress did not generate meaningful action.
In May 2019, Ms. Gallagher finally decided to go on the record
after years of raising her concerns through every avenue within the
Government had failed to result in any meaningful investigation to
address the wide-spread use of solitary confinement in immigration
detention.\1\
---------------------------------------------------------------------------
\1\ See ``A Homeland Security Whistleblower Goes Public About ICE
Abuse of Solitary Confinement,'' The Intercept (May 21, 2019), and
``Thousands of Immigrants Suffer in Solitary Confinement in U.S.
Detention Centers,'' NBC News (May 21, 2019). These press accounts also
document Ms. Gallagher's efforts to disclose evidence of ICE's
inappropriate use of solitary confinement in adult detention.
---------------------------------------------------------------------------
On June 3, 2019, the Department of Homeland Security Office of
Inspector General (DHS OIG) issued a report, Concern about ICE Detainee
Treatment and Care at Four Detention Facilities, that failed to address
the systemic abuses and violations across ICE facilities reported by
Ms. Gallagher, instead focusing on wrongdoing at only the 4 adult
detention facilities it visited. The OIG report found, among other
violations, that 3 out of 4 sites visited used improper segregation
practices which both violated ICE policy standards and infringed upon
detainee rights. The findings included premature placement into
solitary confinement, use of restraints at all times when detainees
were outside their cells, strip searches upon entering isolation, and
inadequate time outside cells. While this report's conclusions
substantively confirmed Ms. Gallagher's disclosures, made over a period
of almost 5 years and documenting hundreds of examples of ICE's
inappropriate use of solitary confinement, the report's recommendations
were limited only to reforms at the 4 facilities visited by the OIG.
Despite the limited scope of the OIG's investigation and findings,
Ellen Gallagher's warnings regarding ICE's use of solitary confinement
were recently validated and expanded upon by the Project on Government
Oversight (POGO), which last month released a report, ISOLATED: ICE
Confines Some Detainees with Mental Illness in Solitary for Months,
demonstrating that approximately 40 percent of detainees placed in
solitary confinement between January 2016 and May 2018 have mental
illness, with more than 4,000 of the 6,559 records reviewed showing
detainees being confined for more than 15 days. Through analyzing the
results of a Freedom of Information Act request, POGO was able to
confirm and describe ICE's continued and increased inappropriate use of
solitary confinement across dozens of its facilities.
DHS's failure to address ICE's wide-spread use of solitary
confinement on mentally ill and medically vulnerable detainees reveals
the utter ineffectiveness of its oversight mechanisms.
CRCL failed to even investigate Ms. Gallagher's disclosures,
despite its statutory mandate to ``oversee compliance with
Constitutional, statutory, regulatory, policy, and other requirements
relating to the civil rights and civil liberties of individuals
affected by the programs and activities of the Department'' and to
``investigate complaints and information indicating possible abuses of
civil rights or civil liberties, unless the Inspector General of the
Department detainees that any such complaint or information should be
investigated by the Inspector General.''\2\
---------------------------------------------------------------------------
\2\ See 6 U.S.C. 345(a), Establishment of Officer for Civil
Rights and Civil Liberties.
---------------------------------------------------------------------------
Likewise, the OIG has failed to conduct investigations to address
systemic, inappropriate use of solitary confinement occurring across
the ICE adult detention system in the face of clear, overwhelming
evidence.
Worse, the OIG's limited investigative scope--be it because of
limited resources, expertise, capacity, or mandate--has preempted other
mechanisms for accountability, including the OSC whistleblower
disclosure process. This process requires the agency head to
investigate and respond to a whistleblowers' valid disclosures and
issue a report regarding steps they will take to address the problem.
The whistleblower then has the opportunity to comment on the report and
provide further evidence, with the OSC finally deciding whether the
agency's report is adequate or not, and submitting the entire package
to the President, Congressional leaderships, and appropriate
Congressional committees.
If the OIG, deliberately or inadvertently, preempts OSC's
investigations by failing to fully address a whistleblower's
disclosures, and the OSC defers to the OIG, the upshot is that Congress
is deprived of one of its most valuable mechanisms to fulfill its own
mandate of overseeing the Executive branch.
b. drs. scott allen's and pamela mcpherson's disclosures of imminent
harm to children in dhs family residential centers
Our clients Drs. Allen and McPherson serve respectively as the
medical and mental health subject-matter experts in detention for the
Department of Homeland Security's Office of Civil Rights and Civil
Liberties (CRCL). In the course of investigating 4 of the Family
Residential Centers for CRCL between 2014-2017--Artesia in New Mexico,
Karnes and Dilley in Texas, and Berks in Pennsylvania--Drs. Allen and
McPherson consistently raised concerns in their reports to CRCL as well
as in extensive oral briefings about both the harms posed to children
in detention generally as well as specific and systemic problems
related to practices and policies at the family detention centers that
endangered children. Indeed, their findings resulted in shutting down
Artesia as too rife with problems to protect children at that facility.
When the Trump administration began expanding family detention as
part of its ``zero-tolerance'' immigration policy, the doctors became
gravely concerned that the issues that compromised care, and which had
not yet been resolved, would be further exacerbated with the increased
populations. This predictably put children at imminent risk of harm. In
June 2018, Drs. Allen and McPherson exercised their rights as
whistleblowers by communicating these concerns to CRCL management, to
the DHS OIG, and to Congress.\3\
---------------------------------------------------------------------------
\3\ See, e.g., July 17, 2018 Letter to Senate Whistleblower Caucus
Chairs from Drs. Scott Allen and Pamela McPherson.
---------------------------------------------------------------------------
In addition to their overarching warnings that detention, for any
amount of time, harms children, their specific concerns about systemic
weaknesses at detention facilities included the lack of qualified
medical and mental-health professionals; a lack of language translators
making diagnoses exceedingly difficult; inadequate and dangerous
facilities posed by the retrofitted prisons used to house families with
small children; failure to provide trauma-informed care; lack of
training of custodial staff to care for at-risk children; inadequate
detention standards; and confusing lines of authority and weak
coordination between different agencies, program partners, and
Government departments that can cause dangerous communication
breakdowns and accountability failures that put children at risk.
CRCL refused to investigate the doctors' concerns, claiming that
the Inspector General had jurisdiction over their complaint.
However, the OIG never acknowledged receipt of let alone conducted
an investigation into Drs. Allen and McPherson's disclosures, first
submitted on June 25, 2018, despite the doctors' explicit warnings that
a hastily-deployed expansion of family detention unnecessarily places
children at imminent threat of risk of significant mental health and
medical harm. Only after we wrote our letter to Congress in June 2019
decrying DHS oversight failures, and the then-Acting OIG faced
questions in a July 12, 2019 House Committee an Oversight and Reform
hearing about the OIG's failure to respond to the doctors' OIG
complaint, were we approached by the OIG to discuss our clients'
concerns.
Notably, CRCL has not conducted on-site investigations of family
detention centers since September 2017, despite being aware of the
systemic problems that put children in detention at risk of physical
and psychological harm and despite receiving numerous complaints from
or on behalf of detainees which would justify investigation.\4\
---------------------------------------------------------------------------
\4\ See March 19, 2019 Letter to Congress from Drs. Allen and
McPherson, https://jayapal.house.gov/wp-content/uploads/2019/03/031919-
whistleblowers-letter-to-Congress-w-cover-letter-fact-sheet-re-
children-in-detention pdf.
---------------------------------------------------------------------------
Not only did the doctors receive no indication from DHS oversight
mechanisms that their concerns were being addressed, their warnings
about harms to children in detention, echoed by more than 14 medical
professional associations, including the American Medical Association,
the American Academy of Pediatrics, the American College of Physicians,
and the American Psychiatric Association,\5\ were willfully ignored, as
DHS in September 2018 proposed rulemaking to replace the Flores
settlement agreement, having the intended effect of allowing for
prolonged and indefinite detention of children. Drs. Allen and
McPherson, in written comments to DHS and ICE, expressed their
opposition to practices that would prolong detention of children,
particularly while the systemic issues they had identified that pose
imminent harm remained unaddressed.
---------------------------------------------------------------------------
\5\ See Letter to House Judiciary Committee, House Energy and
Commerce Committee, House Homeland Security Committee, and House
Appropriations Committee (July 24, 2018) (letter viewable at https://
www.acponline.org/acp_policy/letters/letter_house_oversight_re-
quest_on_child_detention_centers_2018.pdf); Letter to Senate Judiciary
Committee, Senate HELP Committee, Senate HSGAC Committee, and Senate
Appropriations Committee (July 24, 2018) (letter viewable at https://
www.psychiatry.org/newsroom/news-releases/apa-joins-health-care-
community-in-calling-on-congress-to-hold-hearings-on-treatment-of-
children-separated-from-parents-at-border); American College of
Physicians, Internists Call for Congressional Oversight of Family
Detention (July 20, 2018), https://www.acponline.org/acp-newsroom/
internists-call-for-congressional-oversight-of-family-detention.
---------------------------------------------------------------------------
With all oversight mechanisms failing to end detention of children,
the doctors escalated their concerns to the press by going on the
record with 60 Minutes, N.P.R., and The Washington Post, writing in
December 2018 after the death of 7-year-old Jakelin Caal Maquin in CBP
custody, ``We warned DHS that a migrant child could die in custody. Now
one has.''
Rather than minimize detention as its own ICE Advisory Panel
recommended in 2016,\6\ DHS decided instead to prolong detention
indefinitely in its recent final rule replacing the Flores Settlement
Agreement standards, reflecting not only a disregard of its own medical
and mental health subject-matter experts within its own oversight
entities, but the willful endangerment of migrant children in order to
deter migration at the Southern Border. When its own scientific
experts, supplied by the overwhelming consensus of the medical
professional community, warn that detention causes harm to children and
DHS seeks to expand and prolong detention, DHS ``oversight'' of ICE
detention may as well be meaningless.
---------------------------------------------------------------------------
\6\ Report of the ICE Advisory Committee on Family Residential
Centers (October 7, 2016), https://www.ice.gov/sites/default/files/
documents/Report/2016/acfrc-report-final-102016.pdf.
---------------------------------------------------------------------------
c. new concerns about dhs oversight failures of ice detention
facilities
DHS announced just days ago that it intends to resume detaining
migrant families at the Karnes County Residential Center, one of the
detention facilities about which Drs. Allen and McPherson identified
concerns about the ability to prevent harm to children. Given that CRCL
has not conducted any on-site investigations of DHS family detention
centers since September 2017, it belies credulity to think Karnes will
have remedied the myriad problems identified by Drs. Allen and
McPherson that existed even before a surge in family detention.
As for addressing ICE's wide-spread use of solitary confinement on
mentally ill and medically vulnerable detainees, despite multiple
letters from Congress to ICE demanding investigations into their use of
solitary confinement, it is unclear what DHS oversight mechanisms are
doing to address these practices that are finally being publicly
exposed and decried.
The DHS OIG, in talking with me and my colleague Irvin McCullough
on August 5, 2019 in response to our letter condemning their failure to
investigate the most serious of whistleblowers' concerns--practices
that pose harm to civil detainees and innocent children--tried to
explain some of what hamstrings their ability to conduct effective
oversight. Diana Shaw, Assistant Inspector General for Special Reviews
& Evaluations, noted problems that included limited resources, a lack
of their own subject-matter experts, the difficulty of conducting
systemic investigations, limitations on their ability to conduct
unannounced facility visits, a perceived limitation that they may only
make recommendations relating to the facilities they actually observe,
and unfunded mandates that result from the source of Congressional
appropriations differing from multiple Congressional requests to
conduct investigations.
These barriers to oversight should be fully investigated and
remedied by Congress. When whistleblowers' concerns of the highest
magnitude are ignored, as was in the case of Drs. Allen and McPherson,
or only very partially addressed, as was the case with Ms. Gallagher's
disclosures, one of the most valuable mechanisms for DHS accountability
and oversight--the ability to meaningful respond to, investigate, and
address whistleblowers' significant concerns--is broken.
There is a dire need for legitimate oversight that captures the
full extent of ICE's and DHS's violations; accountability regarding the
scope and recommendations of OIG's investigations; and explanations for
CRCL's and the OIG's (and in Ms. Gallagher's case, the OSC's) failure
to conduct oversight in response to these whistleblowers' disclosures.
Whistleblowers' concerns should not only be acknowledged--they should
be fully investigated, by both the administration and the Congress, to
identify and correct abuses affecting millions of detainees and their
families across the country.
Whistleblowers are the early warning systems to prevent problems
and address abuses. These whistleblowers gave DHS the opportunity to
prevent harm to children and adult migrants in the civil detention
system; the fact that this committee is now holding a hearing
questioning the effectiveness of DHS oversight practices reveals that
the Executive branch oversight functions, including how they respond to
their own whistleblowers and their disclosures, are inadequate on their
own without Congressional intervention or amplified scrutiny by the
press and civil society.
I do want to acknowledge that leadership at both the DHS OIG, where
Ms. Gallagher currently works as a senior advisor, and at CRCL, for
which Drs. Allen and McPherson continue to serve as contracted subject-
matter experts, have not taken any retaliatory action to date against
any of our clients. That DHS leadership in these oversight functions
recognizes the rights of employees and contractors to raise concerns
about such serious abuses reflects a respect and appreciation for
whistle-blowers as part of the overall oversight function at the
agency. But lack of reprisal is not the same as responding in a
meaningful way to the substance of serious disclosures. Congress should
thoroughly investigate and remedy real and perceived barriers that have
resulted in failed oversight by DHS of on-going practices that continue
to endanger migrant detainees at ICE detention facilities.
Thank you for the opportunity to contribute written testimony in
support of this hearing. I, along with my clients, stand ready to
support this committee's efforts in any way we can.
______
Letter From Miscellaneous Organizations
August 29, 2019.
The Honorable Joseph V. Cuffari,
Inspector General, Office of Inspector General/Mail Stop 0305, U.S.
Department of Homeland Security, 245 Murray Lane SW,
Washington, DC 20528-0305.
Sent via USPS and email to: [email protected]
Re: Request for Investigation of Abusive Treatment of Detainees at
Bossier and Pine Prairie Detention Centers
Dear Acting Inspector General Cuffari: We write to request that the
Office of Inspector General immediately investigate two incidents that
occurred at Bossier Medium Security Facility (``Bossier'') in Plain
Dealing, Louisiana, and at Pine Prairie ICE Processing Center (``Pine
Prairie''), in Pine Prairie, Louisiana. Based on our interviews of
eyewitnesses and victims, and consistent with the National news
reports, we believe that Immigration and Customs Enforcement (``ICE'')
and its contractors at these two immigration detention centers
responded to detained immigrants peacefully protesting their indefinite
and inhumane detention conditions with unlawful force, and improperly
interfered with protected speech. We request that you conduct a
thorough investigation of these troubling incidents and publicly
release the results as quickly as possible.
On August 2, 2019, ICE and its contractors beat and pepper-sprayed
more than thirty (30) peaceful hunger strikers at Bossier.\1\ Victims
reported that ICE and its contractors pushed the hunger strikers up
against a wall and kicked one in the chest. Witnesses reported having
seen the hunger strikers bleeding as they were hauled away. At least
one person required hospitalization. ICE and its contractors forced
more than 20 of the hunger strikers into solitary confinement following
the attack, cut off phone communication between them and the outside
world, and according to reports from attorneys representing some of the
hunger strikers, denied them access to legal visitation.\2\
---------------------------------------------------------------------------
\1\ Dozens of ICE Detainees Were Pepper-Sprayed by Guards for
Protesting at a Louisiana Jail, Mother Jones, August 2, 2019, https://
www.motherjones.com/politics/2019/08/immigrant-detention-ice-bossier-
louisiana-pepper-spray/.
\2\ Deputies at La. jail pepper spray, strike ICE detainees,
Washington Blade, August 3, 2019, https://www.washingtonblade.com/2019/
08/03/deputies-at-la-jail-pepper-spray-strike-ice-detainees/.
---------------------------------------------------------------------------
On August 3, 2019, ICE and its private prison contractors at Pine
Prairie shot tear gas canisters and rubber bullets at approximately 115
hunger strikers sitting in protest in the recreation yard. Some hunger
strikers were also beaten.\3\ We have attached photos of injuries
caused by these attacks published by news outlets. Witnesses report
seeing private prison guards covered in the blood of the protesters. At
least 1 protestor required CPR resuscitation after the gas attack.
Despite the extensive evidence of injuries caused by the attack, ICE
acknowledges only that it used pepper spray to disperse a crowd. After
the attack, our clients informed us that ICE locked some of the hunger
strikers into solitary confinement and punitively denied them
communication with their family, friends, and attorneys. They
transferred another group of peaceful protestors to Adams County
Conectional Center, a detention facility with a recent history of
unlawful repression of peaceful protests.\4\ At Pine Prairie, ICE and
its contractors subsequently locked detained individuals into solitary
confinement, after people spoke about the incident to loved ones on
their Pine Prairie-issued tablets.
---------------------------------------------------------------------------
\3\ More Than 100 Immigrants Were Pepper-Sprayed At An ICE
Facility, Buzzfeed News, August 6, 2019, https://www.buzzfeednews.com/
article/hamedaleaziz/ice-immigrants-pepper-sprayed-louisiana-pine-
prairie.
\4\ Warren Demands Answers From ICE About Its New Detention Centers
in the South, Mother Jones, July 12, 2019, https://www.motherjones.com/
politics/2019/07/warren-demands-answers-from-ice-following-mother-
jones-report-on-detention-centers/.
---------------------------------------------------------------------------
Neither incident required the application of the use of force. Even
if some intervention were to be deemed necessary, the relationship
between the need and the amount of force used clearly exceeded lawful
authority.
These abuses are part of ICE's disturbing practice of punishing
detained protestors for exercising their right to protest with severe
retaliation and excessive force.\5\ These practices violate the First
and Fifth Amendment rights of these immigrants, who were lawfully and
peacefully protesting an ICE detention system in which at least 25
people have died since 2016.\6\ ICE's conduct also violates its own
policies and standards regarding use of force.\7\
---------------------------------------------------------------------------
\5\ BREAKING: As Hunger Strikes Erupt Nationwide In ICE Detention,
Immigrants Subjected To Retaliation and Excessive Force, Freedom for
Immigrants, August 6, 2019, https://www.freedomforimmigrants.org/news/
2019/8/6/multiple-hunger-strikes-erupt-in-ice-jails-and-prisons-
nationwide.
\6\ The Trump Administration Has Let 24 People Die in ICE Custody,
Vice News, June 10, 2019. https://news.vice.com/en_us/article/3k3jd3/
the-trump-administration-has-let-24-people-die-in-ice-custody; Mexican
man dies in ICE custody in Georgia, NBC News, July 25, 2019, https://
www.nbcnews.com/news/latino/mexican-man-dies-ice-custody-georgia-
n1034651.
\7\ See notes 10-12, supra.
---------------------------------------------------------------------------
All immigration detainees, including those who are being held
pursuant to civil immigration law, and who have no prior criminal
history, are entitled to rely on the protections of the due process
clauses in the Fifth and Fourteenth Amendments, and they have rights
under the First Amendment.
The Constitution provides protections to immigrant detainees
regardless of whether they are being held on criminal or civil grounds
with regard to conditions that constitute ``punishment.''\8\ Civil
detainees are also guaranteed certain liberty interests such as
reasonably safe conditions of confinement, freedom from unreasonable
bodily restraint, and the right to food, clothing, medical care, and
shelter.\9\ Likewise ICE's own detention standards prohibit use of
force ``to punish a detainee'' and ``using force against a detainee
offering no resistance.''\10\ The standards authorize use of weapons
only when detained individuals are ``armed and/or barricaded . . .
cannot be approached without danger to self or others; and . . . a
delay in controlling the situation would seriously endanger the
detainee or others, or would result in a major disturbance or serious
property damage.''\11\ ICE's Use of Force Policy states that chemical
agents may be used only to ``temporarily incapacitate an assailant.
They may be used in situations where empty-hand techniques are not
sufficient to control disorderly or violent subjects.''\12\ It is clear
from the reports that we have received that ICE and its contractors
used unlawful force against these peaceful hunger strikers.
---------------------------------------------------------------------------
\8\ Bell v. Wolfish, 441 U.S. 520, 535 (1979); See e.g. Lynch v.
Cannatella, 810 F.2d 1363, 1375 (5th Cir. 1987) (``[W]hatever due
process rights excludable [noncitizens] may be denied by virtue of
their status, they are entitled under the Due Process Clauses of the
Fifth and Fourteenth Amendments to be free of gross physical abuse at
the hands of State or Federal officials.'')
\9\ Youngberg v. Romeo, 457 U.S. 307, 315-316 (1982).
\10\ PBNDS 2.15(V)(E)(2) and 2.15(V)(E).
\11\ PBNDS 2.15(V)(E)(5).
\12\ Interim ICE Use of Force Policy, ICE, July 7, 2004, https://
www.dhs.gov/sites/default/files/publications/ice-use-of-force-
policy.pdf.
---------------------------------------------------------------------------
Further, the First Amendment prohibits ICE from abridging freedom
of speech.\13\ By prohibiting outside communication by protestors and
those who reported those the attacks and forcing them into solitary
confinement, ICE appears to be violating their First Amendment rights.
Likewise, ICE detention standards require that even those in solitary
confinement ``be permitted to place calls to attorneys, other legal
representatives, courts, government offices . . . and embassies or
consulates phones.''\14\ No ICE disciplinary standard authorizes
solitary confinement for those who report abuses in detention.\15\
---------------------------------------------------------------------------
\13\ See Stefanoff v. Hays Cnty., 154 F.3d 523, 527 (5th Cir. 1998)
(Finding that ``a hunger strike may be protected by the First Amendment
if it was intended to convey a particularized message.''); Hart v.
Hairston, 343 F.3d 762, 764 (5th Cir. 2003)) (Finding that the First
Amendment prohibits retaliation for speaking out about conditions of
confinement).
