by Alan Gaynor

Mary Shelly’s first novel, Frankenstein, describes how one man creates a biological monster from parts of other creatures. Dr. Frankenstein, its creator, realizes his mistake and makes its destruction his mission. The sprawling network of detention centers operated for Federal Immigration and Customs Enforcement (ICE) is an institutional monstrosity. No singular intelligence created it, just an uncoordinated collection of decision-makers: legislators, judges, justices, corporate and political executives, and their hirelings. But they built a wild and inhumane system of incarceration for powerless innocents.

One, the Nakamoto Group, has fulfilled ICE’s required inspection function for its contracted detention facilities since 2007. Between then and 2019, ICE awarded the Nakamoto Group contracts worth more than $55 million, purportedly to ensure conditions meet federal detention standards. From 2017 to 2019, the Nakamoto Group was the sole contractor responsible for inspecting and reporting on nearly 200 federal immigration detention centers and county jails that together house more than 23,000 non-citizens on an average day.

In its January 2019 report, ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards, the Homeland Security Department’s Office of the Inspector General (OIG) provides an organizational chart that gives a glimpse of the ICE monstrosity, containing 23 boxes representing just the contract management and oversight functions of ICE’s bureaucracy.

“While ICE owns five detention facilities, it has executed contracts, inter-governmental service agreements (IGSA), or inter-governmental agreements (IGA) with another 206 facilities for the purpose of housing ICE detainees,” the report noted.

In an earlier 2015 report, Lives In Peril: How Ineffective Inspections Make ICE Complicit In Detention Center Abuse, the National Immigrant Justice Center (NIJC) and others provided another organizational chart, in which one functional unit stands out: The Nakamoto Group. It’s the only privately held firm on the chart.

However, the Nakamoto Group is no behemoth. In September 2019 testimony before the House Subcommittee on Oversight, Management, and Accountability, Nakamoto Group President Jennifer Nakamoto stated that 45 part-time employees help her 12 full-time employees inspect at least 120 detention centers per year. She testified that the Nakamoto Group contract with ICE then was worth $4 million dollars.

A Failure of Accountability

One way to detect whether the Nakamoto Group fails to hold ICE and ICE-contractors accountable is to compare its reports on specific facilities during specific time periods to reports on the same facilities during the same time periods by other investigators. Notably, only OIG conducts unannounced inspections of ICE facilities. The Nakamoto Group, on the other hand, conducts only scheduled inspections.

In June 2019, OIG published a damning report from four unannounced inspections conducted between May and November of the year before. Included were three facilities operated by the Geo Group: Adelanto in California, LaSalle in Louisiana and Aurora in Colorado. Also included was one facility operated by the Essex County Department of Corrections in New Jersey.

That OIG report listed failures with respect to the 2011 Performance-Based National Detention Standards, including food service issues, inappropriate segregation, absence of outside recreation, improper provision of clothing and toiletries, and lack of in-person visitation. At two of the facilities, poor conditions presented health risks.

The nearly contemporaneous Nakamoto Group report on the Adelanto facility from October 2019—before ICE was even able to respond to the OIG draft report—vociferously defended its employer, criticizing the OIG report for using “inflammatory” terms, “mischaracterizations,” “exaggerations” and “inaccuracies.” It added the snarky assertion that “[i]t would be advantageous for OIG to use inspectors with detention and corrections backgrounds for future inspections to avoid this type of embarrassment to their office and ICE.”

A July 2019 article in the L.A. Times said that while Nakamoto “noted hundreds of grievances from detainees and 83 physical assaults during the inspection period—more than one-third of which resulted in injuries that required medical referrals—its report concluded that ‘without exception, detainees stated that they felt safe at this facility.’” One wonders if the Nakamoto Group inspectors interviewed any of the 83 detainees that reported physical assaults.

In November 2021, the ACLU reported that “ICE employees in the field and managers at headquarters told OIG that Nakamoto inspectors ‘breeze by the [detention] standards’ and do not ‘have enough time to see if the [facility] is actually implementing the policies,’” an unsurprising consequence with only 12 full-time employees. The same reports notes: “In September 2020, the [House Homeland Security] Committee’s majority staff reported that Nakamoto ‘has demonstrated a lack of credibility and competence.’”

