ICE Weakens Already Questionable Detention Standards Leading into the New Year

On December 19, 2019, U.S. Immigration and Customs Enforcement (ICE) issued revised National Detention Standards (NDS) for certain “non-dedicated” facilities housing detained immigrants. This is the first time the standards have been updated since they were originally issued in September 2000 by ICE’s predecessor agency, Immigration and Naturalization Service (INS). At present, ICE uses the NDS, in addition its Performance-Based National Detention Standards (PBNDS), last updated in 2011, to govern the many immigration detention facilities used by the agency across the country.

Whether operating under the NDS or the PBNDS, ICE uses “a variety of facilities,” including “state and federal prisons, private detention centers, hotels, and even hospitals,” to detain noncitizens who have been processed by U.S. Customs and Border Protection (CBP) at or near a U.S. border and then transferred to ICE custody, as well as other noncitizens who are detained directly by ICE within the country’s interior. Many of these persons are seeking legitimate relief from removal in one form or another, and many have only immigration violations and/or minor civil or traffic infractions; yet their treatment, care, and living conditions are often subpar, at best.

Regarding its legal responsibilities to these detainees, ICE recognizes in its overview of the revised NDS the agency’s “important obligations under the U.S. Constitution and other federal and state law when … an individual [is] in custody” and goes on to claim that its “detention standards ensure that detainees are treated humanely; protected from harm; provided appropriate medical and mental health care; and receive the rights and protections to which they are entitled.” ICE also states that these standards are intended “to facilitate consistent conditions of confinement, access to legal representation and safe and secure operations across the detention system” (NDS); to “establish[] consistency of program operations and management expectations, accountability for compliance and a culture of professionalism” (NDS); and “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, and increase recreation and visitation” (PBNDS).

However, as Eunice Cho, Senior Staff Attorney with the American Civil Liberties Union’s (ACLU) National Prison Project, stated in an interview with the Texas Observer, “[t]he way that the new national detention standards are structured, [they] remove[] any incentive to really provide the minimal care and oversight necessary for detainees.” Mr. Cho also said that “ICE’s [revised] standards for these detention facilities have weakened [critical] protections for immigrant detainees across the board.”

Of note, although the new NDS incorporates additions to the topics of medical care, segregation, disability access, sexual assault and abuse prevention and intervention, and language access, it also eliminates or greatly reduces several significant prior standards, including those relating to emergency plans, marriage requests, non-medical emergency escorted trips, contraband, population counts, key and lock control, and tool control. In addition, descriptions of ICE’s responsibilities and commitments to its detainees have been removed throughout the publication.

Further examples of weakened protections in the new NDS include:

• “weaken[ed] protections for immigrant detainees against the use of force and solitary confinement by officers. The prior version of the NDS barred officers from the use of ‘hog-tying, fetal restraints, tight restraints, improperly applied’ against immigrant detainees — but this restriction is now eliminated”;
• expanded “allowable reasons to place a detainee in solitary confinement” and removal of “specific protections for detainees in disciplinary proceedings facing solitary confinement. Medical staff at these facilities may now place detainees in medical segregation (solitary confinement) for refusing examination or treatment”;
• “eliminated standards that help to preserve detainees’ basic dignity. For example, ICE no longer requires that hold rooms have toilets with modesty panels, and removes the ratios for the number of toilets per detainee. ICE has removed language requiring that new contract facilities have outdoor recreation facilities, meaning that more detainees could be held for months or even years without time outdoors as they wait for their cases to be heard”; and
• increased “hurdles in accessing lawyers and legal materials. The new NDS no longer requires facilities to guarantee non-governmental organizations access to detention facilities, and removes specific requirements for non-profits to provide legal education, monitoring, and visitation in these facilities. The new NDS eliminates a list of required immigration law materials that each facility must maintain in their law libraries and limits indigent detainees to only five pieces of legal mail per week. Detainees may be subject to strip searches after an attorney visit.”

To make matters worse, this all comes at a time when numerous reports have highlighted the already-grossly substandard conditions and negligent treatment of detainees, “significant health and safety risks,” “egregious [standards] violations,” and general noncompliance with existing standards and with national correctional standards at immigration detention facilities nationwide. In addition, these revisions follow calls from Congress to investigate allegations of inadequate medical and mental health care, leading in more than a few cases to death, and a whistleblower report from ICE’s own Civil Rights and Civil Liberties office that ICE has “systematically provided inadequate medical and mental health care and oversight to immigration detainees in facilities throughout the U.S.”—including at the privately-owned GEO Group facility right here in Aurora, Colorado.

For those interested in reading more about the changes to the NDS, the ACLU has provided a handy Fact Sheet summarizing the substantive changes and comparing the 2019 and 2000 versions of the NDS, available here: https://www.aclu.org/fact-sheet/summary-changes-ice-national-detention-standards