\14\ 2011 ICE Performance-Based Detention Standards (``PBNDS''),
Chapter 2.12, Section V, Subsection BB, https://www.ice.gov/doclib/
detention-standards/2011/2-12.pdf.
\15\ PBNDS Appendix 3.1.A.
---------------------------------------------------------------------------
Please investigate why ICE and its contractors used unlawful force,
weapons, and chemical agents at these facilities though none of the
protestors was disorderly, dangerous, or violent, and to what extent
ICE and its contractors violated ICE's own standards and the First
Amendment in these incidents. It is critical that the public obtains a
full accounting of the specific circumstances surrounding these
attacks; that you determine how and why ICE continues to beat and gas
peaceful protesters; and that you assess whether ICE or any other
administration officials bear any responsibility for the circumstances
leading to these abuses.
All of the victims of the violence perpetrated by ICE and its
contractors at Bossier and Pine Prairie are detained immigrants. ICE
and its contractors used unlawful physical violence against them.
Congress enacted the Inspector General Act of 1978 to ``ensure
integrity and efficiency in government'' and according to your website,
your mission is ``[t]o provide independent oversight and promote
excellence, integrity, and accountability within DHS.'' In the name of
integrity and accountability, we urge you to investigate the above-
detailed incidents of violence against detained immigrants at Bossier
and Pine Prairie.
Thank you for your attention to this matter.
Sincerely,
ACLU of Louisiana
Al Otro Lado
Americans for Immigrant Justice
Asian Americans Advancing Justice--Atlanta
Detention Watch Network
Freedom for Immigrants
Innovation Law Lab
ISLA
Just Detention International
Kentucky Coalition for Immigrant and Refugee
New Orleans Workers Center for Racial Justice
Project Ishmael--First Grace Community Alliance
Project South
RAICES
Southern Poverty Law Center
Taos Immigrant Allies
Tennessee Immigrant and Refugee Rights
Unitarian Universalist Service Committee.
______
Letter From Miscellaneous Organizations
September 25, 2019.
Dr. Stewart D. Smith,
Assistant Director for ICE Health Services Corps., Enforcement and
Removal Operations, Immigration and Customs Enforcement,
Department of Homeland Security, Washington, DC 20528.
Mr. Matthew Albence,
Acting Director, U.S. Immigration and Customs Enforcement, Department
of Homeland Security, Washington, DC 20528.
Mr. Mark A. Morgan,
Acting Commissioner, U.S. Customs and Border Protection, Department of
Homeland Security, Washington, DC 20528.
Ms. Cameron Quinn,
Officer for Civil Rights and Civil Liberties, Office for Civil Rights
and Civil Liberties, Department of Homeland Security,
Washington, DC 20528.
Mr. Joseph V. Cuffari,
Inspector General, Office of Inspector General, Department of Homeland
Security, Washington, DC 20528.
RE: Failure to provide adequate medical and mental health care to LGBTQ
people and people living with HIV in immigration detention facilities
Dear Dr. Smith, Mr. Albence, Mr. Morgan, Ms. Quinn, and Mr.
Cuffari: We, the undersigned organizations, file this complaint on
behalf of current and formerly detained lesbian, gay, bisexual,
transgender, and queer individuals and people living with HIV (LGBTQ,
PLWHIV) in immigration detention facilities. This complaint details
recent accounts of Immigration and Customs Enforcement's (ICE) and
Customs and Border Protection's (CBP) provision of egregiously
inadequate medical and mental health care, jeopardizing the health,
safety, and lives of individuals in Federal custody while they exercise
their legal right to pursue their immigration claims and seek
protection in the United States. ICE and CBP's continued failure to
provide such basic care is in clear violation of the U.S. Constitution,
statutory law, and applicable detention standards.\1\ This failure has
led to the deaths of multiple LGBTQ, PLWHIV migrants, and continues to
cause inseparable harm.
---------------------------------------------------------------------------
\1\ The United States is additionally obligated under international
law to provide adequate health care for detained immigrants. Namely,
the United States is a signatory to the International Covenant on
Economic, Social, and Cultural Rights, which guarantees everyone a
right to physical and mental health. United Nations General Assembly,
International Covenant on Economic, Social and Cultural Rights, Art.
12, December 16, 1966, https://www.ohchr.org/en/professionalinterest/
pages/cescr.aspx.
---------------------------------------------------------------------------
In light of the substantial evidence of ICE's inability to safely
house and adequately care for LGBTQ, PLWHIV individuals in its custody,
we call for ICE to exercise its parole authority and release all LGBTQ,
PLWHIV individuals on their own recognizance. We also urge the Office
of Inspector General (OIG) to work with the Office for Civil Rights and
Civil Liberties (CRCL) to immediately conduct a systemic investigation
into the provision of medical and mental health care to LGBTQ, PLWHIV
individuals in ICE and CBP custody. We call on ICE to comply with the
OIG's January 29, 2019 recommendation and use its contracting tools to
hold accountable those detention facilities that fail to meet the
applicable standards of care by ending their contracts and imposing
financial penalties. Finally, we call on DHS to strengthen its
oversight of all facilities to identify and promptly remedy abuses and
medical neglect within these centers.
the abuse of lgbtq, plwhiv individuals in dhs custody is well-
documented
The wide-spread abuse and mistreatment of LGBTQ, PLWHIV individuals
in ICE custody is well-documented. The Department of Homeland Security
(DHS) has already received countless reports of LGBTQ, PLWHIV
individuals' experiences with verbal, sexual, and physical violence,
medical negligence, inhumane housing conditions, and overuse of
solitary confinement in both public and private detention centers.\2\
Rather than being confined to a few detention centers, these reports
are wide-spread and consistent, demonstrating the systemic inability of
DHS to meet even basic standards of care for LGBTQ, PLWHIV migrants.
---------------------------------------------------------------------------
\2\ See National Immigrant Justice Center, Submission of Civil
Rights Complaints Regarding Mistreatment and Abuse of Sexual Minorities
in DHS Custody, available at http://www.immigrantjustice.org/sites/
immigrantjustice.org/files/OCRCL%20Global%20Complaint%-
20Letter%20April%202011%20FINAL%20REDACTED.pdf; Sharita Groberg,
``Dignity Denied: LGBT Immigrants in U.S. Immigration Detention,''
(Center for American Progress 2013) available at https://
www.americanprogress.org/wp-content/uploads/2013/11/ImmigrationEn-
forcement.pdf; Human Rights Watch, ``Do You See How Much I'm Suffering
Here? Abuse Against Transgender Women in US Immigration Detention,''
(Human Rights Watch 2016) available at https://www.hrw.org/sites/
default/files/report_pdf/us0316_web.pdf; Letter from Rep. Kathleen Rice
to DHS Secretary Kirstjen Nielsen (May 30, 2018) (available at https://
kathleenrice.house.gov/uploadedfiles/
2018.05.30_lgbt_immigrants_in_ice_detention_letter-
_to_sec_nielsen.pdf).
---------------------------------------------------------------------------
For example, just 2 months prior to Johana Medina's death, a
complaint was sent to DHS detailing the rampant discrimination and
violence inflicted on LGBTQ individuals at Otero County Processing
Center, the detention center where Johana Medina died as a result of
the substandard care she received in DHS custody.\3\ Even after this
complaint was received and after Johana Medina's death, ICE continues
to deny transgender women and gay and bisexual men at Otero basic
health care and provides misinformation on how to access hormone
therapy. In fact, an investigative report published in 2018
demonstrated that DHS has received more than 200 complaints of abuse
and mistreatment from individuals housed at Otero County Processing
Center, and yet, Otero continues to operate today and DHS has failed to
take adequate actions to improve conditions at the facility.\4\
---------------------------------------------------------------------------
\3\ ACLU New Mexico, Santa Fe Dreamers Project, and Las Americas:
Immigrant Advocacy Center; Detention Conditions Impacting the Safety
and Well-Being of LGBTQ Immigrants in the Otero County Processing
Center, https://www.aclu-nm.org/sites/default/files/field_documents/
advance_copy_of_3.25.2019_las_americas_santa_fe_dreamers_project-
_aclu-nm_letter_to_dhs_re_otero.pdf.
\4\ Craig, Nathan, and Margaret Brown Vega. `` `Why Doesn't Anyone
Investigate This Place?': Complaints Made by Migrants Detained at the
Otero County Processing Center, Chaparral, NM Compared to Department of
Homeland Security Inspections and Reports.'' El Paso, TX: Detained
Migrant Solidarity Committee (DMSC) and Freedom for Immigrants (FFI),
2018.
---------------------------------------------------------------------------
Another complaint filed by the American Immigration Council
(Council) and the American Immigration Lawyers Association (AILA) in
2018 detailed the lack of access to basic medical care and mental
health care at the Denver Contract Detention Facility in Aurora,
Colorado.\5\ DHS failed to meaningfully address the concerns raised in
the complaint, and 1 year later, in June 2019, the Council and AILA
supplemented the complaint with additional evidence of inadequate
medical and mental health care.\6\ Specifically, the complaint includes
the case of a transgender woman who reported she was denied access to
hormone treatment, and was subjected to serious sexual and verbal
harassment by facility guards and other detained individuals.
---------------------------------------------------------------------------
\5\ Failure to Provide Adequate Medical and Mental Health Care to
Individuals Detained in the Denver Contract Detention Facility, https:/
/www.americanimmigrationcouncil.org/sites/default/files/
general_litigation/
complaint_demands_investigation_into_inadequate_medical-
_and_mental_health_care_condition_in_immigration_detention_center.pdf.
\6\ SUPPLEMENT--Failure To Provide Adequate Medical and Mental
Health Care to Individuals Detained in the Denver Contract Detention
Facility, https://www.americanimmigra- tioncouncil.org/sites/default/
files/general_litigation/complaint_supplement_failure_to-
_provide_adequate_medical_and_mental_health_care.pdf.
---------------------------------------------------------------------------
On July 9, 2019, 29 transgender women and non-binary individuals
held at Cibola County Conectional Center in New Mexico called for an
investigation into poor medical services--including HIV care--and
mistreatment at the facility.\7\ In April, 2019, 7 organizations,
including the American Civil Liberties Union, investigated Cibola and
reported that the center had inadequate medical and mental health care,
abuses related to solitary confinement, discrimination and verbal
abuse, and inappropriate meals, among other issues.\8\
---------------------------------------------------------------------------
\7\ Laura Gomez, ``Migrants held in ICE's only transgender unit
plead for help, investigation in letter,'' AZ Mirror, July 9, 2019
https://www.azmirror.com/2019/07/09/migrants-held-in-ices-only-
transgender-unit-plea-for-help-investigation-in-letter/.
\8\ Detention Conditions Impacting the Safety and Well-Being of
Immigrants in the Cibola County Correctional Center in Milan, New
Mexico. April, 2019 https://www.aclu-nm.org/sites/default/files/
field_documents/2019_04_15_nm_stakeholders_letter_to_crcl_re_cibola-
_county_correctional_center.pdf.
---------------------------------------------------------------------------
The OIG's own investigation of 5 ICE facilities, including Santa
Ana City Jail where the previous transgender housing pod was located
and Otero County Processing Center, ``identified problems that
undermine the protection of detainees' rights, their humane treatment,
and the provision of a safe and healthy environment'' and ``potentially
unsafe and unhealthy detention conditions.''\9\ In an earlier
inspection of the Essex County Correctional Facility, the OIG noted the
``serious issues'' it identified ``not only constitute violations of
ICE detention standards but also represent significant threats to
detainee health and safety.''\10\
---------------------------------------------------------------------------
\9\ OIG-18-32.
\10\ OIG-19-20.
---------------------------------------------------------------------------
Rather than take effective action to address the numerous
complaints of abuse and mistreatment of LGBTQ, PLWHIV individuals in
detention, DHS has focused on subjecting an increasing number of people
to these horrific conditions. The number of individuals in immigration
detention is at a historical high and keeps rising, despite the fact
that many of these individuals are eligible for release. By the
Department's own count, 300 individuals who identify as transgender
have been in the custody and supposed care of ICE since October 2018
alone. This is the highest number of transgender migrants in the care
of the U.S. Government ever recorded. At the same time, DHS has failed
to take measures to ensure the basic health and safety of this
population. It is unjustifiable for the U.S. Government to subject an
increasing number of individuals, including those qualified as
vulnerable populations such as LGBTQ, PLWHIV individuals, to these
dangerous conditions.
dhs has consistently demonstrated it is incapable of providing adequate
hiv care
The stories included in this complaint shed light on the effects of
growing roadblocks in access to basic health care as well as life-
saving HIV care in detention due to chronic, systemic medical neglect
and lack of oversight in detention. While ICE has adopted 3 sets of
detention standards, including PBNDS 2011, it does not require
contractors to adopt any recent standards when it enters into new
contracts or contract extensions. The result is a ``patchwork system in
which facilities are subject to differing standards and some are
subject to no standards at all'',\11\ and people are outright denied
access to care, delayed in receiving medical attention, and are left in
conditions that exacerbate their physical and mental health ailments.
---------------------------------------------------------------------------
\11\ https://immigrantjustice.org/research-items/toolkit-
immigration-detention-oversight-and-accountability.
---------------------------------------------------------------------------
The risks that accompany substandard HIV care are serious, and they
arise from the inconsistent or delayed access to treatment. This is why
2011 PBNDS standards have aimed--without success--to secure
uninterrupted access to HIV/AIDS medication for people in detention.
The U.S. Government recognizes that poor adherence to HIV treatment
is associated with less effective viral suppression. The U.S.
Department of Health and Human Services underscores that strict
adherence to antiretroviral therapy is key to sustained HIV
suppression, reduced risk of drug resistance, and survival, as well as
decreased risk of HIV transmission.\12\ An unsuppressed viral load may
risk the immediate health of HIV positive individuals and it will also
risk creating treatment resistance. If patients fail to respond to
their given drug regimen, they are moved to second-line drugs, which
may be more expensive or difficult to manage.\13\ \14\
---------------------------------------------------------------------------
\12\ U.S. Department of Health and Human Services, ``Guidelines for
the use of antiretroviral agents in HIV-Infected adults and
adolescents''. Revised July 2019. https://aidsinfo.nih.gov/guidelines/
html/1/adult-and-adolescent-arv/.
\13\ Kenneth L. Schaecher, Addressing Adherence Challenges
Associated With Antiretroviral Therapy: Focus on Noninfectious Diarr,
The Importance of Treatment Adherence in HIV, September 29, 2013.
https://www.ajmc.com/journals/supplement/2013/a472_sep13_hiv/
a472_sep_13_schaecher_s231.
\14\ Jane Mwangi, CDC Kenya (Centers for Disease Control and
Prevention), Our Research in Kenya: Finding Ways to Improve HIV
Treatment Access and Outcomes, https://blogs.cdc.gov/global/2012/07/26/
our-research-in-kenya-finding-ways-to-improve-hiv-treatment-access-and-
outcomes/.
---------------------------------------------------------------------------
Evidence has shown that individuals with HIV who keep adherence to
HIV medicine as prescribed can stay virally suppressed and thus have
effectively no risk of transmission. In fact, the Centers for Disease
Control and Prevention's (CDC) HIV Treatment as Prevention Technical
Fact Sheet reports a 96 percent reduction in HIV transmission risk
among heterosexual mixed-status couples where the HIV-positive partner
started antiretroviral therapy (ART) immediately versus those delaying
ART initiation.\15\ Far too many people in detention are outright
denied access to HIV-related care or experience significant delays.
This delay of treatment is cruel, counterintuitive to ending HIV
transmission, and causes irreparable harm.
---------------------------------------------------------------------------
\15\ Centers for Disease Control and Prevention CDC, Evidence of
HIV Treatment and Viral Suppression in Preventing the Sexual
Transmission of HIV. HIV Treatment as Prevention Technical Fact Sheet.
https://www.cdc.gov/hiv/pdf/risk/art/cdc-hiv-art-viral-suppression.pdf.
---------------------------------------------------------------------------
reports of deficient medical and mental health care for lgbtq, plwhiv
individuals
Below are multiple accounts of medical negligence and mistreatment
of LGBTQ, PLWHIV individuals in detention centers across the country.
This by no means represents all of the stories of abuse and
mistreatment, but rather provides a glance at the systemic harms and
inadequate care provided to LGBTQ, PLWHIV individuals under the care of
DHS and CBP. There are many stories not included here for fear of
reprisal.
detention centers managed by corecivic
Cibola County Correctional Center--Milan, New Mexico
A. is a transgender woman from El Salvador who has been detained in
Cibola County Detention Center for almost 20 months. A.'s medical
records indicate she suffered from advanced syphilis and, according to
a pro bono medical evaluation, her medical records indicate that her
condition has progressed to neurosyphilis, increasingly affecting her
cognitive abilities. Despite this evidence and her counsel's advocacy,
ICE has continuously failed to provide her penicillin, a well-known and
easily accessible medication. ICE has also repeatedly refused to
release A. from detention so she can get the medical treatment she
requires.
Otay Mesa Detention Center--San Diego, California
G. is a 34-year-old HIV-positive Salvadoran trans woman and
activist who worked to advance trans rights in Latin America and the
Caribbean prior to applying for asylum and was detained in male housing
for more than 6 months in Otay Mesa in 2017. During this time, her HIV
medication was withheld. Additionally, she was misdiagnosed with
tuberculosis. Rather than treating her HIV, she was over-medicated in
attempts to treat tuberculosis she did not have.
Otay Mesa Detention Center--San Diego, California
Y.E. is a transgender woman from Mexico. She was brutally raped,
tortured, beaten, and kept hostage by the cartels for months because
she dressed as a woman. Again and again she was gang-raped. The rapes
caused tears in her anus and rectum. The rapes also resulted in her
contracting HIV. After she presented herself at the border, lawfully
asking for asylum, she was placed in a detention center and was taken
off medication for HIV for a significant amount of time. In addition to
requesting treatment for HIV, she repeatedly asked for help with the
tears in her anus/rectum. The medical staff at the detention center
refused to address it because the tearing did not happen at the
facility and because they believed it to be too invasive. Because no
treatment was given, she caught an infection that resulted in anal
bleeding. She was held in custody for months before finally being
released on parole.
Otay Mesa Detention Center--San Diego, California
S.A.G.C. is an HIV-positive transgender woman who has been
repeatedly abused and raped because of anti-transgender bias in her
home country of El Salvador. The severity of the abuse in her country
was such that during the credible fear interview both the asylum
officer and the translator needed a moment because of the horrors she
described. Although her health was deteriorating in detention and she
felt harassed for being a transgender woman in an all-male pod, she was
kept in custody until she was granted a $2,500 bond--even though she
had letters of support from her sponsor and the community that would be
accepting her. That bond amount was prohibitive to S.A.G.C. and it was
only after a bond fund paid for her release that she was able to get
out of detention.
Otay Mesa Detention Center--San Diego, California
B.C.H. is an asylee from El Salvador. He fled El Salvador after his
life was threatened by gangs on account of his sexual orientation and
political opinion. B.C.H. entered Otay Mesa Detention Center in May
2018 weighing 220 pounds. When he was released in September 2018, he
weighed only 190 pounds.
B.C.H. required serious psychological support due to his traumatic
history of sexual abuse and assault. While at Otay Mesa, he mentioned
to Al Otro Lado that he was seeing a psychologist, but at one point,
despite the threat of imminent death should he return to El Salvador,
he was certain he wanted to stop fighting his case and return to El
Salvador due to the conditions at Otay Mesa. We are unsure what, if
any, psychological treatment he was receiving, and his unaddressed
trauma combined with his extreme weight loss raised serious red flags
regarding the adequacy of medical care at the facility. Despite his
severe weight loss and mental trauma, his parole bond was set at
$10,000, an amount impossible for him to pay.
Otay Mesa Detention Center--San Diego, California
S.Y.M.M. is a 47-year-old gay man from Honduras. He is blind in one
eye and suffers from a myriad of health conditions, including
hypertension and the growth of a cyst on his head. S.Y.M.M.'s ICE
Medical Records indicate that the pain in his head resulting from the
cyst on his scalp worsened significantly while detained. Additionally,
at one point, one of his teeth became severely infected, and he was
never treated for that ailment. S.Y.M.M.'s parole request was denied,
and he was only able to leave the facility when Al Otro Lado submitted
a new request. Even so, his bond was set at a prohibitively high
$5,000. He was only released when a community organized to pay his
bond.
Otay Mesa Detention Center--San Diego, California
R.E.P.L. is a transgender woman from Guatemala who was sexually
abused by her father and her uncles. When she tried to escape the
constant sexual abuse of the men in her family, local police tracked
her down, assaulted her, and returned her to them. When she finally
escaped her family, R.E.P.L. was taken in by a woman who was affiliated
with the 18th Street Gang. This woman forced her under duress to be a
sex worker, and R.E.P.L. was held captivate for 2 years. Police gang-
raped R.E.P.L. when she tried to escape that woman's house and she had
no choice but to flee Guatemala to seek protection in the United
States. En route to the United States, R.E.P.L. was again violently
gang-raped while in Mexico and believes she contracted HIV. R.E.P.L.
requested asylum in January of 2019 and was subsequently detained at
Otay Mesa Detention Center. She expressed her concern to staff at the
facility that she was HIV positive, making countless requests in
writing for an HIV test. Al Otro Lado staff reached out on numerous
occasions to R.E.P.L.'s deportation officer to ensure she received the
necessary testing but never received a response. While R.E.P.L. was
detained at Otay, there was an outbreak of several infectious diseases,
including mumps and chicken pox. Therefore, it was critical for her to
know whether she had HIV or not, as her immune system may have been
severely compromised. The lack of any initiative by the facility to
ensure she was tested for HIV put her health at serious, life-
threatening risk. Despite her traumatic past and serious health
concerns, the immigration judge refused to grant her release on her own
recognizance and set a bond in the amount of $1,500. She was only
released after a community organized to pay her bond.
