The State of Civil Rights at Immigration Detention Facilities - Statutory Enforcement Report, USCCR, 2015

• June 2, 2016 • Locations: United States of America • Topics: Corrections Audits, Conditions of Confinement, Immigration

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Wash in gton DC 20425
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W I T H L I B E R T Y A N D J U S T I C E F O R A L L T H E S TAT E O F C I V I L R I G H T S AT I M M I G R AT I O N D E T E N T I O N FA C I L I T I E S

U.S . C O M M IS S IO N O N CIVIL RIG HT S

WITH LIBERTY AND
JUSTICE FOR ALL
T H E S TAT E O F C I V I L R I G H T S AT I M M I G R AT I O N D E T E N T I O N FA C I L I T I E S

S E P T E M B E R 2 0 15
A BRIEFING BEFORE THE UNITED STATES COMMISSION ON
CIVIL RIGHTS HELD IN WASHINGTON, DC

S TAT U T O R Y E N F O R C E M E N T R E P O R T

U.S. Commission on Civil Rights
The U.S. Commission on Civil Rights is an independent, bipartisan agency established by
Congress in 1957. Congress directed the Commission to:
•

•

•
•

Investigate complaints alleging that citizens are being deprived of their right to vote
by reason of their race, color, religion, sex, age, disability, or national origin, or by
reason of fraudulent practices.
Study and collect information relating to discrimination or a denial of equal
protection of the laws under the Constitution because of race, color, religion, sex, age,
disability, or national origin, or in the administration of justice.
Appraise federal laws and policies with respect to discrimination or denial of equal
protection of the laws because of race, color, religion, sex, age, disability, or national
origin, or in the administration of justice.
Serve as a national clearinghouse for information in respect to discrimination or
denial of equal protection of the laws because of race, color, religion, sex, age,
disability, or national origin.
Submit reports, findings, and recommendations to the President and Congress.
Issue public service announcements to discourage discrimination or denial of equal
protection of the laws.

Members of the Commission:
Martin R. Castro, Chairman
Hon. Patricia Timmons-Goodson, Vice Chair
Roberta Achtenberg
Gail L. Heriot
Peter N. Kirsanow
David Kladney
Karen Narasaki
Michael Yaki
Mauro Morales, Staff Director

U.S. Commission on Civil Rights
1331 Pennsylvania Avenue, NW, Suite 1150
Washington, DC 20425
(202) 376-8128 (202-376-8116 for the hearing impaired)
www.usccr.gov
This report is available on CD/DVD in ASCII Text, Microsoft Word, and/or Adobe Acrobat.
Alternative formats are available for persons with disabilities (large print, electronic files) by sending
an email to publications@usccr.gov or calling (202) 376-8110.

UNITED STATES COMMISSION ON CIVIL RIGHTS
1331 PENNSYLVANIA AVENUE, NW, WASHINGTON, DC 20425 www. usccr.gov

Letter of Transmittal
President Barack Obama
Vice President Joe Biden
Speaker of the House John Boehner
On behalf of the United States Commission on Civil Rights (“the Commission”), and pursuant to
Public Law 103-419, I am pleased to transmit our 2015 Statutory Enforcement Report, The State
of Civil Rights at Immigration Detention Facilities. A full version of this report is also available
on the Commission’s website at www.usccr.gov.
The purpose of this report is to comprehensively examine the U.S. Government’s compliance
with federal immigration laws and detention policies, and also detail evidence regarding possible
infringement upon the constitutional rights afforded to detained immigrants. More specifically,
this report examines the Department of Homeland Security (DHS) and its component agencies’
treatment of detained immigrants in immigration holding, processing, and detention centers
throughout the United States.
Prior to writing this report, the Commission gathered facts and data to analyze whether DHS, its
component agencies, and private detention corporations with whom the federal government
contracts to detain immigrants were complying with the Performance Based National Detention
Standards, Prison Rape Elimination Act Standards, the Flores Settlement Agreement and other
related immigrant child detention policies, and the United States Constitution. During the
Commission’s January 30, 2015 briefing, the Commission received written and oral testimony
from DHS immigration detention officials and advocates detailing the strengths, weaknesses, and
constitutional and civil rights implications of the U.S. immigration detention system. In May
2015, the Commission visited Karnes Family Detention Center and Port Isabel Detention Centers
– both located in Texas – to corroborate the written and oral evidence the Commission gathered.
Based upon an analysis of data gathered from the Commission’s fact-gathering visit, evidence
collected during panelists’ briefing presentations and additional research, the Commission makes
numerous findings and recommendations. The Commission’s complete findings and
recommendations are contained in the report; however, the following bear special attention:

The Commission recommends that DHS act immediately to release families from detention. The
Commission also recommends that Congress should no longer fund family detention and should
reduce its funding for immigration detention generally, in favor of alternatives to detention. The
Commission found, among other issues, that several DHS immigration detention facilities were
not complying with federal mandates and agency policies regarding the treatment of detained
immigrants and detained unaccompanied immigrant children. Moreover, the Commission found
evidence, both anecdotal and eyewitness, that the U.S. Government was interfering with the
constitutional rights afforded to detained immigrants. While the U.S. Government made
improvements to the U.S. immigration detention system, the Commission, among other
numerous suggestions, recommends that the government convene an intergovernmental
compliance task force to investigate, analyze, and strengthen compliance regiments carried out
by the U.S. Immigrations and Customs Enforcement’s (ICE) Removal Operations’ Detention
Standards Compliance Unit. Moreover, the Commission recommends that the U.S. Government
work harder to ensure detainees’ access to due process and the right to assistance of counsel
under the Fifth Amendment and the Immigration and Nationality Act.
On August 14, 2015, the Commission approved this report. The vote was as follows:
Commissioner Achtenberg, Castro, Kladney, Timmons-Goodson and Yaki supported approval of
the report; Commissioners Heriot and Kirsanow opposed approval of the report; and
Commissioner Narasaki recused herself from voting on the report.
The Commission believes that this report is both instructive and useful to the U.S. Government
and the public at large as a contribution to the public dialogue surrounding civil rights and
constitutional issues in the U.S. immigration detention system. The Commission is confident
that this report will aid in the ultimate resolution of those issues, and that one day the United
States may truly live up to its reputation of being the land of the free.
Commissioner statements and rebuttals contained at the end of the report are the personal views
and opinions of individual Commissioners and not a part of the Commission’s official findings
and recommendation.
For the Commissioners

Martin R. Castro
Chairman

Statutory Enforcement Report:
The State of Civil Rights at
Immigration Detention Facilities
September 2015
The United States Commission on Civil Rights

The State of Civil Rights at Immigration Detention Facilities

TABLE OF CONTENTS
TABLE OF CONTENTS .............................................................................................................. i
CHAPTER 1.

Introduction and Background ............................................................................ 1

The Commission and Immigration Detention: Purpose and Focus ............................................. 1
Background Information, Relevant Immigration Laws, and Policies.......................................... 2
Relevant Immigration Laws Contributing to the Rise in Unauthorized Immigration and
Subsequently Increasing the Number of Detained Immigrants at Federal Facilities. ....... 3
Department of Homeland Security and Immigration & Customs Enforcement..................... 7
Detained Immigrants .............................................................................................................. 8
CHAPTER 2. Federal Agencies Responsible for Immigration Detention and Policies ............... 12
Department of Homeland Security ............................................................................................ 12
Immigration and Customs Enforcement ............................................................................... 14
ICE—Enforcement and Removal Operations ...................................................................... 15
CBP—Customs and Border Protection ................................................................................ 18
USCIS - U.S. Citizenship and Immigration Services ................................................................ 19
Department of Justice—Executive Office for Immigration Review ......................................... 21
U.S. Department of Health and Human Services ...................................................................... 23
CHAPTER 3.

Immigration Detention Standards .................................................................... 25

Discussion .................................................................................................................................. 29
Are ICE-Owned Facilities Adhering to PBNDS 2011 Medical Care Standards? ................ 30
Are CDFs Adhering to PBNDS 2011, PBNDS 2008, or NDS 2000 Medical Standards? ... 32
Are ICE-Owned Facilities Adhering to PBNDS 2011 LGBT Accommodation Standards? 36
Are CDFs Complying with Either PBNDS 2011, PBNDS 2008, or NDS 2000 LGBT
Accommodation standards? ............................................................................................ 39
Are ICE-Owned Facilities Adhering to PBNDS 2011 Food Service Standards? ................ 39
Are CDFs Complying with PBNDS 2011, PBNDS 2008, or NDS 2000 Food Service
Standards? ....................................................................................................................... 40
Are ICE-Owned Facilities Adhering to PBNDS 2011 Law Library and Legal Material
Standards? ....................................................................................................................... 42
Are CDFs Adhering to PBNDS 2011 Law Library and Legal Material Standards? ............ 42

The State of Civil Rights at Immigration Detention Facilities

Conclusion ................................................................................................................................. 44
CHAPTER 4.

Federal Treatment of Detained Undocumented Immigrant Children .............. 45

Background ................................................................................................................................ 46
Federal Policies Surrounding Unaccompanied Alien Children ................................................. 48
The Flores Settlement Agreement ........................................................................................ 48
Homeland Security Act of 2002 ........................................................................................... 49
Trafficking Victims Protection Reauthorization Act of 2008 .............................................. 50
Don T. Hutto Settlement Agreement .................................................................................... 51
Discussion .................................................................................................................................. 52
Compliance with the Flores Settlement Agreement ............................................................. 52
Required Release .................................................................................................................. 52
Required Confinement Standards ......................................................................................... 56
Compliance with the Trafficking Victims Protection Reauthorization Act - 72 Hour Rule 61
Role of the Office of Refugee Resettlement (ORR) ............................................................. 63
Conclusion ................................................................................................................................. 67
CHAPTER 5.

Prison Rape Elimination Act: Compliance or Violation ................................. 68

Background ................................................................................................................................ 68
DHS Application of PREA ........................................................................................................ 70
Discussion .................................................................................................................................. 71
Zero tolerance of Sexual Abuse; Prevention of Sexual Assault Coordination ..................... 71
Are DHS Detention Centers with Government Contracts Adhering to PREA? ................... 74
Are DHS CDFs Complying with PREA Inspection Policies?.............................................. 79
Do DHS Detention Facilities Adhere to PREA Regulations Regarding Child Detention? .. 80
Does DHS Adhere to PREA Standards on Interacting with Transgender or Intersex
Individuals? ..................................................................................................................... 81
Does DHS Comply with PREA Language Requirements? .................................................. 83
Does DHS Adhere to PREA Requirements to Provide Individuals Information Regarding
PREA Policies? ............................................................................................................... 84
Does DHS follow PREA requirements mandating adequate ways to report sexual assault?87
Conclusion ................................................................................................................................. 89

The State of Civil Rights at Immigration Detention Facilities

CHAPTER 6.

Immigration Detention: Constitutional Issues ................................................. 91

Placing Discussion in Context; Raising Constitutional Issues .................................................. 92
The Plenary Power ................................................................................................................ 92
Discussion .................................................................................................................................. 92
Is The Federal Government Detaining Immigrants in a Manner That Is Inconsistent with the
Fifth Amendment’s Due Process Clause? ....................................................................... 93
Is The Federal Government Detaining Immigrants in a Manner That Is Inconsistent with the
Fifth Amendment’s Due Process Clause? ....................................................................... 94
Is the Federal Government Violating a Detained Immigrant’s First Amendment Rights by
Interfering with a Detained Immigrant’s Right to Free Exercise of Religion? ............. 116
Conclusion ............................................................................................................................... 123
FINDINGS AND RECOMMENDATIONS ........................................................................... 124
Findings.................................................................................................................................... 124
APPENDIX A

....................................................................................................................... 131

APPENDIX B

....................................................................................................................... 134

APPENDIX C

....................................................................................................................... 135

COMMISSIONER STATEMENTS AND REBUTTALS..................................................... 147
Statement of Chairman Martin R. Castro ................................................................................ 147
Statement of Vice Chair Patricia Timmons-Goodson ............................................................. 154
Statement of Commissioner Roberta Achtenberg.................................................................... 160
Dissenting Statement of Commissioner Gail Heriot ................................................................ 172
Dissenting Statement of Commissioner Peter Kirsanow ......................................................... 219
Statement of Commissioner David Kladney............................................................................ 247
Statement of Commissioner Michael Yaki .............................................................................. 255

iii

Introduction and Background

CHAPTER 1.

INTRODUCTION AND BACKGROUND

The Commission and Immigration Detention: Purpose and Focus
This Statutory Enforcement Report examines the civil rights and constitutional concerns that the
U.S. Commission on Civil Rights (Commission) “raised with the Department of Homeland
Security (DHS) and its component [agencies] over the treatment of adult and minor [immigrant]
detainees [who are being] held under federal law in detention centers across the country.” 1
Specifically, this report analyzes the constitutional issues surrounding DHS’s treatment of
detained immigrants as well as other selected federal agencies’ efforts to comply with
established Performance Based National Detention Standards (PBNDS), 2 the Prison Rape
Elimination Act of 2003 (PREA), 3 and the federal standards for detaining unaccompanied minor
children.
It is within the Commission’s mandate to examine, study, and report upon civil rights violations
inconsistent with the federal civil rights laws, the United States Constitution, 4 and the federal
standards applicable to all persons within the United States and its territories. 5 By statute, the
Commission is authorized to examine federal policies and procedures that have a detrimental
effect on the equal protection of law guaranteed to all persons under the Constitution. 6 With
regard to immigration, in 1980, the Commission released a report entitled The Tarnished Golden
Door: Civil Rights Issues in Immigration that examined the civil rights issues surrounding the
enforcement of the immigration laws of the United States. 7 That report identified numerous
1

Meeting, U.S. Comm’n on Civil Rights, Wash., D.C., Jan. 30, 2015, transcript [hereafter “Briefing Transcript”],
(Castro Opening Remarks), p.5.
2

See What We Do, 2011 Operations Manual ICE Performance-Based National Detention Standards, U.S.
Immigration and Customs Enforcement, available at http://www.ice.gov/detention-standards/2011.

Prison Rape Elimination Act of 2003, PUB. L. No. 108-79, 117 Stat. 972 (2003) (codified at 42 U.S.C) § 1560115609).
4

U.S. Const., amend. 14, § 1.

See 42 U.S.C. § 1975a(2)(A) (2013) (the Commission has a duty to “study and collect[ ] information” concerning
“discrimination or denials of equal protection of the laws under the Constitution of the United States because of …
national origin … or in the administration of justice.”). See also 110 CONG. REC. 12714 (1964)(statement of Sen.
Hubert H. Humphrey) (explaining that the commission has jurisdiction over, among other things, “denials of equal
protection in the administration of justice, whether or not related to [a protected class].”).
6
7

See Civil Rights Act of 1957, PUB. L. No. 85-315. See also U.S. Const. amend. 14.

U.S. Comm’n on Civil Rights, The Tarnished Golden Door: Civil Rights Issues in Immigration (Sept. 1980) ; see
also the Commission’s 2008 report, The Impact of Illegal Immigration on Wages and Employment Opportunities of
Black Workers. Note that the 2008 report described Chicago Harris School of Public Policy scholars and others in
our briefing as asserting that immigration was economically beneficial to the U.S. and did not substantially diminish
the wages of black workers.

The State of Civil Rights at Immigration Detention Facilities

issues surrounding the former Immigration and Naturalization Service (INS) administration and
enforcement of U.S. immigration laws. Since the Commission published that 1980 report,
however, federal immigration laws and their enforcement practices have undergone numerous,
sweeping changes.
On January 30, 2015, the Commission held a day-long briefing examining the possible civil
rights violations at immigration detention facilities. Fifteen panelists participated in this briefing.
Panels consisted of government officials, academics, attorneys, and advocates. This report
encompasses the key elements of the Briefing as well as additional background research and
analysis.

Background Information, Relevant Immigration Laws, and Policies
Immigration is an integral component of America’s rich history and legacy. 8 Worldwide, citizens
from other nations immigrate to the United States to escape poor economic conditions, political
strife, and violence. 9 While these immigrants migrate to the United States to escape harsh living
conditions, once they cross the U.S. border without authorization and proper documentation, the
federal government apprehends and detains these individuals in conditions that are similar, if not
worse, than the conditions they faced from their home countries. In recent years, advocates for
detained immigrants have expressed growing concerns over federal apprehension of immigrants
and inhumane detention conditions detained immigrants suffer that are inconsistent with
American values. 10 For example, a coalition of 13 bishops voiced concerns regarding the
8

See generally, supra note 11.

Ibid.

See Geoffrey Heeren, Pulling Teeth: The State of Mandatory Immigration Detention , 45 HARV. C.R-C.L. L. REV.
2 (2010), available at http://ssrn.com/abstract=1688958 (“During the three years that Mohammad Azam Hussain
was in the custody of the Department of Homeland Security [DHS], he lost three teeth. The dentist who pulled those
teeth suggested that Hussain would keep losing teeth until he received periodontal surgery.”), p. 91. (“Hussain had
developed gum disease while in DHS custody—a condition he blamed on poor nutrition and a lack of real
toothbrushes in one of the jails at which he was housed. But the Division of Immigrant Health Services would not
pay for surgery to address the underlying gum disease—it would only pay for extraction. DHS may have preferred a
stopgap measure like pulling teeth to dental surgery because it considers immigration detention to be short-term—a
form of preventative, not punitive, custody designed to assure the appearance of immigrants who might otherwise
fail to show up for their supposedly fast-track removal proceedings. In fact, an increasing number of immigrants are
subject to “mandatory detention,” meaning that they are ineligible for bond because they are subject to removal on
certain grounds.”) Id., p. 93. See also Dora Schriro, Improving Conditions of Confinement for Criminal Inmates and
Immigrant Detainees, 47 AM. CRIM. L. REV. 1441, 1442 (2011), (“Immigration Detention and Criminal
Incarceration detainees tend to be seen by the public as comparable, and both confined populations are typically
managed in similar ways. They are represented as a threat to public safety, locked behind barbed wire, often in
remote facilities, and subjected to the detailed control emblematic of all secure environments. Often, they are held
alongside their criminal counterparts. People serving time as a sanction for engaging in criminal activity are housed
in the same facilities as people waiting to receive an immigration court’s decision about which country will become
their next residence.”). See also Sean Becker, “Immigration Reform 2013: Catholic Clergy Plea for Action”
Policy.Mic, Dec. 3, 2013 http://mic.com/articles/75333/immigration-reform-2013-catholic-clergy-plead-for-action.

Introduction and Background
frequent separation of families, mothers, and children during detention. 11 Reports also indicate
that the federal government is not giving detained immigrants the fundamental due process or
constitutional rights to which they are entitled. 12 Additionally, there have been reports that DHS
and its component agencies are not fully complying with PBNDS and PREA. 13
Relevant Immigration Laws Contributing to the Rise in Unauthorized Immigration and
Subsequently Increasing the Number of Detained Immigrants at Federal Facilities.
The Immigration Reform and Control Act of 1986 (IRCA) 14 was enacted to amend and reform
U.S. immigration policies by including:
•

provisions addressing employer sanctions for hiring undocumented workers,

•

increasing enforcement of existing immigration laws, and

•

encouraging legal immigration. 15

IRCA provided an opportunity for undocumented immigrants to apply for and attain legal status,
upon meeting certain requirements including: proof of residency in the United States since
January 1986; a clean criminal record; registration within the Selective Service System; and a
basic knowledge of U.S. history, government, and the English language. 16 The law also
prohibited businesses from hiring unauthorized immigrants and provided for reinforcements
along the Mexican border. 17 IRCA is often considered a failure because the number of
undocumented immigrants in the United States increased from an estimated 3–5 million in 1986

Sean Becker, “Immigration Reform 2013: Catholic Clergy Plea for Action” Policy.Mic, 3 Dec 2013, available at
http://mic.com/articles/75333/immigration-reform-2013-catholic-clergy-plead-for-action.

See generally, Heeren, Geoffrey, Pulling Teeth: The State of Mandatory Immigration Detention, 45 HARV. C.R.C.L. L. REV. 2 (2010), available at http://ssrn.com/abstract=1688958.
13

42 U.S.C. §15601-09 (2003); See generally, Dora Schriro, Improving Conditions of Confinement for Criminal
Inmates and Immigrant Detainees, 47 AM. CRIM. L. REV. 1441, 1442 (2011).
14

The Immigration Reform and Control Act of 1986, PUB. L. 99-603, 100 stat. 3359 (1986) (Codified at 8 U.S.C.
§1342a); See also Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137, 122 S. Ct. 1275, 152 L. ED. 2d 271
(2002); INS v. National Center for Immigrants’ Rights, Inc., 502 U.S. 183 (1991); See generally, Robert C. Rice,
Alien Employment Control and Employer Compliance Under the Immigration Reform and Control Act of 1986, 29
S. TEX. L. REV. 313 (1988); Shahid Haque, Beyond Hoffman Plastic: Reforming National Labor Relations Policy to
Conform to the Immigration Reform and Control Act, 79 CHI.-KENT L. REV. 1357 (2004); Maurice A. Roberts,
Employers As Junior Immigration Inspectors: The Impact of the 1986 Immigration Reform and Control Act, 21
INT'L LAW. 1013 (1987). Karon O. Bowdre, Immigration Law: What You Do Not Know Can Hurt You-and Your
Client, 50 ALA. LAW. 234 (1989).
15

22 Weekly Comp. Pres. Doc. 1534 (October 19, 2015).

Ibid.

The State of Civil Rights at Immigration Detention Facilities
to more than 11 million today. 18 Some blame IRCA for its failure to provide a reasonable
process for immigrants to lawfully work in the United States. 19 Despite calling for stricter
control of the Mexican–U.S. border, legislators who voted for the bill in 1986 found that the
provisions promising amnesty to undocumented immigrants only attracted more unauthorized
immigration. 20
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA). 21 According to President Bill Clinton, IIRIRA “strengthens the rule of law by cracking
down on illegal immigration at the border, in the work place, and in the criminal justice system –
without punishing those living in the United States legally.” 22 Congress also granted INS an
additional $15 million to support the detention and removal of undocumented immigrants with
ties to terrorist organizations and to enhance their intelligence gathering ability. 23
In 2004, Congress passed the Intelligence Reform and Terrorism Prevention Act (IRTPA). 24
While the Act’s primary purpose was to improve the nation’s intelligence gathering activities,
Section 5204 appropriated funds directing DHS to keep, at minimum, 8,000 available beds at
immigration detention facilities between fiscal years 2006 and 2010. 25 However, in 2014,

See generally, Patrick S. Cunningham, The Legal Arizona Worker's Act: A Threat to Federal Supremacy over
Immigration?, 42 ARIZ. ST. L.J. 411 (2010). Jeffrey Klamut, The Invisible Fence: De Facto Exclusion of
Undocumented Workers from State Workers' Compensation Systems, KAN. J.L. & PUB. POL'Y, Winter 2006-2007;
Cecelia M. Espenoza, The Illusory Provisions of Sanctions: The Immigration Reform and Control Act of 1986, 8
GEO. IMMIGR. L.J. 343 (1994); Sarah M. Kendall, America's Minorities Are Shown the "Back Door" . . . Again: The
Discriminatory Impact of the Immigration Reform and Control Act, 18 HOUS. J. INT'L L. 899 (1996); Suzanne E.
Cevasco, Nation of Immigrants, Nation of Laws: Agriculture As the Achilles Heel of Enforcement-Only
Immigration Legislation, 37 SETON HALL LEGIS. J. 175 (2012). Michael J. Larson, The Right U.S. Immigration
Enforcement Solution: "Make Haste Slowly," 66 U. MIAMI L. REV. 807, 808 (2012).
19

"Built to Last: How Immigration Reform Can Deter Unauthorized Immigration." Built to Last: How Immigration
Reform Can Deter Unauthorized Immigration. Accessed July 14, 2015. http://www.immigrationpolicy.org/justfacts/built-last-how-immigration-reform-can-deter-unauthorized-immigration.
20

See generally María Pabón López & Natasha Ann Lacoste, Immigration Reform in 2013-14: An Essay on the
Senate's Bipartisan Plan, the House's Standards for Immigration Reform, Interest Convergence and Political
Realities, 17 HARV. LATINO L. REV. 121, 123 (2014). See also Robert Pear, “’86 Law Looms Over Immigration
Fight,” New York Times, June 12, 2007, available at
http://www.nytimes.com/2007/06/12/washington/12immig.html; Jeb Bush & Clint Bolick, A Republican Case for
Immigration Reform, Wall St. J. (June 30, 2013), available at http://
onlinewsj.com/article/SB10001424127887324328204578571641599272.
21

Omnibus Consolidated Appropriations Act, 1997, PL 104–208, September 30, 1996, 110 Stat 3009.