The ACLU reviewed every inspection report that Nakamoto issued in 2021 and found that the same problems identified by OIG and the House Homeland Security Committee continued to plague Nakamoto’s inspections. The ACLU suggested there is much the Nakamoto Group could do to fulfill its mission. First, it could fail facilities that deserve it. Second, it could conduct unannounced inspections. Third, it could improve interviews by conducting them in confidential settings and taking the complaints of detainees seriously. “Finally, Nakamoto inspectors appear to continue to trust, rather than verify, the representations of jailers and ICE officers,” the report concluded.

The January 2019 OIG report added another important item to this list: “ICE fails to consistently include its quality assurance surveillance plan (QASP) in facility contracts.” The QASP, OIG noted, “provides tools for ensuring facilities meet performance standards,” yet only “28 out of 106 contracts we reviewed contained the QASP.” If the contract doesn’t specify how the quality of the service is assessed, how can ICE hold inspectors or operators accountable?

Failing Facilities Is Not an Option

In 2011, the GEO Group’s Adelanto ICE Processing Facility in California’s Mojave Desert failed an inspection by MGT of America. But instead of barring the GEO Group from continuing to operate that facility—as Congress had intended in its DHS appropriations law—ICE canceled the contract with MGT of America, overturned the failure administratively, and hired the Nakamoto Group to conduct inspections thereafter.

The implicit message ICE sent was clear to Jennifer Nakamoto: Failure was not an option. In fact, despite the 2012 death of Fernando Dominguez-Valdivia at the Adelanto facility, the Nakamoto Group gave the facility a passing grade on its next inspection.

Apparently, the Nakamoto group is just doing what any rational player in this game would do. As Disability Rights California attorney Aaron Fischer observed, “Nakamoto has this incentive to not be as critical as they could be.”

Concerns over detention center conditions trace back to the mid-1990s, when political crises and drug-gang violence in Central America and Mexico drove the numbers of immigrant detainees sharply higher. A policy change during the Obama administration led to a 2010 law withholding payment from any detention center that failed two inspections in a row. Shortly after that, MGT was out and Nakamoto was in. Since the ICE system funnels federal tax dollars through State and Local governments to private, for-profit operators like the GEO Group, if anything threatens that funnel—either from the top, as when the Obama administration got its law passed, or from farther down, as when MGT of America dared to fail the Adelanto facility—the system responds quickly to shut down the threat.

Certainly, the Nakamoto Group is not the only entity that could improve the lives of ICE detainees. The Federal Government could help simply by gaining control of its own agencies. ICE’s resistance to the directives of the institution of which it is a part reveals a truth about the command-and-control hierarchy of the Federal Government: It doesn’t work. Instead, from an analytic perspective, the ICE system is self-directed, like a cybernetic device with feedback loops that stabilize the funds-transfer function despite the commands of the executive branch, the laws of the legislative branch, or even the decisions of the courts.

There is recent evidence that ICE’s tentacles are reaching into the political bloodstream of localities. In an article for The Indiana Lawyer—whose title says it all: “Lawsuit alleges Clay Co. misappropriating funds from ICE, detention contract should be terminated due to poor conditions”—writer Jordan Morey explains that the defendants in the case argue the county needs funds it gets from ICE to relieve property owners of some tax burden. In addition, they say, it provides jobs. If the ICE monstrosity is able to enlist middle-class taxpayers and workers in the fight to protect its funds-transfer function, then the opposition to that inhumane system will have to do battle with them, too.

Unfortunately, the economic players that benefit most have plenty of money to fuel divisions among our citizens, a well-funded effort that preserves the status quo by frustrating formation of a coherent “will of the people.” Ultimately, it will likely take more lawsuits by detainees and allied organizations to secure their human rights. Meanwhile, it wouldn’t hurt for our government to insist on getting the quality of inspections that our tax dollars are paying for.  

Sources: ACLU, Immigrant Justice, Indiana Lawyer, Los Angeles Times, Marshall Project, Rafu Shimpo

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