Cibola County Correctional Center--Milan, New Mexico
C.L. is a transgender woman from Peru who was in detained for
nearly 5 years. She was transferred from Santa Ana Jail in California
to Cibola County Correctional Center when Cibola first opened its
transgender unit. While in Cibola, she repeatedly requested medical
care for Hepatitis C, which she'd been denied at Santa Ana, and
continued to be denied treatment after the transfer. She was in need of
urgent medical care several times while in detention, and recalls once
being in the hospital for 2 weeks. She was shackled by her ankles and
her wrists and two guards were posted outside her door. She wondered
why they would do this when she was in no condition to escape.
Otay Mesa Detention Center--San Diego, California
Y is a transgender HIV-positive woman from Mexico. Upon her arrival
at the border, Y was detained in San Ysidrio, where immigration
officials confiscated her HIV medicine and kept her in a freezing room
for 9 days. Y asked 3 times for her HIV medication back and was denied
each time. Y was later transferred to Otay Mesa Detention Center, where
she was once again denied her life-saving medication for an entire
month. Furthermore, the Otay Mesa medical staff refused to provide
adequate treatment for the injuries Y suffered during a brutal sexual
assault in Mexico. In Otay Mesa, Y was housed with the male population
and was harassed by 2 detained men and an ICE official. When she tried
to make complaints about the harassment to the facility manager, the
manager dismissed her by referring to her complaint as ``gossip.''
Otay Mesa Detention Center--San Diego, California and Hudson County
Correctional Facility--Kearny, New Jersey
E is a gay man from Honduras. Upon arrival to the United States, E
was detained at the Otero County Processing Center and, later, at the
Hudson County Correctional Facility. E faced continuous harassment in
both detention facilities from guards and other detained individuals
because of his sexual orientation. In Hudson, the officers and other
individuals in detention constantly referred to E as ``gay'' instead of
his name or other appropriate forms of address. E also had serious
dental problems while he was in Hudson. However, the medical staff
refused to provide E with the necessary medical treatment, in
contradiction to the applicable Performance-Based National Detention
Standards.
Otay Mesa Detention Center--San Diego, California
P is a 38-year-old Honduran citizen and transgender woman living
with HIV. She entered without inspection at the Southern Border in
California on February 2, 2019, and was detained at Otay Mesa for about
6 months. In Honduras, local police stopped P because she was dressed
in women's clothes and then they raped her. P's employer in Honduras
continuously harassed and threatened her until 1 day they hired people
to beat her up in front of several witnesses who came forward. While
she was detained at Otay Mesa, her HIV medication was delayed and she
never received hormone therapy. As a result, her mental and physical
health deteriorated.
detention centers managed by geo group, inc.
Adelanto Detention Center--Adelanto, California
J. is a transgender man from El Salvador who has been detained in
Adelanto Detention Center for about 9 months. Before being detained, J.
had been receiving gender-affirming hormone therapy for many years.
Since he has been detained, however, J. has not received gender-
affirming hormone treatment despite numerous requests. J.'s mental and
physical health have significantly deteriorated as a result.
Adelanto Detention Center--Adelanto, California
J. is a gay man, a national of Mexico, and a Franco-Gonzalez class
member, who was deemed--by an immigration judge--as non-competent to
represent himself during his removal proceedings due to his mental
health. J. was diagnosed with the following mental health disorders:
Major neurocognitive disorder due to multiple etiologies with
behavioral disturbance; amphetamine-type substance use disorder,
severe, in a controlled environment; major depressive disorder,
recurrent, severe with psychotic symptoms; unspecified
neurodevelopmental disorder (history of a learning disability). Due to
signs of his deteriorating health, in January 2018 his legal
representative requested HIV testing for J. Despite being court-
ordered, the HIV test was not performed for more than 7 months. J.'s
medical records indicate that in August 2018 he received a positive HIV
diagnosis, and that GEO medical staff began antiretroviral treatment,
over 8 months after his legal representative first requested it.
Adelanto Detention Center--Adelanto, California
I.S.I. identifies as LGBTQ and has a diagnosis of bipolar disorder.
She has been in ICE custody since September 2018. Despite complications
with her mental health, she was found competent by an immigration judge
and denied a free appointed immigration attorney. Since then, she has
attempted to die by suicide at least 4 times. Her attorney at the Los
Angeles LGBT Center was unable to locate her client for over 2 weeks
during one of these periods. She is not safe in ICE Custody and does
not feel safe. She reports that the medical care she is receiving is
not helping her.
South Texas Detention Facility--Pearsall, Texas
A. is an HIV+ transgender woman asylum seeker who has been detained
at the South Texas Detention Center (``STDC'') since December 2014. A.
has suffered from severe medical problems and improper treatment since
her arrival at STDC. She has lost more than 25 pounds (and is now
severely underweight at 89 pounds) since the start of detention, and
has been suffering from insomnia, nausea, and loss of appetite because
of the side effects of her medication, and possible incompatibility of
her hormone therapy and antiretroviral drugs administered by the
detention center. She only gets 3 hours of sleep each night, or
sometimes none at all. Because of the symptoms from her medication, she
struggles to consume and retain food, and relies on vitamins purchased
with her own funds from the commissary to obtain nutrition and
sustenance.
Although A. receives nutritional shakes to supplement her meals,
she continues to experience nausea, and the underlying problems of her
medication possibly interfering with each other, or mis-prescribed
medication has yet to be sufficiently addressed.
In June and July, 2019, she experienced two incidents where she
fainted and lost consciousness for hours. In the first incident, other
individuals in detention asked the guards for medical help, but either
because of a delay in dispatch or response, medical services providers
did not reach A. until hours later. In the second incident, which
occurred in the late morning, she was taken to an outside facility,
where she was told that her lungs were swollen and that she had a sinus
infection, and merely given acetaminophen and returned to the facility
in the afternoon. Unfortunately, even though A. has raised these issues
with the facility and with ICE, her medical issues have not been
comprehensively addressed, and she continues to rapidly lose weight as
a result of her nausea and lack of sleep, and her health continues to
deteriorate. She expresses a fear of dying at STDC.
Aurora Detention Facility--Aurora, Colorado
L.M. is a transgender woman who was detained for 6 months in
Aurora, where she was detained with men and was harassed on a regular
basis. Soon after her arrival, she reported to detention center staff
that she needed to continue the hormone treatment she had been
receiving. Staff responded that she would be put on a list to see a
doctor. However, L.M. did not receive a doctor's appointment for over 2
months. At the appointment, the medical provider told her they would
need to consult her medical records to find her hormone prescription,
and if they could not find it, would need to refer her to a specialist.
She did not receive any updates for another 2 months, at which point
she received an appointment with a specialist, which was then canceled.
L.M. finally received the appointment and her prescription the day
before her release but never received the hormones.
Due to the abrupt end to her treatment, L.M. experienced nausea,
difficulty sleeping, lack of appetite, mood changes, and depression
during the 6 months she was detained. Due to the harassment she faced
for being a transwoman detained with men, she reported these incidents
to the detention center guards but their only response was to put her
in solitary confinement, claiming it was for her own safety. She was
put in solitary confinement several times for up to a month at a time,
a practice that can rise to the level of inhuman and degrading
treatment and even torture.
detention facilities managed by lasalle corrections
Irwin County Detention Center--Ocilla, Georgia
S. is a bisexual woman from Jamaica who is HIV-positive and has
been residing in the United States since she was 4 years old. She was
abandoned and became homeless when she was around 10 years old and was
sexually exploited throughout her teenage years. Given her
prostitution-related charges, she has been forced to remain in ICE
custody throughout the pendency of her proceedings. Since being
detained, she has frequently gone days without her HIV medication. She
has to write a letter to the warden every month to receive her HIV
medicine and if she does not write the letter, she does not receive her
refill. Occasionally, she receives the wrong brand of HIV medication.
The head of medical at the facility has also made it difficult for S.
to receive blood work, leaving S. unable to monitor her levels. In
addition, a nurse disclosed S.'s HIV status to the guards.
Irwin County Detention Center--Ocilla, Georgia
C., an east Asian trans man, has been held in immigration detention
for almost 2 years. For the first 19 months, he was held in solitary
confinement solely because he is a transgender man. While in solitary,
his health suffered due to inadequate medical care, including not
receiving his blood pressure medicine, being given the wrong treatment
for a severe illness which led to weeks of extreme stomach pain, and
being fed food that made his diabetes worse. At one, point while he was
getting a hormone shot, the person giving it to him was so incompetent
that the syringe broke while inside his leg. Further, C. has also been
identified and confirmed to be a victim of trafficking by Federal law
enforcement. In fact, Federal law enforcement confirmed that his
convictions were tied to human trafficking but still, ICE refuses to
release him because of his convictions. C. was recently transferred out
of Irwin Detention Center, but is still being held in immigration
detention, despite ICE's awareness of his victim status.
detention centers managed by ice
Krome Service Processing Center--Miami, Florida
D. is a gay, HIV-positive man from Russia. He had already applied
for asylum, when he was unjustly detained in a Florida detention
facility in 2017, while returning from a trip to the U.S. Virgin
Islands. He went multiple days without access to anti-retroviral
medication and developed an opportunistic infection. Because he has a
compromised immune system, this was life-threatening. When he asked to
see a doctor, D. was forced to spend multiple days in a freezing
waiting room. ICE refused to release him until the Associated Press ran
a story about his mistreatment.
dhs is violating legal standards by refusing medical treatment and
delaying care
The inhumane and punitive conditions described above are in direct
contravention of established law and norms. It is the responsibility of
DHS to hold the detention facilities under its purview to the legal
requirements and to appropriately penalize them when they continuously
harm migrants in their care.
Constitutional Protections
The Fifth Amendment Due Process Clause of the U.S. Constitution
protects substantive rights of ``all persons'' present in the United
States, including detained immigrants.\16\ As such, people in detention
are entitled to, at a bare minimum, adequate medical care, as well as
adequate food, shelter, clothing, and reasonable safety.\17\
---------------------------------------------------------------------------
\16\ Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
\17\ See Youngberg v. Romeo, 457 U.S. 307, 315-16, 324 (1982)
(finding civil detainee entitled to adequate food, shelter, clothing,
medical care, and reasonable safety under the Fourteenth Amendment).
---------------------------------------------------------------------------
Immigration detention is civil, not criminal, in nature.\18\ Unlike
criminal detention, civil detention cannot be punitive and any
restriction on a person's liberty must be rationally related to a
legitimate governmental goal.\19\ In the context of criminal detention,
the Eighth Amendment clearly prohibits ``deliberate indifference'' on
the part of the detention staff to a detained individual's ``serious
medical need[s].''\20\ Courts have held that people in civil detention
are entitled to a standard of care greater than--or at the very least,
equal to--the standard of care afforded to people in criminal
detention.\21\ Indeed, the Ninth Circuit has held that, unlike people
in criminal detention, civilly confined individuals need not prove
``deliberate indifference'' to demonstrate a violation of their
Constitutional rights.\22\
---------------------------------------------------------------------------
\18\ Zadvydas, 533 U.S. at 690 (acknowledging that immigration
detention is civil).
\19\ Bell v. Wolfish, 441 U.S. 520, 535-539 (1979).
\20\ Estelle v. Gamble, 429 U.S. 97, 104 (1976) (``prison
official's deliberate indifference to an inmate's serious medical needs
is a violation of the Eighth Amendment's prohibition against cruel and
unusual punishment'').
\21\ Jones v. Blanas, 393 F.3d 918, 931-34 (9th Circ. 2004), cert
denied, 546 U.S. 820 (2005) (a civilly detained person is entitled to
`` `more considerate treatment' than his criminally detained
counterparts . . . Therefore, when a [civil] detainee is confined in
conditions identical to, similar to, or more restrictive than those in
which criminal counterparts are held, we presume that the detainee is
being subjected to `punishment.' '' (internal citations omitted)); see
also Youngberg v. Romero, 457 U.S. 307, 321-32 (1982) (``Persons who
have been involuntarily committed are entitled to more considerate
treatment and conditions of confinement than criminals whose conditions
of confinement are designed to punish.'').
\22\ Jones 393 F.3d at 934; see also Hydrick v. Hunter, 500 F.3d
978, 994 (9th Cir. 2007) (``[T]he Eighth Amendment provides too little
protection for those whom the State cannot punish.'' (emphasis in
original, citations omitted)).
---------------------------------------------------------------------------
The accounts of abuse and neglect detailed above describe
profoundly deficient physical and mental health care, including the
denial of life-saving HIV medication. As such, ICE and CBP have
violated the higher Eighth Amendment standard, showing deliberate
indifference to serious medical needs and failing to provide critical
care. These failures on the Government's part, which have caused
detained immigrants to endure debilitating pain, suffer serious injury,
and have placed them in mortal danger, amount to Constitutionally-
prohibited punishment. It is clear that LGBTQ, PLWHIV immigrants cannot
be housed safely in detention and therefore should be released.
Statutory Law
Various Federal and State statutes also protect detained
immigrants. For instance, the Americans with Disabilities Act and
Section 504 of the Rehabilitation Act of 1973 provide protections from
discrimination and mandate access to adequate and reasonable
accommodations for LGBTQ, PLWHIV immigrants with physical and mental
disabilities who are detained by ICE and CBP.\23\ Likewise, the Prison
Rape Elimination Act imposes National standards for the prevention,
reduction, and punishment of prison rape, including standards for the
provision of physical and mental health services to individuals who
have been the victim of sexual abuse.\24\ The stories above illustrate
that not only are detention centers failing to provide even the most
basic care to LGBTQ, PLWHIV after experiencing sexual violence, they
are placing people in inhumane segregation leading to a further
deterioration of physical and mental health. This has forced many
LGBTQ, PLWHIV individuals to abandon viable claims for asylum and
return to the violent conditions from which they fled in the first
place. This is the very outcome asylum protections were created to
prevent.
---------------------------------------------------------------------------
\23\ Americans With Disabilities Act of 1990, Pub. L. No. 101-336,
104 Stat. 327 (1990), http://library.clerk.house.gov/reference-files/
PPL_101_336_AmericansWithDisabilities.pdf.; Rehabilitation Act of 1973,
Pub. L. No. 93-112, 87 Stat. 355 (1973), https://www.gpo.gov/fdsys/pkg/
STATUTE-87/pdf/STATUTE-87-Pg355.pdf.
\24\ 6 C.F.R. Sec. Sec. 115.81-115.83 (2014).
---------------------------------------------------------------------------
Detention Standards
In addition to these legal obligations, ICE and CBP must comply
with their own set of standards, which are designed to protect detained
immigrants. Notably, as currently applied, these standards have failed
to translate into adequate physical and mental health care for LGBTQ,
PLWHIV individuals due to inconsistent application, insufficient
oversight and lack of accountability. In other words, ICE and CBP are
failing to comply with their own standards.
The most comprehensive of these standards, the 2011 Performance-
Based National Detention Standards (2011 PBNDS), updated in 2016, set
forth extensive medical care requirements for ICE. For instance, the
2011 PBNDS require appropriate physical, dental, and mental health care
as well as pharmaceutical services, 24-hour access to emergency care,
and timely responses to medical complaints for all detained people.\25\
They also require language services for individuals with limited
English proficiency during any physical or mental health appointment,
treatment, or consultation.\26\ The stories above illustrate that far
too many LGBTQ, PLWHIV individuals are flat-out denied access to care
or are left waiting for months on end for treatment.
---------------------------------------------------------------------------
\25\ U.S. Immigration and Customs Enforcement, Performance-Based
National Detention Standards 2011, 257-81 (2016), https://www.ice.gov/
doclib/detention-standards/2011/pbnds2011r2016.pdf.
\26\ Id. at 264.
---------------------------------------------------------------------------
For PLWHIV, the facility has more specific requirements. For
example, it must provide medical care consistent with National
recommendations and guidelines disseminated through the U.S. Department
of Health and Human Services, the CDC, and the Infectious Diseases
Society of America, and must provide access to all medications for the
treatment of HIV currently approved by the FDA.\27\ Moreover, adequate
supplies of such medications must be kept on hand to ensure newly-
detained individuals are able to continue with their treatments without
interruption.\28\ Detained immigrants are entitled to request an HIV
test at any time.\29\ Clearly, this is not happening.
---------------------------------------------------------------------------
\27\ Id at 263.
\28\ Id.
\29\ Id. at 263.
---------------------------------------------------------------------------
The 2011 PBNDS also mandate that special consideration be given to
people at risk of sexual assault, including individuals who have self-
identified as members of the LGBTQ community.\30\ With specific regard
to transgender individuals, the 2011 PBNDS require that those
individuals who were receiving hormone therapy when taken into ICE
custody, maintain continued access to such therapy.\31\ The guidelines
further demand that detained transgender people have access to ``mental
health care, and other transgender-related health care and medication
based on medical need.''\32\ Once again, this complaint and others
demonstrate that DHS is failing to meet these standards and transgender
people are experiencing immense suffering as a result.
---------------------------------------------------------------------------
\30\ Id. at 135.
\31\ Id. at 273.
\32\ Id. at 274.
---------------------------------------------------------------------------
The other two National ICE standards--the National Detention
Standards (NDS), issued in 2000 and the 2008 PBNDS--while less
comprehensive than the 2011 PBNDS, also provide guidelines to ensure
the health and safety of detained immigrants. These guidelines include
provisions that establish access to health services,\33\ mental health
screenings and treatment plans,\34\ and suicide prevention
protocols.\35\ These standards also require detention facilities to
provide medical treatment to PLWHIV.\36\
---------------------------------------------------------------------------
\33\ U.S. Immigration and Customs Enforcement, Detention Operations
Manual: Medical Care (2000), https://www.ice.gov/doclib/dro/detention-
standards/pdf/medical.pdf.; U.S. Immigration and Customs Enforcement,
Performance-Based National Detention Standards: Medical Care, 1 (2008),
https://www.ice.gov/doclib/dro/detention-standards/pdf/
medical_care.pdf.
\34\ U.S. Immigration and Customs Enforcement, Detention Operations
Manual: Medical Care, 3 (2000), https://www.ice.gov/doclib/clro/
detention-standards/pdf/medical.pdf.; U.S. Immigration and Customs
Enforcement, Performance-Based National Detention Standards: Medical
Care, 13-14 (2008), https://www.ice.gov/doclib/dro/detention-standards/
pdf/medical_care.pdf.
\35\ U.S. Immigration and Customs Enforcement, Detention Operations
Manual: Suicide Prevention and Intervention (2000), https://
www.ice.gov/doclib/dro/detention-standards/pdf/suiciprev.pdf.; U.S.
Immigration and Customs Enforcement, Performance-Based National
Detention Standards: Suicide Prevention and Intervention, 1-2 (2008),
https://www.ice.gov/doclib/dro/detention-standards/pdf/
suicide_prevention_and_intervention.pdf.
\36\ U.S. Immigration and Customs Enforcement, Detention Operations
Manual: Medical Care, 7 (2000), https://www.ice.gov/doclib/dro/
detention-standards/pdf/medical.pdf.; U.S. Immigration and Customs
Enforcement, Performance-Based National Detention Standards: Medical
Care, 7-8 (2008), https://www.ice.gov/doclib/dro/detention-standards/
pdf/medical_care.pdf.
---------------------------------------------------------------------------
In addition to these generalized detention standards, ICE also
issued a memorandum concerning the care of detained transgender
immigrants in 2015. The memorandum sets forth guidance to ensure the
safety of transgender immigrants in ICE's custody. More specifically,
the memorandum includes contract modifications for facilities to ensure
access to adequate health care, including access to hormone therapy.
The memorandum also states that during initial processing or risk
classification assessment of an individual, the detention facility
staff should inquire about a person's gender identity \37\ and make an
individualized placement determination to ensure person's safety,
including whether detention is warranted. Where feasible and
appropriate, ICE should house transgender immigrants in facilities that
are equipped to care for transgender people.\38\ ICE also has a
directive on Gender Dysphoria and Transgender Detainees which applies
to all IHSC personnel and requires an IHSC medical provider to complete
a physical examination for transgender individuals within 2 business
days of intake and that a behavioral health provider must also perform
a mental health evaluation for transgender patients within the same
time frame.\39\ Furthermore, IHSC ``must initiate and/or continue
hormone therapy for [gender dysphoria] detainees as clinically
indicated and in accordance with the IHSC Clinical Guidelines for the
Treatment of GD.''
---------------------------------------------------------------------------
\37\ U.S. Dep't. of Homeland Security, Further Guidance Regarding
the Care of Transgender Detainees, 2 (June 19, 2015) https://
www.ice.gov/sites/default/files/documents/Document/2015/
TransgenderCareMemorandum.pdf.
\38\ Id.
\39\ JHSC Directive: 03-25 effective March 15, 2017.
---------------------------------------------------------------------------
Similarly, CBP has a set of standards to provide for the health and
safety of individuals in its custody. These standards require CBP
officials to inspect detained people for ``any signs of injury,
illness, or physical or mental health concerns . . . ,''\40\ and in
cases of emergency, CBP officials must immediately call medical
services.\41\ The standards also note that individuals known to be on
life-sustaining or life-saving medical treatment, LGBTQ people, and
individuals with mental or physical disabilities may require additional
care and oversight.\42\ Additionally the standards require that during
transportation of a detained person, CBP officials must be on alibi for
signs of medical symptoms, and provide or seek medical care in a timely
manner.\43\
---------------------------------------------------------------------------
\40\ U.S. Customs and Border Protection, National Standards on
Transport, Escort, Detention, and Search, 14 (Oct. 2015), https://
www.cbp.gov/sites/default/files/assets/documents/2017-Sep/
CBP%20TEDS%20Policy%20Oct2015.pdf.
\41\ Id. at 17.
\42\ Id. at 19.
\43\ Id. at 6.
---------------------------------------------------------------------------
While the strength of protections accorded by different detention
standards varies, even the weakest standards set minimum requirements
for the health and safety of detained people. Unfortunately, however,
as the experiences of LGBTQ, PLWHIV individuals detailed in this letter
demonstrate, ICE and CBP routinely fail to comply with the most basic
requirements.
dhs cannot safely house lgbtq, plwhiv individuals and must fix the
broken oversight system that allows these offenses to continue with no
accountability
ICE and CBP blatantly disregard the health of LGBTQ, PLWHIV
individuals and repeatedly fail to not only meet legally required
standards of care but even their own detention standards. The countless
reports of outright denial of medical treatment and the continuous
maltreatment clearly demonstrate that DHS cannot house LGBTQ, PLWHIV
individuals safely. Furthermore, there is no reason to keep LGBTQ,
PLWHIV people in detention in the first place.
