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III. Background

Detention of Immigrants by the United States

Immigrants to the United States were first detained in significant numbers at Ellis Island, New York in the 1890s. A gateway to a new life for many, Ellis Island also earned a reputation for grim detention conditions, particularly in its last three decades of operation from 1924 to 1954. In 1954, the Immigration and Naturalization Service ceased its policy of detention except in limited circumstances and this approach remained the norm until the 1980s.¹ The detention policy resurfaced in the 1980s when thousands of Cuban and Haitian refugees arrived on US soil. Cubans from the Mariel boatlift were held in long-term detention during “processing” by the Carter Administration. Haitians who managed to survive treacherous boat trips to Miami faced detention and deportation as “economic” rather than “political” refugees. The practice of detention upon arrival was extended to Central Americans throughout the decade.²

In the 1990s detention became an integral part of United States immigration policy. Between 1994 and 2001, the average daily detention population nearly quadrupled, from 5,532 to 19,533.³ Presently, the US holds nearly 28,000 immigrants in federal detention centers, privately run prisons, and county jails.⁴ The US Immigration and Customs Enforcement agency (ICE), the enforcement unit of the Department of Homeland Security (DHS), incarcerates not only undocumented persons but legal permanent residents (LPRs), asylum seekers, families, and unaccompanied children.

The growing number of detainees reflects changes in law and policy intended to escalate enforcement of immigration restrictions and deportation. The first major change occurred in 1996 with the passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA). These laws significantly changed the immigration landscape by expanding mandatory detention and eliminating much of the discretion previously exercised by administrative law judges. Mandatory detention was expanded to include perpetrators not only of crimes designated as “aggravated felonies”, which include everything from misdemeanor non-violent theft offenses to violent crimes, but of any crime involving “moral turpitude” a phrase interpreted to justify the detention and deportation of persons guilty of shoplifting, drunk driving and minor drug offenses, with reduced discretion for review of individual circumstances. ⁵ Many people, including Legal Permanent Residents, are detained and deported for minor transgressions of the law for which they have already served brief sentences in their communities. Human Rights Watch has reported on the painful separation of families resulting from these harsh immigration policies.⁶

Persons subject to the United States’ “HIV Ban” may also be detained while awaiting decision on an application for waiver. Section 212 (a) (1) (A) (i) of the Immigration and Nationality Act states that any foreign national with a “communicable disease of public health significance,” including HIV, is “inadmissible.” HIV positive persons may obtain Legal Permanent Resident status only if they qualify for a waiver. Persons not eligible for waiver may be detained pending removal proceedings. Human Rights Watch and Immigration Equality have reported on the harmful and discriminatory effect of the “HIV ban”.⁷

After the September 11, 2001 attacks on the United States, the Immigration and Naturalization Service (INS) was replaced by several new agencies and placed under the jurisdiction of the newly-created Department of Homeland Security.⁸ The largest of these agencies is Immigration and Customs Enforcement (ICE). As stated in the ICE 2006 Annual Report:

On a daily basis, ICE aggressively uses powerful immigration and customs authorities to protect the American people from the illegal introduction of goods and the entry of terrorists and other criminals seeking to access our nation’s borders. ICE entirely reengineered the detention and removal process and adopted a business model approach for effectively removing aliens and dangerous criminals from the country. ⁹

 With this extensive enforcement mandate, a budget of 4.2 billion dollars (FY 2006), and 5,300 officers, ICE has become one of the world’s largest police forces, and its expansion is likely to continue. ICE added 6,300 new detention beds in FY 2006.¹⁰ Congress has authorized 40,000 new detention beds by 2010, bringing detention capacity close to 80,000 beds.¹¹

The average length of stay in immigration detention is unclear. An ICE report dated April 2006 states that detainees from “developing countries” are held for an average of 89 days.¹² Recent ICE statements indicate that the length of stay is decreasing as deportation operations intensify.¹³ These numbers, however, fail to account for the longer term detention of many asylum seekers, unaccompanied children, and persons for whom repatriation is problematic.¹⁴

Detention Facilities

Immigration detainees are held in four types of facilities:

Service processing centers (SPC)

Private contract detention facilities (CDF)

Federal Bureau of Prison facilities

Intergovernmental service agreement (IGSA) facilities. These are state and local government facilities, primarily county jails

The eight Service Processing Centers are operated directly by ICE. Seven Contract Detention Facilities are owned and operated by private prison corporations, and five federal prisons hold immigration detainees. The majority of detainees (65 percent) are housed in more than 300 local jails dispersed throughout the country.¹⁵

For county jails and private corporations, ICE’s new “business model” approach to immigration detention represents a growing and lucrative business. ICE contracts with county facilities individually and on a per diem basis, paying in the range of $50-95 per day for each detainee housed in that facility.¹⁶ Profits earned from ICE contracts can be substantial. For example, in Frederick County, Maryland, the county earns a profit of 13 dollars per day per detainee; in Bergen County, New Jersey, daily profits are estimated at 40 dollars for each detainee.¹⁷ Immigration detention is an increasingly large component of the for-profit prison industry. Companies such as the Corrections Corporation of America (CCA) have seen revenue from holding immigrants increase at the rate of 21 percent per year.¹⁸

Conditions in Detention

In a 1998 report, Human Rights Watch documented inhumane conditions in local jails contracting with immigration authorities for the detention of immigrants.¹⁹ These conditions included overcrowding, inadequate medical and dental care, inappropriate use of force, lack of access to telephone services, and frequent transfers that disrupted access to legal counsel. Human Rights Watch found that many immigration detainees were held in punitive conditions and were treated no differently than persons who had been criminally accused or convicted.²⁰ The report found that immigration authorities (then the INS) failed to adequately monitor conditions for detainees confined in the jails.