32 Weekly Comp. Pres. Doc. 1935 (Oct. 7, 1996).

Supra Note 20.

Intelligence Reform and Terrorism Prevention Act of 2004, PL 108–458, Dec. 17, 2004, 118 Stat 3638.

Ibid.

Introduction and Background
through an appropriations act, Congress mandated that DHS maintain 34,000 immigrant
detention beds per day. 26
On June 15, 2012, President Barack Obama issued an Executive Order (EO) creating the
Deferred Action for Childhood Arrivals (DACA) program to defer the deportation of certain
undocumented persons who came to the United States as children and to provide them with work
authorization. 27 DACA took effect on August 15, 2012, and since its inception approximately
665,000 young persons have received DACA approval. 28 Recently, the National Immigration
Law Center and Tom K. Wong of the University of California, San Diego conducted a survey of
DACA recipients. 29 The survey found that:
•
•
•
•

96% of respondents were either in school or had employment;
57% earned money to help their families;
DACA recipients had an average wage increase of 45%; and
92% of respondents pursued educational opportunities they were unable to access before
DACA. 30
On November 20, 2014, President Obama announced several EOs attempting to fix the U.S.
immigration system. 31 While the President did not actually issue any executive orders,
Department of Homeland Security Secretary Jeh Johnson issued a memorandum expanding
deferred action. 32 The memorandum expanded the class of people covered by DACA, 33 extended

This mandate expontentially increased the amount of money the U.S. spent on detaining immigrants rather than
directing resources towards intelligence gathering as IRTPA intended. See Consolidated Appropriations Act of
2014, PUB. L. No. 113-76, 128 Stat. 5, 251 (directing ICE to maintain 34,000 beds per fiscal year).
27

See White House, Office of the Press Secretary, “Remarks by the President on Immigration,” available at
https://www.whitehouse.gov/the-press-office/2012/06/15/remarks-president-immigration.
28

"Results from a Nationwide Survey of DACA Recipients Illustrate the Program's Impact," Center for American
Progress, available at https://www.americanprogress.org/issues/immigration/news/2015/07/09/117054/results-froma-nationwide-survey-of-daca-recipients-illustrate-the-programs-impact/.
29

Ibid.

White House, Briefing Room, “Fixing the System: President Obama is Taking Action on Immigration," available
at https://www.whitehouse.gov/issues/immigration/immigration-action.

Memorandum from Jeh Johnson, Secretary, Dept. of Homeland Sec., to León Rodríguez, Director, U.S.
Citizenship and Immigration Services; Thomas S. Winkowski, Acting Director, U.S. Customs and Immigration
Enforcement; R. Gil Kerlikowske, Commissioner, U.S. Customs and Border Patrol (Nov. 20, 2014), available at
http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf.
33

White House, "It's Time to Fix Our Broken Immigration System," accessed June 16, 2015, available at
https://www.whitehouse.gov/issues/immigration/immigration-action.
DACA provides that those who were under the age of 31 on June 15, 2012, who entered the United States before
June 15, 2007 (5 years prior) as children under the age of 16, and who meet specific educational and public safety
criteria, are eligible for deferred action on a case-by-case basis. The initial DACA announcement of June 15, 2012.

The State of Civil Rights at Immigration Detention Facilities
DACA’s duration, 34 and also expanded deferred action beyond the limits of DACA to cover a
new group of people – undocumented immigrant parents of U.S. citizens or legal permanent
residents. 35
On November 21, 2014, the Commission commended President Obama on his issuance of the
executive action. The Commission publicly stated that:
[W]e understand the outlined actions are not comprehensive, and in order to fully
modernize our system of immigration, Congress will need to act. Nevertheless,
the actions taken by the President today allow immigrants to come out of the
shadows, expand DACA (Deferred Action for Childhood Arrivals) to protect
more “DREAMers” (Development, Relief, and Education for Alien Minors),
allow families to remain together as they forge ahead toward the American
Dream, and protect victims of human trafficking.
provided deferred action for a period of two years. On June 5, 2014, U.S. Citizenship and Immigration Services
(USCIS) announced that DACA recipients could request to renew their deferred action for an additional two years.
In order to further effectuate this program, I hereby direct USCIS to expand DACA as follows:
Remove the age cap. DACA will apply to all otherwise eligible immigrants who entered the United States by the
requisite adjusted entry date before the age of sixteen (16), regardless of how old they were in June 2012 or are
today. The current age restriction excludes those who were older than 31 on the date of announcement (i.e., those
who were born before June 15, 1981 ). That restriction will no longer apply. . . .
Adjust the date-of-entry requirement. In order to align the DACA program more closely with the other deferred
action authorization outlined below, the eligibility cut-off date by which a DACA applicant must have been in the
United States should be adjusted from June 15, 2007 to January 1, 2010.
34

Id.

Extend DACA renewal and work authorization to three-years. The period for which DACA and the
accompanying employment authorization is granted will be extended to three-year increments, rather than the
current two-year increments. This change shall apply to all first-time applications as well as all applications for
renewal effective November 24, 2014. Beginning on that date, USCIS should issue all work authorization
documents valid for three years, including to those individuals who have applied and are awaiting two-year work
authorization documents based on the renewal of their DACA grants. USCIS should also consider means to extend
those two-year renewals already issued to three years.
35

Id.

I hereby direct USCIS to establish a process, similar to DACA, for exercising prosecutorial discretion through the
use of deferred action, on a case-by-case basis, to those individuals who:
• have, on the date of this memorandum, a son or daughter who is a U.S. citizen or lawful permanent resident;
• have continuously resided in the United States since before January 1, 2010;
• are physically present in the United States on the date of this memorandum, and at the time of making a request for
consideration of deferred action with USCIS;
• have no lawful status on the date of this memorandum; are not an enforcement priority as reflected in the
November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants
Memorandum; and
• present no other factors that, in the exercise of discretion, make the grant of deferred action inappropriate.

Introduction and Background
Department of Homeland Security and Immigration & Customs Enforcement
Prior to September 11, 2001, the Attorney General had sole authority to administer and enforce
U.S. immigration law. 36 After 9/11, Congress passed the Homeland Security Act of 2002 37
(HSA). The HSA created DHS, which took over many immigration service and enforcement
functions from the Immigration and Naturalization Service (INS). Under HSA §477(c)(2)(F), the
Secretary of DHS was granted the authority to administer immigration enforcement and policy:
The Secretary of Homeland Security shall be charged with the administration and
enforcement of this chapter and all other laws relating to the immigration and
naturalization of aliens, except in so far as this chapter or such laws relate to the
powers, function, and duties conferred upon the President, Attorney General, the
Secretary of State, the officers of the Department of State, or diplomatic or
consular officers: Provided, however, that determination and ruling by the
Attorney General with respect to all questions of law shall be controlling. 38
Using the authority of the language above, the Secretary of DHS issued a Final Rule 39 on March
6, 2003, defining his authority to administer and enforce immigration laws. 40 The Final Rule
stated:
All authorities and functions of the Department of Homeland Security to
administer and enforce the immigration laws are vested in the Secretary of the
Homeland Security. The Secretary of Homeland Security may, in the Secretary’s
discretion, delegate any such authority or function to any official, officer, or
employee of the Department of Homeland Security . . . . 41
Currently, DHS has the primary responsibility for securing U.S. borders and managing the
immigration process.

8 U.S.C. §1101(a)(1).

Homeland Security Act of 2002, 116 Stat. 2135, PUB. L. 107– 296 (Nov. 25, 2012).

Ibid.

Authority of the Secretary of Homeland Security; Delegations of Authority; Immigration Laws, 68 FED. REG.
10922, 10923 (March 6, 2003) (codified at 8 C.F.R. §2.1).
40

Ibid.

The State of Civil Rights at Immigration Detention Facilities

Detained Immigrants
Detained immigrants are persons who immigrate to the United States without authorization and
proper documentation. 42 Federal law prohibits individuals from entering the United States
without proper documentation, and immigrants who do cross U.S. borders without proper
authorization and documentation break federal law. 43 Despite breaking federal law, the federal
government does not consider detained immigrants criminals until a court of law tries and
convicts them. 44 Instead, detained immigrants are considered civil detainees held in custody for
administrative purposes.
IIRIRA 45 categorizes detained noncitizen immigrants into various priority levels and classes
subject to mandatory detention. 46 Any noncitizen immigrant who is a criminal 47 or terrorist is
removable (deportable)—pending a final removal decision by an immigration judge—and
42

Michael Hoefer, Nancy Rytina, and Bryan C. Baker, Population Estimates: Estimates of the Unauthorized
Immigrant Population Residing in the United States: January 2009. Department of Homeland Security, January
2010, available at https://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2009.pdf.

See generally, INA (as amended), IRCA, and IIRIRA. See also, Riddhi Mukhopadhyay, Death in Detention:
Medical and Mental Health Consequences of Indefinite Detention of Immigrants in United States, 7 SEATTLE J. SOC.
JUST. (2) Article 19 (2008), available at http://digitalcommons.law.seattleu.edu/sjsj/vol7/iss2/19. (“Among other
things, IIRIRA . . . penalized persons who entered the United States illegally and remained in the country, allowed
retroactive deportation for relatively minor criminal offenses committed years before the passage of the law, further
curtailed waivers from deportation and judicial review, mandated detention of immigrants during their deportation
proceedings, and limited immigrants’ access to public benefits.”). pp. 699–700.
44

Id. at 698. (Although this is technically true, “[m]any asylum seekers are detained and questioned before being
able to initiate this process due to their method of entry into the United States: by crossing the border, arriving by
boat, or through falsified travel documents, if they have any at all. Even when asylum seekers do arrive with proper
documentation, its validity is often times called into question by immigration and border inspectors. As a result, the
restrictions in immigration law, in combination with the arbitrary discretion given to border inspectors, leave many
asylum seekers and immigrants either turned away at the border or immediately detained.”).
45

Subtitle C of the Omnibus Consolidated Appropriations Act, 1997, PUB. L. 104-208, signed into law Sept. 30,
1996.
46

Memorandum from Michael Pearson, INS Executive Associate Commissioner, Office of Field Operations, to
Regional Directors, Detention Guidelines Effective Oct. 9, 1998; Alison Siskin,. Immigration-Related Detention:
Current Legislative Issues. RL32369, Congressional Research Service, Washington, DC: U.S. Government Printing
Office, 2012.
47

“Criminal aliens include those who are inadmissible on criminal-related grounds as well as those who are
deportable due to the commission of certain criminal offences while in the United States. An alien is inadmissible
for (1) crimes of moral turpitude; (2) controlled substance violations; (3) multiple criminal convictions with
aggregate sentences of five years or more; (4) drug trafficking; (5) prostitution and commercialized vice; and (6)
receipt of immunity from prosecution for serious criminal offenses (INA §212(a)). An alien is deportable for the
following offenses: (1) crimes of moral turpitude; (2) aggravated felonies; (3) high speed flight; (4) controlled
substance violations; (5) certain firearm offenses; and (6) crimes of domestic violence, stalking, and child abuse
(INA §237(a)(2)). Any alien who is found in the United States who is inadmissible is deportable. Only the following
groups of criminal aliens who are inadmissible or deportable are not subject to mandatory detention: (1) aliens
convicted of a single crime of moral turpitude who were sentenced to less than one year; (2) aliens convicted of high
speed flight; and (3) aliens convicted of crimes of domestic violence, stalking, and child abuse or neglect.” See Ibid.

Introduction and Background
subject to mandatory detention. 48 The federal government may detain, parole, or release on bond
all other undocumented immigrants. 49 Additionally, there is not a specific time frame indicating
when the government must release a detained immigrant. Removal proceedings are not formally
limited by time constraints, and detention can last for months or even years. 50
Although records regarding the numbers of immigrants passing through the federal immigration
detention system are not entirely accurate, a study conducted by the nonprofit Migration Policy
Institute (MPI) provides some insight into the statistics, on average, of time spent in detention. 51
FIGURE 1. Average Length of Detention (Days)
120
114
90
81
60

72
Average Length of Detention (In Days)

30
0
Awaiting Removal
Determination

Receive Final
Removal Order

Post-Removal Order
Detainees

Source: Whitney Chelgren, Preventive Detention Distorted: Why It Is Unconstitutional to Detain Immigrants Without Procedural
Protections, 44 LOY. L.A. L. REV. 1477, 1488-89 (2011).

Figure 1 depicts the average length of stay for detainees at various points in the immigration
detention process. MPI found that the average length of detention for detainees who were still
awaiting a removal determination (“pre-removal order detainees”) was 81 days. With respect to
those who had received a final removal order (“post-removal order detainees”), the average
length of detention subsequent to receiving the removal order was 72 days or more. Conversely,
Kevin Landy, ICE Assistant Director for the Office of Detention Policy and Planning (ODPP),
stated that “[o]fficial ICE data indicates that the average length of stay in ICE detention for FY
48

See INA §103(a), as amended; 8 C.F.R. §§236.1(c), 236.1(d), 287.3(d). For more information on this decision See
CRS Congressional Distribution Memorandum, Policy Implications of Department of Justice Ruling on Bond
Determinations for Unauthorized Aliens in Detention, by Alison Siskin. Available from the author.

8 C.F.R. § 236.1 et. seq.; See generally Farrin R. Anello, Due Process and Temporal Limits on Mandatory
Immigration Detention, 65 Hastings L.J. 363 (2014), Gerard Savaresse, When Is When?: 8 U.S.C. S 1226(c) and the
Requirements of Mandatory Detention, 82 Fordham L. Rev. 285 (2013), Erin B. Corcoran, Bypassing Civil Gideon:
A Legislative Proposal to Address the Rising Costs and Unmet Legal Needs of Unrepresented Immigrants, 115 W.
VA. L. REV. 643, 644 (2012).
50

See supra note 48.

Ibid.

The State of Civil Rights at Immigration Detention Facilities
2014 was 29.6 days.” 52 Mr. Landy’s statement directly contradicts MPI’s estimate for postremoval order detainees’ total average amount of time in detention, counting from the first day in
detention until the day that MPI collected its data, of 114 days. While it is unclear whether the
government had already detained 1,792 persons for over six months, 53 more data must be
collected or further clarified to provide more accurate estimates.
Immigrants entering the United States without valid documentation or with forged
documentation are subject to expedited removal. 54 Expedited removal is a process in which an
undocumented immigrant is ordered removed from the United States without any further
hearings, appeals, or reviews. 55 Undocumented immigrants detained under the expedited
removal process:
•

are subjected to continuous detention;

•

must remain detained until they are removed; and

•

may be released only for medical emergencies or for law enforcement purposes.61

DHS also continues to detain immigrants if the detained immigrant expresses a credible fear of
persecution in his or her home country56 or intends to apply for asylum until DHS can hold an
interview and a hearing. 57
There are three types of facilities that detain or hold undocumented immigrants: Service
Processing Centers (SPCs), Contract Detention Facilities 58 (CDFs), and Intergovernmental
Service Agreement Facilities 59 (IGSAs). 60 Many of these detention facilities have a structure and
52

Whitney Chelgren, Preventive Detention Distorted: Why It Is Unconstitutional to Detain Immigrants Without
Procedural Protections, 44 LOY. L.A. L. REV. 1477, 1488-89 (2011).

INA §235(b)(1)(A)(i).

Ibid.

Section 235(b)(1)(B)(v) of the INA defines credible fear as: “A significant possibility, taking into account the
credibility of the statements made by the alien in support of his or her claim and such other facts as are known to the
officer, that the alien could establish eligibility for asylum under [INA] Section 208.”
57

See http://www.uscis.gov/humanitarian/refugees-asylum/asylum/questions-answers-credible-fear-screening.

CDF detention facilities “owned by private companies and contracted directly with ICE.” See 79 Fed. Reg. 13100,
13104 (March 7, 2014).
59

IGSAs are detention “facilities [that] are provided to ICE by States or local governments through agreements and
may be owned by the State or local government, or a private entity. See 79 Fed. Reg. 13100, 13104 (March 7, 2014).
60

A description of each can be found in Chapter 2 of this Report.

Introduction and Background
appearance similar to a criminal detention facility. For example, during its visit to Port Isabel
Detention Center, the Commission observed that double barbed wire fences surrounded the
facility, the dormitories were locked and guarded, food was distributed in bags, and detainees
wore garb similar to prison inmates. 61

The Commission visited Port Isabel Detention Center in Harlingen, TX, on May 5, 2015.

The State of Civil Rights at Immigration Detention Facilities

CHAPTER 2. FEDERAL AGENCIES RESPONSIBLE FOR
IMMIGRATION DETENTION AND POLICIES
Department of Homeland Security
The U.S. Department of Homeland Security (DHS) is responsible for apprehending and
detaining undocumented immigrants in the United States. While DHS’s Immigration &
Customs Enforcement (ICE) and Customs and Border Protection (CBP) are primarily
responsible for carrying out DHS’s immigration mandates, other DHS components also
play important roles in overseeing compliance with and investigating violations of
immigrant civil rights, the Performance Based National Detention Standards (PBNDS),
and the Prison Rape Elimination Act of 2003 (PREA). Table 1 identifies DHS’s primary
components involved in immigration detention and their roles. 62
TABLE 1. Primary DHS Immigration Detention Components
DHS Components and Offices

U.S. Immigration and Customs
Enforcement (ICE)

Enforcement and Removal
Operations (ERO)

Custody Management

•

Identifies and apprehends removable aliens, detaining these
individuals when it deems necessary and removing them from
the United States

•

Contracts with inspectors to conduct routine inspections of
certain detention facilities to assess compliance with ICE
detention standards, including SAAPI standards, and develops
corrective action plans, as necessary

•

Oversees the onsite Detention Monitoring Program, created in
2010, which places ICE detention service managers (DSMs)
at select facilities to monitor that conditions of confinement
are in accordance with ICE detention standards, including
SAAPI standards

•

Administers the ICE Community and Detainee Helpline,
which detainees may use to report sexual abuse and assault,

Government Accountability Office, Immigration Detention: Additional Actions Could Strengthen DHS
Efforts to Address Sexual Abuse. GAO-14-38. Washington, DC: U.S. Government Printing Office, 2014.

Federal Agencies Responsible for Immigration Detention and Policies
TABLE 1. Primary DHS Immigration Detention Components
DHS Components and Offices

among other grievances

•

Ensures that the appropriate components have been notified
following an alleged sexual abuse or assault and documents
these notifications

•

Ensures that facilities are aware of response, intervention, and
investigation mandates established by relevant detention
standards following alleged sexual abuse or assault through
personnel located at 24 field offices

•

Reviews annual self-assessments conducted by select
facilities

•

Leads efforts to design detention standards, including SAAPI
standards; charged with designing a new civil detention
system

•

Houses an agency-wide prevention of Sexual Assault
coordinator to develop, implement, and oversee ICE’s SAAPI
efforts

•

Investigates select allegations of sexual abuse and assault

•

Documents allegations of sexual abuse and assault in the Joint
Integrity Case Management System, a system to log, track,
and manage cases for all OPR functions including
investigations

•

Coordinates sexual abuse and assault investigations with
federal, state, or local law enforcement or facility incident
review personnel

•

Inspects facility compliance with detention standards,
including SAAPI standards, using a risk-based methodology

•

Receives, processes, and assigns for review or investigation
all misconduct allegations involving ICE and CBP
employees, including those pertaining to sexual abuse and

Field Operations

Office of Detention Policy
and Planning (ODPP)

Office of Professional
Responsibility (OPR)

Office of Detention Oversight
(ODO)

Joint Intake Center

The State of Civil Rights at Immigration Detention Facilities

TABLE 1. Primary DHS Immigration Detention Components
DHS Components and Offices

assault in detention facilities

•

Provides direct detainee care in some facilities, where corps
members may serve as first responders in instances of sexual
abuse and assault, and oversees care administered by non-ICE
Health Services Corps providers in other facilities

•

Negotiates and manages ICE contracts and agreements for
detainee housing at detention facilities

•

Operates hotline to which detainees can report sexual abuse
and assault allegations

•

Has investigative primacy for all sexual abuse and assault
allegations against DHS or contractor staff members
regardless of how they are reported

ICE Health Service Corps

Office of Acquisition
Management (OAQ)

Office of Inspector General

Source: Government Accountability Office. SAAPI- Sexual abuse and assault prevention and intervention standards.

Immigration and Customs Enforcement
In 2003, the U.S. Customs Service and Immigration and Naturalization Services’
investigative and interior enforcement elements merged to create ICE, the principal DHS
investigative arm. 63 ICE’s primary mission is to promote homeland security and public
safety through the criminal and civil enforcement of federal laws governing border
control, customs, trade, and immigration. 64 ICE enforces its mission through the work of
several component offices: the Enforcement and Removal Operations (ERO), Homeland
Security Investigations (HSI), and Management & Administration (MA). This portion of
the Report focuses specifically on ERO.

U.S. Immigration & Customs Enforcement, Who We Are, available at http://www.ice.gov/about.

U.S. Immigration & Customs Enforcement , What We Do, available at http://www.ice.gov/overview.

Federal Agencies Responsible for Immigration Detention and Policies
ICE—Enforcement and Removal Operations
ICE’s ERO office is the principal component for enforcing U.S. immigration laws. 65
ERO enforces these laws by “identifying and apprehending removable aliens, detaining
these individuals when necessary, and removing them from the United States.” 66
However, ERO prioritizes who to apprehend, arrest, and remove based on criminal
record, level of threat the individual poses to national security, the detained individual’s
fugitive status, and how recently an immigrant entered the United States. 67
ERO is prohibited from detaining a child unless the child is detained with his/her family
and is housed at a family detention center. 68 If an immigrant child is unaccompanied,
ERO must transfer him/her to the U.S. Department of Health and Human Services (HHS)
Office of Refugee Resettlement within 72 hours. 69 However, ERO detains men and
women from various countries seeking to gain entrance to the United States each year. 70
Some political groups assert that undocumented immigrants are mostly criminals. 71
However, statistical research indicates that their allegations are unfounded. According to
65

Kevin Landy, Assistant Director, ICE Office of Detention Policy and Planning, Written Statement.
Available at the U.S. Commission on Civil Rights National Headquarters, 1331 Pennsylvania Avenue, NW,
Suite 1150, Washington, D.C., 20425.
66

Ibid.

"Enforcement and Removal Operations." Enforcement and Removal Operations. 2015, available at
http://www.ice.gov/ero.
68

See 8 U.S.C. § 1232(b)(3). Family detention centers are detention centers that detain mothers and their
children within the same facility.
69

Id.

