March 17, 2009

I. Summary

In January 2008, women in the custody of US Immigration and Customs Enforcement (ICE) in a county jail in Arizona wrote a letter. Addressed to an immigration attorney and copied to Human Rights Watch, the letter detailed conditions at the jail, including obstacles to medical care, and summarized some of the responses the women received when they pressed for needed care:

Medical care that is provided to us is very minimal and general.... If you do not speak English, you cannot fuss, the only thing you can do is go to bed & suffer.... We have no privacy when our health record is being discussed.... When we’ve complained to the nurses, we get ridiculed with replies like: “You should have made better choices ... ICE is not here to make you feel comfortable ... our hands are [tied] ... Well, we can’t do much you’re getting deported anyway ... learn English before you cross the border ... Mi casa no es su casa.”.... Our living situation is degrading and inhuman.[1]

These women are not alone. Most immigration detainees in the United States are held as a result of administrative, rather than criminal, infractions, but the medical treatment they receive can be worse than that of convicted criminals in the US prison system. The inspector general’s office at the Department of Homeland Security (DHS) has issued two reports in the past three years criticizing medical treatment at immigration detention facilities. Deaths in custody attributed to egregious failures of medical care have received prominent media attention and a University of Arizona study in January 2009 described failures of medical care for women detained at facilities in that state.

Underlying the individual stories of abuse and mistreatment is a system badly in need of repair, recent reforms notwithstanding. This report, based on interviews with women detainees, immigration officials, and visits to nine different facilities in three states, addresses one important component of the needed change: the medical care available to women detainees. As detailed below, we found that ICE policies unduly deprive women of basic health services. And even services that are provided are often unconscionably delayed or otherwise seriously substandard.

Abuses documented in this report range from delays in medical treatment and testing in cases where symptoms indicate that women’s lives and well-being could be at risk, to the shackling of pregnant women during transport, to systematic failures in provision of routine care. As the letter from the women immigration detainees in Arizona concluded, ICE healthcare standards are “not in line with international standards to ensure that detainee rights are protected.” We join in the women’s appeal for change.

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The number of individuals held in administrative detention while their immigration cases are determined has skyrocketed in recent years. The detained population on any given day is now over 29,000 nationwide, up almost 50 percent from 2005. ICE holds the majority of them in state and county jails contracted to provide bed space and other basic custodial services, including medical care. As civil—not criminal—detainees, these individuals have no right to be provided an attorney by the government while it holds them for an uncertain period pending the outcome of their immigration case.

Every one of these individuals has health care rights and needs. Unfortunately, the system for providing health care to detained immigrants is perilously flawed, putting the lives and well-being of more and more people at risk each year. While the immigration detention system’s flawed medical care affects both men and women, this report focuses on the situation of women detainees, roughly 10 percent of the overall immigration detainee population at any given time. These women include refugees fleeing persecution, survivors of sexual assault, pregnant women, nursing mothers separated from their children, patients detained amidst treatment for cancer, and many more women who have needs for basic medical care.

Many women in the United States continue to struggle with finding ways to access basic medical care. But for the thousands of women in immigration detention, there is only one way to get a Pap smear to detect cervical cancer, undergo a mammogram, receive pregnancy care, access care and counseling after sexual violence, or simply obtain a sufficient supply of sanitary pads: through ICE. In custody without other options, women receive care through ICE or are forced to go without.

In interviews with detained and recently detained immigrant women, Human Rights Watch documented dozens of instances where women’s health concerns went unaddressed by facility medical staff, or were addressed only after considerable delays.

  • We met women who were denied gynecological care or obtained it only after many requests, including a woman who entered detention shortly after receiving news of an abnormal Pap smear. She told detention authorities that her doctor instructed her to get Pap smears every six months, but after 16 months in detention and many requests, she had still not gotten a Pap smear.
  • We met women who were refused hormonal contraceptives during detention, including one who had inflamed ovaries and endured excruciating, heavy periods when the detention facility refused to provide her the birth control pills prescribed to manage her condition.
  • We met women who, according to standards of medical practice in the United States, should have received mammograms, including one woman who had breast cancer surgery before detention and was instructed to get mammograms every six months. Due for her six-month check-up when she was detained, she waited four months for her first mammogram during detention, and did not receive another in her remaining 12 months there.
  • We met women who complained of inadequate care during pregnancy, including one diagnosed with an ovarian cyst threatening her five-month pregnancy shortly before she was detained. Her doctor said the cyst should be monitored every two to three weeks, but during her stay in detention of more than four weeks, she was never able to see a doctor. The medical staff’s response to her last sick call request read, “be patient.”
  • We met mothers who were nursing their babies prior to detention and were then denied breast pumps in the facilities, resulting in fever, pain, mastitis, and the inability to continue breastfeeding upon release.
  • We met women who had to beg, plead, and in some cases work within the facility just to get enough sanitary pads not to bleed through their clothes, and one woman who sat on a toilet for hours when the facility would not give her the pads she needed.