Further, DHS is failing to meet their responsibility of oversight.
DHS's own reports demonstrate that contracted agencies who are
responsible for investigations do not take their responsibilities
seriously. What's more, even when medical neglect and mistreatment is
substantiated, DHS rarely uses its authority to implement penalties and
address the conditions that led to the harm in the first place. For
example, in a report looking at 2018 and 2019 inspection reviews of ICE
detention facilities, the OIG concluded that ICE's monitoring systems
do not ensure adequate oversight or systematic improvements in
detention conditions, with some deficiencies remaining unaddressed for
years.\44\ Further, the OIG found that ICE did not adequately hold
detention facility contractors accountable for their lack of compliance
with performance standards because they failed to use contracting tools
to hold them accountable.\45\
---------------------------------------------------------------------------
\44\ Office of Inspector General (OIG), ICE's Inspections and
Monitoring of Detention Facilities Do Not Lead to Sustained Compliance
or Systemic Improvements, https://www.oig.dhs.gov/sites/default/files/
assets/2018-06/OIG-18-67-Jun18.pdf.
\45\ OIG, ICE Does Not Fully Use Contracting Tools to Hold
Detention Facility Contractors Accountable for Failing to Meet
Performance Standards, https://www.oig.dhs.gov/sites/default/files/
assets/2019-02/OIG-19-18-Jan19.pdf.
---------------------------------------------------------------------------
With this in mind, we demand that:
First and foremost, ICE release all LGBTQ, PLWHIV people
that are currently detained on their own recognizance.
ICE comply with the OIG's January 29, 2019, recommendation
and use its contracting tools to hold accountable those
detention facilities that fail to meet these standards for care
by imposing financial penalties and canceling contracts for
facilities that consistently fail to meet the standards.
The DHS OIG work with the CRCL to immediately conduct a
systemic investigation into the provision of medical and mental
health care to LGBTQ, PLWHIV individuals in ICE custody.
DHS must strengthen its oversight of facilities and improve
its audits of facilities, ensure timely cooperation of
components with OIG and CRCL investigations, increase its use
of unannounced inspections, and improve grievance procedures
and take meaningful measures to end retaliation against
individuals in custody who exercise their right to file a
grievance.
DHS must ensure that all people in detention are aware of
their legal rights through developing and disseminating
information that details the medical care that they are
entitled to.
Ensure that people are not held in CBP longer than the
minimal amount of time it takes for processing, no longer than
24 hours.
Ensure that CBP provide all persons in custody with timely
medical screenings by a licensed health professional and
require an EMT or other certified health professional to be on-
duty and available to give medical attention at all times in
CBP processing and holding stations. Ensure that the health
professionals are competent on transgender and HIV-related
health care.
Create a thorough, independent, and regular investigation
process and standards to ensure that CBP is meeting designated
standards and to document incidents of neglect and abuse.
Develop specific policies that detail penalties for CBP
facilities with documented cases of abuse and medical neglect.
conclusion
We were deeply saddened and angered to learn of the death of Johana
Medina Leon, who died on June 1, 2019 after spending 7 weeks in ICE
custody. Her death came almost a year to the day of the death of
Roxsana Hernandez, another transgender woman who should not have been
detained and who died while in ICE custody. Both of these women
experienced medical neglect and the stories in this complaint
demonstrate that, tragically, the circumstances around their deaths are
not outliers but in fact the norm for the treatment of transgender, as
well as lesbian, gay, bisexual, and people living with HIV in ICE and
CBP custody. The well-documented mistreatment of LGBTQ, PLWHIV
individuals demonstrates that ICE and CBP are unable to adequately care
for LGBTQ, PLWHIV people, or really any individuals, in their care.
Despite the frequent and on-going complaints made to DHS, poor
oversight and lack of accountability allows these conditions to
continue. Neither DHS nor the detention centers that the Department is
responsible for overseeing are above the law and should receive
appropriate consequences for these egregious offenses.
If you have any questions about the above information, please
contact Ash Stephens at [email protected] or Sharita Gruberg
at [email protected].
Sincerely,
Transgender Law Center,
Black LGBT Migrant Project,
Familia Trans Queer Liberation Movement,
Al Otro Lado,
Las Americas Immigrant Advocacy Center,
Center for American Progress,
Los Angeles LGBT Center,
Freedom for Immigrants,
Santa Fe Dreamers Project,
Southern Poverty Law Center,
Immigration Equality,
Center for Victims of Torture,
National Immigrant Justice Center,
National Center for Transgender Equality.
______
Statement of Asian Americans Advancing Justice--AAJC
September 26, 2019
AAJC submits this testimony for the record for the public hearing
entitled, ``Oversight of ICE Detention Facilities: Is DHS Doing
Enough?'' held on September 26, 2019 by the Subcommittee on Oversight,
Management & Accountability in Washington, DC. Asian Americans
Advancing Justice--AAJC (``Advancing Justice--AAJC'') is a National
non-profit organization founded in 1991 dedicated to advancing civil
and human rights for Asian Americans. Advancing Justice--AAJC is the
leading national advocate for immigration policy on behalf of the Asian
American community, and in this capacity, we work to reunite and keep
immigrant families together. We appreciate this opportunity to submit a
written statement for today's hearing and thank the committee members
for holding this bearing to examine the Trump administration's
problematic use and expansion of ICE detention centers.
Immigrant detention should be a last resort, not the norm; however,
the Department of Homeland Security continues to increase the number of
detained immigrants despite there being adequate, cheaper, and more
humane alternatives. The U.S. Government should do everything in its
power to keep families together and only take away people's liberty
when there is a compelling need to do so. The current immigration
detention system only serves to separate families and violate the
rights of vulnerable populations including children. Detention centers
are not safe and provide inadequate medical care leading to human
rights abuses. We urge Congress to not let these human rights abuses
continue, and to stop the expansion and use of detention centers to
criminalize immigrant communities.
i. government's inhumane use of detention centers against asian
immigrants
The Government has a long history of criminalizing and detaining
Asian immigrants. One of the worst examples of detention was the
incarceration of 120,000 Americans of Japanese ancestry during World
War II.\1\ Based simply on their ancestry, Japanese Americans were
guilty based on race and ancestry. Children were not spared this
association of guilt based on ancestry. Fathers, mothers, and children
were rounded up and forced to leave their homes and move into detention
centers.\2\ George Takei likened the Japanese American internment and
the modern-day detention centers to concentration camps.\3\ He compared
the family separation experienced by Japanese-Americans with what many
immigrant families face today in detention centers.\4\ This legacy of
criminalizing and holding in custody immigrant communities continues to
this day, and repeats the horrors of the internment of Japanese
Americans in detention centers.
---------------------------------------------------------------------------
\1\ See Exec. Order 9066, 7 Fed. Reg. 1407 (Feb. 19, 1942)
(authorizing the internment of Americans of Japanese ancestry); see
also Korematsu v. United States, 323 U.S. 214 (1944) (upholding the
internment under strict scrutiny review).
\2\ Id.
\3\ Concentration Camp Survivor George Takei Talks Family
Separation At U.S. Border, Huffpost (July 10, 2019), https://
www.huffpost.com/entry/concentration-camps-border-george-takei-family-
separation_n_5d2533ale4b0cfb595fd8e65?guccounter=1&guce_referrer=aHR0c-
HM6Ly93d3cuZ29vZ2x1LmNvbS8&guce_referrer_sig=AQAAACBreMqk0eT4UKSrEyj1Ldh
- Mw3gE_pMwlQ8sZZ3X30XH8q46mcjWUu3_5tU1XAcFlj6i_zFv_ZwNFXVEADBZz4JBH63-
uLu7vW0KJEdxesCIbxLRnbTK2tFLbs34TDFJgQBuslspXR8DH0pvYJqfHGs0TqUfGExuyO-
06eMus8x7v (last visited September 25, 2019).
\4\ Id.
---------------------------------------------------------------------------
Detaining and separating families has a real human price that
people continue to pay today. Just this past March, the United States
reached a historic high of 50,059 detained immigrants.\5\ Asian
immigrants make up a significant portion of this population of detained
immigrants. Despite only making up a small percentage of the total
population, there were as many as 4,881 Asian immigrants who were
detained as of June 2018.\6\ Many of them were asylum seekers and
refugees who were seeking protection in the United States under our
refugee and asylum laws. The majority of Asian immigrants detained were
from India, China, Bangladesh, Nepal, Iraq, Vietnam, and Pakistan.\7\
---------------------------------------------------------------------------
\5\ Advancing Justice--AAJC & Advancing Justice--Los Angeles,
Inside The Numbers: How Immigration Shapes Asian American and Pacific
Islander Communities 63 (2019) (citing Emily Kassie, ``How Trump
Inherited His Expanding Detention System,'' The Marshall Project
(February 12, 2019); Spencer Ackerman, ``ICE Is Detaining 50,000
People, an All-Time High,'' Daily Beast (March 9, 2019)), available at
https://www.advancingjustice-aajc.org/sites/default/files/2019-06/
1153_AAJC_Immigration_Final_Pages_LR-compressed.pdf.
\6\ Advancing Justice--AAJC & Advancing Justice--Los Angeles,
Inside The Numbers: How Immigration Shapes Asian American and Pacific
Islander Communities 63 (2019) (citing TRAC, ``Immigration and Customs
Enforcement Detainees.''), available at https://www.advancingjustice-
aajc.org/sites/default/files/2019-06/1153_AAJC_Immigration_Final-
_Pages_LR-compressed.pdf.
\7\ Id.
---------------------------------------------------------------------------
Thousands of South Asian immigrants are harmed by immigrant
detentions, with Indian nationals in particular, having the highest
number of detainees of all Asian immigrants.\8\ Just from October 2014
to April 2018, over 17,000 South Asians were arrested by Border
Patrol.\9\ In June 2018, over 3,000 South Asian migrants were
detained.\10\ Many South Asian immigrants are simply seeking asylum in
the United States and fleeing persecution in their home countries.
Instead of finding safety and protection, many South Asian asylum
seekers are instead arrested and imprisoned in detention centers.
---------------------------------------------------------------------------
\8\ Advancing Justice--AAJC & Advancing Justice--Los Angeles,
Inside The Numbers: How Immigration Shapes Asian American and Pacific
Islander Communities 63 (2019) (citing Parvini, ``Growing Number of
California Detainees''; PTI, ``2,382 Indians Languishing in U.S. Jails
for Illegally Crossing Border,'' Economic Times of India (November 12,
2018)), available at https://www.advancingjustice-aajc.org/sites/
default/files/2019-06/1153_AAJC_Immigration_- Final_Pages_LR-
compressed.pdf.
\9\ South Asian Migrants in Detention 1 (2019) (citing TRAC, ``CBP
Arrests''), available at http://saalt.org/wp-content/uploads/2019/08/
South-Asian-Migrants-in-Detention-Factsheet.pdf.
\10\ Advancing Justice--AAJC & Advancing Justice--Los Angeles,
Inside the Numbers: How Immigration Shapes Asian American and Pacific
Islander Communities 63 (2019) (citing Transactional Records Access
Clearinghouse, ``Immigration and Customs Enforcement Detainees,''
Syracuse University), available at https://www.advancingjustice-
aajc.org/sites/default/files/2019-06/
1153_AAJC_Immigration_Final_Pages_LR-compressed.pdf.
---------------------------------------------------------------------------
Our current detention system impacts not only asylum seekers, but
all immigrants including long-time members of our communities, lawful
permanent residents (LPRs), and even family members of U.S. citizens.
As such, there are many Asian immigrants who are subject to unfair and
unnecessarily harsh mandatory detention and automatic deportation laws
that were passed in 1996. Within the Asian American community,
Southeast Asian immigrants have been notably targeted. There are 17,000
Southeast Asian lawful permanent residents living with a final order of
removal.\11\ Thousands of Southeast Asian immigrants are harmed by the
detention system. Despite coming here as refugees, many long-term
members of communities now must leave the only country that is home to
them. In June 2018, about 43 percent of Vietnamese Americans detained
lived in the United States for over 2 decades.\12\ The percentage of
Lao and Cambodian Americans detained who lived here for over 20 years
is even higher at 86 percent and 75 percent, respectively.\13\
Southeast Asian households who have a family member that is detained
face family separation and the continued hardship of not knowing
whether their families will be able to reunite or be separated
indefinitely.\14\ Detention and family separation traumatizes and harms
families and communities.
---------------------------------------------------------------------------
\11\ SEARAC Denounces Scheduled Deportation over 50 Cambodian
Americans, SEARAC (July 1, 2019), https://www.searac.org/immigration/
searac-denounces-scheduled-deportation-of-over-50-cambodian-americans/
(last visited September 25, 2019).
\12\ Advancing Justice--AAJC & Advancing Justice--Los Angeles,
Inside the Numbers: How Immigration Shapes Asian American and Pacific
Islander Communities 64 (2019) (citing TRAC, ``ICE Detainees''),
available at https://www.advancingjustice-aajc.org/sites/default/files/
2019-06/1153_AAJC_Immigration_Final_Pages_LR-compressed.pdf.
\13\ Id.
\14\ National Asian Pacific American Women's Forum & Southeast Asia
Resource Action Center, ``Dreams Detained in Her Words: The Effects of
Detention and Deportation on Southeast Asian American Women and
Families,'' https://www.searac.org/wp-content/uploads/2018/09/
dreams_detained_in_her_words_report-2.pdf.
---------------------------------------------------------------------------
The human impact of current immigration policies and the detention
system on the Southeast Asian immigrant community and on families is
tremendous. Thear Sam was detained in the fall of 2018 leaving behind
his family, all of whom are U.S. citizens.\15\ As a result of his
detention, his family experienced both emotional and financial
hardship.\16\ Since Thear was the main provider for his family, his
detention meant that his high school daughter could no longer go to her
after-school activities.\17\ His mother, who is a breast cancer
survivor, developed depression and had difficulty eating and sleeping
following her son's arrest.\18\ The impact of his arrest ripples out to
whole communities.\19\ Diane Ford from Long Beach, California described
the effect of his detention: ``Thear is a well-known and well-loved
member of the Long Beach community. Those closest to him have been
traumatized by the abrupt nature of his arrest, and ICE's refusal to be
transparent has only made things worse.''\20\ Thear is not alone. There
are hundreds of Southeast Asian refugees and families torn apart as
loved members of communities are taken away to be deported.\21\
---------------------------------------------------------------------------
\15\ Hannah Woerner, Katrina Dizon-Mariateague, and Nancy Nguyen,
``Families Torn Apart: Trump's Quiet Attacks on the Southeast Asian
Immigrant Community,'' Medium (Apr. 5, 2018).
\16\ Id.
\17\ Id.
\18\ Id.
\19\ Id.
\20\ Id.
\21\ Id.
---------------------------------------------------------------------------
ii. troubling use of the detention centers
A. Detention Centers are Inadequate and Unsafe
Detention centers provide inadequate medical care, and are not safe
for detainees. In many instances, they are even life-threatening for
immigrants. From 2003 until January 2018, about 188 detainees died in
ICE detention facilities.\22\ The death rates have only worsened under
the Trump administration. In fiscal year 2017, more immigrants had died
in detention than in any year since 2009.\23\ A leading cause of death
for detainees is inadequate medical care.\24\
---------------------------------------------------------------------------
\22\ Id. (citing Human Rights et al., Code Red: The Fatal
Consequences of Dangerously Substandard Medical Care in Immigration
Detention (June 2018); Lisa Riordan Seville, Hannah Rappleye, and
Andrew W. Lehren, ``22 Immigrants Died in ICE Detention Centers During
the Past Two Years,'' NBC News (January 6, 2019); Erin Durkin, ``The
Immigrants Who Have Died in U.S. Custody in 2018,'' The Guardian
(December 29, 2018); Scott Bixby, ``Immigrant Miscarriages in ICE
Detention Have Nearly Doubled under Trump,'' Daily Beast (March 1,
2019); Spencer Woodman, ``Private Prison Continues to Send ICE
Detainees to Solitary Confinement for Refusing Voluntary Labor,'' The
Intercept (January 11, 2018); Ryan Devereaux and Spencer Woodman,
``Immigrant Detainee Accuses ICE Contractor CoreCivic of Locking Him in
Solitary over $8,'' Intercept (April I 9, 2018)), available at https://
www.advancingjustice-aajc.org/sites/default/files/2019-06/
1153_AAJC_Immigration_Final_Pages_LR-compressed.pdf.
\23\ Id. at 62-63.
\24\ Id. at 63.
---------------------------------------------------------------------------
Children are even more vulnerable to the deplorable conditions that
exist in detention centers. In 2018, 3 children, all under 9 years old,
died in a detention center due to inadequate medical care.\25\ Pregnant
women who need special care, have suffered miscarriages during their
detainment.\26\ In 2018, at least 18 women suffered miscarriages.\27\
The number of miscarriages have doubled under the first 2 years of the
Trump administration.\28\
---------------------------------------------------------------------------
\25\ Id.
\26\ Id.
\27\ Id.
\28\ Id.
---------------------------------------------------------------------------
There have been reports of children being subjected to inhumane
conditions at detention centers.\29\ They have been forced to sleep on
cement floors and lack adequate health care or hygiene.\30\ The
Associate Press reported that 250 infants, children, and teenagers were
housed in a Texas migrant detention facility in Clint, Texas.\31\
There, the children lacked food, water, and adult supervision.\32\
Warren Binford, a law professor at Willamette University in Oregon,
described the conditions as: ``Basically, what we saw are dirty
children who are malnourished, who are being severely neglected. They
are being kept in inhumane conditions. They are essentially being
warehoused, as many as 300 children in a cell, with almost no adult
supervision.''\33\ We must stop using detention centers which harm
children and other vulnerable populations.
---------------------------------------------------------------------------
\29\ What Will Indefinite Detention Do to Migrant Kids?, The New
York Times (August 27, 2019), https://www.nytimes.com/2019/08/27/
opinion/migrant-children-detention.html (last visited September 23,
2019).
\30\ Id.
\31\ A first-hand report of ``inhumane conditions'' at a migrant
children's detention facility, PBS News Hour (June 21, 2019), https://
www.pbs.org/newshour/show/a-firsthand-report-of-inhumane-conditions-at-
a-migrant-childrens-detention-facility (last visited September 23,
2019).
\32\ Id.
\33\ Id.
---------------------------------------------------------------------------
Moreover, there must be more oversight over ICE facilities and
detention activities. Immigrant detainees have faced retaliation and
backlash at detention centers for exercising their constitutional
rights. Solitary confinement has been used a cruel method of
retaliation. Detained immigrants, including those who are Bangladeshi,
were punished with solitary confinement because they refused to work
for one dollar a day.\34\ South Asian asylum seekers who protested
their detention by going on a hunger strike were not only placed in
solitary confinement but force-fed for 2 weeks,\35\ a process that 2 of
the individuals have described as both painful and dehumanizing.\36\
Additionally, South Asian and Sikh detainees in Victorville, California
were not provided any religious accommodations.\37\ They were banned
from wearing their religiously mandated turbans and no accommodations
were made for their religious dietary restrictions.\38\ Detention
centers are ripe with violations of ethics, international law, and
constitutional rights.
---------------------------------------------------------------------------
\34\ Spencer Woodman, Private Prison Continues to Send ICE
Detainees to Solitary Confinement for Refusing Voluntary Labor, The
Intercept (January 11, 2018).
\35\ Garance Burke & Martha Mendoza, ICE Force-feeding Detainees on
Hunger Strike, AP News (January 31, 2019), https://www.apnews.com/
c4b201dac8bf48ebal7485a5c357b810 (last visited September 25, 2019).
\36\ Moore, R. (2019, August 11). Two of the Asylum-Seekers Who
Were Force-Fed at an El Paso Detention Center Are Now Free. Texas
Monthly. Retrieved from https://www.texasmonthly.com/news/asylum-
seekers-hunger-strikes-force-fed-el-paso-detention-center-free/.
\37\ Hundreds of Sikh Asylum Seekers Housed in Victorville Federal
Prison Illegally Banned from Wearing Turbans, India West (July 30,
2018), https://www.indiawest.com/news/global_indian/hundreds-of-sikh-
asylum-seekers-housed-in-victorville-federal-prison/article_cfb6f- 080-
9425-11e8-811b-5b3bfd2ed928.html (last visited September 25, 2019).
\38\ Id.
---------------------------------------------------------------------------
AAPI detainees are subject to much of the same mistreatment as
other immigrants and asylum seekers in ICE and CBP facilities. In OIG's
inspection of 4 ICE detention centers, all 4 were noncompliant with ICE
food safety standards, including refrigerators full of spoiled, moldy,
and expired food. Three of the facilities violated the rights of the
detained individuals, including prematurely placing individuals in
disciplinary segregation. Two of the facilities presented health risks
to detained individuals, with the Essex bathroom area covered in mold
along the walls, vents, ceilings, mirrors, and shower stalls.\39\
Similarly, OIG observed serious overcrowding problems in the El Paso
Del Norte Processing Center in their May report,\40\ and again at 5
separate Border Patrol facilities and 2 points of entry in the Rio
Grande Valley.\41\ DHS's standards and internal oversight of these
facilities are inadequate to protect the rights of detainees.
---------------------------------------------------------------------------
\39\ Id. at 3.
\40\ Department of Homeland Security/Office of Inspector General.
(2019, May 30). Management Alert--DHS Needs to Address Dangerous
Overcrowding Among Single Adults at El Paso Del Norte Processing
Center, p. 2-3. Retrieved from https://www.oig.dhs.gov/sites/default/
files/assets/2019-05/OIG-19-46-May19.pdf.
\41\ Id. at 4.