Government Accountability Office. Immigration Detention: Additional Actions Needed to Strengthen
Management and Oversight of Facility Costs and Standards. GAO-15-153. Washington, DC: U.S.
Government Printing Office, 2014.
71

Vaughan, Jessica. “ICE Document Details 36,000 Criminal Alien Releases in 2013.” Center for
Immigration Studies, accessed June 15, 2015, available at http://cis.org/ICE-Document-Details-36000Criminal-Aliens-Release-in-2013. See, e.g., Jim Garrett, Illegal Immigrants Are Criminals, Asbury Park
Press, July 22, 2010, (on file, U. PA. J. CONST. L.) (Equating immigration violators and criminals); Illegal
Immigrants Are Criminals, Chicago Tribune, March 19, 2010, available at http://.
articles.chicagotribune.com/2010-03-19/news/chi-100319loeffler_briefs_1_ criminals-reign-alien. (“I
cannot find ‘undocumented’ in my dictionary. This is [a] euphemism for illegal alien. In my dictionary,
illegal means criminal.”); Jaynee Germond, Illegal Means Criminal, Jaynee Germond for US Congress
(Sept. 27, 2009), available at http:// jayneegermondforcongress.blogspot.com/2009/09/illegal-meanscriminal.html. (“What is so difficult about the concept of illegal immigration[?] Illegal means
criminal....Why aren't these known criminals deported immediately?”); Illegal Immigration Is a Crime,
Fed'n for Am. Immigr. Reform (Mar.2005), available at
http://www.fairus.org/site/News2?page=NewsArticle&id=16663&security=1601&news_iv_ctrl=1007.
(labeling “aliens who flagrantly violate our nation's laws by unlawfully crossing U.S. borders and visa
‘over stayers’ as ‘illegal immigrants’ and noting that ‘[b]oth types of illegal immigrants are deportable
under [the] Immigration and Nationality Act Section 237(a)(1)(B)’”). See generally, M. Kathleen

The State of Civil Rights at Immigration Detention Facilities

the PEW Research Center data set, there were 11.2 million undocumented immigrants
living in the United States in 2013. 72 Of those 11.2 million immigrants, only 88,000 were
convicted criminals. 73 More recent DHS statistics also indicate that a majority of
undocumented immigrants are not convicted criminals. 74According to ICE, ICE removed
177,960 people who had criminal convictions in 2014 – which is the only known statistic
of undocumented immigrants with previous criminal convictions. 75 When comparing the
known statistic of undocumented immigrants removed from the United States to the
estimated overall population of undocumented immigrants living in the United States, the
percentage rate of undocumented immigrants with criminal records is approximately 1.5
percent. 76
When admitting immigrants to ICE detention facilities, ERO uses a classification system
that separates detainees by threat risk and assigns special vulnerability classifications. 77
According to a 2014 Government Accountability Office (GAO) report, “[f]rom fiscal
years 2010 through 2013, about 44 percent of ICE detainees were . . . low custody, 41
percent were of a medium custody level, and 15 percent were of a high custody level.78
Furthermore, a recent study by the American Immigration Council entitled, “The
Dingerman & Rubén G. Rumbaut, The Immigration-Crime Nexus and Post-Deportation Experiences:
En/Countering Stereotypes in Southern California and El Salvador, 31 U. La Verne L. Rev. 363, 367
(2010) (“[Immigrants] who are detained and deported from the United States are perceived as not only
‘undocumented laborers' but ‘criminal aliens.”’).
72

Krogstad, Jens, and Jeffrey Passel. "5 Facts about Illegal Immigration in the U.S." Pew Research Center
RSS. November 18, 2014, available athttp://www.pewresearch.org/fact-tank/2014/11/18/5-facts-aboutillegal-immigration-in-the-u-s/.
73

Vaughan, Jessica. "ICE Document Details 36,000 Criminal Alien Releases in 2013." Center for
Immigration Studies, available at http://cis.org/ICE-Document-Details-36000-Criminal-Aliens-Release-in2013.
74

See FY 2014 Ice Immigration Removals Statistics and Overview, available at
http://www.ice.gov/removal-statistics.

Ibid.

This number was taken by dividing the number of undocumented immigrants ICE had detained who were
previously convicted of a crime (177,960) by the total number of the undocumented immigrant population
in the United States (11.2 million).
Because of the nature of undocumented immigration, it is equally important to note that it is nearly
impossible to calculate what percentages of the 11.2 million undocumented immigrants living in the United
States have criminal records. Therefore, this report takes a known estimate of known ICE removals of
people with criminal records and divides that number with the overall estimate of undocumented
immigrants as shown above.
77
78

Ibid.

Federal Agencies Responsible for Immigration Detention and Policies
Criminalization of Immigration in the United States,” concludes that immigrants are less
likely to commit crimes than are native- born Americans, and higher immigration rates
equate with lower crime rates. 79
As of August 2013, 166 of the 250 facilities overseen by ERO were authorized to detain
immigrants for over 72 hours. According to a GAO report:
Over 90 percent of the facilities are operated under agreements with state
and local governments and house about half of ICE’s total detention
population, together with, or separately from, other confined populations.
The remaining facilities house exclusively ICE detainees and are operated
by a mixture of private and ICE, state, and local government employees. 80
On June 24, 2015, DHS Secretary Jeh Johnson released a statement regarding Family
Residential Immigration Centers. After his visit to the Karnes Family Detention Center
near San Antonio, Texas, Secretary Johnson stated, “I have reached the conclusion that
we must make substantial changes in our detention practices with respect to families with
children. In short, once a family has established eligibility for asylum or other relief
under our laws, long-term detention is an inefficient use of our resources and should be
discontinued.” 81
Additionally, according to Secretary Johnson, ICE began implementing reforms in May
2015. For example, DHS ICE:
• began reviewing the cases of any families detained beyond 90 days to evaluate
whether detention during the pendency of their immigration case is still
appropriate. ICE gives priority to review of the cases of families who have been
in these residential centers the longest;
• discontinued invoking general deterrence as a factor in custody determinations in
all cases involving families;
• appointed a Federal Advisory Committee of outside experts to advise Director
Saldaña and Secretary Johnson concerning family residential centers; and

Ewing, Walter, Daniel Martinez, and Ruben Rumbout. "The Criminalization of Immigration in the
United States." Special Report, 2015, available at
http://immigrationpolicy.org/sites/default/files/docs/the_criminalization_of_immigration_in_the_united_sta
tes_final.pdf.
80
81

Ibid.

Statement by DHS Secretary Jeh C. Johnson on Family Residential Centers, accessed June 24, 2015,
available at http://www.dhs.gov/news/2015/06/24/statement-secretary-jeh-c-johnson-family-residentialcenters.

The State of Civil Rights at Immigration Detention Facilities

•

undertook additional measures to ensure access to counsel, attorney-client
meeting rooms, social workers, educational services, comprehensive medical care,
and continuous monitoring of the overall conditions at these centers. 82

On June 24, 2015, Secretary Johnson announced additional reforms. 83 He cited a plan to
release detained immigrants who express a case of credible fear or reasonable fear of
persecution on “appropriate monetary bond or other condition of release.” 84 Secretary
Johnson stated that the appropriate level of bond amount would be “realistic” and take
into account a detained immigrant’s ability to pay the bond, “while also encompassing
risk of flight and public safety.” 85 Furthermore, the Secretary directed USCIS to “conduct
credible fear and reasonable fear interviews within a reasonable timeframe,” which would
still allow the agency to secure accurate personal and sponsorship information and a
chance to receive “education about their rights and responsibilities.” 86 As of the writing
of this report, however, it is unclear to the Commission whether these announced changes
will be implemented and if so, how effective their operation will be.
CBP—Customs and Border Protection
U.S. Customs and Border Protection’s (CBP’s) primary mission is to detect and prevent
the entry of terrorists, weapons of mass destruction, and unauthorized immigrants into the
country and to intercept drug smugglers and other criminals along the border, and to
facilitate international commerce and travel. 87 CPB operates three main components: the
Office of Field Operations (OFO), Border Patrol (BP), and the Office of Air and Marine
(OAM). 88 To accomplish this aim, CPB patrols 6,000 miles of American borders shared
with Mexico and Canada as well as coastal waters around Florida and Puerto Rico. 89
These components have a field structure spanning the United States and its Territories.90
There are currently 20 OFO offices, 20 BP sectors, and 3 OAM regions. 91 CPB’s
oversight structure is very complex. A 2014 GAO report stated:

Ibid.

Statement by DHS Secretary Jeh C. Johnson on Family Residential Centers, Appendix A.

Ibid.

See http://www.cbp.gov/about.

Ibid.

See ICE overview at http://www.cbp.gov/border-security/along-us-borders/overview; See also Chad
Haddal, Congressional Research Service. Border Security: The Role of the U.S. Border Patrol. GAO 77500. Washington, DC: U.S. Government Printing Office, 2011.
90

Ibid.

Federal Agencies Responsible for Immigration Detention and Policies
Within this field structure, each component also manages individual
locations; OFO field offices provide oversight of POEs [ports of entry],
Border Patrol sectors oversee stations, and OAM regions oversee
branches. For example, OAM’s Southwest Border Region provides
oversight of individual air and marine branches across the southwest
border . . . . 92
On May 15, 2015, the DHS Office of the Inspector General (OIG) issued a report
criticizing its DHS component agency, U.S. Customs and Border Protection (CBP). 93 The
report focused heavily on the accuracy of CBP’s metrics used to examine the effect of its
“Operation Streamline” program. However, while not the primary basis for the report,
OIG identified an additional issue regarding CBP’s guidance on using “Streamline for
aliens who express fear of persecution or return to their home countries,” because they
found that CBP’s “use of Streamline with such aliens is inconsistent and may violate U.S.
treaty obligations.” 94 Moreover, DHS has raised concerns regarding certain CBP “Use of
Force” practices when dealing with undocumented immigrants. 95
USCIS - U.S. Citizenship and Immigration Services
U.S. Citizenship and Immigration Services (USCIS) received responsibility for
overseeing the federal government’s immigration service functions on March 1, 2003.96
The Homeland Security Act of 2002 (HSA) requires USCIS to enhance the national
immigration service’s security and efficiency by focusing on the administration of benefit
applications. 97
Additionally, USCIS is responsible for the initial adjudication of asylum applications for
immigrant children. 98 USCIS takes jurisdiction over asylum applications after CPB or
91

Ibid.

Available at http://www.gao.gov/assets/670/664480.txt.

Department of Homeland Security – Office of the Inspector General. Streamline: Measuring Its Effect on
Illegal Border Crossing. OIG-15-95. May 15, 2015,available at
https://www.oig.dhs.gov/assets/Mgmt/2015/OIG_15-95_May15.pdf.
94

Ibid.

Homeland Security Advisory Council: Interim Report of the CBP Integrity Advisory Panel. June 29,
2015, available at http://soboco.org/wp-content/uploads/2015/06/HSAC-CBP-IAP-InterimReport_FINAL_062915.pdf.

U.S. Citizenship and Immigration Services, available at http://www.uscis.gov.

Ibid.

Lisa Seghetti, Alison Siskin, and Ruth Ellen Wasem, Unaccompanied Alien Children: An Overview.
R43599. Washington, DC: U.S. Government Printing Office, 2014. Under the William Wilberforce

The State of Civil Rights at Immigration Detention Facilities

ICE determines if a child is an unaccompanied minor and transfers the minor to the HHS
Office of Refugee Resettlement (ORR). Additionally, USCIS has jurisdiction over
unaccompanied minor asylum applications pending in immigration court, the Board of
Immigration Appeals, or in federal court, if applicable. 99
On April 11, 2013, USCIS Deputy Director Lori Scialabba issued a memorandum
responding to concerns regarding the treatment of unaccompanied, detained children and
USCIS compliance with the William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2007 (TVPRA). 100 In particular, USCIS provided a series of five
recommendations to ensure the effectiveness and fairness of the asylum process for
unaccompanied children. The recommendations were as follows:
1. Accept jurisdiction of unaccompanied alien children cases as referred by the
Executive Office of Immigration Review (EOIR).
2. Accept jurisdiction of cases filed by children under federal custody under HHS.
3. Follow established unaccompanied alien children-specific protocols, expand
implementation of certain best practices, and enlist clinical experts for quality
assurance and training. More specifically, USCIS should:
a. Establish points of contact for the public to improve communication,
coordination, and problem-solving;
b. Pre-assign unaccompanied alien children cases to officers with specialized
knowledge and skills; and
c. Contract with clinical experts adept at interviewing vulnerable children as part
of an ongoing quality assurance and training component of the unaccompanied
alien children asylum program.
4. Limit Headquarters review to a process that can be managed in 30 days.

Trafficking Victim Protection Reauthorization Act of 2008 (TVPRA, P.L. 110-457, 122 Stat. 5074, USCIS)
has initial jurisdiction over an asylum application filed by an individual determined to be
UNACCOMPANIED ALIEN CHILDREN.
99

Ibid.

100

USCIS, Memorandum from Lori Scialabba to Maria Odum: Responses to Citizenship and Immigration
Services Ombudsman Recommendations, Ensuring a Fair and Effective Asylum Process for
UNACCOMPANIED ALIEN CHILDREN, April 11, 2013, available at
http://www.uscis.gov/sites/default/files/USCIS/Resources/Ombudsman%20Liaison/Responses%20to%20F
ormal%20Recommendations/CISOMB%20UNACCOMPANIED ALIEN
CHILDREN%20Recommendations%20.pdf.

Federal Agencies Responsible for Immigration Detention and Policies
5. Issue as soon as possible regulations regarding the unaccompanied alien children
asylum process. 101
In response, USCIS highlighted changes it made to ensure a smooth adjudication process
for unaccompanied alien children. For example, USCIS adopted the determinations made
by DHS components (ICE and CBP) for custody purposes. 102 Previously, the
unaccompanied alien children asylum officer made an independent determination of
whether a potential asylum seeker was an unaccompanied alien child separately from the
determinations already made by ICE and CPB. 103 The new standards avoided duplicative
work and unnecessary delay to proceedings.
In addition, the USCIS Asylum Division issued nationwide standards for customer
(immigrant) access, including dedicated email addresses and phone numbers at each
asylum office for customer service inquiries. 104 Through these efforts, USCIS endeavors
to improve the efficiency of adjudication proceedings and its customer service.

Department of Justice—Executive Office for Immigration Review
EOIR is a Department of Justice (DOJ) component agency created on January 9, 1983, by
combining the Board of Immigration Appeals and INS. 105 EOIR’s primary mission is to
adjudicate immigration cases in a fair, expedient, and uniform manner. 106 EOIR conducts
immigration court proceedings, appellate reviews, and administrative hearings under the
Attorney General’s authority. 107
EOIR plays a vital role in adjudicating petitions for asylum for detained immigrants.
According to the table below, asylum seekers fared worse between FY 2010 and FY
2014. Between FY 2010 and FY 2014, the agency received 203,044 petitions for asylum.
Of those petitions, the agency only granted asylum to 23 percent of applicants compared
to denying 21 percent – an overall increase in denials between FY 2010 and FY 2014.
101

Ibid.

102

Ibid.

103

Memorandum from Lori Scialabba to Maria Odum: Responses to Citizenship and Immigration Services
Ombudsman Recommendations, Ensuring a Fair and Effective Asylum Process for Unaccompanied
Children, April 11, 2013, available at
http://www.uscis.gov/sites/default/files/USCIS/Resources/Ombudsman%20Liaison/Responses%20to%20F
ormal%20Recommendations/CISOMB%20UNACCOMPANIED ALIEN
CHILDREN%20Recommendations%20.pdf.

104

Ibid.

105

Executive Office for Immigration Review (EOIR), DOJ, About the Office, available at
http://www.justice.gov/eoir/about-office.
106

Executive Office for Immigration Review, DOJ, available at http://www.justice.gov/eoir.

107

Ibid.

The State of Civil Rights at Immigration Detention Facilities

TABLE 2. Adjudications of Asylum Petitions
FY

Received

Granted

Denied

2010

32,830

8,519

8,336

2011

42,810

10,137

9,280

2012

45,555

10,715

8,503

2013

39,929

9,945

8,826

2014

41,920

8,775

9,222

Source: U.S. Department of Justice

EIOR also has specific policies for conducting undocumented children’s removal
hearings. 108 EIOR policies dictate that undocumented children understand the nature of
immigration proceedings and all the rights and guidelines in their adjudication process. 109
On July 7, 2015, the Commission released a letter to EOIR asking whether news reports
of deportations of thousands of immigrant children due to missing or late hearing notices
are true, and if so, concluding that there is potentially a significant due process concern.
The Commission raised questions to EOIR, including evidentiary sufficiency, methods of
sending notices to affected children, methods of ascertaining accuracy of addresses,
coordination measures to assist unaccompanied minors, sufficiency of time allowed for
responses, statistics concerning numbers of asylum denials and those persons awaiting
hearings, and adherence to official methods of service of process and court procedure.

Commission Chairman Martin Castro publicly stated:
If these reports are true, then this conduct is a gross denial by our
government of due process to the most vulnerable of immigrants:
children—and must be immediately rectified. This, on top of the
108

See Memorandum from David L. Neal, Chief Immigration Judge, U.S. Dept. of Justice, to all
Immigration Judges, Court Administrators, Judicial Law Clerks, and Immigration Court Staff (May 22,
2007), available at http://www.justice.gov/sites/default/files/eoir/legacy/2007/05/22/07-01.pdf.
109

Ibid.

Federal Agencies Responsible for Immigration Detention and Policies
prolonged detention of so many women and children awaiting hearings,
makes illusory any promise of fair treatment to those families seeking
refuge and protection from violence and instability in their home
countries.
As of the writing of this report, the Commission has not received a response from EOIR
regarding this inquiry.

U.S. Department of Health and Human Services
On March 1, 2003, the Homeland Security Act (HSA), Section (§) 462 transferred
responsibilities for the care and placement of unaccompanied children from the
Commissioner of the INS to the Director of the HHS Office of Refugee Resettlement
(ORR). 110 Since then, ORR has cared for more than 150,000 children, incorporating child
welfare values as well as the principles and provisions established by the 1997 Flores
Agreement, 111 the Trafficking Victims Protection Act of 2000 112 and its reauthorization
acts, TVPRA of 2005 and 2008. 113
ORR is responsible for providing care and custody for unaccompanied alien children who
are transferred to ORR by other federal agencies. 114 The child is kept in ORR care until
the agency finds a suitable sponsor to care for the child’s well-being while awaiting his or
her immigration proceeding. 115 ORR specialists must make a placement determination
for each child when a child is transferred to its custody. 116 Children are placed in the least
restrictive setting that is in the best interest of the child. 117 ORR also identifies any
special needs that a child may have in order to determine best and appropriate
placement. 118
ORR also gives children an initial medical examination and provides medical, dental, and
mental health services. 119 Additionally, ORR provides children with a “Know Your
110

Pub. L. No. 107–296, § 462, 116 Stat. 2135.

111

Flores, Stipulated Settlement Agreement (C.D. Cal., 1997).

112

Pub. L. 106–386, 114 Stat. 1464 (2000).

113

Pub. L. No. 110–457, 122 Stat. 5044 (2008) (as amended by Pub. L. No. 113-4, §1201, 127 Stat. 54
(2013)).
114

Anna Marie Bena, Written Testimony, U.S. Commission on Civil Rights, p. 2.

115

Ibid.

116

Ibid.

117

Ibid.

118

Anna Marie Bena, Written Testimony, U.S. Commission on Civil Rights, p. 2.

119

Ibid.

The State of Civil Rights at Immigration Detention Facilities

Rights” presentation, legal screenings, access to legal services, access to religious
services, regular telephone calls to family members, case management services,
individual service planning assistance, and weekly individual and group counseling. 120

120

Ibid.

Immigration Detention Standards

CHAPTER 3.

IMMIGRATION DETENTION STANDARDS

Both a lack of binding regulations and standards create confusion and a lack of clarity in
the application of detention standards in the immigration detention system. 121 The
National Detention Standards (NDS) 2000 122 and Performance-Based National Detention
Standards (PBNDS) 2008 123 and 2011 124 are intended to be “contractually binding upon
detention facilities used by [DHS] through their incorporation into individual facility
contract agreements.” 125 Different standards also apply to different facilities depending
on when they created their respective contracts with ICE. 126 Additionally, because these
standards do not have enforcement mechanisms, facilities are not held accountable when
they fail to maintain or meet these standards - at times with tragic results. 127 Kevin
Landy, ICE Assistant Director for Office of Detention Policy and Planning (ODPP), on
the other hand, stated that “ICE has multiple options and available mechanisms for
enforcing compliance with those standards.” 128

121

Whitney Chelgren, Preventive Detention Distorted: Why It Is Unconstitutional to Detain Immigrants
Without Procedural Protections, 44 LOY. L.A. L. REV. 1477, 1498 (2011). Rebeca M. López, Codifying the
Flores Settlement Agreement: Seeking to Protect Immigrant Children in U.S. Custody, 95 MARQ. L. REV.
1635, 1647 (2012); Corynn Neevel, At the Intersection of Immigration and Health Care Law: The Lack of
Clear Standards Governing Medical Repatriation and Suggestions for Future Oversight, 45 GONZ. L. REV.
821 (2010); Christina P. Greer, Safeguards for Mentally Disabled Respondents in Removal Proceedings, 23
HEALTH MATRIX 279 (2013).
122

"2000 Detention Operations Manual." 2000 Detention Operations Manual. Accessed June 1, 2015,
available at http://www.ice.gov/detention-standards/2000.

123

“2008 Detention Operations Manual.” 2008 Detention Operations Manual. Accessed June 1, 2015,
available at http://www.ice.gov/detention-standards/2008.
124

“2011 Detention Operations Manual.” 2011 Detention Operations Manual. Accessed June 1 2015,
available at http://www.ice.gov/detention-standards/2011.
125

Kevin Landy, in his official capacity as ICE Assistant Director for the Office of Detention Policy and
Planning (ODPP), sent the Commission additional comments in response to Commission staff inquiry. This
information is available at the U.S. Commission on Civil Rights Headquarters located at 1331 Pennsylvania
N.W., Washington D.C., 20425. See generally, Orantes-Hernandez v. Gonzales, 504 F.Supp.2d 825, 86163 (C.D. Cal. 2007) (Detention Operations Manuals are not binding); Lisa A. Cahan, Constitutional
Protections of Aliens: A Call for Action to Provide Adequate Health Care for Immigration Detainees, 3 J.
HEALTH & BIOMEDICAL L. 343 (2007).
126

See ICE PBNDS Standards, available at http://www.ice.gov/factsheets/facilities-pbnds.

127

Karen Tumlin et al., Nat'l Immigration Law Ctr., A Broken System vi, 1 (2009), available at
http://www.nilc.org/immlawpolicy/arrestdet/A-Broken-System-2009-07.pdf; See also See DHS Sec.,
Operations Manual ICE Performance Based National Detention Standards (2008), available at
http://www.ice.gov/detention-standards/2008/, to review the PBNDS.
128

Kevin Landy, in his official capacity as ICE Assistant Director for the Office of Detention Policy and
Planning (ODPP), sent the Commission additional comments in response to Commission staff inquiry. This
information is available at the U.S. Commission on Civil Rights Headquarters located at 1331 Pennsylvania
N.W., Washington D.C., 20425. ICE, among other things, can “impose monetary sanctions on facilities that
fail to comply with applicable standards, draw down the number of ICE detainees used at non-compliant

The State of Civil Rights at Immigration Detention Facilities

Story of Victoria Arellano: When ICE Fails to Abide by the PBNDS
Victoria Arellano was a transgendered woman who attempted to unlawfully enter the
United States on two separate occasions. 129 ICE captured and detained Victoria on her
second attempt. 130 ICE placed Victoria in an all-male detention facility in San Pedro,
California. 131 Prior to her detention, Victoria was diagnosed with AIDS and was
prescribed dapasone—an antibiotic used to protect the immune system. 132 According to
several corroborating reports, 133 ICE neglected to give Victoria her necessary
medication. 134 Victoria became very ill. She complained of nausea, headaches, back pain,
and cramping. 135
Her fellow detainees cared for her to the best of their abilities. They soaked towels in
water to help with the fever, placed a box next to her as she vomited blood, and assisted
her to the bathroom when she was too weak to walk. Many detainees requested help for
Arellano from the guards, and dozens signed a petition to get her to a hospital. Finally, a
week before her death, Arrellano was taken to the infirmary and given amoxicillin, a
drug not generally used to treat AIDS-related illnesses.
After officials returned her to the detention cell, her fellow detainees staged a protest,
urging ICE officials to provide care for the weak and ill Arellano. After several more
days of vomiting and diarrhea and after the detainees began chanting “hospital” to get
the guards' attention, she was taken to a hospital, only to be returned once more to the
detention facility within 24 hours. After finally realizing her condition was critical,
officials rushed Arellano to another hospital, where she died two days later, shackled to
her hospital bed. 136

facilities, or terminate its usage of such facilities…” Moreover, according to Mr. Landy, “ERO requires
detention facilities, in conjunction with their corresponding ERO Field Office, to develop, report, and
implement corrective action plans for all identified standards violations…”.
129

Darryl Fears, “3 Jailed Immigrants Die in a Month,” Washington Post, Aug. 15, 2007, Nation. available
at http://www.washingtonpost.com/wp-dyn/content/article/2007/08/14/AR2007081401690.html.
130

Ibid.

131

Ibid.

132

Kelsey E. Papst, Protecting the Voiceless: Ensuring Ice's Compliance with Standards That Protect
Immigration Detainees, 40 MCGEORGE L. REV. 261 (2009).

133

After conducting fact checking research, several news articles, including the Washington Post article
cited above, all contained consistent accounts of the events surrounding Victoria Arrellano’s death.
134

Ibid. This is also a violation of the ICE 2000 National Detention Standards (see 2000 National Detention
Standards).

135

Ibid.

136

Ibid.

