III. Background

The women whose accounts appear in this report are among a growing number whose physical and mental health are at risk as a result of the US government’s increasing reliance on detention as a means of immigration law enforcement. Between December 2005 and May 2008, the number of individuals in the custody of Immigration and Customs Enforcement on any given day shot up almost 50 percent, from 19,562 to 29,340,[6] giving ICE the distinction of overseeing the fastest growing form of incarceration in the US.[7] For the fiscal year that ended on September 31, 2007, ICE reported that it had held more than 320,000 people in its custody for various lengths of time over the course of that single year.[8]

As the number of people detained has increased, the number of women detained has risen as well. In fact, the proportion of the detention population made up by women increased from approximately 7 percent in 2001 to 10 percent in 2008.[9] Detained for alleged violations of US immigration law, these women include asylum seekers,[10] undocumented immigrants,[11] legal permanent residents convicted of certain crimes,[12] refugees resettled by the US who did not apply for permanent residency,[13] and even US citizens whose citizenship the government disputes.[14]

The dramatic increase in the detention of immigrants can be traced back to several policy developments of the past 13 years. These include the passage in 1996 of the Illegal Immigration Reform and Immigrant Responsibility Act, which expanded mandatory detention during removal[15] proceedings for individuals convicted of certain crimes;[16] the events of September 11, 2001, and the subsequent emphasis on border security and immigration law enforcement; the broader detention powers ushered in by the USA PATRIOT Act;[17] and an expansion in the use of expedited removal for undocumented individuals apprehended at a port of entry or within a certain distance of the border.

The Immigration Detention System

ICE detains individuals at over 500 facilities nationwide.[18] The facilities fall into four categories: service processing centers operated directly by ICE; contract detention facilities managed by private companies such as the GEO Group and Corrections Corporation of America; state and county jails that ICE has contracted with through intergovernmental service agreements; and facilities run by the federal Bureau of Prisons. Eight of the facilities used by ICE are service processing centers, 7 are contract detention facilities, and more than 500 are state and county jails.[19] This report does not address conditions at the few Bureau of Prisons facilities used because they are separately regulated.

To be eligible to hold women, ICE facilities need only establish that they can maintain physical and visual separation of the sexes. Even though they constitute only 10 percent of the immigration detention population, women are spread out over 300 plus facilities. However, 50 percent of the women detained by ICE are held in ten facilities, half of which are located in Texas.[20] ICE holds 68 percent of the women in its custody in state and county jails, 25 percent in contract detention facilities, and just 7 percent in the service processing centers run by ICE.[21] State and county jails have greater latitude to stray from compliance with certain provisions of the ICE detention standards.[22] In addition, the remoteness of some of these facilities may be detrimental to individuals’ access to counsel and family members.

While “enforcement” stands out as the preeminent watchword of the current political discourse on immigration, detention is often not a proportional, necessary, or cost-effective response to immigration violations, most of which are administrative, not criminal, infractions.[23]Under US and international law, the government’s infringement of fundamental rights, such as the right to liberty,for punitive purposes must be proportional to the acts punished.[24] Although the US considers immigration detention to be administrative rather than punitive, its effects—confinement, separation from family, loss of livelihood, among others—may serve in fact to punish harshly those detained, particularly those held for extended periods of time.Further, alternative methods for ensuring that individuals appear for their immigration hearings and comply with the final rulings in their cases have proven successful, with supervised release programs reporting upwards of 90 percent of participants appearing for their hearings.[25]

Supervised release programs also offer an alternative to the ballooning costs of detention. In 2008 ICE spent an average $119.28 per day for each person it holds in a service processing center and can pay upwards of $100 per day to the state and county jails to which it entrusts the care of individuals in its custody.[26] In contrast, a study funded by the government from 1997 to 2000 showed that a supervised release program can be both effective and cost efficient, costing an estimated $12 per person per day as compared with $61, then the average daily cost of detention per person.[27]

Medical Care in Detention

Chief responsibility for the medical care provided to individuals in ICE custody resides with the Division of Immigration Health Services (DIHS). Formerly a component of the Public Health Service within the Department of Health and Human Services, DIHS was detailed indefinitely to ICE in October 2007.[28] DIHS retains a commissioned corps of health professionals, including physicians, physician assistants, pharmacists, psychiatrists, and clinical social workers. The division is headquartered in Washington, DC, where the national office sets policy for the detention medical care system. However, of the more than 500 facilities, DIHS personnel provide the on-site medical services at only 21, eight of which are service processing centers run by ICE.[29] Investigations conducted in 2007 revealed that staffing at even these 15 facilities poses a challenge, with a 36 percent vacancy rate for medical staff at DIHS facilities nationwide.[30] At other facilities, medical care is contracted out along with other detention functions, and may actually be further subcontracted if the facility operator has enlisted the services of a private healthcare company.