Certain themes arose again and again in our interviews and demand attention. Detained women did not have accurate information about available health services. Care and treatment were often delayed and sometimes denied. Confidentiality of medical information was often breached. Women had trouble directly accessing facility health clinics and persuading security guards that they needed medical attention. Interpreters were not always available during exams. Security guards were sometimes inside exam rooms, invading privacy and encroaching on the patient-provider relationship. Some women feared retaliation or negative consequences to their immigration cases if they sought care. A few were not given the option to refuse medication or received other inappropriate treatment. Full medical records were not available when the detained women were transferred or released. Written complaints about medical care through facility grievance procedures went ignored. The list goes on.

Official ICE policy, which focuses on emergency care and keeping the individuals in its custody in deportable condition, effectively discourages the routine provision of some basic women’s health services. ICE’s Division of Immigration Health Services (DIHS) has chief responsibility for the medical care provided to detained immigrants, whether it provides those services directly or through a contractor at a local facility. The DIHS Medical Dental Detainee Covered Services Package, which governs access to off-site specialists, says that requests for non-emergency care will be considered if going without treatment in custody would “cause deterioration of the detainee’s health or uncontrolled suffering affecting his/her deportation status.” Although, on occasion, officials have offered generous interpretations of this policy in its defense, the message about the scope of care provided remains clear. “We are in the deportation business.... Obviously, our goal is to remove individuals ordered removed from our country,” ICE spokesperson Kelly Nantel told a reporter in June 2008. “We address their health care issues to make sure they are medically able to travel and medically able to return to their country.”[2]

The Covered Services Package operates in tandem with ICE’s national standards for its detention facilities, which include a medical care standard that was revised in September 2008 (the new medical care standard will not take full effect until 2010). While the new medical care standard provides that “detainees will have access to a continuum of health care services,” there is no detention standard specific to women or their health needs. The new standard mentions women’s health care only briefly, specifying merely that women will have access to prenatal and postnatal care and that detained individuals will have access to “gender-appropriate examinations.”

When the US government chooses to take thousands of immigrants into its custody—which is itself a highly contentious and costly course of action—it necessarily assumes responsibility for providing adequate health care to those individuals. This may pose challenges, but they are not insurmountable. Guidance on health care in custodial situations, including care for women, is readily available from a range of US and international sources, including the American Public Health Association’s Standards for Health Services in Correctional Institutions and the National Commission on Correctional Health Care’s Standards for Health Services in Jails. As this report details, ICE practice falls short of many of these standards.

The revised ICE medical standard contains important improvements, but much more remains to be done to develop adequate policies, ensure their proper implementation, and open up the detention system to effective oversight.

As a start, the government should take immediate steps to address the fundamental policy flaws that limit access to medical care for all immigration detainees. We recommend:

  • To DIHS: Amend the Covered Services Package to remove inappropriate consideration of an individual’s deportation prospects in determining eligibility for medical procedures and harmonize the package with the revised ICE medical standard so that detained individuals can access a full continuum of health services, whether available inside or outside the detention facility.
  • To ICE: Require all facilities holding individuals on behalf of ICE to maintain accreditation with the National Commission on Correctional Health Care.
  • To DHS: Convert the ICE detention standards, including the ICE medical standard, into federal administrative regulations so that they have the force of law and detained individuals and their advocates have recourse to courts to redress shortfalls in health care.

Further, to address the glaring gaps in ICE policy regarding women’s health concerns, we recommend:

  • To ICE: Implement the recommendations of the UN special rapporteur on the human rights of migrants, including in particular the recommendations that ICE develop gender-specific detention standards with attention to the medical and mental health needs of women survivors of violence and refrain from detaining women who are suffering the effects of persecution or abuse, or who are pregnant or nursing infants.
  • To ICE: Incorporate into the ICE medical standard the American Public Health Association’s standards on women’s health care in correctional institutions and the recommendations of the National Commission on Correctional Health Care’s policy statement on women’s health care.
  • To ICE and DIHS: Establish a formal process for ICE officers charged with case management to coordinate with health services personnel to ensure that nursing mothers, pregnant women, and other women with significant health concerns are immediately identified and considered for parole.

Finally, to meet its obligations and make real improvements in medical care for women in immigration detention, the government should aggressively pursue better implementation and oversight of its policies, beginning with the following steps:

  • To ICE and DIHS: Conduct intensive outreach to facilities to ensure that both health professionals and security personnel are aware that the men and women in their custody are entitled to the same level of medical care as individuals who are not detained and assure health professionals that ICE and DIHS policies are intended to support and not inhibit their delivery of care consistent with standards of medical practice in the United States.
  • To ICE: Improve the current system for receiving and tracking complaints made by individuals in ICE custody. Ensure that all individuals receive notice of complaint procedures in their native languages and that they are informed of the availability of these mechanisms for addressing medical care complaints.
  • To DHS: Require detention facilities to provide regular reports to the DHS Office of the Inspector General detailing the number of grievances received regarding medical care and their disposition at the facility level.

 

[1] Letter from “The Female Detainees,” Pinal County Jail, Florence, Arizona, to Christina Powers, Attorney, Florence Immigrant and Refugee Rights Project, January 2008.

[2]Caitlin Weber, “ICE Officials’ Testimony on Detainee Medical Care Called into Question,” CQ Politics, June 16, 2008, http://www.cqpolitics.com/wmspage.cfm?docID=hsnews-000002898081 (accessed February 25, 2009).