Immigration Detention Standards
Background
Since 2000, ICE has implemented three sets of detention standards throughout all ICE
detention facilities—including privately contracted detention facilities 137 (CDFs) and
intergovernmental service agreement detention facilities 138 (IGSAs). 139 The NDS 2000
and PBNDS 2008 and 2011, respectively, contain 38, 41, and 43 standards pertaining to
detainee care, services, and facility operations. 140 Additionally, ICE has a specified
standard for Family Detention Centers (FDCs). 141
Although standards generally dictate uniformity, CDFs and IGSAs follow the detention
standards stated in their contract. 142 For example, if ICE contracted with a CDF prior to
2008, that CDF would only be required to implement the NDS 2000. According to a 2014
GAO report, ICE officials have stated that “they were in the process of requesting that
additional facilities authorized to hold detainees for 72 hours or longer implement the
most recent 2011 PBNDS, and documenting that change in facility contracts.” 143 Mr.
Kevin Landy, ICE Assistant Director for ODPP, however, stated that:
The date of contract execution does not solely govern which version of detention
standards will apply to a facility. On an ongoing basis, as ICE promulgates new
versions of its standards, ICE requests facilities adopt the updated editions. ICE
has pursued implementation of PBNDS 2011 pursuant to a structured and
137

CDF detention facilities “owned by private companies and contracted directly with ICE.” See 79 Fed.
Reg. 13100, 13104 (March 7, 2014).

138

IGSAs are detention “facilities [that] are provided to ICE by States or local governments through
agreements and may be owned by the State or local government, or a private entity. See 79 Fed. Reg.
13100, 13104 (March 7, 2014).
139

Carl Kenneth Lipscombe, Tylenol and an Ice Pack: An Inadequate Prescription for HIV/aids in
Immigration Detention Centers, 11 Cardozo Pub. L. Pol'y & Ethics J. 529 (2013), Joseph Summerill,
Immigration and Customs Enforcement Introduces "Friendly" Federal Detention Standards and New,
Softer Detention Facilities, Fed. Law., September 2012; See generally, Noah Nehemiah Gillespie, Positive
Law : Providing Adequate Medical Care for HIV-Positive Immigration Detainees, 81 GEO. WASH. L. REV.
1329 (2013), Government Accountability Office. Immigration Detention: Additional Actions Needed to
Strengthen Management and Oversight of Facility Costs and Standards. GAO-15-153. Washington, DC:
U.S. Government Printing Office, 2014, Human Rights First, U.S. Detention of Asylum Seekers: Seeking
Protection, Finding Prison 25 (2009), available at www.humanrightsfirst.org/pdf/090429-RP-hrf-asylumdetention-report.pdf (noting that these detention centers have been described as “mega-jails.”).
140

Supra note. 122-24.

141

“Family Residential Standards.” Family Residential Standards, accessed June 1, 2015, available at
http://www.ice.gov/detention-standards/family-residential.
142

E.g., Inter-governmental Service Agreement between DHS ICE, Office of Detention and Removal, and
Collier County, Naples, FL, available at
http://www.ice.gov/doclib/foia/isa/r_droigsa070024colliercountyfl.pdf.
143

GAO, Immigration Detention: Additional Actions Needed to Strengthen Management and Oversight of
Facility Costs and Standards. GAO-15-153. Washington, DC: U.S. Government Printing Office, 2014.

The State of Civil Rights at Immigration Detention Facilities

deliberate plan. ICE first requested implementation at dedicated facilities, as they
house the greatest populations of ICE detainees. ICE has additionally been
pursuing PBNDS 2011 implementation at non-dedicated facilities throughout this
period and on an ongoing basis as contracting opportunities arose, with initial
priority given to those facilities housing larger numbers of ICE detainees – for
example, whenever an IGSA might request renegotiation of its contract to
increase its per diem rate. PBNDS is currently applicable at all dedicated
detention facilities, including all SPCs, CDFs, and dedicated IGSAs (DIGSAs)
(facilities utilized by ICE pursuant to an Intergovernmental Service Agreement,
which exclusively house ICE detainees), and covers approximately 60% of ICE’s
average daily detainee population. 144
Regardless of the standards an immigration detention facility may be required to abide
by, the Commission has received reports that DHS maybe violating detainee civil rights
and liberties. 145
Evidence suggests that DHS is not fully implementing select portions of the standards to
the detriment of immigrant detainees. 146 Table 3 briefly describes each of these standards.
TABLE 3. U.S. Immigration and Customs Enforcement (ICE) Detention Standards

2000
National
Detention
Standards
(NDS)

From American Correctional Association, Standards for Adult Local Detention
Facilities, 3rd ed., and developed by the former INS within the Department of
Justice (DOJ) in consultation with various stakeholders, including American Bar
Association and organizations involved in pro bono representation and advocacy
for immigration detainees. Following its creation in 2002, DHS became
responsible for immigration detention and began operating the detention system
under 2000 NDS.

144

See generally, Panelist Statements and Briefing Transcript.

146

Ibid.

Immigration Detention Standards

2008
Performance
- Based
National
Detention
Standards
(PBNDS)

2011 PBNDS

ICE revised the 2000 NDS to integrate changes included in, and moved to a
performance-based format more in line with the American Correctional
Association’s Performance-Based Standards for Adult Local Detention
Facilities, Fourth Edition. The 2008 PBNDS, which ICE developed in
coordination with agency stakeholders to apply to adult detention populations,
prescribe the expected outcomes of each detention standard and the expected
practices required to achieve them. The 2008 PBNDS also include more detailed
requirements for service processing centers and contract detention facilities.
ICE revised the 2008 PBNDS to improve conditions of confinement in various
ways, including medical and mental health services, access to legal services
and religious opportunities, communication with detainees with no or limited
English proficiency, the process for reporting and responding to complaints,
and recreation and visitation. The 2011 PBNDS also expanded the more
detailed requirements for service processing centers and contract detention
facilities included in the 2008 PBNDS to dedicated intergovernmental service
agreement facilities or, in some cases, to all facilities.

Source: GAO analysis of ICE information, GAO–15-153.

Discussion
The Commission has received complaints from civil and human rights organizations such
as the American Civil Liberties Union (ACLU), the American Bar Association (ABA),
the American Immigration Lawyers Association (AILA), the Grassroots Leadership, the
Mexican–American Legal Defense Fund (MALDEF), and the Human Rights Campaign
(HRC) concerning how ICE-owned facilities and CDFs treat immigrant detainees while
in custody.
ICE published PBNDS 2011 in an effort to “improve medical and mental health services,
increase access to legal services and religious opportunities, improve communication
with detainees with limited English proficiency, and improve the process for reporting
and responding to complaints, and increase recreation and visitation.” 147 Currently, all
ICE-owned facilities are required to comply with the PBNDS 2011 standards. 148
However, certain CDFs depending when they began their contract with ICE, may not be
complying with the NDS, PBNDS 2008, and/or PBNDS 2011. 149

147

Performance Based National Detention Standards 2011, available at http://www.ice.gov/detentionstandards/2011 .
148
149

Ibid.

“It is important to note that PBNDS is currently applicable at all dedicated detention facilities, including
all SPCs, CDFs, and DIGSAs, and covers approximately 60% of ICE’s average daily detainee population.
All CDFs and DIGSAs are operated by private contractors. ICE requested that these facilities update their

The State of Civil Rights at Immigration Detention Facilities

The discussion below examines whether ICE owned detention facilities and CDFs are
complying with their respective NDS or PBNDS Medical Standards, LGBT Treatment
Standards, Food Service Standards, and Legal Library and Materials standards.
Are ICE-Owned Facilities Adhering to PBNDS 2011 Medical Care Standards?
PBNDS 2011—Medical Care
PBNDS 2011 sets forth medical standards for providing care to detainees in ICE-owned
facilities. It provides the following, in relevant part:
•

Detainees shall be able to request health services on a daily basis and shall receive
timely follow up.

•

A detainee who is determined to require health care beyond facility resources
shall be transferred in a timely manner to an appropriate facility.

•

24-hour emergency medical and mental health services shall be available to all
detainees.

•

Detainees with chronic conditions shall receive care and treatment as needed, that
includes monitoring of medications, diagnostic testing, and chronic care clinics.

•

Prescriptions and medications shall be ordered, dispensed, and administered in a
timely manner and as prescribed by a licensed healthcare professional.

While it is clear that PBNDS 2011 provides written policy standards for providing
adequate medical care to detainees, the Commission questions whether ICE completely
complies with these standards.
According to Kevin Landy, Assistant Director of ICE’s Office of Detention Policy and
Planning (ODPP), ICE facilities have taken measures to provide detainees with adequate
medical and mental health care. 150 ICE’s website indicates that the agency uses an
electronic health records (EHR) system at all detention facilities staffed by the ICE
Health Service Corps. 151 DHS designed the EHR to improve the distribution of health
care to detainees, increase a detainee’s ability to receive continuous care when needed,
contracts to adopt PBNDS 2011.” Kevin Landy, in his official capacity as ICE Assistant Director for the
Office of Detention Policy and Planning (ODPP), sent the Commission additional comments in response to
Commission staff inquiry. This information is available at the U.S. Commission on Civil Rights
Headquarters located at 1331 Pennsylvania N.W., Washington D.C., 20425.
150
151

See Landy, Briefing Transcript.

"Detention Reform." Detention Reform. Accessed June 3, 2015, available at
https://www.ice.gov/detention-reform#tab2.

Immigration Detention Standards
and to enhance communication among facilities. 152 ICE also opened its first mental
health transitional unit, Krome Service Processing Center (KSPC). 153 DHS created KSPC
to address the mental health needs of detainees without need of full hospitalization.154
In 2013, the University of Arizona conducted a study by interviewing 1,113 recent
deportees and found that: 37 percent of the respondents who requested medical attention
reported that ICE was denying them medical attention while in ICE custody. 155 An ABA
representative testified at the Commission briefing about receiving complaints regarding
inadequate health care at ICE facilities. 156 For example, the ABA stated that ICE did not
accommodate blind detainees and did not give disabled detainees necessary wheelchair
accommodations. 157 Another pressing issue regarding detainee medical care is the lack of
continued medical treatment of pre-diagnosed medical conditions due to poor
transference of detainee medical records. 158 The failure to transfer complete medical
records creates a lag in ongoing treatment, which one detainee reported led to the loss of
sight in one eye. 159
Nonetheless, while the Commission received statements indicating that medical care at
ICE-owned facilities can be inadequate, they did not identify specific ICE-owned
facilities. There is no documentation supporting the claims that ICE-owned facilities have
failed to comply with PBNDS standards.

152

Ibid.

153

USCIS, Detention Facilities, Krome Service Processing Center, available at
https://www.ice.gov/detention-facility/krome-service-processing-center.
154

ABA Delegation to KSPC to Victore Cerda, Acting Director, Office of Detention and Removal
Operations, July 20, 2004, Observational Tour of the Krome Service Processing Center, Miami, FL,
available at
http://www.ice.gov/doclib/foia/dfra/2004/kromeserviceprocessingcentermiamiflapril162004.pdf .
155

In the Shadow of the Wall: Family Separation, Immigration Enforcement and Security, 2013, University
of Arizona, p 26. (The statistical data contained in this report are unclear, however, the Commission used
this statistic to show the possible severity of the problem.), available at
http://las.arizona.edu/sites/las.arizona.edu/files/UA_Immigration_Report2013web.pdf.
156

Statement of Karen Grisez, Esq., submitted to U.S. Commission on Civil Rights [hereinafter Grisez
Statement], available at U.S. Commission on Civil Rights Headquarters: 1331 Pennsylvania Ave., NW,
Suite 1150, Washington, D.C. 20425.
157

Ibid.

158

Ibid. See also “US: Immigration Detention Neglects Health,” US: Immigration Detention Neglects
Health, available at http://www.hrw.org/news/2009/03/17/us-immigration-detention-neglects-health .

159

See supra note 154-158.

The State of Civil Rights at Immigration Detention Facilities

Based on evidence cited above, the Commission finds that additional research needs to be
conducted to determine whether certain ICE facilities are fully complying with PBNDS
2011 medical care standards.
Are CDFs Adhering to PBNDS 2011, PBNDS 2008, or NDS 2000 Medical Standards?
PBNDS 2008—Medical Standards
The 2008 PBDNS medical standards afford certain rights to detained individuals,
including:
•

The right to initiate requests for health services on a daily basis.

•

The right to timely follow up to their healthcare requests.

•

Continuity of care from admission to transfer, discharge, or removal, including
referral to community-based providers when indicated.

•

A detainee who needs health care beyond facility resources will be transferred in
a timely manner to an appropriate facility where care is available. A written list of
referral sources, including emergency and routine care, will be maintained as
necessary and updated at minimum annually.

•

A detainee who requires close, chronic or convalescent medical supervision will
be treated in accordance with a written plan approved by licensed physician,
dentist, or mental health practitioner that includes directions to healthcare
providers and other involved medical personnel.

•

Detainees will have access to specified 24-hour emergency medical, dental, and
mental health services.

•

Detainees with chronic conditions will receive care and treatment for conditions
where non-treatment would result in negative outcomes or permanent disability as
determined by the clinical medical authority.

NDS 2000— Medical Standards
Similarly, the 2000 NDS Medical Standards sought to establish basic medical standards
of care for newly arrived detainees:
Medical screening (new arrivals). All new arrivals shall receive initial medical and
mental health screening immediately upon their arrival by a healthcare provider or an
officer trained to perform this function. This screening shall include observation and
interview items related to the detainee’s potential suicide risk and possible mental
disabilities, including mental illness and mental retardation.

Immigration Detention Standards
Sick call. Each facility will have a mechanism that allows detainees the opportunity to
request healthcare services provided by a physician or other qualified medical officer in a
clinical setting.
24-hour emergency medical treatment. Each facility will have a written plan for the
delivery of 24-hour emergency health care when no medical personnel are on duty at the
facility or when immediate outside medical attention is required.
First aid and medical emergencies. In each detention facility, the designated health
authority and the office in charge (OIC) will determine availability and placement of
first-aid kits consistent with the American Correctional Association requirements.
Detention staff will be trained to respond to health-related emergencies within a fourminute response time. A responsible medical authority, in cooperation with the OIC, will
provide training which will include the following:
•

Recognition of signs of potential health emergencies and the required response;

•

Administration of first aid and cardiopulmonary resuscitation (CPR);

•

Facility plan and its required methods of obtaining emergency medical assistance;

•

Recognition of signs and symptoms of mental illness (including suicide risk),
retardation, and chemical dependency; and

•

Facility’s established plan and procedures for providing emergency medical care
including, when required, safe and secure transfer of detainees for appropriate
hospital or other medical services.

Private companies became involved in federal immigration detention in the 1980s, when
widespread public sentiment believed that private operations were inherently more
efficient than government agencies. 160 Two of the largest corporations that run private
detention facilities are the GEO Group (GEO) and Corrections Corporations of America
(CCA), which built the first private prison in 1984 in Houston. 161 A few years later, a
series of well publicized riots within immigration detention facilities concerning detainee
160

Mukhopadhyay, Riddhi (2008) "Death in Detention: Medical and Mental Health Consequences of
Indefinite Detention of Immigrants in United States," 7 SEATTLE JOURNAL FOR SOCIAL JUSTICE (2);art 19,
p. 702, available at: http://digitalcommons.law.seattleu.edu/sjsj/vol7/iss2/19,; See generally, Anil Kalhan,
Rethinking Immigration Detention, 110 COLUM. L. REV. Sidebar 42 (2010), Lisa A. Cahan, Constitutional
Protections of Aliens: A Call for Action to Provide Adequate Health Care for Immigration Detainees, 3 J.
HEALTH & BIOMEDICAL L. 343 (2007), Brian L. Aust, Fifty Years Later: Examining Expedited Removal
and the Detention of Asylum Seekers Through the Lens of the Universal Declaration of Human Rights, 20
HAMLINE J. PUB. L. & POL'Y 107 (1998).
161

Ibid.

The State of Civil Rights at Immigration Detention Facilities

treatment, prisoner escape, and state legislation refusing to privatize its entire prison
system led to a spate of negative publicity for these businesses. 162
Nonetheless, Steve Conry, Vice President for Facility Operations at CCA, stated that
every CCA facility operates according to PBNDS standards and that PBNDS standards
are essential for “protecting the welfare, dignity and rights of the individuals entrusted to
[CCA] care.” 163 However, CCA facilities have not provided the Commission with
specific PBNDS standards applied at each of their facilities. 164
The Grassroots Leadership, a nonprofit organization, stated that detainees reported that
Polk County Secure Adult Detention Facility did not provide them with adequate medical
care. 165 For example, a 7-year-old girl who was battling brain cancer did not receive
treatment for her condition while detained at Karnes County Residential Center. 166 Three
U.S. medical doctors sent ICE a report expressing concern that the young girl’s life was
in danger and warned that she needed immediate treatment for her malignant brain
tumor. 167 Instead of sending the young girl to receive medical treatment, ICE, “kept the
family locked up at Karnes until Texas United for Families began a grassroots campaign
to free the family and the media became involved.” 168
Moreover, in April 2012, a 46-year-old man detained at the GEO-operated 169 Denver
Contract Detention Facility died of a heart attack. 170 The ICE Office of Detention
162

Statement of Steven Conry, Vice President for Facility Operations at CCA, submitted to U.S.
Commission on Civil Rights, available at U.S. Commission on Civil Rights Headquarters: 1331
Pennsylvania Ave., NW, Suite 1150, Washington, D.C. 20425.
163

Ibid.

164

Conry, Briefing Testimony, p. 95.

165

Statement of Bob Libal, Executive Director for Grassroots Leadership, submitted to the U.S.
Commission on Civil Rights, available at U.S. Commission on Civil Rights Headquarters: 1331
Pennsylvania Ave., NW, Suite 1150, Washington, D.C. 20425. See also Contreras, Guillermo. "Feds
Release 7-year-old Immigrant Girl with Cancer for Treatment." Houston Chronicle. Sept. 3, 2014, accessed
June 2, 2015, available at http://www.houstonchronicle.com/news/article/Feds-release-7-year-oldimmigrant-girl-with-5732146.php.
166

Libal Statement, p. 11.

167

Ibid. See also Warren, Lydia. "Seven-year-old Salvadoran Girl with Brain Tumor Is Released from
Immigrant Detention Center so That She Can Get Treatment after Uproar." Mail Online. Sept, 4, 2014,
accessed June 2, 2015, available at http://www.dailymail.co.uk/news/article-2743531/Seven-year-oldSalvadoran-girl-brain-tumor-released-immigrant-detention-center-treatment-uproar.html.
168

Ibid.

169

The GEO Group, Inc. (GEO) is the world's leading provider of correctional, detention, and community
reentry services with 106 facilities, approximately 85,500 beds, and 20,000 employees around the globe.
See http://geogroup.com/. The Federal government contracts with private companies like GEO group to
house detainees. These facilities are known as Contracted Detention Facilities (CDF).
170

Takei, Written Statement, p. 9.

Immigration Detention Standards
Oversight (ODO) concluded that the detention facility had “failed to provide [the
detainee] access to emergent, urgent, or non-emergent medical care.” 171 The investigation
revealed that GEO failed to properly train its nursing staff on the use and maintenance of
medical equipment and waited for approximately one hour to contact 911 after initially
announcing an emergency. 172 The ODO investigation expert “concluded that the staff’s
unfamiliarity with the relevant protocol, failure to administer appropriate cardiac
medication, and delays in transporting the patient to a higher level care facility all may
have been contributing factors to his death.” 173 GEO Group, Inc., was invited to the
Commission’s briefing; however, the privately run corrections company refused to
attend. 174
Maria Hinojosa, a national journalist with Futuro Media Group, provided written
testimony stating that DHS was over medicating detainees who were suffering from
mental illness. 175 One example was of a man who suffers from bipolar disorder. 176 He
had subsequently been over medicated and remained asleep for 36 hours. 177 Sometime
during this period, the man fell off the top bunk and landed on the concrete floor. 178
Consequently, he suffered a broken eye socket bone and a ruptured testicle. 179
Although each medical standard provides a protocol for the treating detainees who
display symptoms of a medical condition, there were instances where ICE delayed
medical care for detainees with visible medical needs. 180 One example is that of a man
who was on a hunger strike at GEO Northwest Detention Center. 181 The man experienced
171

Statement of Carl Takei, Staff Attorney, National Prison Project, American Civil Liberties Union.
Submitted to U.S. Commission on Civil Rights available at U.S. Commission on Civil Rights
Headquarters: 1331 Pennsylvania Ave., NW, Suite 1150, Washington, D.C. 20425.
172

Ibid.

173

Ibid.

174

Chairman Castro, Briefing Transcript, p. 116.

175

Statement of Maria Hinojosa, Futuro Media Group. Submitted to the U.S. Commission on Civil Rights
[hereinafter Hinojosa Statement], available at U.S. Commission on Civil Rights Headquarters: 1331
Pennsylvania Ave., NW, Suite 1150, Washington, D.C. 20425.
176

Ibid.

177

Ibid.

178

Hinojosa, Written Statement. See supra note 174.

179

Ibid.

180

Lewis, Renee. "Immigrant Detainees on Hunger Strike Allege Threats by Guards, Al Jazeera America,
March 20, 2014, available at http://america.aljazeera.com/articles/2014/3/20/immigrationdetaineesonhungerstrikecitethreatsinhumanetreatment.html.

181

Ibid.

The State of Civil Rights at Immigration Detention Facilities

a severe nose bleed and did not receive medical attention until more than 24 hours
later. 182 The man claimed to have almost drowned in his own blood while sleeping. 183
Detainees have also died from inadequate medical care. 184 A detainee at a GEO facility in
Adelanto, California, died three days after a hospital had admitted him and diagnosed
him with cancer. 185 The man displayed warning signs for three weeks before his death,
but medical staff never treated him. 186 An advocacy group stated that it received phone
calls from detainees for three weeks leading to the man’s death. Callers reported “about a
man who was suffering from diarrhea, severe abdominal pain, and uncontrollable leakage
of urine.” 187 Additionally, “when [the] man asked for a catheter, medical staff at
Adelanto denied him.” 188 Lastly, detainees rioted at Willacy County Corrections Facility
due to inadequate medical care. 189
The Commission finds that certain privately owned detention centers are not complying
with DHS detention standards. However, a deeper examination must be done to
determine the extent to which the federally contracted facilities deviate from federally
mandated standards for medical care of detainees.
Are ICE-Owned Facilities Adhering to PBNDS 2011 LGBT Accommodation
Standards?
2011 PBNDS enhanced medical standards related to preservation of LBGT detainees’
rights and, in particular, the dignity of LGBT immigrant detainees.

182

Ibid.

183

Ibid.

184

Downs, Ray."Immigrant Dies in GEO Group Facility After Three Weeks of Ignored Symptoms, Says
Attorney, New Times Broward-Palm Beach, April 13, 2015, accessed June 3, 2015, available at
http://www.browardpalmbeach.com/news/immigrant-dies-in-geo-group-facility-after-three-weeks-ofignored-symptoms-says-attorney-6930614.
185

Ibid.

186

Ibid.

187

Ibid.

188

Immigrant Dies in GEO Group Facility After Three Weeks of Ignored Symptoms, Says Attorney, New
Times Broward-Palm Beach. April 13, 2015, accessed June 3, 2015, available at
http://www.browardpalmbeach.com/news/immigrant-dies-in-geo-group-facility-after-three-weeks-ofignored-symptoms-says-attorney-6930614.
189

Blue Tyx, Daniel. A South Texas Prison Riot Puts a Town on the Brink, Texas Observer, March 26,
2015, accessed June 4, 2015, available at http://www.texasobserver.org/south-texas-prison-riot-willacycounty-economic-future/.

Immigration Detention Standards
PBNDS 2011—LGBT Custody Classification
When making classification and housing decisions for a transgender detainee, staff must
consider the detainee’s gender self-identification and an assessment of placement effects
on the detainee’s mental health and well-being. Staff must consult with a medical or
mental health professional as soon as practicable on this assessment. Placement decisions
should not be based solely on the identity documents or physical anatomy of the detainee,
and a detainee’s self-identification of his /her gender shall always be taken into
consideration as well. Placement must be consistent with the safety and security
considerations of the facility.
PBNDS 2011—LGBT Body Cavity Search
Whenever possible, transgender detainees shall be permitted to choose the gender of the
staff member conducting a body-cavity search.
PBNDS 2011—Medical and Mental Health Screening of New LGBT Arrivals
When a detainee self-identifies as transgender, inquire into the detainee’s gender selfidentification and history of transition-related care.
PBNDS 2011—LGBT Medical Care
Transgender detainees who were already receiving hormone therapy when taken into ICE
custody must have continued access to treatment. All transgender detainees shall have
access to mental health care, and other transgender-related health care and medication
based on medical need. Treatment must follow accepted guidelines regarding medically
necessary transition-related care.
ICE states that it provides segregated management units for transgender detainees and
other members of the LGBT community for safety reasons. 190 The agency decides
whether to transfer transgendered detainees on an individual basis and takes into account
safety and welfare factors. 191 ICE representatives state that these units have the same
accommodations as provided in regular detainee housing units. 192 However, the record

190

Landy, Briefing Transcript, p. 81. According to Landy, his testimony was referring to a housing unit
located in Santa Ana, California. He states that this housing facility does not detain transgendered detainees
in a manner that is consistent with administrative detention.
191

Landy, in his official capacity as ICE Assistant Director for the Office of Detention Policy and Planning
(ODPP), sent the Commission additional comments in response to Commission staff inquiry. This
information is available at the U.S. Commission on Civil Rights Headquarters located at 1331 Pennsylvania
N.W., Washington D.C., 20425.
192

Landy, Briefing Transcript, p. 81 - 82.