DIHS nonetheless regulates the medical care available at all facilities through an ICE detention standard on medical care (ICE medical standard) and the DIHS Medical Dental Detainee Covered Services Package (Covered Services Package). Under this regime, individuals detained by ICE should have access to the same level of care regardless of where they are held. In state and county jails, for example, the individuals held on behalf of ICE should have access to services necessary for meeting the ICE medical standard, regardless of the services available to the criminal population at the jail. Since the services available within individual facilities may vary, ensuring uniform access to services requires providing coverage for services in the community (i.e., outside the jail or other detention facility) where necessary. The Covered Services Package, like an insurance company’s statement of covered benefits, governs which services may be provided to individuals in custody at the expense of ICE that are beyond “the contracted minimum scope of services provided by a detention facility.”[31] Pursuant to this arrangement, DIHS must pre-approve any medical care provided outside of the facility, except for emergency services. Where the on-site clinic is small, this may encompass almost all medical services. In order to obtain this pre-approval, the facility’s medical providers must submit a Treatment Authorization Request (TAR) to DIHS headquarters.

The TAR process is currently a major weakness in the system that can result in major delays or denials of necessary health care. Both governmental and nongovernmental bodies have criticized DIHS for tracking cost savings from TAR denials and employing only three or four nurses to evaluate TAR submissions from around the country.[32] In a 2007 report, the Government Accountability Office (GAO) documented several cases in which facilities encountered difficulties obtaining approval for off-site treatment through this process.[33] A recent Congressional Research Service report found that “between FY2005 and FY2007, expenditures on medical claims [services rendered by an off-site healthcare provider] remained almost constant. During the same time, the funded amount of bed space increased by 49%.”[34]

Healthcare Standards

As mentioned above, health care provided to individuals in ICE custody must meet a national standard for medical care set by ICE. The ICE medical standard is one of a numberof[laura1]  standards developed by ICE to govern the operation of the detention system (ICE detention standards).[35] In 2008 ICE revised the ICE medical standard as part of a process to update the ICE detention standards and convert them into a “performance-based” format. The new ICE medical standard was issued on September 12, 2008, with limited revisions made on December 2, 2008, but will not be binding on facilities until January 2010. Until then, the old ICE medical standard remains binding. This report refers to the revised standard as “the new ICE medical standard” and the old standard as “the currently binding ICE medical standard.”[36]

Facility health clinics receive differing messages about the scope of care they should provide or arrange for individuals in ICE custody. The new ICE medical standard provides that “detainees will have access to a continuum of health care services, including prevention, health education, diagnosis and treatment.”[37] This builds on the currently binding ICE medical standard, which states that individuals in custody will have access to medical services that promote health and general well-being.[38] In marked contrast, however, the Covered Services Package, which regulates the care that ICE will pay for outside the facility, emphasizes only emergency care and treatment to prevent the deterioration of a health condition during the period of custody.[39] Given the restricted scope of services available on-site at some facilities, the limitation on off-site care has meant that some individuals have not had access to the continuum of services referenced in the new ICE medical standard.

The focus on emergency care is premised on the assumption that an individual’s stay in detention will be brief, despite the fact that individuals may and do spend months or even years in detention. A recent Congressional Research Service report noted that, according to ICE statistics for fiscal year 2006, ICE held 7,000 people for over 6 months during that year.[40] Asylum seekers, in particular, may spend an extended period of time in custody,[41] and may also be a group with particular medical needs exacerbated by detention.[42] Access to comprehensive health services is essential for all individuals in custody, and particularly relevant for those detained over a long period.

ICE has no detention standard specific to women or their health needs, and women’s health barely receives a mention in the currently binding ICE medical standard, a mere instruction that officers in charge be notified if any woman in custody is pregnant. The new ICE medical standard shows improvements in its requirement of care for prenatal and postnatal women, and its indication that “[d]etainees shall have access to age and gender-appropriate examinations,”[43] but without further detail these provisions provide limited assurance that women can expect the care they need. As detailed below, the Covered Services Package likewise reflects a narrow view of women’s health care, restricting access to essential cancer screenings and basic components of care such as hormonal contraception.