---------------------------------------------------------------------------
A June OIG report found inspections by the Nakamoto Group
insufficient and the process compromised by notification of inspections
given to detention facility staff. Though ODO's inspections are more
comprehensive, OIG found that they are insufficient in their
infrequency. Regardless, current inspection procedures are still
insufficient given that 96 percent of waiver requests by ICE
contractors with deficient conditions are granted and that ``ICE does
not adequately follow up on identified deficiencies or systematically
hold facilities accountable for correcting deficiencies, which further
diminishes the usefulness of both Nakamoto and ODO inspections.''\42\
---------------------------------------------------------------------------
\42\ Department of Homeland Security/Office of Inspector General.
(2018, June 26). ICE 's Inspections and Monitoring of Detention
Facilities Do Not Lead to Sustained Compliance or Systemic
Improvements, p. 1. Retrieved from https://www.oig.dhs.gov/sites/
default/files/assets/2018-06/OIG-18-67-Jun18.pdf.
---------------------------------------------------------------------------
B. Lack of Due Process
Immigrants in deportation proceedings lack resources, due process,
and access to legal counsel. Immigrants who are detained and in removal
proceedings do not have the right to counsel at the Government's
expense.\43\ This leaves indigent immigrant populations vulnerable,\44\
and they are forced to handle the intricacies and complications of the
U.S. immigration system alone before a judge and an opposing DHS
attorney. Moreover, detained immigrants face severe logistical
challenges in accessing legal resources. For example, about 30 percent
of immigrants detained in ICE facilities are more than 100 miles from
the nearest Government-listed legal aid provider.\45\ The
representation rate for detained immigrants was only 14 percent between
2007 and 2012.\46\ This representation rate is even lower at 10 percent
for detained immigrants in a small city or rural area.\47\ This lack of
representation makes all the difference in court. A detained person who
has a lawyer is more than 2 times likely to win their case.\48\ These
are life-changing cases that decide whether families stay together or
are torn apart.
---------------------------------------------------------------------------
\43\ Ingrid Eagly & Steven Shafer, Access to Counsel in Immigration
Court, (September 28, 2016), https://
www.americanimmigrationcouncil.org/research/access-counsel-immigration-
court (last visited September 25, 2019).
\44\ Id.
\45\ Advancing Justice--AAJC & Advancing Justice--Los Angeles,
Inside The Numbers: How Immigration Shapes Asian American and Pacific
Islander Communities 62 (2019) (citing Ingrid Eagly and Steven Shafer,
``Access to Counsel in Immigration Court,'' American Immigration
Council (September 28, 2016); Kyle Kim, ``Immigrants Held in Remote ICE
Facilities Struggle to Find Legal Aid before They're Deported,'' Los
Angeles Times (September 28, 2017), available at https://
www.advancingjustice-aajc.org/sites/default/files/2019-06/
1153_AAJC_Immigra- tion_Final_Pages_LR-com_pressed.pdf.
\46\ Id.
\47\ Id.
\48\ Id.
---------------------------------------------------------------------------
iii. despite existing inadequate facilities, detention centers continue
to expand
Despite these human rights abuses and dismal conditions in ICE
detention centers, the number of immigrants detained has continued to
increase under every single Presidential administration over the last
quarter century. We have seen a seven-fold increase of detained
immigrants since 1994.\49\ As of February 2019, we have 45,890 detained
immigrants compared to 6,785 in 1994.\50\ We reached a historic high of
50,059 detained immigrants as of March 6, 2019.\51\ Moreover, Congress
continues to increase funding for detention. The ICE detention and
deportation budget has actually increased 40 percent since Trump became
President.\52\ That 40 percent increase equates to an almost $1 billion
increase from $4.3 to $4.1 billion.\53\ Even with these increases, ICE
overspends its Congressionally-appropriated budget.\54\ Despite
overspending, DHS still transferred $271 million from the Federal
Emergency Management Agency (FEMA), the Coast Guards, and other
accounts for detention spending.\55\ Although, Congress has reprimanded
ICE for what it considers to be a ``lack of fiscal discipline'',
Congress still continues to increase funding. In fiscal year 2019, ICE
was allocated a record-breaking amount of $4.2 billion for detention
and deportation activities.\56\
---------------------------------------------------------------------------
\49\ Advancing Justice--AAJC & Advancing Justice--Los Angeles,
Inside The Numbers: How Immigration Shapes Asian American and Pacific
Islander Communities 63 (2019) (citing Emily Kassie, ``How Trump
Inherited His Expanding Detention System,'' The Marshall Project
(February 12, 2019); Spencer Ackerman, ``ICE Is Detaining 50,000
People, an All-Time High,'' Daily Beast (March 9, 2019)), available at
https://www.advancingjustice-aajc.org/sites/default/files/2019-06/
1153_AAJC_Immigration_Final_Pages_LR-com_pressed.pdf.
\50\ Id.
\51\ Id.
\52\ Advancing Justice--AAJC & Advancing Justice--Los Angeles,
Inside The Numbers: How Immigration Shapes Asian American and Pacific
Islander Communities 63 (2019) (citing Detention Watch Network, ``ICE's
Fiscal Mismanagement: Deceit and Abuse''; Department of Homeland
Security Appropriation Act, 2017 (draft memorandum); Robin Urevich,
``How the Spending Bill Can Hurt Immigrant Detainees,'' The American
Prospect (February 15, 2019)), available at https://
www.advancingjustice-aajc.org/sites/default/files/2019-06/
1153_AAJC_Immigra- tion_Final_Pages_LR-com_pressed.pdf.
\53\ Id.
\54\ Id.
\55\ As Puerto Rico Braces for Storm, DHS, FEMA To Move $271
Million to Border Operations, NPR (August 27, 2019), https://
www.npr.org/2019/08/27/754838143/as-puerto-rico-braces-for-storm-dhs-
fema-to-move-271-million-to-border-
operation?fbclid=IwAR11GzYYw3Ge_Xmr7x9E-
iT6RHFGKGnJwOI8mPuUXw4x1Q0UrJQP8AcAjoBc (last visited September 25,
2019).
\56\ Id.
---------------------------------------------------------------------------
iv. recommendations
The Government must stop this escalation of immigration enforcement
and keep families together. This escalation has only served to create
an environment of fear for immigrant communities. Detention centers are
cruel and not necessary. We should seek alternative avenues to enforce
our civil immigration laws.
Congress should end mandatory detention. Currently, the Immigration
and Nationality Act mandates that DHS detain all noncitizens who fall
under select inadmissible and deportable grounds. This is particularly
troubling given that roughly 80 percent of all deportable Southeast
Asian refugees are subject to these mandatory detention requirements
regardless of circumstance. Because the repatriation of these
individuals are often subject to years and decades of uncertainty and
bureaucratic delay, they are often prone to longer periods of
detention. All immigrants should get an individualized determination as
to whether they are a threat to public safety or a flight risk that
can't be addressed by some less restrictive means.
Additionally, the use of private detention centers should be
terminated. Depriving people of their liberty should not be an industry
for profiteering. Congress must also require that there be stronger
protections in facilities, increased oversight and transparency, and
stronger protections for vulnerable populations. Many of these
recommendations are contained in the Dignity for Detained Immigrants
Act, which Congress should take up and pass.
We recommend budget cuts to ICE and CBP for enforcement, detention,
and deportation. We recommend that there be stronger oversight and
accountability mechanisms to ensure that ICE does not overspend past
their budget constraints. This administration has criminalized
immigrants, including asylum seekers who have the right to seek asylum.
This administration must not undermine our refugee and asylum laws.
Rather than criminalizing immigrants and punishing families, we
recommend that the Government should focus on programs that make our
communities strong and vibrant. We must disentangle local law
enforcement and Government agencies with immigration enforcement. We
should invest in education, infrastructure, health care, and housing.
We should not be destabilizing communities and separating families. We
should support naturalization and a pathway to citizenship for
undocumented immigrants. We must promote the well-being of communities,
and stand with our core American values.
v. conclusion
Every day that our current immigration enforcement system continues
is another day that the Federal Government is a part of a system of
abuse that criminalizes immigrant communities. We urge Congress to stop
the human rights abuses that occur due to our current immigration
enforcement and detention system. We should turn to community-based
solutions that help keep our immigrant communities strong and vibrant.
______
Article From Pogo.org
outsourced oversight.--at immigration detention facilities, `inspectors
for hire' miss signs of neglect, say critics
BY KATHERINE HAWKINS--FILED UNDER INVESTIGATION--MARCH 12, 2019
This piece originally appeared on Yahoo News.
When government inspectors made an unannounced visit last year to
the privately run immigration detention center in Adelanto, Calif.,
they found inadequate medical and dental care, improper use of solitary
confinement and perhaps more shockingly, braided bedsheets facility
staff called ``nooses'' hanging from ceilings in detainee cells.
Two weeks after the Department of Homeland Security's watchdog
office issued a grim report based on that visit, another inspection
took place. This one, however, was pre-announced and conducted by a
company called the Nakamoto Group, which the Immigration and Customs
Enforcement pays to inspect its detention facilities.
The Nakamoto Group, which wrote its own review of Adelanto,
criticized the department inspector general's findings as ``erroneous
and inflammatory.''
The inspector general ``took a housekeeping problem and made it a
suicide issue'' in order to ``sell their product'' and get more
attention for their report, Mark Saunders, a vice president of the
Nakamoto Group, said in an interview with the Project on Government
Oversight.
The spat between the Department of Homeland Security's inspector
general and the Nakamoto Group over Adelanto epitomizes the debate over
oversight of the immigration detention system at a time when DHS is
locking up a record number of people for violating immigration laws. At
stake are the health and safety of over 50,000 people kept in detention
on an average day.
There have been a long series of credible reports of medical
neglect in Adelanto since it opened in 2011, including at least two
cases where ICE'S own investigations uncovered evidence that inadequate
medical care contributed to detainees' deaths. In both 2017 and 2018,
though, Nakamoto Group inspectors found that Adelanto complied with all
Federal detention standards, including those for medical care and
suicide prevention.
In May 2018, a team from the inspector general's office arrived at
Adelanto unannounced. A report on their findings was published on Sept.
27, 2018. Hanging bedsheets, which some Adelanto staff called
``nooses,'' were seen throughout their inspection.
``The contract guard escorting us during our visit removed the
first noose found in a detainee cell, but stopped after realizing many
cells we visited had nooses hanging from the vents. We also heard the
guard telling some detainees to take the sheets down,'' according to
the inspector general report, which contained pictures of the hanging
bedsheets.
This finding was prominently featured in many news stories on the
inspector general report.
In their review of Adelanto conducted 2 weeks after the inspector
general's report was made public, the Nakamoto Group fired back at the
inspector general, saying that it was misleading for the inspector
general to call the bedsheets hanging in detainees' cells ``nooses,''
since the sheets ``were being used as privacy curtains or
clotheslines'' and there was ``no evidence to suggest that any privacy
curtain or clothesline'' was used as a noose.
The inspector general report itself said that the bedsheets hanging
in detainees' cells were used as privacy screens and clotheslines--but
also noted that staff and detainees called them ``nooses'' and that
there was a history of bedsheets being used in suicide attempts. Osmar
Epifania Gonzalez-Gadba, a 32-year-old from Nicaragua, used bedsheets
to hang himself in his cell in Adelanto in March 2017.
Nakamoto inspectors wrote that they observed no hanging bedsheets
during their inspection, and that based on data provided by the GEO
Group, Adelanto had experienced no ``serious suicide attempts'' in
2018.
However, according to a recently released investigation by the
nonprofit Disability Rights California, it is ``demonstrably false''
that there were no suicide attempts at Adelanto in 2018. The
organization, which under Federal law has a right to inspect any
institution that houses people with disabilities, wrote that during 4
days of visits to Adelanto last year, ``we encountered several people
who, as documented by Adelanto health care staff . . . attempted
suicide between January 2018 and September 2018.''
In early 2018, Disability Rights California reported that a female
detainee at Adelanto was found ``in the shower in fetal position, fully
dressed, and holding left bleeding wrist,'' and was hospitalized for 5
days following what her medical records acknowledged as a suicide
attempt. In August 2018, the report continued, ``medical records
describe a man experiencing auditory hallucinations and expressing
plans to hang himself. A few days later, he attempted to strangle
himself with clothing.'' Again, clinical staff at Adelanto recorded the
incident as a suicide attempt, but GEO Group did not record it as one
because it did not result in ``serious self-harm.'' (GEO Group did not
respond to an email asking for a comment on these allegations.)
A former Adelanto detainee also cast doubt on Nakamoto's finding
that detainees were no longer hanging bedsheets in their cells. Alex
Armando Villalobos Veliz, an asylum seeker from Honduras who was
released from Adelanto on Jan. 31, 2019, said in a phone interview that
detainees still routinely hung bedsheets for privacy, but GEO Group
guards had told them to take them down and clean their cells the day
before the Nakamoto inspection.
Villalobos was also instructed to do extra cleaning in the kitchen,
where he worked. He said that the Nakamoto inspectors mainly
interviewed GEO staff and English speaking detainees, and did not go
into detainees' cells in the section of the prison where he was held.
Nakamoto took issue with other parts of the inspector general's
report, including the inspector general's finding that Adelanto did not
provide any detainees with dental cleanings or fillings for a 4-year
period. Based on records that Nakamoto viewed, Saunders said, ``they'd
been doing them all along . . . We didn't talk to detainees that had a
single dental complaint,'' he said.
In contrast, GEO Group's written response to the inspector
general's report does acknowledge that there had been problems with
medical and dental care, though the company said it had been resolved:
``While we believe that a number of the [inspector general] findings
lacked appropriate context or were based on incomplete information, we
have already taken steps to remedy areas where our processes fell short
of our commitment to high-quality care,'' a GEO statement read.
The Nakamoto Group alleged that one of the most disturbing cases
described in the inspector general's report--that of a disabled
detainee in segregation who ``never left his wheelchair to sleep in a
bed or brush his teeth'' for 9 days--was based on a misunderstanding.
According to the Nakamoto inspection report, ``[a] medical record
review and interviews with staff and the detainee during this annual
inspection revealed that the detainee is in fact not confined to a
wheelchair, but was rather issued a wheelchair out of courtesy.''
Nakamoto wrote that the inspector general's office should ``use
inspectors with detention and corrections backgrounds for future
inspections to avoid . . . embarrassment to their office and ICE,
especially since the inaccuracies have now been reported by the news
media as fact.''
Tanya Aldridge, a spokesperson for the inspector general's office,
wrote in an email to POGO that ``[w]hile we understand that the
Nakamoto Group, along with ICE and facility staff, was critical of our
report, we stand firmly behind the results of our inspection.'' She
declined to discuss Nakamoto's allegations in detail, instead referring
to a June 2018 inspector general's report that found serious flaws in
the contractor's inspections.
``Nakamoto's inspection practices are not consistently thorough,''
are ``significantly limited,'' and ``its inspections do not fully
examine actual conditions or identify all compliance deficiencies,''
the inspector general found.
Eleven senators led by Elizabeth Warren, D-Mass., wrote to the
Nakamoto Group last November to express concerns about the inspector
general's findings in both the June 2018 report on inspections and the
unannounced inspection of Adelanto. Saunders said that Nakamoto had
written to Congress refuting the June 2018 report, but he declined to
provide a copy of the company's response. Warren's office also declined
to release the response. A spokesman for her office said that ``Senator
Warren's investigation of private immigration detention contractors
CoreCivic and GEO Group, and auditor Nakamoto Group, regarding
conditions at immigration detention facilities is ongoing.''
Scott Shuchart, who worked for eight years for the Department of
Homeland Security's Office of Civil Rights and Civil Liberties, said
that ``Nakamoto is not wrong that the OIG lacks specialized expertise
in detention,'' and it was possible that the inspector general had
gotten some details wrong in its report. But Shuchart said that
``Nakamoto has no credibility because of the volume of problems it has
failed to uncover at multiple facilities over multiple years . . . It
is a checklist driven, superficial inspection process.''
Nakamoto Group vice president Saunders said the company regularly
identified problems at facilities although ``overall they may pass.''
He thought Nakamoto, a small, minority-owned company with only 10 full-
time employees based in Rockville, Md., was being unfairly grouped with
``multimillion-dollar conglomerate companies'' like GEO and CoreCivic.
``Our president's mother was born in a Japanese internment camp . . .
That's our historical profile,'' he said.
The Nakamoto Group inspections publicly available on ICE's website
show that detention facilities do occasionally fail--most often, county
jails that hold a small number of immigration detainees. Nakamoto gave
a ``deficient'' rating to the Grand Forks County Correctional Facility,
in Grand Forks, Neb., in May 2018. The Kandiyohi County Jail in
Willmar, Minn., failed its ICE inspection in March 2018. (It passed a
follow-up inspection 6 months later.)
The Nakamoto Group has rarely failed or even found serious
violations at large detention centers like Adelanto, which has a
capacity of up to 1,940 immigration detainees.
Nakamoto's inspections of Stewart Detention Center in Lumpkin, Ga.,
found the facility was compliant with 39 out of 39 applicable detention
standards in both May 2017 and May 2018. Stewart, like Adelanto, is run
by a for-profit prison company, CoreCivic, which is GEO Group's largest
competitor. Like Adelanto, it is one of the largest immigration jails
in America, with a capacity of nearly 2,000 beds.
Andrew Free represents the families of three detainees who died in
Stewart since January 2017: Jean Carlo Jimenez Joseph, a 27-year-old
who hanged himself in May 2017; Yulio Castro-Garrido, who was 33 years
old when he died of pneumonia in January 2018; and Efrain De La Rosa, a
40-year-old Mexican national who committed suicide in July 2018.
Free noted the disturbing parallels between Jimenez's suicide and
De La Rosa's. Both men had previously been diagnosed with
schizophrenia, and suffered from hallucinations and suicidal thoughts
while at Stewart. Both hanged themselves after spending weeks in
solitary confinement. In both cases, a CoreCivic guard was fired for
failing to perform a required check of the prisoner's cell and then
falsified logs to cover for that failure.
Amanda Gilchrist, a spokesman for CoreCivic, wrote in an email that
she could not comment specifically on Jimenez's and De La Rosa's death
other than to say that the company ``has cooperated fully in the
investigations by our government partners and law enforcement into
these matters,'' and that ``the safety and well-being of the
individuals entrusted to our care is our top priority.'' She also noted
that at the time of both deaths, ``CoreCivic did not provide medical or
mental health care services or staffing at Stewart Detention Center,''
which were instead provided by ICE's Health Service Corps.
Documents from Nakamoto's inspection of Stewart in May 2018 note
Jimenez's death, but do not contain any mention of the guard's firing
for falsifying detention logs, nor does it analyze whether Jimenez's
extended stay in solitary confinement may have worsened his mental
condition. It also does not discuss evidence that, in Free's words,
Stewart was ``woefully understaffed,'' as documented by the DHS
inspector general in late 2017.
Free, the lawyer representing the detainees' families, wrote in an
email that he viewed Nakamoto's certification that Stewart complied
with all detention standards as a demonstration that the company's
inspections were a ``whitewash'' rather than ``actual, independent
reviews.''
Saunders, the Nakamoto executive, noted that the fact that a
facility received an overall score of ``acceptable,'' or was found to
be in compliance with a particular standard, did not mean that Nakamoto
had found no problems. Each standard has multiple subparts, and
inspectors go ``line by line by line'' through each of them in reports
that are over 100 pages long, he said.
Critics say that the checklist approach is inherently flawed. The
inspector general wrote that the checklist includes more than 650
subparts, which left Nakamoto employees without ``enough time to see if
the [facility] is actually implementing'' its written policies. Tara
Tidwell Cullen of the National Immigrant Justice Center, which has done
extensive analysis of inspection data, said that ``it's very easy to
gloss over conditions using only this checklist,'' particularly since
Nakamoto inspections are announced in advance. ``If you give facilities
a chance to clean up once a year for the inspectors, you're not really
getting an accurate view,'' she said.
In December 2016, a Department of Homeland Security advisory group
issued a report addressing ways to improve oversight of private
immigration detention. It recommended that ICE revise its inspection
methodology and potentially abandon or scale back use of Nakamoto,
stating that ``inspections should make greater use of qualitative
review of outcomes, rather than simply using a quantitative checklist.
The point of inspections is to provide meaningful evaluation of actual
on-the-ground detention conditions in each facility.''
Even if a detention center fails a Nakamoto inspection, there may
not be any consequences. Congress passed a law in 2009 requiring that
ICE terminate the contract of any detention center that fails two
consecutive inspections--but this has never happened since the
legislation was passed. ICE treats Nakamoto's inspection rating as a
recommendation, which must be reviewed by ICE before it is made final.
Saunders confirmed this in an interview saying, ``everything we send to
ICE is considered a draft . . . they have final approval.'' He did not
recall ICE ever changing inspectors' conclusions.
But according to Tidwell Cullen, ICE may simply avoid issuing a
final rating when its inspection contractors find that a facility is
out of compliance. She wrote last year that based on her group's
analysis of data on ICE detention facilities from November 2017, four
jails had received a recommended rating in their last inspection of
``deficient,'' ``at-risk,'' or ``does not meet standards.'' The final
rating for all four of these facilities ``had been pending for more
than 100 days--by far the longest-pending inspections of more than 200
detention centers listed.''
Matthew Bourke, an ICE spokesman, wrote in an email that ``ICE has
a strong record of holding detention facilities accountable when
deficiencies are identified.'' Nonetheless, in response to the
inspector general's findings ``the agency is currently re-evaluating
the existing scope and methodology'' for contract inspections, he
wrote.
Advocates were pessimistic about the outcome of this review given
ICE's track record and the dramatic recent expansion of immigration
detention. Tidwell Culllen said, ``it's not a problem that's going
away. It's getting worse.''
______
Article From Pogo.org
medical neglect at a denver immigration jail
BY KATHERINE HAWKINS--FILED UNDER INVESTIGATION--MAY 21, 2019
This joint POGO-Yahoo investigation was originally
published in full on Yahoo News.