The State of Civil Rights at Immigration Detention Facilities

does not provide details about the amount of recreational hours LGBT detainees located
at the segregated management unit receive. 193
In contrast to ICE’s claims, the Heartland Alliance’s National Immigrant Justice Center
provided written testimony indicating that “ICE continues to house transgender
individuals according to their birth gender or holds them in solitary confinement, rather
than releasing them on alternatives to detention (ATDs) or housing them with others with
the same gender identity.” 194
Furthermore, the Center for American Progress reported complaints that DHS was
housing transgender detainees in facilities with the opposite gender. For example, DHS
housed transgender females with men. 195 Transgender women have also reported that
DHS forced them to shower with males. 196 Additionally, guards at ICE’s Eloy Detention
Center have verbally and physically abused LGBT detainees. This is particularly
problematic because ICE constructed the Eloy Detention to provide LGBT detainees with
a safe environment. 197 LGBT males housed at ICE’s Eloy Detention Center have reported
that guards taunted and humiliated them. 198 Detainees at Eloy were told to “walk like a
193

“It is rare for transgendered detainees to be placed in administrative segregation for their own
protection, and ICE policy states that the use of segregated housing to protect vulnerable population[s]
must be restricted to those instances where reasonable efforts have been made to provide appropriate
alternative housing, and no other viable housing options exist.” Kevin Landy, in his official capacity as ICE
Assistant Director for the Office of Detention Policy and Planning (ODPP), sent the Commission additional
comments in response to Commission staff inquiry. This information is available at the U.S. Commission
on Civil Rights Headquarters located at 1331 Pennsylvania N.W., Washington D.C., 20425.
194

Statement of Mary Meg McCarthy, Executive Director of Heartland Alliance’s National Immigrant
Justice Center (NIJC). Submitted to U.S. Commission on Civil Rights [hereinafter McCarthy Statement],
available at U.S. Commission on Civil Rights Headquarters: 1331 Pennsylvania Ave., NW, Suite 1150,
Washington, D.C. 20425. ICE has recently released a memorandum entitled “Further Guidance Regarding
the Care of Transgender Detainees.” available at
https://www.ice.gov/sites/default/files/documents/Document/2015/TransgenderCareMemorandum.pdf. The
memorandum issues guidance on multiple areas pertaining assuring better service to ICE detained
transgendered individuals.
195

Ibid. Echavarri, Fernanda. "Transgender Woman Held in Male Immigrant Detention Center." Arizona
Public Media. February 19, 2015, available at https://news.azpm.org/p/arizona-news/2015/2/20/57176transgender-woman-held-in-male-immigration-detention-center/. Planas, Roque. “Advocates Rally Around
Transgender Migrant Woman Detained In All-Male Facility.” Huffington Post. Jan. 29, 2015. available at
http://www.huffingtonpost.com/2015/01/29/transgender-migrant-detention_n_6566604.html.
196

Ibid. “EXPOSED: The Devastating Experiences That Many Transgender Immigrants Face….”
Transgender Law Center, accessed June 3, 2015, available at
http://transgenderlawcenter.org/archives/9858; Mullins, Dexter, Report: LGBT Immigrant Detainees Face
Higher Risk of Sexual Assault, Abuse, Al Jazeera America. Feb. 26, 2013, accessed June 3, 2015, available
at http://america.aljazeera.com/articles/2013/11/25/lgbt-immigrantdetaineesfacehigherriskofsexualassaultabuse.html .
197

Ibid.

198

Dignity Denied, Center for American Progress, 2013, pp. 5-10.

Immigration Detention Standards
man, not a gay man,” “act male,” and “use your male voice” by guards. 199 Lastly, the
Center for American Progress has found that transgender asylum seekers who DHS
transferred to Eloy Detention Center did not have access to hormone therapy for one to
four months. 200
The Commission finds that certain ICE facilities may not be fully adhering to PBDS 2011
standards that are specific to the LGBT detainee community.
Are CDFs Complying with Either PBNDS 2011, PBNDS 2008, or NDS 2000 LGBT
Accommodation standards?
PBNDS 2011
See page 36 of the report.
PBNDS 2008—Medical and mental health screening of new LGBT arrivals. Inquire
into a transgender detainee’s gender self-identification and history of transition-related
care when a detainee self-identifies as transgender.
PBNDS 2008— LGBT Medical care. Transgender detainees who were already receiving
hormone therapy when taken into ICE custody must have continued access. All
transgender detainees shall have access to mental health care, and other transgender
elated health care and medication based on medical need. Treatment must follow
accepted guidelines regarding medically necessary transition-related care.
NDS 2000 (LGBT). NDS 2000 does not afford LGBT accommodations.
Little documentation or testimony exists as to the compliance or lack thereof to LGBT
standards by privately owned detention centers. However, LGBT accommodations within
privately owned detention centers are an issue that deserves further investigation.
Are ICE-Owned Facilities Adhering to PBNDS 2011 Food Service Standards?
PBNDS 2011—Food Service
•

199

Ibid.

200

Ibid.

All detainees must be provided nutritionally balanced diets that are reviewed at
least quarterly by food service personnel and at least annually by a qualified
nutritionist or dietitian.

The State of Civil Rights at Immigration Detention Facilities

•

Detainees, staff, and others shall be protected from harm, and facility order shall
be maintained, by the application of sound security practices in all aspects of food
service and dining room operations.

•

Detainees, staff, and others shall be protected from injury and illness by adequate
food service training and the application of sound safety and sanitation practices
in all aspects of food service and dining room operations.

•

Food service personnel shall provide nutritious and appetizing meals. Nutritional
needs are diverse because of differences in age, activity, physical condition,
gender, religious preference, and medical considerations. Food service personnel
shall accommodate the ethnic and religious diversity of the facility’s detainee
population when developing menu cycles. While each facility must meet all
ICE/ERO standards and follow required procedures, individuality in menu
planning is encouraged.

Remarks regarding food service issues were not discussed during Briefing testimony, and
outside sources have not rendered complaints pertaining to inadequate food service at
ICE-owned facilities.
Are CDFs Complying with PBNDS 2011, PBNDS 2008, or NDS 2000 Food Service
Standards?
PBNDS 2011—Food Service
See above.
PBNDS 2008—Food Service
Expected outcomes. The expected outcomes of this Detention Standard are:
1. All detainees will be provided nutritionally balanced diets that are reviewed at
least quarterly by food service personnel and at least annually by a qualified nutritionist
or dietitian.
2. Detainees, staff, and others will be protected from harm, and facility order will
be maintained by application of sound security practices in all aspects of food service and
dining room operations.
3. Detainees, staff, and others will be protected from injury and illness by
adequate food service training and application of sound safety and sanitation practices in
all aspects of food service and dining room operations.

Immigration Detention Standards
NDS 2000—Food Service
Policy. It is INS policy to provide detainees with nutritious, attractively presented meals
prepared in a sanitary manner while identifying, developing, and managing resources to
meet the operational needs of the food service program.
Display and service. The following procedures apply to the display, service, and
transportation of food to mainline and satellite food service areas. Before and during the
meal, the CS in charge shall inspect the line to ensure:
1. All menu items are fit for consumption.
2. Food is appropriately presented.
3. Sanitary guidelines are observed, with hot foods maintained at a temperature of at
least 140oF and foods that require refrigeration maintained at 41oF or below.
According to CCA’s Steve Conry, neither the media nor other visitors have complained
about the food service at CCA facilities. 201 However, an investigation of Willacy County
Correctional Facility exposed complaints stating that food was “cold and often
spoiled.” 202 Furthermore, the Commission notes testimony that all detainees at Willacy
had lost an average of 10 pounds. 203 One individual testified to having seen maggots in
food while visiting Willacy. 204 There have also been riots and hunger strikes protesting
rotten and insufficient food at Etowah County Detention Center. Another hunger strike
took place at Stewart, located in Lumpkin, GA, after detainees asserted that they were
being served maggot-filled food. 205
When the Commission visited the Karnes Detention Center, a detainee told Commission
Chairman Castro in Spanish that the food improved in the cafeteria whenever there were
outside visitors, such as the Commission’s delegation, to the detention center.
201

Conry, Briefing Transcript, p. 132.

202

Hinojosa, Briefing Transcript, Hinojosa, p. 103 McLaughlin, Michael. “10 Worst Immigrant Detention
Centers Should Be Closed, Detention Watch Network Report Says,” Huffington Post. Nov. 16, 2012.
Accessed June 1, 2015, available at http://www.huffingtonpost.com/2012/11/16/worst-detention-centersdetention-watch-network_n_2138999.html McLaughlin, Michael. “10 Worst Immigrant Detention Centers
Should Be Closed, Detention Watch Network Report Says.” Huffington Post. Nov. 16, 2012. (Discussing
Detention Watch Network, One Year Later: Expose & Close, p. 8 ), available at
http://www.detentionwatchnetwork.org/sites/detentionwatchnetwork.org/files/expose_and_close_one_year
_later.pdf.) . http://www.huffingtonpost.com/2012/11/16/worst-detention-centers-detention-watchnetwork_n_2138999.html.
203

Ibid.

204

Ibid., p. 104.

205

See supra note 207.

The State of Civil Rights at Immigration Detention Facilities

The Commission finds that certain CDFs are not fully adhering to contractually set
standards and are not providing detainees with nutritious food in sufficient quantities.
Are ICE-Owned Facilities Adhering to PBNDS 2011 Law Library and Legal Material
Standards?
PBNDS 2011—Law Library and Legal Material
1. Detainees shall have access to a properly equipped law library, legal materials,
and equipment.
2. Detainees shall have meaningful access (no less than five hours per week) to law
libraries, legal materials, and equipment.
3. **When requested and where resources permit, facilities shall provide detainees
meaningful access to law libraries, legal materials, and related materials on a
regular schedule and no less than 15 hours per week.
During testimony, ICE officials stated that ICE is increasing detainee opportunities for
communication with legal representatives through telephone access and visitation.
Notably, ICE’s website states that the agency has “[d]istributed to all detention facilities a
‘Know Your Rights’ video, which was developed by the American Bar Association, and
self-help legal materials, which were developed by various Legal Orientation Programs,
to enhance availability of accessible legal resources for detainees.” 206 There have not
been any claims of ICE-owned facilities violating PBNDS 2011 standards.
Are CDFs Adhering to PBNDS 2011 Law Library and Legal Material Standards?
PBNDS 2011 Law Library and Legal Material
See above.
PBNDS 2008—Law Library and Legal Material
1. Detainees will have regular access (no less than five hours per week) to law
libraries, legal materials, and related materials.
2. Detainees will not be forced to forgo recreation time to use the law library, and
requests for additional time to use the law library shall be accommodated to the
extent possible, including accommodations of work schedules when practicable,
consistent with the orderly and secure operation of the facility.

206

“Detention Reform,” ICE, What We Do, available at https://www.ice.gov/detention-reform.

Immigration Detention Standards
3. Detainees will have access to courts and counsel.
Hours of access. Each facility administrator shall devise a flexible schedule that:
•

Permits all detainees, regardless of housing or classification, to use the law
library on a regular basis.

•

Enables the maximum use possible, without interfering with the orderly
operation of the facility. Generally, law library hours of operation are to be
scheduled between official counts, meals and other official detention functions.

•

Determines the number of detainees permitted to use the law library at any given
time.

NDS 2000 – Access to Legal Material
Law library. The facility shall provide a law library in a designated room with sufficient
space to facilitate detainees’ legal research and writing. The law library shall be large
enough to provide reasonable access to all detainees who request its use. It shall contain a
sufficient number of tables and chairs in a well-lit room, reasonably isolated from noisy
areas.
Hours of access. The facility shall devise a flexible schedule to permit all detainees,
regardless of housing or classification, to use the law library on a regular basis. Each
detainee shall be permitted to use the law library for a minimum of five hours per week.
Detainees may not be forced to forgo their minimal recreation time, as provided in
“Detainee Recreation” standards to use the law library. Detainee requests for additional
time in the law library shall be accommodated to the extent possible, consistent with the
orderly and secure operation of the facility. Special priority should be given to requests
for additional library time when a detainee is facing a court deadline.
Testimony revealed that CDFs may not be providing detainees with access to legal
services in general. 207 Many detainees claim that CDFs have continuously failed to notify
detained immigrants of the existence of a legal library while at privately owned
facilities. 208 Detainees at Stewart and NGDC complained that DHS failed to inform them
about pro bono services, and many detainees complained about delays in gaining access

207
208

Libal, Written Statement, p. 7.

Cristina Parker, Attorneys sound the alarm as ICE continues to detain immigrants in sub-standard Waco
facility, June 9, 2014, Grassroots Leadership, available at
http://grassrootsleadership.org/blog/2014/06/attorneys-sound-alarm-ice-continues-detain-immigrants-substandard-waco-facility.

The State of Civil Rights at Immigration Detention Facilities
to the legal library. 209 Furthermore, when the Commission delegation visited the Karnes
and Port Isabel detention centers, it appeared that DHS informed detainees about the
potential for possible pro bono legal assistance; however, DHS did not sufficiently advise
detainees about how to enforce their rights and to easily access possible pro bono
representation.
The Commission finds that certain ICE-owned detention facilities are not providing
adequate legal information or presentations about detainee rights for their detained
population.

Conclusion
Based on the testimony provided by expert witnesses, independent reports, civil rights
organizations, clergy, Commission fact-finding visits, and news articles gathered during
this study, the Commission finds that:

209

•

Certain ICE facilities are not fully complying with PBNDS 2011 medical care
standards.

•

Certain ICE facilities are not adhering to the PBDS 2011 standards that are
specific to the LGBT detainee community.

•

Certain ICE-owned detention facilities are not providing adequate legal
information or presentations about detainee rights for their detained population.

•

Further study needs to be conducted on the food services offered at ICE-owned
detention facilities.

•

Certain privately owned detention centers are not complying with DHS detention
standards. However, a deeper examination must be done to determine the extent
that the federally contracted facilities deviate from federally mandated standards
for medical care of detainees.

•

Certain privately owned detention facilities are not adhering to any set standard
and are not providing detainees with nutritious food.

•

Deeper examination is required regarding ICE privately contracted detention
facility compliance with their respective contract provision’s mandated detention
standard.

Ibid.

Federal Treatment of Detained Undocumented Immigrant Children

CHAPTER 4.

FEDERAL TREATMENT OF DETAINED
UNDOCUMENTED IMMIGRANT CHILDREN

Mirabel: A Teenager from Honduras
Mirabel (16 years old) was from San Pedro Sula, Honduras—considered the murder
capital of the world. Prior to coming to the United States, Mirabel, her sisters, and her
mother were consistently abused by her father, who was an alcoholic and stole from their
mother’s earnings to feed his addiction. Mirabel decided to come to the United States
because she could no longer handle being around her father, and because she was almost
killed by her father who attacked her with a machete.
When an uncle offered to pay for a smuggler to take Mirabel to the United States, her
mother begged her not to go. “We all know the stories of women who get raped or die in
the desert,” Mirabel told me. “But I couldn’t stay. I had no life there.” She told her
mother she loved her, boarded a bus with her teenage cousin, and headed north, hoping
for a better education and a better life in “El Norte.”
Mirabel successfully arrived to the United States but was soon apprehended by the U.S.
Border Patrol (CBP) in the Texas Rio Grande Valley. 210

Professor Susan Terrio, a professor of anthropology at Georgetown University,
interviewed Mirabel for an article in Politico magazine. In the interview, Mirabel and
Professor Terrio had a conversation about Mirabel’s experience with CBP:
“They were questioning me, and I was crying,” she recalled to me. “I said,
‘I can’t go back.’ I was 16, the only under-aged girl and little, but those
officers put handcuffs on me just like I was a criminal.” After spending a
few days in jail, she was taken into federal custody at a shelter for
unaccompanied minors in Los Fresnos, Texas. It was clean, Mirabel says,
and had a nice enough living room, but she soon realized she couldn’t
leave. “There was no life—life ended there,” she says. “The shelter was
near the main road, and I could see cars going by, and I wanted to be in
that car.” It would be six months before an immigration judge in Texas

210

Terrio, Susan. "Life Ended There: Rare Interviews with the Children of America's Border Disaster."
Politico, July 10, 2014.

The State of Civil Rights at Immigration Detention Facilities

granted her asylum petition and released her from federal custody to a
foster family in Virginia. 211
Mirabel’s experience is similar to many unaccompanied immigrant children who cross
the U.S. border to seek refuge and safety. 212 Here, the Report examines the background
and causes of the influx of unaccompanied immigrant children who cross the U.S. border,
the experiences they face, and whether the federal government is complying with
standards related to their care.

Background
The large influx of unaccompanied alien children 213 who immigrated to the United States
between 2011 and 2014 has been considered a humanitarian crisis 214 that left the several
agencies responsible for immigration apprehension and detention unprepared. 215 A
majority of these children immigrated to the United States from El Salvador, Guatemala,
Honduras, and Mexico to find economic opportunities, to be reunited with their families,
or—most notably—to escape violence. 216 A majority of the unaccompanied children
enter the United States through ports of entry or along the U.S. and Mexican border
where, like Mirabel, CPB apprehends them. 217 Most unaccompanied children are
211

Susan Terrio. "Life Ended There: Rare Interviews with the Children of America's Border Disaster."
Politico, July 10, 2014.
212

See American Immigration Council. Children in Danger: A Guide to the Humanitarian Challenge at the
Border. 2014, accessed May 28, 2015, available at
http://www.immigrationpolicy.org/sites/default/files/docs/children_in_danger_a_guide_to_the_humanitaria
n_challenge_at_the_border_final.pdf ; See also Susan Carroll, Crossing Alone: Children Feeling to U.S.
Land in Shadowy System, Houston Chronicle, May 24, 2014, accessed May 28, 2015, available at
http://www.houstonchronicle.com/news/investigations/article/Crossing-alone-Children-fleeing-to-U-Sland-in-5503127.php; Pamela Brown and Steve Almasy, Sexual Abuse of Minors Alleged at Border as
Kids Flock into U.S., CNN, June 12, 2014, accessed May 28, 2015, available at
http://www.cnn.com/2014/06/11/us/undocumented-children-immigrants-abuse-complaint/.
213

Unaccompanied alien children is the statutory term given to those children who are under the age of 18,
without a parent or legal guardian, and who lack lawful immigration status in the United States. See 6
U.S.C. § 279(g)(2).
214

See Senate Judiciary Committee hearing on Oversight of the Department of Homeland Security, June 11,
2014. [Hereinafter Senate oversight hearing].

215

Cecilia Muñoz, White House Director of Domestic Policy Council, “Press Call Regarding the
Establishment of the Inter-Agency Unified Coordination Group on Unaccompanied Alien Children,” Press
Release, June 3, 2014.
216

"Southwest Border Unaccompanied Alien Children." Southwest Border Unaccompanied Alien Children,
accessed June 23, 2015, available at http://www.cbp.gov/newsroom/stats/southwest-borderunaccompanied-children.
217

See Jeh Johnson, Secretary for the Department of Homeland Security, “Border Security in the 21st
Century” (Presentation discussing DHS in the past, present, and future delivered on October 9, 2014),
available at http://www.dhs.gov/unaccompanied-children.

Federal Treatment of Detained Undocumented Immigrant Children
approximately 14 years of age or older, but, according to one CRS Report, 218 there has
been an increase in children who are under 13 years of age. 219
Over the past five years, CPB has apprehended increasing numbers of unaccompanied
alien children from El Salvador, Guatemala, and Honduras. 220 According to a
Congressional Research Service report, by the end of June 2014, CPB had apprehended
more unaccompanied children than in any other year. For example, the number of
unaccompanied children apprehended more than tripled between 2012 and the end of
June 2014. 221 The most remarkable increases were in the numbers of young girls and of
children under 13 years of age. Figure 3 222 shows the number of unaccompanied alien
children apprehensions by country of origin between FY 2008 and 2014.
Figure 3. Unaccompanied Alien Children Apprehensions by Country—2008–2014

218

Congressional Research Service, Unaccompanied Alien Children: An Overview. R43599. By Lisa
Seghetti, Alison Siskin, and Ruth Ellen Wasem. Washington, D.C.: United States Government Printing
Office, 2014.
219

"Children 12 and under Are Fastest Growing Group of Unaccompanied Minors at U.S. Border." Pew
Research Center RSS. July 22, 2014, available at http://www.pewresearch.org/facttank/2014/07/22/children-12-and-under-are-fastest-growing-group-of-unaccompanied-minors-at-u-sborder/.
220

Ibid.

221

See supra note 220.

222

Ibid.

The State of Civil Rights at Immigration Detention Facilities

Figure 3 above indicates that children from El Salvador, Guatemala, Honduras, and
Mexico account for almost 100 percent of unaccompanied children CBP had
apprehended since 2008. The number of unaccompanied children from Mexico had
increased dramatically in 2009, and has remained unchanged. In 2012, the number of
children who CBP apprehended from El Salvador and Guatemala increased
dramatically. 223 According to authors Lisa Seghetti, Alison Siskin and Ruth Ellen Wasem
in the report, Unaccompanied Alien Children: An Overview, “[b]y August 31, 2014,
when observing apprehensions along the southwest border, the proportion of
unaccompanied alien children from El Salvador, Guatemala, and Honduras had almost
reversed - with unaccompanied alien children from Mexico comprising only 22 percent
of the 66,127 child apprehensions and children from the three Central American countries
comprising 76 percent.” 224

Federal Policies Surrounding Unaccompanied Alien Children
The Flores Settlement Agreement of 1997 (FSA), 225 The Homeland Security Act of 2002
(HAS), 226 and the Trafficking Victims Protection Reauthorization Act of 2008
(TVPRA) 227 are the primary policies and procedures governing how the United States
treats unaccompanied alien children.
The Flores Settlement Agreement
FSA was the direct result of a class action filed against the Immigration and
Naturalization Services (INS). 228 The complainants were specifically challenging INS
policies pertinent to undocumented immigrant children processing, detention and
release. 229 While the case was never litigated, the settlement agreement binds all
immigration detention centers, excluding family residential detention centers, with
compliance. 230

223

Ibid.

224

Lisa Seghetti, Alison Siskin, and Ruth Ellen Wasem, Unaccompanied Alien Children: An Overview.
R43599. Washington, DC: U.S. Government Printing Office, 2014.
225

Flores v. Reno, No. 85-4544, Stipulated Settlement Agreement (C.D. Cal., 1997).

226

Home Land Security Act of 2002, PUB. L. 107-296 (2002).

227

William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, PUB. L. 110-457
(2008), 122 Stat. 5044, 5077 (codified at 22 U.S.C. § 7101 et seq.).
228

“Unaccompanied Juveniles in INS Custody.” Unaccompanied Juveniles in INS Custody, available at
https://oig.justice.gov/reports/INS/e0109/exec.htm.
229

Ibid.

230

Flores, Stipulated Settlement Agreement (C.D. Cal., 1997).

Federal Treatment of Detained Undocumented Immigrant Children
FSA established the first guidelines detailing how immigrant children should be treated in
the immigration detention system. It required that detained immigrant children are to be
given food and drinking water, medical assistance, access to toilets and sinks, adequate
temperature controls and ventilation, proper security, and protections to insure that all
unrelated children are separated from unrelated adults whenever possible. 231 FSA also
required INS to release detained immigrant children as soon as possible, place children in
the least restrictive settings, and implement standards of care and treatment for all
children who are in the U.S. immigration detention system. 232 There is still debate as to
whether these standards have been properly implemented.
Homeland Security Act of 2002
Congress passed HSA in response to the 9/11 terrorist attacks, believing that the
country’s national security system needed enhanced coordination and structure. 233 The
HSA reorganized several government agencies and also created the Department of
Homeland Security (DHS). 234 Additionally, Congress moved the Immigration and
Naturalization Services (INS) from the Department of Justice to DHS under Immigration
and Customs Enforcement (ICE). 235 HSA also gave DHS and the Department of Health
and Human Services’ (HHS) Office of Refugee Resettlement (ORR) shared responsibility
for processing and treating unaccompanied alien children. 236
Under HSA, ICE is responsible for apprehending, transferring, and repatriating 237
immigrants who unlawfully come to the United States. 238 HSA gave ORR responsibility
231

DHS Office of the Inspector General, CBP’s Handling of Unaccompanied Alien Children, OIG-10-117,
September 2010, available at https://www.oig.dhs.gov/assets/Mgmt/OIG_10-117_Sep10.pdf .
232

See supra note 227.