Monitoring and Enforcement of the Standards

ICE has internal enforcement mechanisms for its detention standards, but since the standards do not constitute formal federal administrative regulations, they are not legally enforceable. Although the standards require ICE officials to visit the facilities on a regular basis, ICE evaluates most detention facilities’ compliance with the detention standards with only a single official inspection each year. If the inspection shows the facility is deficient in implementation of one of the standards, the facility must devise a plan of action to remedy the deficiency. Should the facility fail or refuse to fix the problem, ICE may impose penalties as outlined in its contract with the facility or discontinue using the facility.[44]

ICE has undertaken new measures to improve accountability through the use of private inspectors, hiring the Nakamoto Group in 2007 to provide on-site quality control inspectors at the 40 facilities holding the highest number of individuals in ICE custody. Also in 2007, ICE hired the Creative Corrections Corporation to conduct the annual facility inspections. These private companies report their findings directly to ICE, the agency financing their work. ICE also created a new subsection within its Office of Professional Responsibility, called the Detention Facilities Inspection Group, to oversee the annual inspections process.

The quality of ICE inspections is disputed. In 2008, ICE released its first semiannual report on detention standards compliance, which indicates that 98 percent of the 176 facilities evaluated received a rating of acceptable or above for compliance with the medical care standard.[45] However, an audit conducted by the DHS Office of the Inspector General (OIG) noted discrepancies between reviews of the same facility conducted by ICE and by the Office of the Federal Detention Trustee (OFDT) of the Department of Justice. Where ICE had rated the facility “acceptable,” an OFDT review within six weeks deemed the facility “at risk,” which is the lowest possible rating, two levels below “acceptable.”[46] Further, the OIG audit found “staff conducting routine oversight of facilities has not been effective in identifying certain serious problems at facilities.”[47]

Since March 2003 at least 85 individuals have died in or shortly after leaving ICE custody.[48] ICE contentions that the death rate for individuals in its custody has declined and compares favorably to that of the US prison population have been assailed by critics for failing to adjust for the comparatively short, and shrinking, period of time that the average person spends in immigration detention.[49] The DHS Office of Civil Rights and Civil Liberties is responsible for investigating deaths of individuals in ICE custody. The DHS Office of the Inspector General (OIG) has recommended to ICE that it send the OIG reports of all deaths in order to determine the appropriate review process.[50] This recommendation resulted from the audit mentioned above.

ICE has severely limited its commitments with respect to meeting standards set by professional accreditation bodies. Under the new and currently binding ICE medical standards, state and county jails contracted by ICE are not required to maintain any professional medical accreditation. Service processing centers and contract detention facilities must currently be accredited with the National Commission on Correctional Health Care (NCCHC); however the new ICE medical standard does not include that requirement.[51] The NCCHC is a body with representatives from the Academy of Correctional Health Professionals, the American Psychiatric Association, the American Bar Association, and other professional organizations from the fields of corrections, health care, and law. Maintaining NCCHC accreditation requires an on-site survey of the facility by NCCHC staff health professionals every three years, including a review of medical policies and procedures, as well as interviews with health staff, security personnel, and individuals detained at the facility. The currently binding ICE medical care standard also states that facilities will “strive” for accreditation with the Joint Commission on the Accreditation of Health Care Organizations (JCAHO); however, the new ICE medical standard lacks this provision.[52]

A Mounting Critique of Immigration Detention Health Care

Stories of women suffering because of delayed or denied health care have emerged amidst a mounting critique of the ICE detention medical system as a whole. Congressional hearings, international inquiries, lawsuits, nongovernmental organization reports, and media coverage have unearthed instances of facilities ignoring sick call requests, not delivering medication, losing medical records, failing to provide translation services, impeding access to specialist care, and outright denying needed treatment.

