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By
Karen Tumlin
NILC Skadden Fellow
Over the last several months, independent reports have focused
public attention on the substandard conditions immigrants face while
detained by U.S. Immigrations and Customs Enforcement (ICE). Although
ICE has national detention standards outlining basic requirements for
immigration detention, they are not legally enforceable, unlike the
comparable rules for criminal detainees. As a result, over 230,000
immigrants who are detained each year may be unable to win meritorious
cases for relief from removal, such as asylum, because of the tremendous
obstacles posed by detention, including lack of access to phones,
counsel, and basic legal materials. Recent reports have highlighted
system-wide problems with detainees’ access to phones and medical
treatment.
Limited Access to Phones
On July 6, 2007, the Government Accountability Office (GAO)
released a
report finding “pervasive”
problems with the phone systems in detention centers across the
country. At each of the 23 facilities it visited, the GAO encountered
problems with the phone system that limited detainees’ ability to place
calls free of charge as required under the ICE National Detention
Standards. Under the standards, detainees must be permitted to place
free calls to legal service providers, their consulates, and the courts
in order to ensure that detainees can secure counsel and pursue their
claims to remain in the United States. In addition, detainees must be
able to call the Office of the Inspector General (OIG) hotline to report
complaints of abuse or other detention issues. Most facilities use a
pro bono phone system created through a contract between ICE and a
private company to meet these requirements. The GAO investigators found
widespread problems with this phone system, including various technical
failures and inaccurate or incomplete phone listings, all of which
hampered detainees’ ability to make the mandated phone calls. Of
particular concern, the OIG report number was restricted at 12 of the 17
facilities tested.
The GAO report also raises concerns about ICE’s annual
inspection process for detention facilities. Since 2002, ICE has
endeavored to inspect each detention facility annually to monitor
compliance with the detention standards. In addition to conducting its
own visits to detention facilities, the GAO also reviewed ICE annual
reviews for these facilities to determine to what extent ICE process has
actually captured problems with noncompliance. The results showed that
ICE’s own reviews dramatically underreport violations of the detention
standards. Although the GAO found numerous failures and deficiencies in
the pro bono phone system at 16 of the 17 facilities that used the
system, it found that ICE inspection reports disclosed phone problems
only at five of these facilities, and in two of these cases reported the
problems only as “concerns” rather than deficiencies. Finally, the GAO
also reviewed the monthly performance data on the pro bono phone system
that the contractor has reported to ICE for the past five years and
found that 41 percent of all pro bono calls attempted through this
system failed. In some months in 2006, the failure rate for these calls
was between 60 and 65 percent.
As a result of this report, ICE has agreed to take much-needed
action to improve detainees’ access to phones. For example, ICE said it
would make corrections to its annual review process to ensure that
detention or agency staff frequently tests phones to ensure mandated
free calls can be made. In addition, ICE has agreed to set up
procedures to ensure proper monitoring of contractor performance.
Inadequate Medical Treatment
Recent reports have also highlighted longstanding problems that
detainees face in obtaining the most basic medical care. Due to the
inadequate provision of medical treatment, some immigrants suffer
long-term damage to their health and some even die in detention. At the
end of June, the New York Times reported a new tally of the
number of immigrants who have died in detention—62 since 2004. Before
ICE disclosed this number to the New York Times, advocates only
knew of approximately 20 deaths during this period. (See Nina
Bernstein, “New Scrutiny as Immigrants Die in Custody,” New York
Times, June 26, 2007.)
Many of these deaths could have been prevented had ICE adhered
to its own detention standards regarding medical care, and diagnosed and
treated basic medical problems. The Times article relays grim
tales of detained immigrants, including a woman detained in New Mexico
whose requests for medical care went unanswered for weeks before her
death, a man in Virginia who huddled for warmth next to the dryer in his
housing unit after guards failed to provide his kidney medication, and a
lawful permanent resident detained in Virginia whose cellmate could not
rouse a guard for 20 minutes after she fell from the top bunk of their
cell. Worse still, the article describes detention staff callously
telling a detainee his medication was unavailable because ICE does not
pay enough for medical care, as well as the testimony of a warden
plainly stating that his facility fell below constitutional requirements
for medical care due to the constraints place on it by ICE.
The Times article touched off a firestorm of press,
including subsequent editorials in the New York Times (“Gitmos
Across America”) and the Washington Post (“An Immigration Basic:
Broad Reform May Have to Wait, Decent Treatment at Detention Centers
Does Not”) highlighting the dire consequences of the decades-long
expansion of immigration detention, increased immigration enforcement,
and a woefully unregulated detention system. The Post editorial
was published shortly after the prospects for comprehensive immigration
reform died in the Senate, and it called for reforms to the immigration
detention system outside of the context of comprehensive reform. In
particular, the editorial called for the promulgation of binding
detention standards and an independent review of the sprawling
immigration detention system.
ICE felt compelled to respond to the New York Times
article. John Torres, director of ICE’s Detention and Removal
Operations, submitted a letter to the editor, published on July 4, 2007,
stating that ICE did not “believe that only healthy individuals should
be accountable for violating the law, while others should get a pass.”
He went on to explain the deaths of detained immigrants by claiming that
for “a population that typically has little preventive or continuing
medical care, it’s sadly unsurprising that health issues are prevalent
and that some chronic conditions result in death.”
New Report Being Prepared
NILC has expanded its work on immigration detention as a
consequence of its role as lead counsel in
Orantes-Hernandez v.
Gonzales, a case in which the federal government sought to dissolve
a landmark, nationwide injunction won by NILC and co-counsel in 1988
that provides basic due process rights and detention protections to
Salvadoran immigrants. The injunction required the former Immigration
and Naturalization Service (whose functions were taken over by the Dept.
of Homeland Security, of which ICE is a bureau) to provide detained
Salvadoran immigrants with information about their rights, as well
as access to phones, visits by legal counsel, writing materials, and law
libraries while in detention. The injunction sets out basic
requirements for detainee access to counsel and legal rights information
designed to improve these conditions for all immigration detainees, and
ICE incorporated these requirements into the agency’s National Detention
Standards.
Through recent discovery in the Orantes case, NILC
obtained nearly 20,000 pages of never-before-released documents from ICE
that demonstrate the agency’s failure to adequately monitor the
conditions of immigration detention. In addition, NILC, the ACLU of
Southern California, and the law firm of Holland and Knight are drafting
a report summarizing the deplorable detention conditions and violations
of the government’s standards documented in this previously unavailable
information. The report will make research-grounded recommendations for
systematic changes to the government’s monitoring system for immigration
detention and serve as a vehicle to reform this under-regulated and
growing system. (For more information on this effort, see a presentation
prepared by NILC and the ACLU of So. Calif.,
U.S. Immigration Detention System:
Substandard Conditions of Confinement and Ineffective Oversight.)
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