233

38 Weekly Comp. Pres. Doc. 2090 (Nov, 25, 2002).

234

Homeland Security” Act, accessed June 1, 2015, available at http://www.dhs.gov/homeland-securityact-section-452-citizenship-and-immigration-services-ombudsman . “About Unaccompanied Children's
Services.” About Unaccompanied Children's Services. accessed June 1, 2015, available at
http://www.acf.hhs.gov/programs/orr/programs/ucs/about, available at
http://www.acf.hhs.gov/programs/orr/resource/unaccompanied-childrens-services. "About Unaccompanied
Children's Services," accessed June 1, 2015, available at
http://www.acf.hhs.gov/programs/orr/programs/ucs/about . HHS-ORR was created by the Refugee Act of
1980 (codified at 8 U.S.C. § 1521 et seq.).
235

Ibid. See also Lopez, Codifying the Flores Settlement Agreement: Seeking to Protect Immigrant
Children in U.S. Custody, 95 Marq. L. Rev. 1635, 1651 (2012).
236

Supra note 233.

237

Repatriation is a term describing returning unaccompanied alien children to their country of origin. See
HSA, 116 Stat. 2135, 2192.
238

Lisa Seghetti, Alison Siskin, and Ruth Ellen Wasem, Homeland Security Act of 2002, Pub. L. No 107296. Unaccompanied Alien Children: An Overview, Congressional Research Service R43599. Washington,
DC. U.S. Government Printing Office, 2014.

The State of Civil Rights at Immigration Detention Facilities

for coordinating and implementing policies and standards for the care and placement of
unaccompanied alien children. 239 In addition to creating DHS and ORR, HSA also
specifically defined Undocumented Alien Children as “unauthorized minors without the
accompaniment of a parent or legal guardian.” 240
ORR was directed to create a national plan for the coordination of care and placement of
unaccompanied alien children and to create a plan “to ensure that qualified and
independent legal counsel” would be appointed to represent the children. HSA also
required ORR to ensure that the interests of the child are considered in decisions and
actions relating to the care and custody of the child. Finally, ORR was charged with
making and implementing placement determinations, overseeing the facilities where the
children are residing, “reuniting unaccompanied alien children with a parent abroad in
appropriate cases” and developing statistical data on unaccompanied minors who are
processed through ORR. 241
Trafficking Victims Protection Reauthorization Act of 2008
In 2008, Congress passed the William Wilberforce Trafficking Victims Protection
Reauthorization Act (TVPRA), which codified many portions of the FSA. 242 Although
TVPRA’s main purpose was to prevent and protect against human trafficking, the Act
contained several provisions regarding the treatment of unaccompanied alien children
under federal custody—specifically, unaccompanied alien children under ORR care. 243
TVPRA mandates that ORR place each child in the least restrictive setting “that is in the
best interests of the child.” 244 Additionally, in order to “effectively advocate for the best
interests of the child,” ORR is allowed to appoint independent advocates for each child
under their custody. 245 TVPRA also requires DHS to transfer unaccompanied alien
children, absent extenuating circumstances, to ORR within 72 hours after being taken
into DHS custody. 246

239

Ibid.

240

Lisa Seghetti, Alison Siskin, and Ruth Ellen Wasem, Unaccompanied Alien Children: An Overview.
R43599. Washington, DC: U.S. Government Printing Office, 2014.
241

Lopez, Codifying the Flores Settlement Agreement: Seeking to Protect Immigrant Children in U.S.
Custody, 95 MARQ. L. REV. 1635, 1651 (2012).
242

The Trafficking Victims Protection Reauthorization Act of 2008, PUB. L.110-457, 122 Stat. 5044
(2008).

243

See, Id.

244

Id, § 235(c)(2).

245

Id., § 235(c)(6).

246

Id., § 235(b(3), 122 Stat. at 5077.

Federal Treatment of Detained Undocumented Immigrant Children
Under TVPRA, DHS cannot directly deport unaccompanied alien children if they are
from countries other than Canada and Mexico. 247 These children are not subject to
expedited removal proceedings and are always permitted to appear before an immigration
judge to petition for humanitarian relief or removal. 248 However, TVPRA requires CBP
to determine whether unaccompanied alien children from Canada or Mexico have been
victims of human trafficking, have an asylum claim, and are willing to voluntarily return
to Canada or Mexico. 249 They are subject to expedited removal.
FIGURE 4. Proper Process For Handling Unaccompanied Alien Children Cases Under
TVPRA.

Source: MPI Report 250
Don T. Hutto Settlement Agreement
The Don T. Hutto Facility (Hutto) was a family detention center holding undocumented
immigrants who migrated as a family and were captured and detained by ICE. 251 Hutto
was not a DHS facility, but instead run by Correctional Centers for America (CCA)—a
247

See, PUB. L.110-457, 122 Stat. 5044 (2008) (TVPRA establishes different procedures for
unaccompanied Canadian and Mexican minors).

248

See, Id.

249

See, Id.

250

Marc R. Rosenblum, April 2015, Unaccompanied Child Migration to the United States: The Tension
Between Protection and Prevention, MPI.
251

See Bunikyte, ex rel. Bunikiene v. Chertoff, No. A-07-CA-164-SS, 2007 WL 1074070, at *1 (W.D. Tex.
Apr. 9, 2007).

The State of Civil Rights at Immigration Detention Facilities
for-profit corporation. 252 In 2007, the American Civil Liberties Union (ACLU) and the
University of Texas School of Law, on behalf of 10 immigrant children and their families
(Plaintiffs), brought a lawsuit against DHS. 253 The plaintiffs alleged that DHS violated
the FSA 254 while they were detained at Hutto. While U.S. District Judge Sam Sparks
agreed that the conditions the families faced at Hutto violated FSA, he did not believe
that detaining children in Hutto itself violated FSA. 255 Judge Sparks opined that the FSA
did not prohibit DHS from detaining children; instead, FSA set the standards in which
detained children were to be treated and held. 256 Judge Sparks ultimately asked the
parties to enter into voluntary mediation. 257 Afterwards, the Don T. Hutto Settlement
Agreement was created.
The Hutto Settlement Agreement added to the FSA by requiring that the federal
government give children more educational programs and outdoor time. Hutto required a
plethora of other services. This Report does not discuss the Hutto Settlement Agreement
further because the agreement applies only to the Hutto Facility.

Discussion
This portion of the Report discusses whether DHS and ORR are complying with FSA and
TVPRA of 2008. Although FSA mandated the former INS to comply with the provisions
contained within, the FSA also binds DHS and HHS- ORR. 258
Compliance with the Flores Settlement Agreement
Required Release
Under FSA, DHS may detain unaccompanied alien children only to secure their timely
appearance before a DHS, HHS, or Immigration Court, or to ensure their safety or the
safety of others. 259 If detaining an unaccompanied alien child is not required, then that
child must be released to a parent, legal guardian, adult relative (brother, sister, aunt,
uncle, or grandparent), an adult individual or entity designated by the parent or legal
252

See T. Don Hutto Residential Center, Hutto, accessed June 24, 2015, available at
http://www.ice.gov/factsheets/facilities-hutto.
253

Supra, Note 253.

254

Flores v. Meese, No. 85-cv-4544 (C.D. Cal., Sept. 16, 1996).

255

Supra, Note 253.

256

Ibid.

257

Ibid.

258

See generally, Ibid.

259

See Flores v. Meese—Stipulated Settlement Agreement (C.D. Cal., 1997).

Federal Treatment of Detained Undocumented Immigrant Children
guardian as capable and willing to care for the minor’s well-being through a declaration
or other documentation, a licensed program willing to accept legal custody, or an
individual or entity willing to accept legal custody after a suitability statement has been
conducted and an affidavit of support has been created. 260
There is serious doubt whether DHS should detain unaccompanied alien children at all.
Mary Meg McCarthy, executive director of Heartland Alliance’s National Immigrant
Justice Center (NIJC), finds that the federal government:
…must stop using incarceration as a default immigration enforcement
tool, and discontinue policy making that relies on the misguided
perception that expanding detention deters migration. It doesn’t. Our
clients have come back after being detained because they could not live
safely in their home countries. The primary means to responsibly reduce
the U.S. immigration detention system’s dependence on incarceration is to
expand alternatives to detention programs, also known as ATDs. The U.S.
government must take a hard look at the population it detains. According
to the UN High Commissioner for Refugees, detention should only be
used as a measure of last resort for the shortest appropriate period of time.
According to a study conducted by the Vera Institute of Justice, detained
immigrants who participated in an alternative to detention (ATD) program
had a 91 percent appearance at all required hearings and a 93 percent
appearance rate for asylum seekers. 261 Additionally, a more recent study
suggests that a majority of migrant children who were released from
detention had a high appearance rate as well. According to the American
Bar Association (ABA), immigrants who are seeking asylum have a strong
incentive to comply with court orders because they have a strong interest
in securing protection. 262
DHS implemented ATD programs to cope with the influx of people migrating across the
border. 263 The DHS Office of Enforcement and Removal Operations (ERO) is
responsible for processing, detaining, and deporting detained immigrants. DHS does not

260

See, Ibid. Some portions of FSA have been codified: 8 C.F.R. § 263.3.

261

Accord Rebeca M. López, Codifying the Flores Settlement Agreement: Seeking to Protect Immigrant
Children in U.S. Custody, 95 MARQ. L. REV. 1635, 1677 (2012) (stating that, “ATD have also been proven
as effective means of ensuring that undocumented immigrants appear for their court hearings. Immigrants
in the ATD program have more than a 90% compliance rate among immigrants in U.S. custody.”).
262
263

McCarthy, Briefing Transcript, pp. 251-252.

DHS, OIG, U.S. Immigration and Customs Enforcement’s Alternative to Detention (Revised), OIG-1522 (Feb. 4, 2015), available at https://www.oig.dhs.gov/assets/Mgmt/2015/OIG_15-22_Feb15.pdf .

The State of Civil Rights at Immigration Detention Facilities
have the capacity to detain all the immigrants which it apprehends each month. 264 To
address the under-capacity issue, ERO uses Congressionally-appropriated funds to
provide the option of supervised release. 265 Some ATD initiatives include providing
detained immigrants with “electronic monitoring services for both programs, either
through use of an ankle bracelet that enables Global Positioning System (GPS)
monitoring or voice recognition software for telephonic reporting.” 266 These types of
programs are utilized for detained immigrants in general, and can be specifically tailored
to serve detained immigrant children.
The Flores District Court Decision
On July 24, 2015, the U.S. District Court for the Central District of California ruled that
DHS had not complied with the FSA. 267 The principle issues before the court were: 1)
whether ICE’s blanket no-release policy of detaining all female-headed families (and
accompanied minors) in secure, unlicensed facilities for the duration of immigration
proceedings failed to comply with FSA provisions requiring ICE to minimize the
detention of children and to consider releasing them to available custodians; 2) whether
ICE followed its own standards of confining children in secured, unlicensed facilities;
and 3) whether CBP exposed children in its custody to harsh, sub-standard conditions and
treatment. 268
The court first ruled on whether accompanied minors who are part of a female-headed
household are “class members” covered under FSA when DHS apprehends and detains
them. The court found that the FSA not only applied to unaccompanied alien children,
but also to accompanied minors. 269 After determining that the FSA applied to children
who immigrated with their mothers, the court ruled that DHS “must release an
accompanying parent as long as doing so would not create a flight risk to safety.” 270
Accordingly, when DHS releases an unauthorized alien child in compliance with the
264

Ibid.

265

Ibid.

266

Ibid.

267

Jenny L. Flores, et. al. v. Jeh Johnson, et. at., CV 85-4544 DMG (AGRx) (C.D. Cal 2015), (hereinafter
referred to as “Flores”).
268

Ibid., at 4.

269

Ibid., at 4-7. The Agreement defines a minor as “any person under the age of 18 years who is detained in
the legal custody of INS, and INA describes a child as “an unmarried person under 21 years of age.” Ibid.,
at 4.
270

Ibid., at 9. “’Secure’ in this context refers to a detention facility where individuals are held in custody
and are not free to leave. Conversely, ’non-secure’ facilities are those where individuals are not held in
custody.” Ibid., at 2.

Federal Treatment of Detained Undocumented Immigrant Children
FSA, DHS must also release that unauthorized alien child’s parent so long as there is no
risk that both the child and parent will flee or present safety risks to themselves or others.
The court next discussed whether DHS violated the FSA by detaining accompanied and
unaccompanied alien children in secured, licensed facilities as opposed to unsecured,
licensed facilities as the FSA mandates. 271 The court specifically identified DHS’s
Karnes Family Residential Center as unlicensed “by the state’s Department of Family and
Protective Services.” 272 The court found that detaining unaccompanied alien children in
facilities such as Karnes violated provisions of the FSA because said centers are “secure,
unlicensed facilities.” 273 The court also found that DHS violated the FSA by detaining
children in holding cells whose conditions were “egregious,” including overly cold and
overcrowded environments with inadequate nutrition and access to personal hygiene
maintenance. 274
While the District Court’s decision may change some of the analysis related to whether
DHS is complying with FSA and TVPRA of 2008, the Commission reserves applying the
findings of this case to its analysis until the Federal Court of Appeals for the 9th Circuit
or, if necessary, the U.S. Supreme Court issues a final ruling.
The Commission believes that there is no evidence indicating that ICE or CBP need to
detain unaccompanied alien children on a wholesale basis and in the absence of the risk
factor analyses cited above. DHS implementation of ATD programs, based on the success
rate of those programs, may help DHS to comply fully with the FSA’s goals of releasing
detained migrant children as soon as possible and into the least restrictive available
settings.

271

Ibid., at 12-16.

272

Ibid.

273

Ibid. The Court noted the plaintiff’s proffered evidence regarding the “secure” status at the Karnes City
Facility:
The Karnes facility is a large block building, which appeared to have only one entrance. To enter, my
colleagues and I were required to deposit our cell phones in a metal locker, exchange our driver’s
licenses for visitor’s badges, pass our personal items thought an X-ray machine, and walk through a
metal detector. We were then directed to a sally port, which comprised two heavy metal doors with a
small room between. We passed through one door, it closed behind us; we were then directed to
display visitor’s badges behind heavy glass; the second door was opened, we walked through, and we
reached the interior of the facility. Ibid., at15.
274

Ibid., at 16-18.

The State of Civil Rights at Immigration Detention Facilities

Required Confinement Standards
FSA mandates all detention facilities that house unaccompanied immigrant children must
be safe and sanitary, complete with toilets, sinks, safe drinking water, food, medical
assistance for emergencies, adequate temperature control and ventilation, adequate
supervision to protect minors, and contact with all family members with whom the child
was arrested. 275 Additionally, DHS must segregate each minor from unrelated adults,
place him/ her in the least restrictive setting possible that is appropriate for the child’s age
and special needs, and provide notice of his/her rights. 276 FSA also mandates that DHS
treat each child with dignity, respect, and with special concern for their particular
vulnerabilities as children. 277
Federal officials have publicly stated their commitment to and compliance with the FSA
standards. 278 Jeh Johnson, Secretary of Homeland Security, along with Craig Fugate,
Federal Emergency Management Agency (FEMA) Administrator, announced a
reinforcement of “oversight, direction and guidance, lead and [coordination of] Federal
response efforts to ensure that federal agencies are unified in providing relief to the
affected children.” 279 Additionally, Secretary Johnson ensured CBP and ICE’s
commitment to providing “the proper care of unaccompanied children when they are
temporarily in DHS custody.” 280 For example, Secretary Johnson called for the
“immediate deployment of approximately 150 additional Border Patrol agents to the Rio
Grande Valley in Texas, where the largest numbers of unaccompanied minors are
arriving, [to] help process the influx of children.” 281 With this increase of personnel, CBP
Commissioner Kerlikowske maintains that he has seen positive demonstrations of CBP
employees’ work ethic; stating “I have seen CBP employees respond to these difficulties
with professionalism and compassion. . . . They’ve made heroic efforts with these
275

See Flores v. Meese—Stipulated Settlement Agreement (D.C. Cal., 1997).

276

Ibid.

277

Ibid.

278

The National Immigrant Justice Center, Esperanza Immigration Rights Project, Americans for
Immigrant Justice, Florence Immigrant & Refugee Rights Project, and the ACLU, June, 11 2014,
Correspondence to Megan H. Mack, Officer for Civil Rights and Civil Liberties, and John Roth, DHS
Inspector General.
279

DHS Press Office, Statement by Secretary Johnson on Increased Influx of Unaccompanied Immigrant
Children at the Border, accessed May 29 , 2015, available at
http://www.dhs.gov/news/2014/06/02/statement-secretary-johnson-increased-influx-unaccompaniedimmigrant-children-border.
280
281

Ibid.

"CBP Addresses Humanitarian Challenges of Unaccompanied Child Migrants." CBP Addresses
Humanitarian Challenges of Unaccompanied Child Migrants, accessed June 3, 2015, available at
http://www.cbp.gov/border-security/humanitarian-challenges.

Federal Treatment of Detained Undocumented Immigrant Children
children; rescuing them and caring for them in the most humane and compassionate way.
I am extremely proud of their dedication and of how they have risen to this challenge.” 282
However, the Commission has received testimony disputing these claims. For example,
Sister Norma Pimentel of the Catholic Charities of the Rio Grande testified that she
witnessed the following:
[H]undreds, if not thousands of children, of very young ages, detained in
great numbers in small cells. The children’s faces looking through large
glass windows, all with tearful eyes. Dirty. Sad. Traumatized. All I could
think about was what it must have been like for them to make such a long
and difficult journey north without the care and comfort of a family
member. And then to imagine how these children feel being detained
under these conditions. Packed up like little sardines, with no space to
even breathe.” 283
Additionally, the Commission has received reports from the National Immigrant Justice
Center (NIJC) that CBP and ICE employees were abusing children in their custody.284
Furthermore, 124 detained unaccompanied immigrant children were interviewed about
their detention experience: 85 percent reported that their holding cells were excessively
cold; 37 percent did not get enough food (received food less than three times a day); 25
percent were not given or offered water; and 49 percent were not allowed to call their
families, consulate, or speak to an attorney. 285 For example:
NIJC’s 2014 Policy Brief likewise noted the harsh treatment that
children often faced while in CBP custody. In interviews with 224
children over a three-week period, the vast majority of children reported
being detained in hieleras, the Spanish word for “freezers,” used to
describe holding rooms maintained at extremely cold temperatures.
Many children reported being unable to track the length of time they
were held in CBP custody because the lights in their cells were never
turned off. At least 29 children were held in CBP custody beyond the
282

Ibid.

283

Pimentel, Briefing Transcript, pp 1-2.

284

Ibid (citing Florence Immigrant and Refugee Rights Project, Seeking Protection, Enduring Prosecution:
The Treatment and Abuse of Unaccompanied Undocumented Children in Short-term Immigration
Detention,(2009) (hereinafter Florence Project Seeking Protection, Enduring Prosecution) available at
http://bit.ly/1prrCKx ).

The State of Civil Rights at Immigration Detention Facilities

72-hour legal limit. Some of the children reported being hungry in CBP
custody, including several who reported that they were “barely fed.” In
addition, 56 percent of children said they were placed in three-point
shackles, affixed at the wrists, waist, and ankles. 286
Moreover, NIJC collected numerous affidavits 287 detailing some of the experiences these
children face. For example:
D.G. is a 16-year-old Central American girl. Shortly after CBP arrested
her, officials mocked her and asked her why she did not ask the Mexicans
for help. When they searched her, officials violently spread her legs and
touched her genital areas forcefully, making her scream. D.G. was
detained with both children and adults. She describes the holding cell as
ice-cold and filthy and says the bright fluorescent lights were left on all
day and night. D.G. became ill while in CBP custody, but when she asked
to see a doctor, officials told her it was “not their fault” that she was sick
and ignored her. CBP officials did not return all of D.G.’s personal
belongings when she was released.
M.V. is a 16-year-old boy who was apprehended near McAllen, Texas.
While in CBP custody, M.V. was taken to a room where officials insulted
M.V. and accused him of lying about his age. One official accused M.V.
of possessing false documents, and threatened that if M.V. did not tell the
truth about his age, he would “become the wife” of a male detainee. That
official left the room, leaving M.V. alone with a male CBP official. That
official directed M.V. to remove all of his clothes. M.V. remained
undressed for approximately 15 minutes while the male official patted him
down. The male official continued to interrogate M.V. about his age and
laughed at M.V. while he was undressed. After the strip search, M.V. was
directed to another waiting room where a third official told M.V. he would
“pay” for being a liar. When M.V. was transferred to ORR custody, CBP
officials handcuffed him in three-point restraints. M.V. was transported
with other children who shared that they had also been strip-searched and
questioned about their age.
O.M. is a five-year-old boy who fled his home country with his mother,
Z.M. When Z.M. attempted to identify herself as an asylum seeker during
an initial screening, CBP officials threatened that if she did not reveal who
286

Ibid.

287

Ibid.

Federal Treatment of Detained Undocumented Immigrant Children
helped her to cross the border, they would take away her son and she
would never see him again. CBP officials placed Z.M. in three-point
shackles even though she was six and a half months pregnant and threw
away her prenatal vitamins and the medication she had brought for O.M.
In three days in CBP custody, officials gave O.M. juice and a spoiled
burrito that he could not eat. O.M. ate only a cookie each day he remained
in detention. He slept on the floor without any bedding. Z.M. reports that
the cell smelled of urine and that she did not receive enough water. As
CBP officials were separating O.M. and Z.M., O.M. began to cry. The
official asked O.M. if he knew how to count, and O.M. responded, “Yes.”
The official told O.M. to count a week three times because he would not
see his mother until that time had passed. In fact, Z.M. and O.M. were not
reunited for approximately two months. O.M. describes being terrified and
extremely depressed by the separation from his mother and his experience
in CBP custody.
J.R., a 14-year-old girl from El Salvador, did not receive water for several
hours after being apprehended by immigration officials. She eventually
drank water tasting strongly of bleach out of a cup shared by other
detainees. While she was detained, CBP only gave J.R. food twice a day: a
frozen sandwich and a foul-smelling burrito with rotten beans. She
repeatedly vomited after eating, but CBP did not provide any other food.
J.R. found a worn and dirty aluminum blanket in her cell that had
belonged to another detainee, but it was insufficient to keep her warm in
the hielera. J.R. was unable to sleep because officials woke the children
frequently. When the children spoke to each other, the officials yelled at
them and jingled handcuffs in a threatening manner. J.R. describes feeling
scared, unsafe, and anxious throughout her time in detention—especially
after she and her younger brother were separated. CBP officials
confiscated a gold locket with a picture of J.R. and her brother and never
returned it. 288
During the Commission’s fact-finding visit to Karnes Detention Center on May 4, 2015
some of the detained mothers recounted being held in hieleras by CPB just days before
the Commissioners met with them at Karnes. Moreover, at the Commission’s briefing,
Chairman Castro asked Megan Mack, Chief Officer for Civil Rights and Civil Liberties
in DHS, what DHS has done to fix detention standard violations.

288

Ibid.

The State of Civil Rights at Immigration Detention Facilities

Ms. Mack answered:
When we receive a complaint from an organization like NIJC, from Ms.
McCarthy, or from other organizations, we follow up with the person who
has sent the complaint. We ask any questions; we open investigations. So,
in the first half of fiscal 2014, for example, about half of the new
investigations that we opened, or 71 out of the 149 we opened, pertained
to either ICE— pertained to ICE detention—and more than 20 others
involved CBP ports of entry and checkpoints, and unaccompanied
children.
We have a team of experts that are on contract with my office in a variety
of areas, including medical and mental health care, conditions of
confinement, environmental health and safety, and other areas. They come
with us to the facilities, so our staff facilities really review their medical
files. They pull files, if they see a problem, they pull more files.
We went to Artesia, New Mexico, last November and then Karnes
Detention Facility in December, so Dilley will be the third major—the
large new detention facility we visited. And then the experts submit
reports to us, and we work with ICE. We make recommendations and
work with ICE to resolve issues that we found there. 289
When Chairman Castro further questioned Mack about the corrective procedures that
took place to address the issues with those minors in the affidavits above, she responded:
So, I don't believe our recommendations had been finalized. And the
process is that those are protected under deliberative privilege until we
hear back from ICE or CBP about the complaints. And I can check to be
sure, but I don't believe those complaints, we have final recommendations
on those. Once we have final recommendations, we report out in our
annual report and our quarterly reports to Congress. 290
Additionally, Anne Bena, Principal Advisor and Director in ORR at HHS, stated that:
When a child is referred to ORR from DHS, ORR has intake specialists
that must make a placement determination for each child within the
network that is the least restrictive setting and one that is in the best
interest of the child.
289

Mack, Briefing Transcript, pp. 38-39.