On Nov. 17, 2017, Federal agents arrived at the home of 64-year-old
Kamyar Samimi, who had lived in the United States for over four
decades, and took him away. Samimi was a legal immigrant from Iran, who
came to the United States as a student in 1976 and received a green
card in 1979. But under Trump-era enforcement policies, a 12-year-old
conviction for cocaine possession made him a target for detention and
deportation.
Samimi was taken to the Aurora, Colo., detention facility, an
immigration jail in the suburbs of Denver operated by the GEO Group,
one of the largest private prison companies in the U.S. Just over 2
weeks later, he was dead.
He is one of 24 people to die in Customs Enforcement (ICE)
detention since President Donald Trump took office. (That total
excludes deaths of immigrants held in Customs and Border Protection
custody or in Office of Refugee Resettlement shelters, including three
Guatemalan children who have died since December.)
In at least a half dozen of these cases, there have been
allegations that inadequate medical care preceded the deaths. Samimi's
case appears to be one of those--and an example of how government
contractors running facilities like Aurora have struggled to provide
adequate care for a drastically increasing detainee population.
An internal ICE review of Samimi's death found there were major
deficiencies in his medical care for severe opioid withdrawal before
his death, according to a source who viewed the document. (See update
at the bottom of this piece.) The source asked not to be named because
they are not authorized to speak to the press and fear retaliation.
ICE's detention standards provide that ``detainees experiencing
severe or life-threatening intoxication or withdrawal shall be
transferred immediately to an emergency department for evaluation'' and
returned to the detention facility only if it is ``staffed with
qualified personnel and equipment to provide appropriate care.''
Investigators found that Samimi's treatment violated this standard and
many others, according to the Project on Government Oversight's source.
ICE's official review of Samimi's death has not yet been publicly
released, despite multiple pending Freedom of Information Act lawsuits
for such release. An ICE spokesperson said the agency could not comment
on the case due to pending litigation.
According to an inspection report on ICE's website, the 64-year-old
Samimi ``was placed in medical observation directly from intake''
because he reported suffering from depression, methadone and heroin
addiction, and abdominal pain, and ``began rather quickly complaining
of nausea and vomiting and was observed to vomit blood.''
On Nov. 28, 11 days after he was taken into custody, Samimi ``was
observed to have a bed sheet tied tightly around his neck'' and was
placed on suicide watch. On Dec. 2, ``the detainee attempted to get
into a wheelchair but vomited blood and collapsed'' and stopped
breathing. Soon after, he was pronounced dead at a local hospital. The
inspection report, quoting from a source that it does not identify,
states that ``the most likely cause of death was noted as `the result
of asphyxia secondary to aspiration of bloody vomitus.' ''
The local coroner's autopsy states that Samimi's cause and manner
of death are ``undetermined,'' but that emphysema and gastrointestinal
bleeding were likely contributing factors. The forensic pathologist
wrote that Samimi had been addicted to methadone since 1990 and that
``methadone withdrawal cannot be ruled out as the cause of death,
however, deaths due to methadone withdrawal are rare.''
Samimi's case is just one of many that critics of the Aurora
detention center say shows a bigger problem with care there and
throughout America's growing immigrant detention complex, where around
50,000 people are detained on an average day.
A complaint filed last year by the American Immigration Council and
American Immigration Lawyers Association alleges a pattern of
``dangerously inadequate medical and mental health care'' at the jail
in the Denver suburbs. Since the complaint was filed, ICE has
drastically expanded the detention facility, putting even greater
stress on its medical care system.
At the time of Samimi's death, Aurora's medical director--and sole
full-time physician--was Jeffrey Elam Peterson, MD. He left Aurora a
few months later, in approximately April 2018, to become medical
director at the nearby Arapahoe County jail. It is unclear whether his
departure was linked in any way to Samimi's death. GEO Group did not
respond to the Project on Government Oversight's requests for comment.
Several former Aurora detainees and their attorneys have accused
Peterson specifically of providing inadequate health care and
attempting to intimidate detainees when they advocated for better
treatment.
In one extreme case, a paralyzed detainee, Ronnie Keyes, alleged in
a lawsuit against GEO Group that his leg had to be amputated as a
result of Peterson's negligent medical care. GEO Group settled the case
for an undisclosed sum shortly before it was scheduled to go to trial
in March.
According to his legal complaint, Keyes had two mild pressure
ulcers at the beginning of his detention. As soon as he arrived, he
requested a specialized air mattress to prevent them from deteriorating
or new sores from forming. He was never provided one, and his ulcers
deteriorated and eventually became severely infected.
The complaint alleges that between his detention at Aurora in June
and his hospitalization in September, Keyes filed over 50 written
complaints about his medical care. ``Not one was taken seriously,'' it
says.
In July, Keyes wrote that Peterson had ordered that the dressing on
his wounds be changed once every 3 days, when a daily change was
required to avoid infection, and that several of the nurses at Aurora
acknowledged that they were not equipped to properly treat him.
In August, he began requesting to be taken to the hospital, in part
because his pressure ulcers ``had gotten even worse, they were
bleeding, and they smelled bad.'' He was finally taken to the emergency
room after ``staff at the facility found him passed out in his
wheelchair.''
The infection had spread to his blood and the bone in his foot. His
left leg was amputated below the knee on Sept. 20, 2016.
Even after the amputation, Keyes's pelvic bone remained infected,
requiring multiple hospitalization and surgeries. Keyes's attorney,
David Lane, said in an interview, ``The doctors believe it's a matter
of time until it kills him.''
Lane said that based on Keyes's experience, medical care at Aurora
was ``abysmal.''
``I wouldn't let Dr. Peterson give me a haircut,'' he added.
Attorneys representing Aurora detainees have alleged that Peterson
reprimanded their clients for filing grievances or seeking assistance
from attorneys in obtaining medical care. Arash Jahanian of the ACLU of
Colorado, wrote in a court declaration in 2017 that when a client of
his filed grievances because he was not receiving treatment for an
arterial blockage, Dr. Peterson and one other official ``told him to
stop filing grievances.''
Another former Aurora detainee, Rene Lima Marin, recently filed a
legal claim alleging that he had received inadequate treatment for
multiple fractures to bones in his face resulting from a fall in his
cell. Lima Marin was taken to the emergency room the night of Feb. 7,
2018, and told that he needed to return in a week or two for surgery to
ensure the bones healed properly. On Feb. 16, his attorneys wrote to
Aurora's warden, Johnny Choate, alleging that Lima Marin was not
receiving adequate care.
In response, according to the legal claim, Peterson ``berate[d] Mr.
Lima Marin for involving his lawyers in his medical care,'' and
``accused him of lying and exaggerating his injuries.'' Peterson also
wrote in an email to Lima Marin's attorneys that he perceived their
letter as ``an unprofessional and threatening document,'' and was
planning to file a formal complaint against them with the Colorado Bar
Association.
Danielle Jefferis, one of Lima Marin's lawyers, said in an
interview that other clients of hers had also had experience with
Peterson ``telling them they're faking it or they're lying.''
Peterson did not respond to messages left with his previous and
current employer, texts and calls to the mobile phone number listed on
his State medical license, and letters sent to his home and work
addresses.
Aurora isn't the only ICE detention facility where detainee
grievances have allegedly been met with threats. The Department of
Homeland Security's inspector general reported in December 2017 that
detainees at other detention centers said ``staff obstructed or delayed
their grievances or intimidated them, through fear of retaliation, into
not complaining. These deterrents may prevent detainees from filing
grievances about serious concerns that should be addressed and
resolved.''
The American Immigration Council and American Immigration Lawyers
Association complaint from last summer describes the experiences of
seven Aurora detainees, all identified by pseudonyms. One of them,
identified as ``Abdo,'' a refugee from South Sudan, was placed in
isolation for a month after a dispute with a guard despite suffering
from post-traumatic stress disorder, as part of which he experienced
auditory and visual hallucinations.
During fiscal year 2018, when most of these cases occurred, the
Aurora detention facility had an average daily population of 644 ICE
detainees. It now holds over 1,000--but there is still just one full-
time physician. (Nationally, the United States has 2.56 doctors per
1,000 people. The ratios in jails and prisons tend to be lower, and
detainees' medical needs higher.)
In late January, the GEO Group opened a 432-bed annex next door to
the main detention center. The annex is the original Aurora detention
center, where the GEO Group's business of contracting with the Federal
Government to detain immigrants for profit began in 1987. It had been
vacant for several years after the GEO Group opened its newer, larger
detention site nearby.
ICE and GEO initially contracted to operate the annex for 90 days.
In late April, the contract was extended another year, for $14 million.
ICE has said the annex was recently remodeled. Elizabeth Jordan, an
attorney for the Civil Rights Education and Enforcement Center, said in
an interview that she saw little sign of that when she visited the
facility. ``It's very clearly an old jail,'' she said, that appeared to
have been abandoned and used for storage.
According to Laura Lunn, who manages the Rocky Mountain Immigrant
Advocacy Network's detention program, the annex was filled with new
detainees flown in from the U.S.-Mexico border ``essentially
overnight'' after it opened in January 2019. Several flights of
detainees arrived in quick succession, without a corresponding increase
in guards or medical staff at the time.
``They were not scaling up to accommodate the needs of the people
being detained,'' said Lunn, whose organization offers legal
orientation to newly arrived detainees at Aurora. GEO has since hired
more staff; Lunn said, though it is not clear whether the pace of
hiring has matched the expansion of the jail.
Lunn said that her own organization was ``overwhelmed and
overburdened'' trying to conduct intake interviews with recent
arrivals.
Weeks after the expansion, 357 detainees in Aurora were under
quarantine for exposure to chicken pox and mumps. Detainees' attorneys
said that although Aurora had experienced quarantines for chicken pox
before, they had not occurred on this scale, and quarantines for mumps
were much rarer. Lunn said that ``a shockingly high number of units''
were quarantined and noted that there had been an ``uptick of
quarantines around the country.''
As of March 7, there were 2,287 ICE detainees in quarantine across
the country, Reuters reported. There were 236 confirmed or probable
cases of mumps in ICE detention in the past year, as opposed to zero in
the previous 2 years.
At Aurora, most detainees under quarantine had their immigration
court hearings canceled, which had the practical effect of lengthening
their time in detention. They also lost access to outdoor recreation
and visits to families.
Alethea Smock, an ICE spokesperson in Colorado, said in an email
about the quarantines that ``medical personnel are credited with
reducing the further infection of detainees by their quick reaction.''
She added, ``Each detainee receives a medical examination upon arrival
at the facility to check for potential signs of illness, however ICE
has no way of knowing what viruses a person may have been exposed to
prior to entering the facility.''
Detainees' lawyers dispute this. Jefferis noted that the mumps
outbreak ``coincided with arrivals of large numbers of people, as they
were filling the annex'' and medical intakes were not happening
promptly. One of her clients told her that two detainees in his housing
unit who contracted mumps had gone untreated for days as they got
sicker, and at least one eventually had to be hospitalized.
The quarantines have now been lifted in Aurora, but the facility's
chronic problems with medical care remain.
Another one of Jefferis's clients has Type 1 diabetes, which
requires daily insulin treatment. Between his arrest in early February
and mid-March, she said, he rarely received the correct dosage of
insulin at the correct time. He began suffering increasingly severe
nerve damage, vision loss and pain as a result, and was eventually
hospitalized with a blood sugar level that placed him at risk of a
diabetic coma. Jefferis said that since returning from the hospital,
the client had begun receiving the proper medication, but was still
suffering from nerve damage and vision loss.
Aurora is located in the Congressional district of Democratic Rep.
Jason Crow. Anne Feldman, a spokeswoman for Crow, wrote in an email,
``We've heard multiple reports of poor conditions and disease outbreaks
at the GEO Group-run facility in Aurora from detainees themselves and
some attorneys. Despite our concerns, DHS has yet to respond to our
multiple letters on the topic.''
Crow was also turned away twice when he tried to visit the facility
in February and March, before finally receiving a tour 24 days after
his first request. He and 20 colleagues are now seeking to pass
legislation requiring that Members of Congress be given access to ICE
detention facilities with 48 hours notice.
The medical care problems at Aurora, according to the American
Immigration Council and American Immigration Lawyers Association
complaint, are ``the norm rather than the exception'' in ICE custody.
Jordan, the attorney for the Civil Rights Education and Enforcement
Center, agreed that medical care problems are pervasive in ICE
detention centers, many of which are further from major hospitals and
metropolitan areas than the jail in the Denver suburbs. Aurora, she
said, is ``an illustrative example of the entire way the system
fails.''
Update: After this story was posted, Rocky Mountain PBS
investigative reporter Brittany Freeman published the full ICE review
of Kamyar Samimi's death. The document, available here, is consistent
with our source's description but contains many more details about
problems with Samimi's medical care.
______
Article From Pogo.org
isolated: ice confines some detainees with mental illness in solitary
for months
AUGUST 14, 2019
As Immigration and Customs Enforcement (ICE) detains more
immigrants than ever before, detention centers have filed more reports
of detainees being held in solitary confinement, according to Federal
records obtained by the Project On Government Oversight (POGO). In
solitary, detainees are locked in a cell and isolated from other people
for up to 23 hours a day.
The records, obtained under the Freedom of Information Act, cover
the last year of the Obama administration and the Trump administration
through early May 2018. There are 6,559 records, each of which
represents the confinement of a detainee in solitary (ICE has placed
some detainees in solitary more than once). These records advance
reporting on ICE's use of solitary by the International Consortium of
Investigative Journalists and partner news organizations published
earlier this year. The records POGO obtained are the first to cover a
significant portion of the current administration.
About 40 percent of the records show detainees placed in solitary
have mental illness. At some detention centers, the percentage is much
higher.
Many experts view solitary confinement as tantamount to torture
under certain conditions, especially if it is prolonged. Prolonged
solitary confinement has been defined as longer than 15 days.
Slightly more than 4,000 of the 6,559 records show detainees in
solitary for more than 15 days. One quarter of those roughly 4,000
records indicate the detainees in solitary had mental illness. The
records show that some detainees were held in solitary for months, and
in some cases, for more than a year. One detainee was held in solitary
for more than 2 years.
Viewed alongside official watchdog reports and insider accounts,
these records depict an immigration detention system in urgent need of
more oversight. Indeed, an ICE policy instituted 6 years ago mandated
the creation of these records so the agency could assess how its 200-
plus detention centers use and misuse solitary, officially known as
``segregation.'' But the records themselves have gaps and inaccuracies,
hindering their potential to help overseers.
The problem has garnered bipartisan Congressional scrutiny. ``It is
imperative that ICE swiftly resolve any lacking oversight or improper
documentation pertaining to the use of segregation,'' wrote Senators
Chuck Grassley (R-IA) and Richard Blumenthal (D-CT) in a letter last
month to the acting head of ICE. This isn't Grassley's first time
weighing in on ICE's use of solitary. In 2015, he and then-Senator Al
Franken (D-MN) wrote that information they obtained suggested ``that
ICE continues to place many detainees with mental health concerns in
administrative or disciplinary segregation--also known as solitary
confinement--contrary to agency directives.''
in urgent need of oversight
POGO obtained Federal records documenting 6,559 instances where
solitary confinement was used in ICE detention centers from January
2016 to May 2018.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The release of this data on solitary comes as the current
administration has aggressively enforced immigration laws, including
the mass prosecution of people for first-time illegal entry into the
United States, a misdemeanor, under a ``zero tolerance'' policy carried
out along the entire U.S.-Mexico border beginning in April 2018 (the
last full month covered by the data). The administration has also
ramped up so-called ``interior enforcement'' where immigrants, and some
U.S. citizens, have been arrested away from the border and ports of
entry. The aggressive enforcement has sent the number of people in ICE
detention to record highs in recent months, including a growing number
of detainees with mental illness.
ICE detention centers across the country use solitary confinement
to house detainees with mental illness and other vulnerabilities apart
from the general population. Solitary is also used to punish detainees
who assault employees or other detainees, and for violating other
rules. Some detainees allege they have been placed in solitary as
retaliation for speaking out against forced labor, sexual assault, or
other alleged abuses.
ICE provided no comment in response to POGO's queries.
Even when it's meant to protect rather than punish, placing
individuals with preexisting mental illness in solitary confinement can
make the psychological issues they are grappling with worse and can
increase the risk they will die by suicide.
``There's no debate that for people with a mental illness, it's
very clear that solitary exacerbates the mental illness,'' psychiatrist
Terry Kupers told POGO. Kupers has testified in lawsuits involving
mental health care in prisons. Among those who were not previously
experiencing mental illness, time in solitary can also lead to mental
health problems and a rise in suicidal thoughts.
During the first 2 years of the Trump Administration, at least
three ICE detainees who were documented as having schizophrenia and
were placed in solitary took their own lives, according to two official
detainee death reviews by ICE and an inquiry by a State law enforcement
agency in Georgia.
According to a 2015 study by experts at New York University's
medical school, suicide was one of the top causes of death in ICE
detention between 2003 and 2015. The study cites criticism of ICE for
putting ``patients with mental illness into detention instead of
allowing them to receive community-based treatment.''
Yet there is at least one less policy limit on detaining people
with mental illness now than when that study came out. A month after
President Trump's inauguration, the Department of Homeland Security
rescinded a 2014 memo that stated ICE should not detain people
``suffering from serious physical or mental illness'' unless there were
``extraordinary circumstances or the requirement of mandatory
detention.''
Opponents of solitary confinement have questioned whether its use
for long periods of time violates the Constitution's ban on cruel and
unusual punishment. In one case, a Federal judge wrote that placing
those with mental illness in solitary confinement is akin to ``putting
an asthmatic in a place with little air to breathe.'' The discussion of
solitary has predominantly been in the context of prison--a punishment
for those found guilty of a crime. Because immigrant detention, unlike
prison, is not officially meant to be punitive, prolonged use of
solitary may pose additional legal and constitutional concerns.
The ICE data obtained by POGO shows some detainees were kept in
solitary for long periods, in nine cases exceeding a year, such as:
A woman at the ICE detention center in Adelanto, California,
who was ``diagnosed with Other Specified Trauma and Stressor-
related D/O [disorder],'' was released from solitary in
December 2017 after 454 days;
Another woman at Adelanto, who was ``diagnosed with PTSD/
Major Depressive D/O (Severe),'' was released in August 2017
after 372 days;
A man at Yuba County Jail in California, who was ``diagnosed
with psychotic disorder,'' was released in April 2018 after 413
days; and
A man detained at the ICE Service Processing Center in
Buffalo, New York, was released from solitary in May 2018 after
790 days--more than two years. According to the ICE data, he
did not have mental illness.
``Years on end of near-total isolation exact a terrible price,''
wrote then-Supreme Court Justice Anthony Kennedy in a 2015 concurring
opinion. He cited research showing that ``common side-effects of
solitary confinement include anxiety, panic, withdrawal,
hallucinations, self-mutilation, and suicidal thoughts and behaviors.''
An independent expert on human rights appointed by the United
Nations recommended all countries ban the use of ``prolonged solitary
confinement,'' solitary beyond 15 days. ``At that point . . . some of
the harmful psychological effects of isolation can become
irreversible,'' U.N. special rapporteur Juan E. Mendez wrote in a 2011
report.
In recent years, some state prison systems have curbed their use of
solitary: Texas has banned solitary as a punishment for breaking rules
and Colorado has banned use of solitary exceeding 15 days.
In May, the International Consortium of Investigative Journalists
quoted an ICE spokesperson who said solitary ``protects detainees,
staff, contractors, and volunteers from harm.'' Yet state prisons that
have reduced use of solitary say it can be done without increasing
risk. Officials from five states told the Government Accountability
Office in 2013 that moving inmates out of restrictive housing, such as
solitary, led to ``no increase in violence'' and officials from two
states said millions of dollars were saved by reducing the number of
people held in solitary.
ICE also isn't the only Federal agency under scrutiny for its use
of solitary for people with mental illness. In 2017, the Justice
Department's Inspector General wrote that the Bureau of Prisons had
``inmates, including those with mental illness, who were housed in
single-cell confinement for long periods of time, isolated from other
inmates and with limited human contact.'' (The watchdog also wrote that
the Bureau ``states that it does not practice solitary confinement, or
even recognize the term.'')
However, in contrast with ICE, as Senators Grassley and Blumenthal
wrote in their recent letter, Bureau prisons are in some ways better
equipped to deal with the challenges faced by detained populations
``who require special attention,'' such as those with mental illness.
Many ICE detention facilities effectively have two options for holding
detainees: keeping them in the general population or isolating them in
segregation.
In 2009, an ICE official made a similar observation: ``segregation
cells are often used to detain special populations whose unique
medical, mental health, and protective custody requirements cannot be
accommodated in general population housing.'' The official further
wrote that segregation is ``not conducive to recovery.''
Little seems to have changed in the ensuing decade. Andrew
Lorenzen-Strait, a former senior ICE official who left the agency in
May, told Politico that ICE studied how prisons cared for the mentally
ill to devise a 30-bed pilot program at its Krome detention center in
Florida. He estimated 3,000 to 6,000 ICE detainees have mental illness.
The reliance on solitary for holding detainees with special
vulnerabilities like mental illness reflects a ``basic structural
challenge for ICE,'' Senators Grassley and Blumenthal wrote to the
acting head of the agency last month.
Some critics say the most fundamental problem is the detention of
people with mental illness. ``At the end of the day, the best way to
get their treatment is not to be detained,'' Hannah Cartwright,
supervising attorney at the National Immigrant Justice Center, told
Politico.
What is clear is use of solitary in ICE detention is on the rise
and more needs to be done to oversee how it is used and to stop its
misuse and overuse.
As some state prison systems have shifted away from using solitary,
the ICE data shows an increase in the reporting of use of solitary in
immigrant detention centers from January 1, 2016, through May 4, 2018.
The number of reports indicating the detainees in solitary have mental
illness also went up, though declined slightly as a proportion of the
whole.
There are 2,565 reports of use of solitary confinement with a
placement date during 2016, the last full year of the Obama
Administration. Of those, 40 percent (1,030) indicate the detainees in
solitary had mental illness.