Although progress has been made in certain respects, many of these problems persist. In November 2000, in response to widespread criticism and legal challenges concerning conditions of confinement, ²¹ the INS adopted 36 National Detention Standards. These standards, now part of the DHS Detention Operations Manual (DOM),²² establish minimum conditions and procedures for many aspects of detention, including legal access, medical care, and discipline. The development of standards represented a step forward and was a result of cooperation with the American Bar Association and national immigration advocacy organizations. However, as discussed below, the ICE health care standards, particularly those addressing HIV/AIDS, fall below correctional health care standards established by nationally recognized experts and fail to comply with international recommendations for the treatment of prisoners with HIV/AIDS. Because even these lower standards have not been codified as federal regulations they are non-binding and unenforceable, leaving detainees with limited legal recourse if the standards are violated. Moreover, ICE carves out exceptions for many provisions of the standards, stating that for the hundreds of local jail facilities contracting individually with ICE to house detainees, these provisions are only “guidelines.”²³

Complaints of abuse, neglect, and inhumane conditions in immigration detention continue despite the issuance of internal standards.  In June 2007 The New York Times and The Washington Post investigated the 62 deaths in immigration detention since 2004.²⁴ Four additional immigrants died in detention since those articles appeared.²⁵ Class action lawsuits filed in February and June 2007 challenge overcrowded conditions and inadequate medical and dental care at ICE’s San Diego facility, operated by Corrections Corporation of America.²⁶ Conditions adverse to the physical and mental health of the detainees were found at ICE’s “family detention centers.”²⁷ (ICE recently settled consolidated lawsuits challenging the conditions of detention for children in one such center).²⁸ At the five county jails in New Jersey that contracted with ICE, detainees experienced inadequate medical and dental care, verbal and physical abuse, and denial of access to the law library and to telephones.²⁹ The National Immigrant Justice Center, Amnesty International and other members of a coalition of immigrants’ and human rights organizations submitted comprehensive briefing materials to the United Nations Special Rapporteur for the Human Rights of Migrants describing overcrowding, lack of access to telephone services and legal counsel, inadequate medical, dental and mental health care, and other substandard conditions in immigration detention facilities throughout the U.S. ³⁰ The San Pedro Service Processing Center, an ICE-operated detention facility in San Pedro California, closed in October 2007 after losing its accreditation from the American Correctional Association.

Recent government audits also found violations of the detention standards in facilities operated by ICE, by private corporations, and in county jails. The DHS Office of Inspector General (OIG) and the US Government Accountability Office (GAO) identified violations in the areas of health care, environmental health and safety, overcrowding, food service, and reporting incidents of abuse to ICE management.³¹ The Government Accountability Office (GAO) report found “insufficient internal controls and weaknesses in the ICE compliance review process.” ³²

 Accountability

The OIG and GAO reports criticize government oversight of detention conditions in ICE contract facilities. Currently, the ICE system for internal oversight consists of one inspection per year of each of its 300-plus detention facilities. These inspections failed to identify many of the serious violations found by the OIG report, causing the OIG to question the adequacy of ICE compliance monitoring. ³³ Similarly, the GAO report addressed the failure of ICE’s Department of Removal Operations (DRO) to adequately review and investigate detainee complaints:

ICE’s lack of a formalized tracking process for documenting detainee complaints hinders its ability to 1) identify potential patterns of noncompliance that may be system wide and 2) ensure that all detainee complaints are reviewed and acted upon if necessary.³⁴

Because the detention standards are not codified as federal regulations, they cannot provide formal grounds for relief for detainees in any type of immigration detention facility. The failure of DHS to provide legal recourse to detainees alleging inhumane or substandard conditions has been challenged by immigration rights advocates in the form of a Petition for Rulemaking filed January 25, 2007 under the Administrative Procedure Act. The Petition seeks promulgation of regulations governing detention standards for immigrants, which would then trigger notice and comment provisions, opening a dialogue between DHS, ICE. and the public regarding detention policies.³⁵ As of this date, DHS has taken no action on the petition.

The unwillingness of ICE to provide information to the public further hinders oversight of its compliance and monitoring activities. For example, ICE permits the American Bar Association (ABA) to conduct inquiries into complaints received from immigration detainees; ICE, however, prohibits the ABA from any public release of the results of these inquiries. While acknowledging 66 deaths in immigration detention since 2004, ICE has made it difficult for the families of the deceased to obtain information about the incidents, and there is no requirement that ICE publicly report deaths in its custody.³⁶  The UN Special Rapporteur for the Human Rights of Migrants was turned away from two of the three facilities he attempted to visit during his May 2007 mission to the United States. ³⁷ Congress fares little better when it comes to disclosure from ICE. Congresswoman Zoe Lofgren (D-CA), Chair of the House Subcommittee on Immigration, recently wrote ICE seeking information about revised detention standards that had reportedly been prepared and even distributed to several detention centers with no notice to the Committee.³⁸ Despite this and other inquiries from immigration advocates, ICE has released little information regarding the issuance of revised detention standards as of the date of this report. ³⁹ICE’s consistent avoidance of scrutiny has resulted in an agency recently characterized by the Miami Herald as “shrouded in secrecy.”⁴⁰