290

Ibid.

Federal Treatment of Detained Undocumented Immigrant Children
ORR will identify any special needs that a child may have and determine
the best and most appropriate placement for the child. For example, ORR
uses transitional foster care to house children under the age of 12, or teens
who are pregnant or parenting so that they may receive specialized care
and services.
When the Unaccompanied Children's program was transferred from the
former U.S. Immigration and Naturalization Service to the Department of
Health and Human Services—ORR became bound by the Flores v. Reno
settlement agreement which set forth minimum standards and services that
must be provided to all unaccompanied children. And ORR is tasked with
providing the care and custody until a safe and suitable sponsor is found to
provide care and physical custody for the child while the child waits for
his or her immigration proceedings.
While the child is in ORR care, he or she receives an array of services in
accordance with the Flores settlement agreement and state licensing
standards. When a child is admitted to ORR care, trained care service
providers conduct assessments of the child, including screenings,
interviews, interviews with the child's family, interviews with potential
sponsors, and then this assessment is used as a first round of screening to
determine whether the child has any immediate needs, and whether the
child has been a victim of abuse, of a crime, or of trafficking. 291
The Commission is concerned that federal agencies responsible for detaining children are
not fully complying with FSA standards after analyzing the federal government’s actions
in relation to the testimony, affidavits, Commission fact-finding visits, and reports that
the Commission received. Although the affidavits contained above are only a sample of
the entire detained migrant children population, they only compound the welldocumented evidence of abuse that occurs at certain federal immigration detention
facilities.
Compliance with the Trafficking Victims Protection Reauthorization Act - 72 Hour
Rule
The Trafficking Victims Protection Reauthorization Act (TVPRA) adopted additional
provisions mandating how DHS treats unaccompanied aliens when in their custody.292

291
292

Bena, Briefing Transcript, pp. 26-27.

See The Trafficking Victims Protection Reauthorization Act of 2008, Pub. L.110-457, 122 Stat. 5044
(2008).

The State of Civil Rights at Immigration Detention Facilities
Originally, under the Homeland Security Act of 2002, 293 DHS was required to transfer
certain unaccompanied alien children to ORR within 72 hours of custody. 294 Six years
later, the TVPRA mandated DHS to transfer unaccompanied alien children who were not
from Canada or Mexico to ORR within 72 hours (3 days). 295
Ms. Mack testified:
Under the Trafficking Victims Protection Reauthorization Act of 2008,
when DHS encounters an unaccompanied child from a contiguous
country, such as Mexico, the child is screened to identify potential victims
of human trafficking, and determine whether the child has a fear of
persecution if returned to his or her home country. DHS as a matter of
policy conducts the screening on all unaccompanied children regardless of
country of origin. 296
Additionally, according to ORR’s Bena, “Once DHS has identified a minor as an
unaccompanied child [(a child not from Canada or Mexico)], they transfer the child to
ORR custody by transporting the child to one of ORR's care provider facilities. ORR
currently has approximately 124 care provider facilities in 15 states.” 297
However, a letter addressed to DHS and Megan Mack stated that, “. . . accompanied
immigrant children regularly report being held in CBP custody beyond the 72-hour
period established by the 2002 HSA and 2008 TVPRA, or even beyond the five days
contemplated by the Flores Settlement Agreement in extenuating circumstances.” 298
Moreover, according to one 2015 GAO report, CBP failed to follow full screening
procedures before deporting unaccompanied alien children. 299
Based on the evidence presented above and the research conducted, there are not enough
facts or evidence to definitively say that DHS and ORR are not complying with the
TVPRA. However, the anecdotal information obtained by the Commission causes
293

See citation above.

294

22 U.S.C. § 7101 et. seq (122 Stat. 5044 Section 235(b)(3) (2008).

295

Ibid.

296

Mack, Briefing Transcript, p. 18.

297

Bena, Briefing Transcript, p. 24.

298

National Immigrant Justice Center, Esperanza Immigration Rights Project, Americans for Immigrant
Justice, Florence Immigrant & Refugee Rights Project, and the ACLU, June, 11 2014, Correspondence to
Megan H. Mack, Officer for Civil Rights and Civil Liberties, and John Roth, DHS Inspector General.
299

Government Accountability Office, Unaccompanied Alien Children: Actions needed to Ensure Children
Receive Required Care in DHS Custody. GAO-15-521. Washington, DC: U.S. Government Printing
Office, 2015.

Federal Treatment of Detained Undocumented Immigrant Children
concern about the potential lack of compliance, and a more in-depth study must be done
to fully examine the issue.
DHS is not the only agency responsible for the care of unaccompanied alien children. In
addition to the FSA and the TVPRA standards, ORR established its own agency
standards detailing the custody and care of unaccompanied immigrant children. ORR
compliance is detailed below.
Role of the Office of Refugee Resettlement (ORR)
ORR, at the Commission’s request, provided sample assessments of unaccompanied alien
children documents and monitoring reports of services depicting examples of routine
practices. 300 This section of the Commission’s Report examines the correlation between
the standards of care and the claimed effectiveness of their implementation within various
immigration detention locations and whether ORR is complying with standards
protecting unaccompanied alien children.
Under the Homeland Security Act of 2002, ORR’s Division of Children's
Services/Unaccompanied Children's (unaccompanied alien children) program within
HHS mandates certain standards of care and custody for unaccompanied children. 301
ORR responsibilities include medical and mental health; education; legal screenings and
presentations; family reunification; and recreational activities. 302 The following are issues
that the Commission noted after studying the assessments provided by ORR to the
Commission.
Medical and mental health services.
ORR standards require that unaccompanied children receive medical and mental health
services. ORR states that it is critical for unaccompanied children to receive accurate
medical attention. ORR medical and mental health services standards require that Initial
Intake Assessments to be completed within 24 hours of a child’s admission into ORR’s
care. Additionally, ORR requires that staff conduct an Assessment and Individual Service
Plan for unaccompanied children within seven days of each child’s admission into
custody. This document may be updated up to 15 days after admission. 303
300

HHS Response to U.S. Commission on Civil Rights’ Request for Information at 1 [hereinafter HHS
Response]. The Commission submitted a request for information to HHS.
301

“About Unaccompanied Children's Services." About Unaccompanied Children's Services. Nov. 1, 2014,
accessed June 3, 2015.
302
303

Ibid.

CRS, Immigration-Related Detention: Current Legislative Issues (RL32369; Jan. 12, 2015), by Alison
Siskin. Text in: Congressional Research Digital Collection, accessed June 2, 2015. See letter from Ken Tota

The State of Civil Rights at Immigration Detention Facilities

The Commission received an ORR assessment reporting about a 15-year-old male
unaccompanied alien child who arrived in ORR custody on January 29, 2015. The child’s
Initial Intake Assessment showed that ORR completed his intake interview, assessment,
and medical exam within their respective allotted time periods. 304 In this case, even
though the forms were completed in a timely manner, staff misconduct may have
compromised the effectiveness of “approaching the assessment” 305 and interview
assessments as evidenced below.
According to the assessment discussed above, ORR analyzed the Southwest Key
Programs, Inc. (SWK) locations at Casa Esperanza 306 and Brownsville “Staff Secure
Report through FY2014.” ORR discovered that a handful of staff members made
unaccompanied alien children feel uncomfortable by the way staff spoke to them. 307 At
this same location, in 2012, ORR reported that three out of 15 randomly reviewed Initial
Intake Assessments were missing from the ORR ETO database. 308 ORR states that these
reports have been found, but should have been documented in ORR’s database.
ORR recommended that programs provide youth care workers with additional training on
communicating with unaccompanied alien children to provide for and nurture positive
interactions. 309 ORR’s Corrective Action Plan also recommended entering required data
into the ORR efforts to outcome (ETO) database in a timely manner to prevent the loss of
additional Initial Intake Assessnebts. 310
Educational Services
Children’s detention centers are required to provide classroom education taught by
teachers with a minimum four-year college degree. ORR also recommends that each
to Angela French-Bell before U.S. Commission on Civil Rights, Feb. 12, 2015, ORR, Administration for
Children and Families, HHS, 5.
304

Ibid., See also UNACCOMPANIED ALIEN CHILDREN: Basic Information and Initial Intake
Assessment.
305

This is a term of art used by ORR to describe the process with which ORR assesses a child.

306

See Intake Assessments ORR provided to the Commission, available at U.S. Commission on Civil
Rights National Headquarters: 1331 Pennsylvania Ave., NW, Washington D.C., 20425.
307

Alison Siskin, Immigration-Related Detention: Current Legislative Issues (Jan. 12, 2015), CRS
RL32369; Text in: Congressional Research Digital Collection, accessed June 2, 2015. See
UNACCOMPANIED ALIEN CHILDREN Basic Information and Initial Intakes Assessment. See FY2014
SWK Casa Esperanza and SWK Brownsville Staff Secure Monitoring Report, ORR, Division of Children’s
Services-UNACCOMPANIED ALIEN CHILDREN Program (90zU0049), Jan. 27-31, 2014. 4-5.
308

Ibid., 6-7.

309

Ibid., 4-5.

310

Ibid., 6-7.

Federal Treatment of Detained Undocumented Immigrant Children
teacher obtains a certification by the U.S. Department of Education (ED). 311 When
studying the SWK Casa Esperanza and SWK Brownsville “Staff Secure FY2014
Report,” the Commission notes that certain staff members who teach shelter education
programs did not hold a four-year college degree. 312 ORR recommends confirming
whether teachers have four-year degree before hiring them. 313 Proper education is a vital
part of a child’s development; education for unaccompanied alien children helps give
these children an advantage in the job market if they plan to seek work in the United
States. Therefore, the Commission is concerned that ORR is not complying with its staff
educational requirements or providing detained children with adequate education.
Religious Services
ORR offers unaccompanied children, among other things, the opportunity to participate
in religious services upon request. 314 When studying the “FY2014 SWK Campbell
Monitoring Report” the Commission notes that some unaccompanied children were not
aware of the availability of religious services upon request; did not know that religious
services were optional, and were not given a response by staff upon request for a
religious service. 315 ORR implemented corrective action policies which ensure that
children understand grievance procedures and their rights to religious participation
through clarification presentations. 316
Legal access.
ORR is required to provide children with information regarding legal rights and services.
It fulfills this mission through the Legal Access Project (LAP). 317 Without
comprehension of their legal rights, children may have difficulties maneuvering through
the immigration detention system, including discharge procedures, family reunification,
or issues of harassment.

311

Ibid., 7.

312

Ibid., 7.

313

Ibid. See FY 2014 SWK Casa Esperanza and SWK Brownsville Staff Secure Monitoring Report, Office
of Refugee Resettlement, Division of Children’s Services-UNACCOMPANIED ALIEN CHILDREN
Program (90zU0049), January 27-31, 2014. 7.
314

Ibid., Text in: Congressional Research Digital Collection, Accessed June 2, 2015.

315

Ibid., See FY2014 SWK Campbell Monitoring Report, Office of Refugee Resettlement, Division of
Children’s Services-UNACCOMPANIED ALIEN CHILDREN Program (90ZU0049), April 8–11, 2014.
316
317

Ibid., p. 7.

"About Unaccompanied Children's Services." About Unaccompanied Children's Services. Nov. 1, 2014.
Accessed June 3, 2015.

The State of Civil Rights at Immigration Detention Facilities

Within ORR’s LAP, all children receive presentations explaining their rights,
individualized legal screenings, and information regarding the availability of pro bono
legal representation. 318 HHS provided the Commission with a sample LAP document
related to legal access involving a child from Central America. It was unclear whether
HHS provided the 15-year-old unaccompanied male alien child with these materials
when he arrived from Guatemala on Jan. 29, 2015. 319 On the first page of the LAP
document under the column labeled “mandatory services,” HHS was supposed to present
this child with the “Know Your Rights” (KYR) presentation and legal screening at the
same time. The start and end dates of the presentation and screening were stated to have
been completed from Jan. 29–Feb. 28, 2015. 320 However, the child answered negatively
when questioned whether HHS had provided him with the KYR Presentation or the legal
screening. 321 This discrepancy raises concerns regarding the accuracy of these reports.
Overall, ORR reports, sample assessments, and other information provide examples of
ORR staff members, such as teachers and youth-care workers, neglecting to uphold
quality care and custody policy standards. The summation of the issues is as follows:
•

Interaction between staff and unaccompanied alien children which produced an
uncomfortable environment for the unaccompanied alien children.

•

Initial Intake Assessments which were allegedly found and supposedly incorrectly
entered into the ORR database.

•

Lack of the minimum certification of a 4-year college degree among the teaching
staff.

•

Incomplete documentation of presentations of religious and legal rights to
unaccompanied alien children. 322

ORR, however, is addressing many of these issues by implementing changes in policies
to encourage corrective resolutions. Corrective measures that being implemented include:

318

Ibid.

319

Congressional Research Service. Immigration-Related Detention: Current Legislative Issues (RL32369;
Jan. 12, 2015), by Alison Siskin. Text in: Congressional Research Digital Collection, Accessed June 2,
2015. See UNACCOMPANIED ALIEN CHILDREN Basic Information and Initial Intake Assessment, at
1.
320

Ibid.

321

Ibid., p. 5.

322

Federal Treatment of Detained Undocumented Immigrant Children
•

Additional training for staff members

•

Necessary confirmations of staff requirements

•

Entering information into databases in a timely fashion

•

Increased accountability for presenting unaccompanied alien children with
required information on legal and religious rights. 323

The “HHS Response” states little about discrimination based on race, ethnicity, or
nationality. The Commission finds that additional research must be conducted analyzing
ORR’s compliance with their respective standards.

Conclusion
Based on the research and evidence stated above, the Commission finds that:

323

Certain DHS and its agency’s component offices are not fully complying with the
Flores Settlement Agreement Standards;

Additional studies must be conducted regarding ORR staff treatment and
interactions with unaccompanied alien children.

Additional studies must be conducted regarding ORR’s corrective action plans.

Ibid.

The State of Civil Rights at Immigration Detention Facilities

CHAPTER 5.

PRISON RAPE ELIMINATION ACT:
COMPLIANCE OR VIOLATION

Background
The Prison Rape Elimination Act of 2003 (PREA) 324 protects prisoners/detainees against
sexual abuse and assault while in prison or detention. 325 PREA also protects those
detained at immigration detention centers. 326 PREA also established the National Prison
Rape Elimination Commission (NPREC) to study the impacts of rape in U.S. prisons.327
In its report, NPREC found that “[a] large number of detained immigrants are at [high]
risk of sexual abuse.” 328 NPREC further found that detained immigrants are especially
vulnerable to sexual abuse and assault by detention staff because they are detained by the
same agency which has the power to deport them. 329 NPREC reported that detainees are
less likely to report such abuse because they fear the possibility of being deported for
retaliatory reasons. 330
PREA requires the Attorney General, through the Department of Justice (DOJ), to
publish a final rule adopting national standards for detecting, preventing, reducing, and
punishing prison rape. 331 Pursuant to PREA, the Attorney General’s final rule “shall be
based upon the independent judgment of the Attorney General, after giving due
consideration to the recommended standards provided by [NPREC] … and being
informed by such data, opinions, and proposals that the Attorney General determines to
be appropriate to consider.” 332 After NPREC released its report above, DOJ issued an
advanced notice for proposed rulemaking (ANPRM) 333 on March 10, 2010. DOJ’s
ANPRM solicited public comment on NPREC’s proposed standards that it listed in its
324

Prison Rape Elimination Act of 2013, Pub. L. No 108-79, 117 Stat 972 (codified as 42 U.S.C.§§ 15601
et seq.).
325

39 Weekly Comp. Pres. Doc. 1148 (September 4, 2003). See also National Prison Rape Elimination
Commission, June 2009 Report, available at http://static.nicic.gov/UserShared/2013-0329_nprec_execsummary.pdf.
326

National Prison Rape Elimination Commission, June 2009 Report, available at
http://static.nicic.gov/UserShared/2013-03-29_nprec_execsummary.pdf.
327

Ibid.

328

Ibid.

329

Ibid.

330

See http://static.nicic.gov/UserShared/2013-03-29_nprec_execsummary.pdf.

331

42 U.S.C. § 15607(a)(1)-(2).

332

42 U.S.C. § 15607(a)(2).

333

National Standards to Prevent, Detect, and Respond to Prison Rape, Advanced Notice For Proposed
Rule Making, 75 Fed. Reg. 11077 (March 10, 2010).

Prison Rape Elimination Act
report to receive information that would be useful in publishing a final rule detailing
PREA national standards. 334
After reviewing the ANPRM, DOJ issued a Notice of Proposed Rule Making (NPRM) on
February 3, 2011, soliciting comments on DOJ’s proposed standards. 335 The NPRM
interpreted that PREA only binds the Bureau of Prisons and U.S. Marshall Services. 336
This meant that PREA standards would not apply to DHS or its component agencies
responsible for detaining undocumented immigrants. This interpretation received a
number of criticisms. 337 After re-examining the statute and accounting for the criticisms,
DOJ stated in its Final Rule that PREA applies to all correctional facilities including
prisons, jails, juvenile facilities, military and Indian country facilities, and U.S.
Department of Homeland Security (DHS) immigration detention facilities. 338
Furthermore, DOJ concluded that each federal agency responsible for incarcerating or
detaining individuals “is accountable for, and has statutory authority to regulate, the
operations of its own facilities and, therefore, is best positioned to determine how to
implement the Federal laws and rules that govern its own operations, the conduct of its
own employees, and the safety of persons in its custody.” 339
On the same day that DOJ issued its Final Rule, President Barack Obama released a
memorandum affirming DOJ’s Final Rule with regard to PREA’s application to non-DOJ
federal agencies. According to the memorandum, “each agency is responsible for, and
must be accountable for, the operation of its own confinement facilities, and each agency
has extensive expertise regarding its own facilities, particularly those housing unique
populations.” 340 Moreover, the memorandum stated “each agency is best positioned to
determine how to implement the Federal laws and rules that govern its own operations,
the conduct of its own employees and the safety of persons in its custody.” 341

334

Ibid.

335

National Standards to Prevent, Detect, and Respond to Prison Rape, Notice of Proposed Rule Making,
76 Fed. Reg. 6248 (February 23, 2011).

336

76 Fed. Reg. 6248, 6256 (February 23, 2011).

337

Ibid.

338

National Standards to Prevent, Detect, and Respond to Prison Rape, Final Rule, 77 Fed. Reg. 37105
(June 20, 2012).
339

Ibid. at 37113.

340

White House, Memorandum on Implementing the Prison Rape Elimination Act, May 17, 2012,
available at https://www.whitehouse.gov/the-press-office/2012/05/17/presidential-memorandumimplementing-prison-rape-elimination-act.
341

Ibid.

The State of Civil Rights at Immigration Detention Facilities

DHS Application of PREA
In light of DOJ’s Final Rule, the President’s memorandum, and a provision in the
Violence Against Women Reauthorization Act of 2013 (VAWA), 342 DHS issued an
NPRM proposing “regulations setting standards to prevent, detect, and respond to sexual
abuse in [DHS] confinement facilities.” 343 The NPRM listed and detailed all provisions
relating to PREA that DHS and its component agencies would be responsible to
follow. 344 After receiving and reviewing comments, DHS issued a Final Rule on March
7, 2014. 345 The Final Rule provided “provisions spann[ing] eleven categories that were
originally used by the NPREC to discuss and evaluate prison rape elimination standards;
prevention planning, responsive planning, training and education, assessment for risk of
sexual victimization and abusiveness, reporting, official response following a detainee
report, investigations discipline, medical and mental care … [etc.].” 346
DHS divided its PREA provisions into three separate subsections - Subsection A, B, and
C. 347 This report specifically focuses on Subsections A and B. Subsection A and its
provisions are only applicable to DHS immigration detention facilities. 348 An
immigration detention facility is defined as any facility, whether DHS-owned or
contracted through an Intergovernmental Service Agreement (IGSA) 349 or serving as a
Contract[ed] Detention Facility (CDF), 350 that “routinely holds persons for over 24 hours
pending resolution or completion of immigration operations or processes, including
facilities that are operated by U.S. Immigration and Customs Enforcement (ICE), and

342

Violence Against Women Reauthorization Act of 2013, Pub, L. 113-4 (March 2013) (Codified at 42
U.S.C. § 301 et seq.). This Act required DHS to promulgate its own PREA regulations.
343

Standards to Prevent, Detect, and Respond to Sexual Abuse and Assault in Confinement Facilities,
Proposed Rule, 77 Fed. Reg. 75301 (December 19, 2012).
344

77 Fed. Reg. 75301 (December 19, 2012) lists all proposed rules.

345

Final Rule, Standards to Prevent, Detect, and Respond to Sexual Abuse and Assault in Confinement
Facilities, 79 Fed. Reg. 13100 (March 7, 2014) (Codified under 6 C.F.R. § 115 et seq.).
346

Ibid. at 13100.

347

See 6 C.F.R. § 115 et seq.

348

6 C.F.R. § 115.10.

349

IGSAs are detention “facilities [that] are provided to ICE by States or local governments through
agreements and may be owned by the State or local government, or a private entity. See 79 Fed. Reg.
13100, 13104 (March 7, 2014).
350

CDF are detention facilities “owned by private companies and contracted directly with ICE.” See 79
Fed. Reg. 13100, 13104 (March 7, 2014).

Prison Rape Elimination Act
facilities used by ICE pursuant to an [IGSA].” 351 ICE is the only DHS component that
falls under Subsection A. 352
Subsection B and its provisions apply to DHS holding facilities. 353 A holding facility is
defined as a facility containing “holding cells, cell blocks, or other secure enclosures that
are: (1) [u]nder the control of the agency; and (2) [p]rimarily used for the short-term
confinement of individuals who have recently been detained, or are being transferred to
or from a court, jail, prison, other agency, or other unit of the facility or agency.” 354 ICE,
U.S. Customs and Border Protection (CBP), or other DHS components generally operate
these facilities. 355
This chapter of the Report discusses whether ICE and CBP are complying under their
respective DHS-promulgated PREA subsection standards.

Discussion
The Commission received complaints from civil and human rights organizations such as
the American Civil Liberties Union (ACLU), the American Bar Association (ABA), the
American Immigration Lawyers Association (AILA), the Grassroots Leadership, the
Mexican-American Legal Defense Fund (MALDEF), and the Human Rights Campaign
(HRC) concerning the federal government’s unsatisfactory compliance with PREA
standards. The following are specific questions examining whether DHS and its
component agencies are complying with their relevant DHS PREA Subsections.
Is the Federal Government Complying with PREA at Immigration Detention
Facilities?
Zero tolerance of Sexual Abuse; Prevention of Sexual Assault Coordination 356
While it is clear that federal agencies provide written policies mandating zero tolerance
for all forms of sexual abuse and harassment, it is less obvious whether DHS implements
these policies or if these policies simply serve as platitudes.

351

6 C.F.R. § 115.5.

352

79 Fed. Reg. 13100, 13104 (March 7, 2014).

353

6 C.F.R. § 115.5.

354

Ibid.