There are 2,944 reports of use of solitary confinement with a
placement date during 2017, most of which was during the Trump
Administration. Of those, 39 percent (1,160) indicate the detainees in
solitary had mental illness.
In the first third of 2018, out of a total 1,050 reports, 37
percent (389) indicate the detainees in solitary had mental illness.
(If the rate of reporting held steady through the rest of 2018, total
reports of use of solitary that year would top 3,100 and those
involving mental illness would be about the same as in 2017.)
During the period covered by the data, ICE's detention center in
Adelanto, California, accounted for the most reports of placements in
solitary, perhaps in part because the facility has one of the largest
detainee populations. (Another large detention center, in Stewart,
Georgia, ranks second in reporting use of solitary.)
Adelanto also reported more detainees in solitary confinement
lasting longer than 75 days--five times the maximum time the U.N.
expert recommends governments use isolation--including some with severe
mental illnesses, than any other ICE detention center. Adelanto filed
112 reports where a detainee was in solitary for at least 75 days.
Across all detention centers, there are 485 reports of detainees in
solitary for 75 days or more.
The GEO Group, the private prison corporation that holds close to
one out of every three ICE detainees nationwide, wrote this year that
about a third of the nearly 2,000 detainees at its immigration facility
in Adelanto are ``chronic medically ill, chronic mentally ill, or
seriously mentally ill.'' Yet it appears that at Adelanto a
disproportionate number of detainees with mental illness are being kept
in solitary versus in the general population: two-thirds of Adelanto's
reports indicate that the detainees being isolated have mental illness.
Over the last decade, ICE has strengthened its standards for
detention centers, including standards dictating the minimum conditions
for those being held in solitary, but some detention centers, such as
Adelanto, haven't always fully complied. For instance, last year, the
Department of Homeland Security Inspector General found during an
unannounced inspection of Adelanto that ``some detainees were not
offered any recreation or showers while in segregation.''
Adelanto detainee Osmar Epifania Gonzalez-Gadba, a 32-year-old
Nicaraguan man, is one of the three detainees with mental illness who
had been put in solitary and died by suicide during the current
Administration. He used a bedsheet as a noose to hang himself in March
2017.
Last year, in 15 out of 20 Adelanto cells visited, an inspector
general team ``observed braided bedsheets, referred to as `nooses' by
center staff and detainees, hanging from vents,'' according to a report
by the watchdog. Given that more than a year had passed since Gonzalez-
Gadba's death, ``ICE's lack of response to address this matter at the
Adelanto Center shows a disregard for detainee health and safety,'' the
inspector general wrote.
The inspector general team also found people wrongly placed in
disciplinary solitary when they requested solitary for protective
reasons (the conditions in disciplinary solitary are more harsh), the
improper handcuffing and shackling of detainees in solitary, and
``cursory'' medical checks of some people in solitary, rather than the
required once-daily ``face-to-face'' evaluations.
GEO Group did not respond to POGO's request for comment.
In contrast to Adelanto, some large detention centers report
substantially less use of solitary, and for shorter periods of time and
involving a lower percentage of detainees with mental illness,
suggesting that solitary can be and is used far less at other
facilities (see the table, ``Top 15 Immigrant Detention Centers
Reporting Use of Solitary''). However, given questions about how
complete and accurate the data is--as described in detail in the next
section--this data alone cannot provide a full picture of the state of
solitary in ICE's detention complex.
The records also describe other ways ICE uses solitary. For
instance, 1.8 percent state that detainees in solitary were LGBT
individuals in protective custody, and 4 percent indicate that solitary
was used to isolate individuals with medical problems (aside from
mental illness).
ICE did not answer POGO's multiple, detailed queries about the data
or use of solitary in detention, including how many people are
represented by the records POGO obtained--a question the agency has the
data to answer.
A 2013 New York Times investigation on ICE's use of solitary
reported that Federal data covering a 5-month period showed ``about 35
detainees were kept for more than 75 days'' in solitary at the 50
biggest detention centers. The data was ``the first public snapshot of
the number of immigrants held in solitary confinement, how long they
were there and how many had mental health problems--about 10 percent.''
Within days, that article sparked reactions from lawmakers, and the
then-Secretary of Homeland Security Janet Napolitano told reporters she
would seek a review of the agency's policies. ICE issued a policy later
that year stating that for detainees with special vulnerabilities,
including mental illness and pregnancy, solitary ``should be used only
as a last resort.'' It mandated more oversight of the use of solitary
in immigration detention and more reporting to ICE headquarters when
detainees are placed in solitary.
That 2013 policy directed ICE headquarters to use these records to
continually review how detention centers use solitary confinement and
to curtail its overuse and abuse. (This is a different policy from the
one rescinded in the first months of the Trump Administration.)
But the records on ICE's use of solitary in recent years are not
complete, according to both POGO's analysis of them and a 2017
Department of Homeland Security inspector general report.
Incomplete and inaccurate data can skew and impede oversight of
solitary.
``Missing instances of segregation and late reporting of
segregation of detainees with mental health conditions are of
particular concern, especially for detainees who have been segregated
multiple times or for longer lengths of time,'' wrote the inspector
general. Gaps in the information mean it is harder for ICE to
``mitigate the risk of deteriorating detainees' mental health,'' which
can ``put detainees and facility staff at risk of harm.''
Additionally, a detention facility that provides complete, accurate
information about its use of solitary may look like it uses solitary
more often than a detention center that underreports its use of
solitary. Thus, the available data may not truly reflect reality and
could misdirect where overseers direct their attention.
Scrutiny of data from afar isn't the only way solitary confinement
in immigration detention is officially overseen, but those other means
of oversight, such as preannounced inspections, can fall short too,
allowing problems to persist. (The inspector general began conducting
surprise inspections in 2017, but preannounced inspections by ICE and
one of its contractors are far more common.)
The 2013 ICE policy also gave the agency's Health Service Corps
(IHSC) a role in evaluating whether detainees with mental illness
should be in solitary. ``Such detainees shall be removed from
segregation if the IHSC determines that the segregation placement has
resulted in deterioration of the detainee's medical or mental health,
and an appropriate alternative is available,'' the policy states. But
at remotely located detention centers, the Health Service Corps has
struggled to hire and retain mental health professionals.
The 2017 inspector general review examined a sample of data on the
solitary confinement of 127 detainees with mental health conditions
between October 2015 and June 2016 at seven detention centers,
including the aforementioned facilities in Adelanto and Buffalo.
Of the 46 30-day reports that should have been in the system, six
were missing. The inspector general also found nearly three-quarters of
reports required within 3 days of placing individuals with mental
illness in solitary were missing or ``not properly documented.''
In January 2017, 2 weeks before President Trump was inaugurated,
ICE headquarters sent a message to field offices ``reiterating that
segregation cases need to be reported within 3 days,'' according to the
inspector general.
Even after ICE's message and the September 2017 inspector general
report, the data is still incomplete. POGO found signs of missing and
inaccurate data from the 7-month period following the release of the
report.
For instance, in six of the 14-day reports filed after the
September 2017 report, the placement and release dates are the same,
suggesting at least one of the dates is incorrect.
There is also a reporting loophole in ICE's 2013 policy. While
detention centers have to report any use of solitary within 3 days if
the detainee has a ``special vulnerability,'' detention centers do not
have to report use of solitary for detainees deemed not to have such
vulnerabilities until they have been in solitary for 14 days. (This may
at least partially explain the lower percentage of reports of detainees
with mental illness at the 15-day mark and beyond.)
``The data are very important to problem-solving, because one of
the ways you figure out whether you have a problematic institution is
by looking at its solitary confinement usage rate,'' Margo Schlanger, a
former head of the Department of Homeland Security's Office for Civil
Rights and Civil Liberties, told The Intercept.
``If the data are crappy, you can't evaluate usage. You need the
data to be correct in order to use it in a diagnostic way,'' Schlanger
said.
Under the 2013 ICE policy, Schlanger's former office, sometimes
known by its acronym, CRCL, is the only Federal office outside of ICE
that has regular access to the data on use of solitary. The policy
carved out a role for the Office for Civil Rights and Civil Liberties
in overseeing solitary confinement as part of ICE's Detention
Monitoring Council, which is mostly made up of senior ICE officials and
was created to review detention centers' compliance with policies and
standards.
The office strives to ensure detainees, ``particularly those with
special vulnerabilities,'' are ``appropriately cared for and monitored
while placed in segregation to prevent mental decompensation and long-
lasting harm,'' according to its latest annual report, covering fiscal
year 2017. The office cited its regular examination of reports that ICE
shares with it.
But the 2013 policy also limited how the office could use
information that ICE provided, stating the office ``shall not use
information ICE shares'' with it as part of its involvement in the
Detention Monitoring Council ``in any CRCL investigation or inquiry.''
Ellen Gallagher, a whistleblower who previously worked in the
Office for Civil Rights and Civil Liberties and is now at the inspector
general's office, has said her former office was mostly focused on
getting complete data and wasn't doing enough to keep detention
facilities from routinely violating the rights of detainees or ICE's
2013 policy on solitary confinement. She pressed for her office to get
more information from ICE on why detainees were put in solitary, and to
intervene in individual cases when warranted.
``To place detainees with severe mental disabilities (e.g.,
schizophrenia or bipolar disorder) in segregation for the length of
time indicated in ICE reports seems extremely concerning, to me at
least,'' she wrote in an internal government email in 2014, published
by the International Consortium of Investigative Journalists.
Others involved in examining conditions in detention facilities
share similar concerns about how ICE is using solitary, and cite
missing information as an ongoing oversight issue.
``It's a black hole. We don't have good statistics about the health
status of people in ICE detention and that's a serious problem,'' said
Marc Stern, a professor at the University of Washington's School of
Public Health, in an interview with POGO.
Stern studies health care in prison settings and has conducted
reviews of health care in ICE detention facilities on behalf of the
Office for Civil Rights and Civil Liberties. He could not speak to the
specifics of what he has found in those reviews because of
nondisclosure agreements he signed with the Department of Homeland
Security. (POGO has sued the Department under the Freedom of
Information Act to gain access to these reviews.)
Stern said he doesn't have ``a quantitative answer about how many
people with schizophrenia get appropriate mental healthcare.''
``We just don't have the data,'' he said.
the voices
Some suicides in detention show that ICE and its contractors are
not sufficiently curbing the use of solitary when detainees have mental
illness, and that ICE is not always providing adequate care even when
there are numerous warning signs.
A December 2017 Department of Homeland Security inspector general
report raised concerns that ICE detention centers may have ``misused''
their solitary confinement units by isolating detainees without proper
documentation and failing to provide assurance to the inspector general
that the detainees in solitary had received daily meals and medical
care.
The Stewart Detention Center, an all-male facility in Georgia, was
among those the inspector general report cited. Its solitary
confinement cells have also been the site of two suicides by detainees
with mental illnesses in the past 2 years.
Jean Jimenez-Joseph was taken into ICE custody around the beginning
of March 2017. In the months before, he had been involuntarily
hospitalized multiple times for schizophrenia and psychosis, and made
repeated threats of and attempts at suicide. Jimenez-Joseph's family
has alleged in a lawsuit that contrary to agency policies, when ICE
officers took custody of him, initially at a county jail, they did not
transfer over his ``prior detention records, medical records, and his
vitally necessary prescription medication for schizophrenia and
psychosis.''
He was transported to ICE's Stewart Detention Center. There,
according to the lawsuit, Jimenez-Joseph eventually did receive an
antipsychotic medication but he repeatedly requested that the dosage be
increased because ``the voices in his head were getting worse.''
But due to ``systemic, chronic understaffing'' at Stewart, the
lawsuit states, particularly for medical and mental health positions,
this never occurred. Instead, he was placed in solitary confinement
multiple times as his psychiatric symptoms worsened, including for the
20 days before he died. Jimenez-Joseph hanged himself shortly after
midnight on May 15, 2017. According to the lawsuit, on the eve of his
death, there were ample warnings that his psychological state was dire.
The lawsuit states, ``Jean had written `Hallelujah The Grave Cometh' in
large, dark letters on the wall'' of his solitary confinement cell.
Efrain De La Rosa, another detainee with a history of severe
schizophrenia and psychosis, hanged himself in solitary confinement at
Stewart in July 2018. An employee of ICE's Health Service Corps wrote
in an email to agency leadership later that year that De La Rosa
``could have been saved'' if ICE had responded adequately to ``a total
of 12 SEN [Significant Event Notifications] reports prior to his death,
depicting suicidal ideation and psychosis.''
According to the email, which was recently obtained by The Young
Turks, ``Mr. De La Rosa was not being treated with psychotropic
medication; instead, he was remanded to segregation.''
Private prison company CoreCivic, which runs Stewart, declined to
answer questions regarding De La Rosa and Jimenez-Joseph, citing
pending legal claims. ``What we can tell you is the safety and well-
being of the individuals entrusted to our care is our top priority, and
we take seriously our obligation to adhere to Federal Performance Based
National Detention Standards (PBNDS) in our ICE-contracted
facilities,'' emailed a company spokesperson. She wrote that issues
found in the December 2017 inspector general report ``were quickly and
effectively remedied.''
``Prior to November 2018, CoreCivic did not provide medical or
mental healthcare services or staffing at Stewart Detention Center,''
the spokesperson wrote, referring POGO to ICE for comment on care
provided by ICE's Health Service Corps.
ICE did not respond to POGO's request for comment.
Azadeh Shahshahani, an attorney at Project South, a civil rights
organization that has represented Stewart detainees, told POGO, ``We're
seeing a pattern emerging of solitary confinement leading to people's
deaths, especially people in a fragile, emotional mental health
situation.''
``Solitary is the modus operandi when someone is experiencing
mental health care problems rather than giving them the help they
need,'' she said.
Congress should codify the policy in the Department of Homeland
Security's now-rescinded 2014 memo which mandated that ICE not detain
people ``suffering from serious physical or mental illness'' unless
there were ``extraordinary circumstances or the requirement of
mandatory detention.'' Further, the Department should formally
reinstate that policy in the interim.
The Department of Homeland Security should revise the 2013 ICE
policy on oversight of solitary confinement to eliminate the
restriction on what the Office of Civil Rights and Civil Liberties does
with information it receives in the course of its participation on the
Detention Monitoring Council.
ICE, after consulting with independent subject matter experts,
should collect adequate and appropriate data on the provision of mental
health care to detainees with psychological issues and on the impact of
detention on their mental illness. An independent entity should
evaluate the data, and the data and independent evaluation should be
made public.
ICE should revise its 2013 policy to require detention centers to
report, within 72 hours, every time solitary is used, even when the
detainee is not deemed to have a special vulnerability.
Congress should review and restructure the Department of Homeland
Security's Office for Civil Rights and Civil Liberties to maximize its
effectiveness and transparency.
Congress should mandate that ICE's Detention Monitoring Council
function more transparently; for example, the findings from its
``heightened reviews'' of ICE facilities should be posted publicly on
the agency's website.
The Department of Homeland Security Office of Inspector General
should conduct an audit of a much larger and statistically significant
sample of the segregation data from 2018 and 2019 to ensure ICE is
completely and accurately reporting its use of solitary confinement.
This audit would go well beyond the limited sample size used in the
2017 inspection report. The Office of Inspector General should also
evaluate what ICE has done with the segregation data (for example,
whether it has ever curtailed the use of segregation in favor of less
restrictive alternatives and how often).
ICE should mandate that more detention centers follow its higher
detention standards, contained in its Performance-Based National
Detention Standards 2011 (as amended). Any detention center holding
substantial numbers of immigrant detainees should be held to the higher
standards. For instance, the York County Prison in Pennsylvania held
690 ICE detainees on an average day in fiscal year 2017 and is one of
the top detention centers reporting using solitary. Yet ICE holds the
York County Prison to its lower 2008 standards.
Caterina Hyneman, Vanessa Perry, and Nicholas Trevino contributed
research.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
Article From Pogo.org
confidential report warned ice of ``inhumane'' use of solitary
confinement
BY NICK SCHWELLENBACH--FILED UNDER INVESTIGATION--SEPTEMBER 12, 2019
An Immigration and Customs Enforcement (ICE) detention center has
kept an ``alarming'' number of detainees with serious mental illness
confined in solitary, and many have been isolated for ``shockingly''
long periods, according to a previously confidential Department of
Homeland Security review obtained through a Freedom of Information Act
lawsuit by the Project On Government Oversight (POGO).
The review says the Adelanto, California, detention center's
reliance on solitary confinement to house detainees with mental
illness--in one case, for a cumulative 904 days--is ``both inhumane and
in violation of'' ICE policy.
Detainees in solitary are isolated from other people for up to 23
hours a day.
The review details myriad and long-standing medical and mental
health care failures at Adelanto, ICE's second-largest adult detention
center. Adelanto is run by the GEO Group, a private prison company that
several former top ICE officials have gone to work for. In April 2018,
the review was sent to current acting director Matthew Albence, who at
the time was head of ICE's Enforcement and Removal Operations division,
the part of the agency that arrests, detains, and deports immigrants.
Albence has been a stalwart defender of his agency's detention
centers. This summer, during a Fox & Friends segment that also featured
an arranged tour of Adelanto, Albence said the facility is
``representative of all our detention centers,'' calling them
``humane'' and ``safe.''
The review paints a different picture. ``Incompetent medical
leadership,'' according to the review, was the root cause of Adelanto's
failure to provide adequate care, and has ``contributed to the
inadequate detainee medical care that resulted in medical injuries,
including bone deformities and detainee deaths, and continues to pose a
risk to other detainees.''
``Major problems remain . . . almost all of those problems continue
to be linked to one fundamental problem: incompetent medical
leadership'' (p. 38).
The review is based on a November 2017 examination by three
independent experts on correctional facilities and medical and mental
health care on contract with the Office for Civil Rights and Civil
Liberties (often referred to by its abbreviation, CRCL). Those experts,
whose names are redacted, interviewed staff and detainees at Adelanto,
examined extensive ICE and contractor records, and wrote assessments
that make up the body of the review. In an earlier review, in December
2015, the office also had found many of the same problems.
The 2017 review was prompted in part by the deaths of three
Adelanto detainees earlier that year, including a suicide in March
using a bedsheet as a noose, and detainee complaints. More than 6
months after that suicide, the review found ``tie-off's'' that
heightened the risk of suicide by hanging in solitary confinement
cells.
A week after the independent experts' onsite investigation, ``due
to the serious nature of certain health and safety-related findings,''
the Office for Civil Rights and Civil Liberties notified ICE's
leadership of the problems and made informal recommendations for
``immediate action.''
There are signs that ICE's leaders did not make changes quickly
enough once they had been warned of the dangers facing detainees. A
week after the formal review and recommendations were sent to Albence
in late April 2018, and months after the earlier notification, the
Department of Homeland Security's Office of Inspector General conducted
a surprise inspection at Adelanto, finding ``nooses'' in detainees'
cells and continuing problems with care and use of solitary. The
inspector general's report was published in September 2018 and was
widely covered by the press.
Regarding the continuing ease with which detainees could hang
themselves more than a year after the March 2017 suicide, the inspector
general's office wrote that ``ICE's lack of response to address this
matter at the Adelanto Center shows a disregard for detainee health and
safety.''
While ICE didn't respond to POGO's detailed request for comment, a
journalist for The Atlantic, with whom POGO shared the Office for Civil
Rights and Civil Liberties review, wrote that an ICE spokesperson said
the agency ``disagreed with much of'' the review even though the Office
of Inspector General separately found many similar problems. Instead,
the spokesperson held up the findings of an inspection company on
contract with the agency. The company, whose approach has been
criticized for frequently overlooking problems, had found that Adelanto
met all of ICE's standards. (See ``Contractor Impunity at ICE'' at the
end of this article for more details.)
Among numerous unanswered questions, POGO had asked ICE why the
inspection company's findings should carry more weight than those of
the inspector general and the Office for Civil Rights and Civil
Liberties, and why ICE rejected many of the office's findings.
``a last resort?''
The Office for Civil Rights and Civil Liberties' review contains
details about the use of solitary, officially called ``segregation,''
and problems with care beyond those in the inspector general report.
``Detainees with serious mental health disorders are routinely and
inappropriately housed in administrative segregation at ACF [Adelanto
Correctional Facility],'' the review found. (Administrative segregation
is solitary confinement for reasons other than punishment.) ``Detainees
with serious mental disorders should only be housed in administrative
segregation as a last resort, as that environment is not conducive to
improving mental health status.''
Adelanto ``staff reported that 60 percent to 70 percent of
detainees in administrative segregation had serious mental disorders.''
And when the experts conducting the review visited Adelanto in November
2017, 26 of the 50 detainees held in solitary confinement cells as
punishment, called disciplinary segregation, had serious mental
illnesses.
A POGO investigation into ICE's use of solitary published last
month showed that Adelanto not only reported using solitary confinement
far more than any other detention center, but that it appeared to
confine a disproportionate number of detainees with mental illness.
POGO's analysis of 6,559 records of solitary placements covering
January 2016 to May 2018, obtained through the Freedom of Information
Act, found that Adelanto placed detainees in solitary 1,190 times (some
detainees were confined in solitary more than once). Two Adelanto
detainees with mental illness had been held continuously in solitary
for more than a year. The detention center reported 112 overall
instances of detainees being kept in solitary for 75 days or longer.
All told, the agency's detention centers reported use of solitary
confinement more than 4,000 times for more than 15 days, and nearly a
quarter of those instances involved detainees with mental illness, the
ICE data shows. A United Nations expert has recommended banning the use
of solitary confinement beyond 15 days and banning it altogether when a
person has a mental illness.
An ICE spokesperson has defended the agency's use of solitary
confinement by pointing to internal studies from 2012 and 2013 that
found 1.1 percent of ICE's population has been kept in solitary, versus
the estimated 4.5 percent of incarcerated individuals in solitary in
prisons nationwide. According to the data POGO obtained, those studies
don't reflect the agency's recent practices: ICE detention centers
reported about 42 percent more placements of detainees in solitary in
2017 than in 2014, even as States such as Texas and Colorado, as well
as the Federal Bureau of Prisons have curbed their use of restricted
housing, which includes solitary confinement. The Bureau of Prisons,
unlike ICE, proactively makes data available online on how restricted
housing is used.
