July 25, 2010

Appendix A

Re: Freedom of Information Act Request

VIA EMAIL AND US POSTAL SERVICE

Ms. Catrina M. Pavlik-Keenan

Director, Freedom of Information Office

U.S. Immigration and Customs Enforcement

800 North Capitol St., NW

5th Floor, Suite 585

Washington, DC 20536-5009

ice-foia@dhs.gov                                                                                       December 4, 2009

 

Dear Ms. Pavlik-Keenan :

This letter constitutes a request to U.S. Immigration and Customs Enforcement

(“ICE”) pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), submitted on behalf of Human Rights Watch (“HRW,” or “Requester”). 

HRW seeks records concerning noncitizens with mental disabilities or mental illness [287] in immigration removal and asylum proceedings and who are or have been held in detention facilities [288] at any time from September 1, 2004 until the present.

To facilitate ICE’s search for records and the utility of the information provided, HRW requests that if the information requested is available as electronic data, electronic copies of the data be provided to HRW pursuant to 5 U.S.C § 552 (a)(3)(C).  To the extent that ICE has not compiled any of the requested information in electronic databases, then HRW requests any other records containing the requested information.  Additionally, if the specific information requested below, or portions of that information, is available in summary or report form, HRW requests access to the summary or report records, rather than the individual records from which that summary data was generated.

Specifically, HRW requests the following records:

1.  All records identifying in which detention facilities ICE detainees receive mental health treatment.

2.  All records identifying where ICE detainees receive inpatient mental health treatment.

3.  All records identifying where ICE detainees receive outpatient mental health treatment.

4. All records identifying the number and percentage of cases in which a competence evaluation has been requested by the immigration court or by any of the parties [for a respondent] since 2004.

5.  All records identifying the number and percentage of immigration detainees receiving mental health treatment since September 1, 2004.

6. All records identifying the number and percentage of immigration detainees receiving mental health treatment in in-patient medical facilities and the facilities in which they were housed during treatment on September 1, 2004 and on September 1st of the previous five years.

7. All records identifying the number of detainees currently receiving ICE-provided mental health treatment whose cases have been administratively closed. 

8. All records identifying the number of individuals whose cases have been administratively closed who have been released on the condition that they receive mental health treatment since 2004.

9. All records identifying the number of individuals who have been released from detention since 2004 on the condition that they receive mental health treatment.

10. All records identifying the number and percentage of detainees who have a past record of mental illness, hospitalization, or treatment for mental illness at some point prior to detention by ICE since 2004.

11. All records identifying the number and percentage of cases where ICE has released a detainee on grounds of mental disability at a post-final order custody review hearing since 2004.

12. All training guides or other records containing procedures, protocols, or guidelines used by detention staff or contractors to identify individuals exhibiting symptoms of mental illness, distress or disability in detention.

13. All records containing general policies and screening procedures for identifying individuals with mental disabilities or a past record of mental illness.

 

Request for Public Interest Fee Waiver

FOIA allows for fee waivers if “disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and disclosure of the information is not primarily in the commercial interest of the requester.” 28 C.F.R. § 16.11(k)(i)-(ii). 

Pursuant to DOJ regulations, fee waivers are appropriate if four factors are satisfied: (1) the subject of the requested records must concern identifiable operations or activities of the federal government; (2) the disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities; (3) the disclosure must contribute to a reasonably broad audience of persons interested in the subject - a requester’s expertise in the subject area and ability and intention to effectively convey information to the public shall be considered; and (4) the public’s understanding of the subject in question, as compared to the level of public understanding existing prior to the disclosure, must be enhanced by the disclosure to a significant extent.  28 CFR §16.11 (k)(2)(i)-(iv).

HRW satisfies all of these factors:

 

1.  Operations or Activities of Government

HRW’s request deals directly with the operations or activities of the federal government because it relates to policies for the detection and recording of mental disability, as well as provision of mental health treatment, among immigration detainees held in different detention facilities, jails, and prisons run by or under contract to the Department of Homeland Security.  In addition, according to the ICE website, the agency is the result of “combining the law enforcement arms of the former Immigration and Naturalization Service and the former U.S. Customs Service, to more effectively enforce our immigration and customs laws… by targeting illegal immigrants: the people, money and materials that support terrorism and other criminal activities.”  One of the key methods of fulfilling this stated mission is to “ manage [aliens] while in custody .”  This Request undoubtedly deals with the operation of DHS and ICE as it expressly deals with the agency’s mission.