The House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law held multiple oversight hearings on ICE’s detention and removal operations in 2007 and 2008, including two addressing problems in the medical care system. At those hearings, members of Congress heard testimony about instances of delayed and denied care and their consequences from individuals formerly in ICE custody, immigration attorneys, and medical experts. Several bills were introduced in the 110th Congress that, if adopted, would specifically address certain aspects of medical care for individuals detained by ICE.[53]

Within the Department of Homeland Security itself, the Office of Inspector General has conducted two audits in the last two years that highlighted deficiencies in medical care. The first, published in December 2006, found instances of non-compliance with health care standards at four out of five facilities surveyed. The one facility in full compliance, Krome Service Processing Center in Miami, does not hold women.[54] More recently, in June 2008, the OIG investigated the handling of deaths in ICE custody and again found various instances of non-compliance with the medical standard, while noting compliance with “important portions” of the standard on deaths in the two individual cases reviewed.[55] In addition, a 2007 study by the US Government Accountability Office noted weaknesses in ICE’s internal monitoring processes.[56]

US immigration detention practices have drawn the attention of the Inter-American Commission on Human Rights and United Nations (UN) human rights experts. In October 2007, the Inter-American Commission held a hearing on detention conditions and, in October 2008, began a fact-finding mission to investigate the treatment of immigrants in detention centers.[57] The UN Human Rights Committee encouraged the US “to adopt all measures necessary for [the detention standards’] effective enforcement” in its 2006 concluding observations to the US report on its compliance with the International Covenant on Civil and Political Rights.[58] Further, the UN special rapporteur on the human rights of migrants recommended that the US 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. In addition, the rapporteur recommended that mandatory detention be eliminated and that the government issue legally binding standards governing the treatment of individuals in all types of immigration detention facilities, finding the current non-binding standards insufficient.[59]

In a series of legal challenges, immigrants’ rights advocates have called for accountability for the shortcomings of the detention medical care system. In June 2007, the ACLU filed suit challenging the constitutionality of delays and other serious shortcomings in critical health services provided at a San Diego contract detention facility.[60] The suit’s plaintiffs included three women, two of whom experienced problems in requesting care for gynecological or breast health issues. Addressing the lack of enforceable standards, Families for Freedom sued in federal court in April 2008 to press its petition for rule-making which requested that the Department of Homeland Security issue formal administrative regulations governing the conditions for individuals in ICE custody.[61] Both lawsuits are currently pending. April 2008 also saw the US government admit liability for medical negligence in the death of Francisco Castaneda, who died of cancer following months of being denied a biopsy in ICE custody.[62]

Reporting by nongovernmental organizations and the media has brought forward more facts, adding to the picture of a medical system in trouble. Human Rights Watch issued a report in December 2007 documenting the failure of immigration authorities to care for the health needs of detained individuals living with HIV/AIDS. Human Rights Watch found that ICE fails to consistently deliver medication, conduct lab tests on time, prevent infections, provide access to specialty care, and ensure the confidentiality of medical care.[63] In addition, public outrage followed a May 2008 investigative report on immigration detention medical care by the Washington Post, which described a dysfunctional system plagued by staffing shortages, bureaucratic hurdles to providing care, and dangerous cost-cutting measures.[64]

By the beginning of 2008, reports from advocates working in immigration detention were pointing to serious problems in the care provided to women. Cheryl Little, executive director of the Florida Immigrant Advocacy Center, testified before Congress in October 2007 that women often do not receive regular obstetrical and gynecological care and cited incidents including an ignored ectopic pregnancy, a uterine surgery inexplicably canceled at the last minute, a miscarriage following pleas for help, and an effort by detention personnel to prevent an asylum seeker who had survived rape from obtaining an abortion.[65] In a briefing paper compiled for the visit of the UN special rapporteur on the human rights of migrants, the National Immigrant Justice Center drew on advocates’ knowledge of such incidents and outlined several areas of major concern for women in ICE custody: medical and mental health conditions for victims of violence; medical conditions for pregnant and postnatal women; sexual assault; family separation; and access to counsel.[66]

As research for this report was underway, the treatment of pregnant women in ICE custody came under particular scrutiny. In early July 2008, The Tahoma Organizer published a letter alleging mistreatment of pregnant women at the Northwest Detention Center including malnutrition, inadequate bedding, insufficient medical care, shackling during transportation for medical care, and lack of privacy during off-site medical examinations.[67] A recent study by the University of Arizona’s Southwest Institute for Research on Women noted medical care for pregnant women among numerous problem areas documented at facilities in Arizona.[68]

With a growing body of documentation pointing to dangerous flaws in the immigration detention medical care system, calls for reform of the system have multiplied in number and strength. Immigration detention medical care is now a live policy debate. As efforts around reform gather momentum, women’s medical needs must be addressed. This report identifies existing gaps in policy and practice and outlines an agenda for the way forward.