Also unlike prison, ICE detention is officially not meant to be
punitive. Although ICE's ``civil detention'' system is supposed to be
different from the country's prison systems, the use of solitary
confinement is perhaps the starkest illustration of their similarities.
``i hate to be alone''
The Office for Civil Rights and Civil Liberties' review provides
some details on individual detainees kept in solitary at Adelanto,
including four who were isolated cumulatively for more than a year. One
was isolated for a cumulative 904 days.
``No detainee should be held in the [Special Management Unit] for
this amount of time. Isolation alone can create physical safety
concerns and can result in mental decompensation,'' according to the
review (``special management unit'' is one name for restricted housing
where detainees are isolated from the general population). ``Continuous
and prolonged segregation housing of the mentally ill,'' the review
states, had led ``to inadequate mental health care, and increased the
likelihood of poor mental health outcomes.''
``Adelanto inappropriately houses detainees with serious mental
disorders ly [sic] in segregation, rather than housing them in an
appropriate mental health housing arrangement. Continuous and prolonged
segregation housing of the mentally ill, has lead to inadequate mental
health care, and increased the likelihood of poor mental health
outcomes'' (p. 57).
One detainee who had been isolated for a total of 269 days was
still without medication despite the presence of a ``clear signal'' in
an electronic tracking system that he needed ``robust psychiatric
care.'' Another who had been isolated for a cumulative 68 days had a
``profound mental health history'' including several stays at mental
health treatment centers, yet was on ``no standing antipsychotic
medication . . . and he was suffering as a result.''
One detainee who was diagnosed with schizophrenia told the review
team he ``did not wish to be in segregation, and reported that his
symptoms (namely auditory hallucinations) were worsening with so much
time in isolation.''
The review notes that ``it is common for psychotic symptoms, such
as auditory hallucinations, to get worse when persons with
schizophrenia are alone in isolation (i.e. voices often quiet when a
person is engaged with others).''
The review team's mental health expert recalled the detainee
saying, ``I hate to be alone.''
Many detainees with mental illness had requested to be separated
from the general population and placed in solitary, according to the
review. But this was due to a lack of alternatives. Adelanto staffers
told the Office for Civil Rights and Civil Liberties experts that
solitary ``is `the best option' available for some of'' the detainees
with mental illness ``because of the absence of other options for
appropriate mental health housing.'' The review team recommended that
Adelanto ``develop a safe housing alternative with more intensive
mental health services.''
This wasn't the first time the office had raised issues regarding
Adelanto's use of solitary. ``In 2015 CRCL recommended that long-term
segregation housing of detainees with serious mental health conditions
at ACF should cease. This was not corrected,'' according to the review.
ICE's use of solitary has also sparked bipartisan congressional
concern. In a letter to ICE's acting director Albence this July,
Senators Chuck Grassley (R-IA) and Richard Blumenthal (D-CT) called
detention centers' reliance on solitary to hold vulnerable populations,
such as detainees with mental illness, a ``basic structural challenge
for ICE.''
Another reason detainees were left to languish in solitary,
according to the review: ``Clinical staff did not consider themselves
as responsible for the segregation and/ or ongoing segregation of their
patients.''
``incompetent leadership''
The review cites hundreds of internal complaints at Adelanto in
2016 and 2017 related to medical and mental health care. Most of the
complaints regarding ``delays or denials of care'' were confirmed, the
review states, and were partly attributable to inadequate medical
staffing.
``This large number of healthcare related grievances is not typical
in a correctional setting, and is a key indicator that the healthcare
needs of the detainee population is not being met,'' the review states.
Adelanto's problems with medical and mental health care
fundamentally stemmed from poor medical leadership, according to the
review.
``In 2015, CRCL clearly informed Adelanto that clinical leadership
was not competent and that problematic medical care was occurring as a
result. In 2017--two years since the 2015 onsite--the experts found no
evidence that corrections were made to address this issue,'' states the
review.
The GEO Group, which runs Adelanto, provided healthcare at the
detention center until February 2016, when it hired a medical
subcontractor called and Immigration Detention Medical Correct Care
Solutions, recently rebranded as Wellpath. The head of Wellpath is a
former GEO executive who worked simultaneously as a GEO consultant and
as president of the healthcare company when GEO hired it to run
healthcare at Adelanto.
But the change in the company providing care didn't affect
Adelanto's top medical personnel. ``That new contractor left the same
incompetent leadership in place,'' the review states.
At the time of publication, POGO was not able to identify who led
Adelanto's medical care.
The Office for Civil Rights and Civil Liberties' experts
recommended Adelanto replace those heading up the detention center's
medical care. ``In the event that new leadership cannot be recruited
immediately as it is likely that it will take some time to put new
leadership in place-at-risk detainees should be immediately removed
from the facility and transferred to other facilities with well-
functioning medical programs,'' the review recommends.
The review contains nearly identical criticism of the mental health
leadership at Adelanto.
Neither GEO nor Wellpath responded to POGO's requests for comment.
Last month, a massive Federal lawsuit was filed on behalf of 15
detainees--eight of whom were detained at Adelanto at the time of the
filing--against ICE and the Department of Homeland Security, stating
that the Office for Civil Rights and Civil Liberties ``has no
enforcement power, so ICE is free to disagree with CRCL recommendations
or refuse to implement them.'' The lawsuit names top Homeland Security
officials, including acting ICE head Albence. The officials' lax
oversight of ICE detention centers, plaintiffs claim, has led to
systemically poor medical and mental healthcare, deaths, and other
adverse health and safety impacts.
Beyond his Fox & Friends interview, Albence has been vocal in his
defense of contractors running many of ICE's detention centers as well
as the conditions in the facilities, including family detention centers
that he said last year are ``like a summer camp.'' At a Senate hearing
where he stood by that comparison, Albence refused to answer when asked
if he would send his children to his agency's detention centers.
``That question's not applicable,'' he said.
Mrs. Watson Coleman. The Members of the subcommittee may
have additional questions for the witnesses, and we may ask
that you respond expeditiously in writing to those questions.
Without objection, the committee record shall be kept open for
10 days.
Hearing no further business, the subcommittee stands
adjourned.
[Whereupon, at 3:30 p.m., the subcommittee was adjourned.]
A P P E N D I X I
----------
Statement of Peter E. Mina, Deputy Officer for Programs and Compliance,
Office for Civil Rights and Civil Liberties, U.S. Department of
Homeland Security
September 26, 2019
Chairwoman Torres Small, Ranking Member Crenshaw, and distinguished
Members of the subcommittee, thank you for the opportunity to submit a
statement for the record on behalf of the Department of Homeland
Security's (DHS) Office for Civil Rights and Civil Liberties (CRCL).
I would like to make 4 overarching points in my statement: (1)
Oversight of DHS immigration detention facilities is a key part of
CRCL's mission, and we conduct our oversight in a unique manner, using
contract subject-matter experts and with the focus on civil rights and
civil liberties; (2) CRCL's prior recommendations have led to concrete
improvements in conditions of detention at U.S. Immigration and Customs
Enforcement (ICE) facilities; (3) ICE should strive to use the most
comprehensive detention standards, in particular when detaining
vulnerable populations; and (4) ICE and CRCL should continue to work
together to address CRCL's recommendations following compliance
investigations and ensure timely implementation of necessary corrective
action.
introduction
CRCL supports the DHS mission to secure the Nation while preserving
individual liberty, fairness, and equality under the law. Established
by the Homeland Security Act, CRCL's mission integrates civil rights
and civil liberties into all of DHS activities by:
Promoting respect for civil rights and civil liberties in
policy development and implementation by advising Department
leadership and personnel, and State and local partners;
Communicating with individuals and communities whose civil
rights and civil liberties may be affected by Department
activities, informing them about policies and avenues of
remedy, and promoting appropriate attention within the
Department to their experiences and concerns;
Investigating and resolving civil rights and civil liberties
complaints filed by the public regarding Department policies or
activities, or actions taken by Department personnel; and
Leading the Department's equal employment opportunity
programs and promoting workforce diversity and merit system
principles.
CRCL is a DHS headquarters office, and the CRCL officer reports
directly to the Secretary of Homeland Security. CRCL works
collaboratively with, but independently of, the DHS operational
components, including ICE.
crcl's unique role in detention oversight
Oversight of DHS immigration detention facilities is a key part of
CRCL's mission. Pursuant to statutory authorities under 6 U.S.C. 345
and 42 U.S.C. 2000ee-1, CRCL reviews and investigates complaints from
the public alleging violations of civil rights or civil liberties by
DHS personnel, programs, or activities. Such complaints include
allegations about inadequate conditions of detention. It is important
to note that the DHS Office of Inspector General (OIG) has the right of
first refusal to investigate allegations submitted to CRCL, and that my
office has the authority to inspect, and regularly does inspect, ICE
detention facilities. Further, CRCL coordinates a recurring meeting
among the DHS oversight entities, including the OIG, which retains its
statutory authorities and independence, to ensure appropriate
coordination and/or deconfliction of oversight efforts.
CRCL investigates allegations and makes recommendations to DHS
components, often related to the creation or modification of policies,
or changes to implementation, training, supervision, or oversight. CRCL
is also responsible for assisting the Department in developing,
implementing, and periodically reviewing policies and procedures to
ensure the protection of civil rights and civil liberties, including in
immigration detention facilities.
As CRCL reports directly to the Secretary, CRCL is not part of the
reporting structure of DHS components. Yet, CRCL is also internal to
the Department, and works alongside components to formulate and change
policies and practices.
CRCL's work is not, with limited but important exceptions,\1\
remedial in nature. One notable exception, specifically related to this
hearing's topic, is the medical referral process that CRCL uses to
ensure anyone in ICE custody raising a medical or mental health care
concern receives prompt attention. In fiscal year 2018, CRCL sent 416
medical referrals to ICE for immediate action. CRCL uses contract
medical experts to review and evaluate information provided by ICE
medical staff in response to referrals. We believe this process has
been instrumental in helping to ensure that detainees receive timely
and appropriate health care. Additionally, it has been essential in
assisting CRCL to assess where broader, systemic issues might need
further review.
---------------------------------------------------------------------------
\1\ CRCL has remedial authority under Section 504 of the
Rehabilitation Act of 1973, as amended, which states, ``No otherwise
qualified individual with a disability in the United States . . .
shall, solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial assistance or under any program or activity conducted by any
Executive agency. . . .'' 29 U.S.C. 794.
---------------------------------------------------------------------------
As previously mentioned, CRCL uses contract subject-matter experts,
including medical doctors, mental health providers, conditions of
detention experts, suicide prevention consultants, and environmental
health and safety specialists to review detention conditions through
the prism of civil rights and civil liberties and using the applicable
detention standards, or relevant professional standards, as the
yardstick. No other entity conducts detention oversight with external
experts and with a particular focus on, and expertise in, civil rights
and civil liberties.
I would also like to highlight the distinctive way CRCL uses the
data we collect. All allegations received by CRCL involving civil
rights or civil liberties issues are reviewed and recorded. We use the
resulting information to track issues and identify potential patterns
of alleged civil rights or civil liberties violations that may require
further review. For ICE detention, this data is used to guide CRCL in
identifying which facilities warrant on-site investigations to more
closely examine potentially serious or systemic issues. Additionally,
CRCL shares data with ICE annually to provide visibility into the civil
rights related matters CRCL has received, and publishes data on
complaints in the Annual and Semi-Annual Reports to Congress.
In fiscal year 2018, CRCL's Compliance Branch received 4,244
allegations that were considered for investigation as a complaint, an
increase of 20 percent over fiscal year 2017 (3,513). Over the course
of the year, CRCL opened 743 complaint investigations (an increase of
31 percent) and closed 750 of the open complaint investigations (an
increase of 24 percent). Of the 743 new complaints in fiscal year 2018,
CRCL opened 472 related to conditions of detention.\2\ These included
reviews of deaths in detention, allegations related to medical or
mental health care, the use of segregation, sexual abuse or assault,
disciplinary procedures, use of force, the grievance process, the
disciplinary system, language access, religious accommodation, food
service, and environmental or sanitation concerns. Overall, in response
to recommendations made by CRCL (in cases where issues were identified,
and recommendations were warranted), DHS components concurred with 60
percent of CRCL recommendations in fiscal year 2018; ICE concurred with
55 percent.
---------------------------------------------------------------------------
\2\ Due to resource constraints, as well as to avoid duplication of
component or OIG investigations, CRCL does not open every allegation it
receives for investigation. CRCL focuses on allegations sent directly
to our office. We evaluate other allegations that are being handled by
component or DHS complaint redress avenues, and generally open for
investigation those that involve: An issue or fact pattern that appears
to be systemic or wide-spread; an issue or fact pattern that is
egregious, raising serious concerns that warrant a civil rights or
civil liberties investigation by a DHS Headquarters office; an issue or
fact pattern that is novel, and where existing avenues may not be
suited to address the civil rights or civil liberties issues presented;
or despite the issue having been received directly and investigated by
another DHS complaint avenue, the civil rights issues raised do not
appear to be adequately addressed. CRCL may open and retain for
investigation an allegation that was not initially opened.
---------------------------------------------------------------------------
family detention oversight
From November 2014 through the time of this hearing, CRCL conducted
10 on-site investigations at the Karnes County (Karnes City, Texas),
South Texas (Dilley, Texas), and Berks Family Residential Centers, as
well as the family detention facility in Artesia, New Mexico, which was
later closed by ICE following CRCL on-site reviews and recommendations.
Through these investigations, CRCL sought to verify that families were
being treated according to Departmental and professional standards.
These investigations included a review of medical and mental health
care, food service and housing conditions, and other aspects of the
facility conditions that relate to families. CRCL is planning to visit
the South Texas Family Residential Center again in early in fiscal year
2020.
on-site investigations and expert recommendations
CRCL conducts on-site investigations at ICE and ICE-contracted
adult immigration detention facilities. In fiscal year 2018, CRCL
conducted 10 on-site investigations at ICE adult detention
facilities.\3\ For these investigations, CRCL enlists the assistance of
subject-matter experts in the areas of medical care, mental health
care, facility security and operations, use of force, suicide
prevention and intervention, and environmental health and safety.
Following each investigation, CRCL provides the experts' reports to
ICE. ICE is asked to review the recommendations and provide a written
response, concurring, non-concurring, and to provide evidence of
implementation of recommendations with which ICE concurs within a
defined time frame. If ICE non-concurs, it must provide an explanation,
which CRCL reviews to determine whether to continue discussions on the
substance of the concern with ICE or consider raising to DHS
leadership.
---------------------------------------------------------------------------
\3\ These on-site investigations involved the following ICE
facilities: Adelanto Correctional Facility (CA), Bergen County Jail
(NJ), Contra Costa West County Detention Facility (CA), Denver Contract
Detention Center (CO), El Paso Processing Center (TX), Etowah County
Detention Center (AL), Folkston ICE Processing Center (GA), Glades
County Detention Center (FL), Orange County Correction Facility (CA),
and West Texas Detention Facility (TX).
---------------------------------------------------------------------------
use of segregated housing
Since the office was created, CRCL has regularly examined the use
of segregated housing (sometimes referred to as solitary confinement)
through complaint investigations, working groups, and advice to senior
DHS leaders. In 2013, CRCL worked with ICE to conduct a full assessment
of the use of segregation in ICE detention facilities, which led to a
National directive on oversight of segregation and guidance for
implementation of the directive, as well as reporting and tracking
mechanisms. In succeeding years, CRCL continued to work with ICE to
improve policy and reduce unnecessary use of segregated housing for ICE
detainees and develop further policy approaches to recognize and
respond to the needs, in particular, of vulnerable populations in
segregated housing, including lesbian, gay, bisexual, or transgender
(LGBT+) detainees and detainees with serious health concerns, mental
health conditions, or disabilities. CRCL also collaborated with ICE to
incorporate changes related to segregation into revisions of the 2011
Performance-Based National Detention Standards (PBNDS).
Over time, CRCL's Compliance Branch has continued to investigate
civil rights allegations related to segregation, which has led to
recommendations to ICE for additional changes related to the use of
segregation. CRCL has also provided feedback to ICE on the placement of
individual detainees in segregated housing. This has resulted in
individuals who were in segregation being transferred to general
population or to facilities specializing in mental health care.
examples of improvements in conditions of detention based on crcl
recommendations
ICE has made concrete improvements in the conditions of detention
based on CRCL recommendations and assistance. In addition, over the
last several years, ICE has removed detainees from a number of
facilities that had serious issues affecting the safety of the
detainees being held there, and some facilities were permanently or
temporarily closed following CRCL recommendations.
development of detention standards
CRCL contributes to proactively develop DHS policy related to
conditions of detention. For example, in fiscal year 2017, CRCL
participated in ICE's working group to develop a new set of detention
standards for its non-dedicated immigration detention facilities. The
new standards are a revision of ICE's 2000 National Detention Standards
(NDS). The working group focused on updating and streamlining the
standards, as well as including critical elements that are not
currently part of the NDS. CRCL, with the assistance of its contract
subject-matter experts, provided feedback on important civil rights and
civil liberties issues during the working group's review, such as
suicide prevention, mental health care, disability accommodation, and
sexual abuse and assault prevention and intervention.
disability-related complaints
CRCL's Compliance Branch reviews and adjudicates allegations of
disability-based discrimination under Section 504 of the Rehabilitation
Act of 1973, as amended, for almost all DHS components. During the
current fiscal year, CRCL has opened 18 complaints from across the
Department under Section 504, including 4 allegations involving ICE.
CRCL did not issue any determination letters finding a violation of
Section 504 during the fiscal year; however, through its complaint
review, CRCL helped arrange for reasonable accommodations for numerous
complainants, including ensuring a video phone was available for a
detainee in ICE custody. CRCL also facilitated numerous informal
resolutions between complainants and components.
prison rape elimination act audits
After considerable work helping develop DHS's Prison Rape
Elimination Act (PREA) Standards and other sexual abuse and assault
prevention and intervention policies, and conducting investigations
into the handling of sexual abuse allegations, CRCL assisted ICE in
developing the required PREA instruments to audit ICE's immigration
detention and holding facilities. ICE is now using these tools to audit
PREA compliance and implementation in their facilities, as required by
regulation. In addition to working on the specific audit instruments,
CRCL personnel developed and delivered a portion of the ICE training to
certify the auditors who now conduct the audits and observed ICE PREA
audits to assist with evaluation of the auditors and planning for
future audits.
the path forward for immigration detention: expanding application of
detention standards
ICE should continue to strive to use the PBNDS 2011 standards,
which are ICE's most comprehensive standards, in particular when
detaining vulnerable populations, such as those with serious medical or
mental health conditions, and LGBT+ detainees. Taking into account
operational and resource challenges, ICE should continue to expand the
application of the PBNDS 2011 standards to new or existing detention
facilities where they are not currently in place. As a further means of
promoting compliance with these standards, CRCL looks forward to
working with ICE to build greater consensus regarding CRCL's
recommendations and to ensure timely implementation of any applicable
corrective action plans pursuant to those recommendations.
A P P E N D I X I I
----------
Question From Ranking Member Mike Rogers for Diana R. Shaw
Question. The Detention Service Managers (DSMs) provide on-site
monitoring at numerous facilities and can provide real-time information
on the conditions at a facility. Would ICE benefit from the use of more
DSMs or from an expanded role for DSMs? What recommendations would you
make to ensure the information from the DSMs is being communicated to
relevant personnel so that deficiencies can be corrected?
Answer. In our report OIG-18-67, ICE's Inspections and Monitoring
of Detention Facilities Do Not Lead to Sustained Compliance or Systemic
Improvements, we concluded, based on our fieldwork, that Detention
Service Managers (DSMs) provide an important layer of oversight because
they are specifically trained in the applicable detention standards.
DSMs run regular weekly or, in some facilities, daily checks for
compliance with the detention standards in the facilities they monitor.
We performed our fieldwork in 2017, when on average more than 35,000
detention beds were occupied and 35 DSMs were monitoring conditions at
approximately 50 facilities. The growth in detention beds to
approximately 52,000 to 54,000 in fiscal year 2019, and the increase in
the average daily populations ICE detains, is likely to put additional
strain on the already taxed DSM program. If it has not done so already,
ICE will likely need to review its staffing model and determine whether
additional DSMs should be hired to ensure adequate oversight in keeping
with the detention expansion.
Additionally, our still-opened recommendation 5 from OIG-18-67,
copied below, should contribute to a better process for correcting
deficiencies, when ICE implements the actions responsive to this
recommendation:
Recommendation 5: Develop protocols for ERO field offices to require
facilities to implement corrective actions resulting from Detention
Service Managers' identification of noncompliance with detention
standards.
In the initial response to our report and in the September 19, 2019
update to this recommendation, which is still opened, ICE committed to
exploring various options to enhance collaboration between field
offices and DSMs as well as expand detention standards training to
field office personnel so that ICE ERO could better support DSMs.
Questions From Ranking Member Mike Rogers for Tae Johnson
Question 1. Has ICE made any changes to how it processes and
responds to recommendations from Detention Service Managers (DSMs)?
Answer. Response was not received at the time of publication.
Question 2. The IG recommended that ICE develop protocols to ensure
both Contracting Officer Representatives (CORs) and Detention Service
Managers (DSMs) have access to the documents that relate to the
conditions of the contract. Has ICE taken steps to address this
recommendation and ensure information regarding deficiencies at
facilities is being communicated to all the relevant personnel?
Answer. Response was not received at the time of publication.
Question 3. You indicated that ICE has created a Quality Assurance
Team (QAT) to address a number of the concerns raised by the IG. Who
will the individuals on this team report to and how will the
information discovered by this team be communicated to ensure
shortcomings are addressed?
Answer. Response was not received at the time of publication.