2.  Contributing to the Public’s Understanding

This request concerns information that is of significant value to informing the public.  The information is not already in the public domain, so its disclosure will provide new and important information about the enforcement of the nation’s immigration and detention laws.  See 28 CFR §16.11 (k)(2)(ii).  The information requested will increase the public’s understanding of the federal government’s operations, as noted above, because it will reveal individual and statistical information about the rights and treatment of immigration detainees with mental disabilities, which, especially in light of legislative changes to immigration law in 1996, the attacks of September 11, 2001, and recent public debate over detention of aliens in U.S. facilities, is of particular interest to the public.

3.  Reasonably Broad Audience of Persons Interested in Subject

This factor concerns an organization’s ability to disseminate information.  HRW employs over 150 professionals, among them lawyers, journalists, and academics.  These professionals work to uncover and report on human rights issues around the world.  In order to reach the broadest audience possible, the organization publishes detailed reports on human rights issues of interest to a broad spectrum of people.  These reports are made available in print and on HRW’s website.  HRW also uses its extensive contacts in the media to draw greater attention to the issues, and HRW employees often comment on issues in the media.  On average, forty citations to HRW appeared in publications around the world on each day from December 1, 2008 to December 1, 2009. [289]

HRW intends to publish a report using the information provided in response to this request.

 

4.  Enhancement of Level of Public Understanding

This factor generally deals with the availability of the information in the public domain, including how readily available information of a similar nature is to the general public.  As discussed above, no comprehensive report of this nature currently exists in the public domain. Currently, there is little public understanding of the procedural challenges facing noncitizens with mental disabilities in immigration removal and asylum proceedings.  Without information from the disclosure requested, it is difficult, if not impossible, to have true public understanding of the experiences of noncitizens with mental disabilities in navigating immigration legal proceedings.   The report HRW plans to publish will enhance the public understanding of the challenges facing immigration respondents with mental disabilities because the breadth of analysis is not something currently available to the public.

This request meets all the statutory and regulatory requirements for a fee waiver.  Consequently, we request that you disclose the requested information without charge.

*              *              *

We thank you for your attention in this matter and look forward to your response within 20 business days.  5 U.S.C. §552(a)(6)(A)(i).  Please respond to Sarah Mehta, Aryeh Neier Fellow at US Program/Human Rights Watch, 350 Fifth Ave, 34th Floor, New York, NY 10118-3299, telephone (212) 377-9437, email mehtas@hrw.org.

Signed: 

 

Sarah L. Mehta

Aryeh Neier Fellow

Human Rights Watch/American Civil Liberties Union

350 Fifth Ave, 34th Floor

New York, NY 10118-3299

tel: 212-377-9437

mehtas@hrw.org

 

[287]Noncitizens or respondents with “mental disabilities” or “mental illness” refer to any individuals who have been diagnosed with, display symptoms of, are suspected of having a mental impairment. 

[288]“Detention facility” or “detention facilities” refer to all federal immigration detention facilities; facilities at Guantanamo Bay, Cuba; and all state, county and local jails and prisons under contract with the federal government to house immigration detainees at any point after September 30, 1998.

[289] In the past year Human Rights Watch has appeared in Agence France Presse 1,157 times; Reuters News 817 times; 604 Associated Press Newswires; All Africa 573 times; States News Service 559 times; Targeted New Service 539 times; The Guardian 315 times; 300 Reuters Daybook Reports; The Gulf Daily News 260; and The Canadian Press 255 times.  Additionally, Human Rights Watch has appeared in major US Papers such as The Wall Street Journal, The New York Times, USA Today, The Los Angeles Times, The Daily News, The Washington Post, The Houston Chronicle, The Philadelphia Inquirer, The San Francisco Chronicle, The Boston Globe, The Denver Post, The Arizona Republic, The Star Tribune, The Detroit Free Press, The Dallas Morning News, and The Chicago Tribune. Internationally, Human Rights Watch has been cited by Der Spiegel (Germany), The Daily Nation (Kenya), The Buenos Aires Herald (Argentina), Folha de São Paulo (Brazil), Emol (Chile), El Mundo (Mexico), El Universal (Venezuela), Express India, The Times of India, The Guardian (Nigeria), eKantipur (Nepal), Al-Ahram (Egypt), The Bangkok Post (Thailand), Haaretz (Israel), The Korea Times (South Korea), The Japan Times, The Sydney Morning Herald (Australia), The Herald Sun (Australia), Al Jazeera (Qatar), as well as hundreds of other news sources in print and online around the world.