355

79 Fed. Reg. 13100, 13104 (March 7, 2014).

356

6 C.F.R § 115.11; 6 C.F.R. § 115.111.

The State of Civil Rights at Immigration Detention Facilities

According to DHS PREA regulations for ICE (codified at 6 CFR Pt. 115, Subpart A),
Section 115.11 mandates that:
a) The agency shall have a written policy mandating zero tolerance toward
all forms of sexual abuse and outlining the agency's approach to
preventing, detecting, and responding to such conduct.
(b) The agency shall employ or designate an upper-level, agency-wide
Prevention of Sexual Assault Coordinator (PSA Coordinator) with
sufficient time and authority to develop, implement, and oversee agency
efforts to comply with these standards in all of its immigration detention
facilities.
(c) Each facility shall have a written policy mandating zero tolerance
toward all forms of sexual abuse and outlining the facility's approach to
preventing, detecting, and responding to such conduct. The agency shall
review and approve each facility's written policy. 357
In May 2014, ICE issued a revised Directive on Sexual Abuse and Assault Prevention
and Intervention that was built from the requirements of the 2011 Performance Based
National Detention Standards on Sexual Abuse and Assault Prevention (PBNDS). 358 The
combination of these regulations along with other ICE policies regarding staff
responsibilities is supposed to “ensure an integrated and comprehensive system of
preventing and responding to sexual abuse or assault of individuals in ICE.” 359 Consistent
with PREA requirements, ICE’s policies, specifically PBNDS 2011 and the 2014
Directive, mandate zero tolerance for all forms of sexual abuse and assault. Furthermore,
ICE provides for a Prevention of Sexual Assault (PSA) Coordinator; however, the
Commission could not find the contact information for the PSA coordinator during its
initial study. Kevin Landy, Assistant Director, Office of Detention and Policy Planning
(ODPP), later provided the Commission with this information and stated that ICE
regularly releases this information to stakeholders. 360 Because such knowledge is not

357

6 C.F.R § 115.11.

358

See ICE, Performance-Based National Detention Standards (2011), available at
http://www.icce.gove/doclib/detention-standards/2011/pbnds2011.pdf; ICE, Directive No. 11062.1: Sexual
Abuse and Assault Prevention and Intervention (2012). Available at
http://www.ice.gov/doclib/foia/dro_policy_memos/sexual-abuse-assault-prevention-interventionpolicy.pdf.
359

“U.S. Immigration and Customs Enforcement 11062.2: Sexual Abuse and Assault Prevention and
Intervention”, May 22, 2014, available at http://www.ice.gov/doclib/detention-reform/pdf/saapi2.pdf.
360

Prison Rape Elimination Act
readily available to the public, it is difficult for outside organizations to ensure that ICE is
adhering to DHS’s PREA standards outlined under Subpart A, Section 115.11. 361
According to DHS PREA regulations for CBP and other DHS facilities or DHS
contracted facilities that hold detainees for less than 24 hours (codified at 6 CFR Pt. 115,
Subpart B), Section 115.111 mandates that:
(a) The agency shall have a written policy mandating zero tolerance
toward all forms of sexual abuse and outlining the agency's approach to
preventing, detecting, and responding to such conduct.
(b) The agency shall employ or designate an upper-level, agency-wide
PSA Coordinator with sufficient time and authority to develop,
implement, and oversee agency efforts to comply with these standards in
all of its holding facilities. 362
U.S. Customs and Border Patrol’s (CBP’s) website states that they adopted a revised
CBP Policy on Zero Tolerance of Sexual Abuse and Assault on March 11, 2015. The
policy details the agency’s approach to preventing, detecting, and responding to sexual
abuse and harassment, citing:
•

Staff training;

•

Timely reporting of allegations of sexual abuse;

•

Protection of victims through custodial arrangements;

•

Assurance of adequate medical care and services;

•

Protocols for investigation of claims; and

•

Ongoing monitoring of data related to sexual abuse.

CBP also complies with PREA requirements by making contact information for an upperlevel Prevention of Sexual Assault (PSA) Coordinator available. The Commission
received the contact information for CBP’s PSA Coordinator and a “Zero Tolerance
Policy” flyer 363 from the newly hired CBP PSA Coordinator. Offering such evidence is

information is available at the U.S. Commission on Civil Rights Headquarters located at 1331 Pennsylvania
N.W., Washington D.C., 20425.
361

6 C.F.R. § 115.11.

362

6 C.F.R § 115.111.

363

See CBP Zero Tolerance Policy poster- Appendix B.

The State of Civil Rights at Immigration Detention Facilities
not required under DHS PREA. 364 However, the PSA Coordinator notified Commission
staff that CBP holds weekly coordination meetings analyzing CPB’s PREA
compliance. 365 Furthermore, the PSA Coordinator notified Commission staff that her
office is finalizing a PREA Audit Toolkit. 366 According to the PSA Coordinator, the
PREA Audit Tool Kit is a DHS-wide initiative with DHS’s Civil Rights and Civil
Liberties Office (CRCL) leading the project. 367 The PSA Coordinator advised
Commission staff that CBP, as well as ICE, are working closely with CRCL. 368
Are DHS Detention Centers with Government Contracts Adhering to PREA?
According to DHS PREA regulations for ICE (codified at 6 CFR 115, Subpart A),
Section 115.12 mandates that:
(a) When contracting for the confinement of detainees in immigration
detention facilities operated by non–DHS private or public agencies or
other entities, including other government agencies, the agency shall
include in any new contracts, contract renewals, or substantive contract
modifications the entity's obligation to adopt and comply with these
standards.
(b) Any new contracts, contract renewals, or substantive contract
modifications shall provide for agency contract monitoring to ensure that
the contractor is complying with these standards. 369
Comparatively, according to DHS PREA regulations for CBP and other DHS facilities or
DHS contracted facilities that hold detainees for less than 24 hours (codified at 6 CFR Pt.
115, Subpart B), Section 115.111 mandates that:
(a) An agency that contracts for the confinement of detainees in holding
facilities operated by non–DHS private or public agencies or other entities,
including other government agencies, shall include in any new contracts,
contract renewals, or substantive contract modifications the entity's
obligation to adopt and comply with these standards.

364

Commission staff met with the CBP PSA Coordinator at CBP Headquarters in Washington, D.C. to
further detail how DHS, particularly CPB, applies PREA Standards.
365

Ibid.

366

Ibid.

367

Ibid.

368

Ibid.

369

6 C.F.R § 115.12.

Prison Rape Elimination Act
(b) Any new contracts, contract renewals, or substantive contract
modifications shall provide for agency contract monitoring to ensure that
the contractor is complying with these standards.
(c) To the extent an agency contracts for confinement of holding facility
detainees, all rules in this subpart that apply to the agency shall apply to
the contractor, and all rules that apply to staff or employees shall apply to
contractor staff. 370
Both Subsections require ICE, CBP, and other DHS agencies responsible for either
detaining or holding immigrants to adopt the DHS PREA standards in new contracts,
renewals, or where there is a substantial contract modification.
Federal agencies show their compliance with PREA by encouraging contracting agencies
to implement PREA standards. Federal agencies like ICE even suggest that it goes above
and beyond the PREA requirements to ensure and encourage that its CDFs treat detainees
with dignity; however, without a legally binding agreement to ensure such policies are
enforced, there is speculation as to whether CDFs actually implement PREA’s mandates.
A representative for ICE stated that:
DHS PREA regulations require that PREA apply when a detention facility
contract is either signed, renewed, or substantively modified. That was
modeled after DOJ PREA regulations, although it’s more aggressive than
those, in that the DOJ regulations do not have the clause about requiring
PREA to be adopted upon a substantive contract modification. A number
of facilities have already been adopting PREA prior to the contract
negotiation, but technically, standards are not legally binding on those
detention facilities. . . . 371
Although in some cases ICE finds that some CDFs already incorporate many of PREA’s
standards, DHS does not have the legal power to coerce facilities into complying with
PREA standards without altering existing contractual obligations. (The only CBP
contracts to detain individuals are contracts with the U.S. Marshall Services who operate
370
371

6 C.F.R § 115.112.

Landy, Kevin, Briefing Transcript, pp. 69–70. Mr. Landy requested that the following supplemental
information be noted regarding his quote. According to Mr. Landy, despite the fact that not all CDFs had
adopted PREA, all dedicated CDFs had contractually adopted PBNDS 2011. According to Mr. Landy, “as
of July 13, 2015, DHS PREA standards had been incorporated into contracts at facilities covering
approximately 60 [percent] of ICE’s average daily population, including all dedicated [CDFs]. Kevin
Landy, in his official capacity as ICE Assistant Director for the Office of Detention Policy and Planning
(ODPP), sent the Commission additional comments in response to Commission staff inquiry. This
information is available at the U.S. Commission on Civil Rights Headquarters located at 1331 Pennsylvania
N.W., Washington D.C., 20425.

The State of Civil Rights at Immigration Detention Facilities
under DOJ PREA standards.) 372 Furthermore, ICE suggests that preemptively
encouraging their contractees to adhere to PREA standards before it becomes a legal
requirement to do so demonstrates a sufficient effort on the part of DHS to ensure
contractees treat detainees under their care respectfully. However, encouraging
compliance with PREA standards while under contract with DHS might not be sufficient
to ensure proper care is afforded to individual rights. For example, a representative for
the DHS Civil Rights and Civil Liberties Division stated that federal agencies are often
not “aware about the legal obligations of a contract, but ICE applies their standards
across the board to facilities to where they are in place.” 373
In other words, as a representative of ICE stated:
[A]ll of our private contractor facilities adhere to the most recent, most
rigorous level of the detention standards, PBNDS, which I mentioned.
And those detention standards are intended to apply robust safeguards
across the board, but we do consider that federal policy. We consider that
agency policy, which is applied to our private contractor facilitates
through contractual modifications. And that has occurred in all instances
for the private . . . . With respect to the private contractor facilities, all of
them are governed by our most recent detention centers. Not yet—all of
them are not yet governed contractually by PREA in that PREA is rolled
out gradually. It has to be applied through contract modifications. It is not
immediately applicable to our private contract facilities, which is the same
for the Department of Justice private contractor facilities, as well. . . .
There’s also a commitment that DHS has made in the preamble of the
PREA regulations that PREA regulations will be applicable, or that we
will endeavor to make PREA regulations applicable at all of our dedicated
facilities, within 18 months of the effective date.” 374

372

The CBP PSA Coordinator informed Commission staff regarding this point.

373

Mack, Briefing Transcript, p. 76.

374

Landy, Briefing Transcript, pp. 85–86. In his supplemental information to the Commission, Mr. Landy
also stated that:
“ICE employs a multi-layered monitoring and inspection scheme to ensure facility compliance with all
applicable detention standards, which includes inspections carried out by both internal and external parties.
The agency’s annual facility inspections are carried out by an independent contractor and are conducted by
a small team of subject matter experts (led by a lead inspector) over the course of two to three days with
limited exception. Once the subject matter experts complete their inspection, they submit their specific
portion of the inspection to the lead inspector, who then reviews the information provided by the subject
matter experts, certifies the inspection, and sends the information to ICE HQ where it is reviewed by a
DSCU officer and catalogued.

Prison Rape Elimination Act
It is difficult to determine whether each ICE contractor is complying with PREA
standards or even with the appropriately corresponding detention standards specified by
its contract even with ICE monitoring and inspection schemes. Based on reporting by
nongovernmental organizations (NGOs), evidence suggests that standards are not being
met. However, with specific regard to detainee holding contracts, CBP states that, in
terms of administrative policy, its zero tolerance sexual assault policy has the same force
of law that PREA has.
The Mexican American Legal Defense and Education Fund (MALDEF), a Latino civil
rights advocacy group, indicated the disconnect between DHS policies and what is
actually happening in detention centers stems from:
. . . the shell game when [regulations and standards are] part of a Federal
program, but implementation is occurring through a private contractor.
Outside [organizations], like MALDEF and the ACLU, find issue with the
private nature of such contractual obligations. Even when progressing
through the appropriate channels to find information, “there is actually a
quite serious problem with the FOIA loophole for private prisons. [For
example,] if a facility is run directly by ICE, then it’s subject to FOIA;
[however,] if it is run by a private prison company, it’s not subject to
FOIA except to the extent that the records relating to the facility are in
ICE’s actual possession. 375
One particularly troubling contracting issue emerged during the Commission’s
briefing: the contract for the family detention center in Dilley, Texas. The facility
was opened quickly in response to the increase in families crossing the border in

ICE has also established an On-Site Detention Compliance Oversight Program, composed of a corps of
federal detention site monitors stationed at large detention facilities, who report directly to ICE
Headquarters. These detention site monitors inspect and monitor facility compliance with ICE detention
standards, report and respond to problems, and work with local ICE field offices and the detention facilities
to address concerns. The Detention Services Manager typically resolves most issues on the spot but, in
certain cases, will relay information to the field office and ICE Headquarters when necessary.
ICE’s Office of Detention Oversight (ODO) also has responsibilities for reviewing facility compliance with
the agency’s detention standards. In addition to conducting regular inspections of various ICE detention
facilities and follow-up inspections for identified deficiencies, ODO conducts targeted inspections and
investigations in response to specific allegations of violations or other problems at facilities and based on
issues of particular concern to ICE executive management, including all reports of staff misconduct and
assaults or deaths of detainees occurring during ICE custody."
375

Bono, Briefing Transcript, p. 204.

The State of Civil Rights at Immigration Detention Facilities
the summer of 2014. 376 In order to avoid the lengthy contracting process, the
facility was planned through the modification of an existing intergovernmental
services agreement. 377 Operations of the facility were then subcontracted to the
Corrections Corporation of America. 378 Panelists identified this facility as one
whose contracting process was particularly opaque and convoluted. Panelist Bob
Libal explained:
MR. LIBAL: So the way that the contracts flow is that ICE will contract
with a local government agency, which then subcontracts with the private
prison corporation. In the case of Dilley, ICE didn't want to even go
through that process. They subcontract -- they expanded an existing
agreement that they had with Eloy, Arizona, their very troubled facility,
the facility that's had the most deaths of any immigration detention facility
since the creation of the Department of Homeland Security. They
expanded that intergovernmental service agreement to create the facility in
Dilley, Texas, which is 900 miles away. No one from Eloy ever visited the
site, even though they're the legal entity that has the contract with ICE and
is supposed to be overseeing it.
COMMISSIONER KLADNEY:
Okay, so basically the local
government's making money and the contractors are making money.
MR. LIBAL: Yes. Half a million dollars a year is what Eloy, Arizona is
making for just shuffling the paperwork to CCA. 379
The Dilley contracting process has drawn criticism for the way it shifts
responsibility for the conditions at Dilley between various entities. As panelist
Mary Meg McCarthy stated, “You can imagine when you've just heard how
convoluted this contracting goes, the difficulty of identifying a defendant. . . [a]nd
holding a defendant liable.” 380

376

Burnett, John. How Will a Small Town in Arizona Manage an ICE Facility in Texas? NPR, October 28,
2014, available at http://www.npr.org/2014/10/28/359411980/how-will-a-small-town-in-arizona-managean-ice-facility-in-texas.
377

Ibid; Harris, Craig. Unique Deal to Detain Migrants Nets Eloy $438,000, AZ Central, January 18, 2015,
available at http://www.azcentral.com/story/news/politics/immigration/2015/01/18/unique-deal-detainmigrants-nets-eloy-money/21969817/.

378

Statement of Bob Libal.

379

Libal, Briefing Transcript, p. 245.

380

McCarthy, Briefing Transcript, p. 246.

Prison Rape Elimination Act
The Commission finds that DHS lacks transparency regarding their contracts with private
detention companies. This inhibits the assessment of proper implementation of PREA
standards.
Are DHS CDFs Complying with PREA Inspection Policies?
According to DHS PREA Subsection A (codified at 6 C.F.R. 115.13), Section115.13:
Each facility shall conduct frequent unannounced security inspections to identify
and deter sexual abuse of detainees. Such inspections shall be implemented for
night as well as day shifts. Each facility shall prohibit staff from alerting others
that these security inspections are occurring, unless such announcement is related
to the legitimate operational functions of the facility. 381
ICE has written documentation asserting their compliance with PREA requirements of
unannounced inspections of facilities to identify and deter staff sexual abuse and
harassment during both night and day shifts. Corrections Corporation of America (CCA)
elaborated on the details of such inspections, stating that:
[T]he way the company conducts those audits, and there are many ways in
which we audit our facilities on an ongoing basis, first of which is we expect
and know for a fact that our individual facilities are . . . self-monitoring
themselves of the conditions going on at the facility. That’s the first level.
And they do that on an ongoing basis. Secondly, we have an internal audit
unit comprised of experts that work for the general counsel. They do not
work to the operational arm of CCA. They do unannounced audits each year
to determine compliance with not only the contract, but with the various
standards that each contract covers such as the PBNDS, the PREA standards,
ACA standards. So those are very, very detailed audits. Over 1,500 individual
indicators are looked at each year when they come through. So we’re very
proud of those, and those are the things that help us stay in compliance with
our contract and with these standards. 382
Despite indicating complete compliance with PREA standards, a CCA representative was
unable to immediately release the results of the audits conducted at various facilities to
ensure that there is compliance with the various responsibilities enforceable under PREA.
Outside organizations, like MALDEF, take issue with the private nature of these
documents. This information would prove useful in determining the particular attention
381

382

6 C.F.R. § 115.13.
Conry, Briefing Transcript, pp. 134–135.

The State of Civil Rights at Immigration Detention Facilities

paid to sexual assault and harassment in ICE CDFs; as well as providing insight into the
frequency of inspection, accuracy of the reporting of allegations of sexual assault, and the
overall effectiveness of the audits. Representatives from NGOs and advocacy groups find
that this lack of transparency hinders the ability to assure CDFs’ compliance of PREA’s
standards. Many outside organizations support making the audit results public in order to
maintain accountability.
The Commission finds that ICE CDFs lack accountability in complying with PREA
inspection policies because such reports are not made publicly available.
Do DHS Detention Facilities Adhere to PREA Regulations Regarding Child
Detention?
Both Subsection A 115.14 and Subsection B 115.114 state that:
Juveniles shall be detained in the least restrictive setting appropriate to the
juvenile's age and special needs, provided that such setting is consistent with the
need to protect the juvenile's well-being and that of others, as well as with any
other laws, regulations, or legal requirements. 383
While this section mostly applies to ICE, both regulations specify that ICE detains and
CBP holds juveniles separately from adults, unless that adult is a proven family member.
However, DHS PREA Subpart B, which binds CBP, also allows for juveniles to
temporarily remain with a non-parental adult family member where:
(1) The family relationship has been vetted to the extent feasible, and
(2) The agency determines that remaining with the non-parental adult family
member is appropriate, under the totality of the circumstances. 384
There is currently insufficient evidence indicating that ICE detains and CBP holds
children with adult detainees at DHS facilities with the exception of ICE family detention
centers where such detention is allowed.
Moreover, while not applicable to CBP, ICE has made efforts to avoid housing detainees
in isolation. The ACLU found that the solitary confinement policy directive that ICE
issued in 2013 satisfactorily complies with PREA standards. ACLU also determined that
the ICE directive on solitary confinement has great potential if implemented properly. An
ACLU representative referenced the policy’s intent, stating “It is a policy that if it is

383

6 C.F.R. § 115.14; 6 C.F.R. § 115.114.

384

6 C.F.R. § 115.114.

Prison Rape Elimination Act
being faithfully implemented across the board, [it] should be reducing both the number of
people who are in solitary and the length of time that they spend in solitary.” 385
Under the solitary confinement policy directive, “there is supposed to be a very clear
reporting change about how long people are in solitary confinement. And especially the
longer that somebody stays in solitary confinement, the more that the field office has to
report that to headquarters and justify it.” 386 Without the proper access to resources and
documentation, organizations like the ACLU are unable to determine if DHS is meeting
these standards. With regard to compliance under DHS PREA Subpart A, ICE stated that,
“segregated housing [when used] is typically, for one of two reasons, as a form of
discipline for people who have committed serious disciplinary infractions after there’s
been an adjudication by the facility, and that person has been found guilty of that
infraction, or for the safety and security of either other detainees, staff, or the individual
himself or herself.” 387
The Commission finds that further research must be conducted to determine whether ICE
is complying with PREA solitary confinement policies for children.
Does DHS Adhere to PREA Standards on Interacting with Transgender or Intersex
Individuals?
According to DHS PREA regulations for ICE, Section 115.42 mandates that:
(a) When making assessment and housing decisions for a transgender or intersex
detainee, the facility shall consider the detainee's gender self-identification
and an assessment of the effects of placement on the detainee's health and
safety. The facility shall consult a medical or mental health professional as
soon as practicable on this assessment. The facility should not base placement
decisions of transgender or intersex detainees solely on the identity documents
or physical anatomy of the detainee; a detainee's self-identification of his/her
gender and self-assessment of safety needs shall always be taken into
consideration as well. The facility's placement of a transgender or intersex
detainee shall be consistent with the safety and security considerations of the
facility, and placement and programming assignments for each transgender or
intersex detainee shall be reassessed at least twice each year to review any
threats to safety experienced by the detainee.

385

Takei, Briefing Transcript, p. 275.

386

Ibid.

387

Landy, Briefing Transcript, pp. 94–95.

The State of Civil Rights at Immigration Detention Facilities

(b) When operationally feasible, transgender and intersex detainees shall be given
the opportunity to shower separately from other detainees 388
Comparatively, regulations for CBP state in Section 115.141 that when making housing
assignments, “whether the detainee has self-identified as gay, lesbian, bisexual,
transgender, intersex, or gender nonconforming” shall be considered. 389
In an invigorated effort to ensure the safety of lesbian, gay, bisexual and transgender
(LGBT) individuals, the Human Rights Campaign (HRC) finds that DOJ PREA standards
“are more desirable and better than the standards that DHS uses because giving serious
consideration to the detainee’s own sense of their perceived risk” is an important aspect
of providing LGBT individuals with safe detainment facilities. 390
DHS has very specific policies regarding the treatment of transgender or intersex
detainees with regard to determining gender. An ICE representative confirmed that the
agency does not “ask people their sexual orientation or gender identity unless they wish
to come forward and indicate that they—indicate it for some reason . . . [as] up until now
it’s felt that it should be up to the individual to volunteer it, if they have a particular need.
And that might be a medical need, or it might be a concern about one’s own
protection.” 391
Furthermore, if an individual wishes to conceal his or her gender identity or sexual
orientation for any particular purpose, ICE would respect those wishes. While the policy
implemented adheres to PREA regulations, representatives from HRC suggest that
cultural competency in dealing with the LGBT community, particularly transgender
detainees, should be addressed because it is a serious issue. These organizations have
raised concerns regarding the proper attitude or intent held when detaining LGBT
individuals as “there’s certainly bias that creeps in, sometimes not even subtly, but
sometimes more subtly.” 392 A combination of speculation regarding the policies
surrounding LGBT rights in detention centers, as well as a general ignorance or cultural
incompetency, leaves outside organizations to question whether enough is being done to
ensure that the government is close to acquiring the depth and breadth it needs to ensure
the safety and comfort of individuals under its care.

388

6 C.F.R. § 115.42.

389

6 C.F.R. § 115.14.

390

Stacy, Briefing Transcript, p. 195.

391

Landy, Briefing Transcript, pp. 90–92.

392

Stacy, Briefing Transcript, pp. 205–206.

Prison Rape Elimination Act
The Commission finds that further research must be conducted to determine whether ICE
and CBP are complying with PREA standards concerning the treatment of transgender
and intersex individuals.
Does DHS Comply with PREA Language Requirements?
Both DHS PREA regulations for ICE and CBP mandate, in Section 115.16(b) and
Section 115.16(c) respectively, that:
b) The agency and each facility shall take steps to ensure meaningful access to all
aspects of the agency's and facility's efforts to prevent, detect, and respond to
sexual abuse to detainees who are limited English proficient, including steps to
provide in-person or telephonic interpretive services that enable effective,
accurate, and impartial interpretation, both receptively and expressively, using
any necessary specialized vocabulary.
(c) In matters relating to allegations of sexual abuse, the agency and each facility
shall provide in-person or telephonic interpretation services that enable effective,
accurate, and impartial interpretation, by someone other than another detainee,
unless the detainee expresses a preference for another detainee to provide
interpretation and the agency determines that such interpretation is appropriate
and consistent with DHS policy. The provision of interpreter services by minors,
alleged abusers, detainees who witnessed the alleged abuse, and detainees who
have a significant relationship with the alleged abuser is not appropriate in matters
relating to allegations of sexual abuse. 393
Representatives from DHS component agencies such as CBP ensure that efforts have
been made to provide all limited English proficient detainees access to all aspects of the
agency. Specifically, CBP states that all Border Patrol agents speak Spanish; 50 percent
are of Hispanic descent and many individuals join the Border Patrol already speaking
Spanish. 394 Despite proficiency in Spanish, there is no indication that individual agents
are qualified to determine the cultural, geographic, and human context of which detainees
express to a government they are unfamiliar with; essentially, language is only one aspect
of complete cultural understanding. Comprehending political, socioeconomic, and
cultural differences is an important intersectional factor and indicator of deciphering
intent and urgency of a detainee’s specific situation. DHS has made an effort to ensure
an understanding of detainees who speak Spanish; however, the issues that persist include
understanding those who may be illiterate, speak a dialect or indigenous language, or are
393

6 C.F.R. § 115.16; 6 C.F.R. § 115.116.

394

Yaki, Briefing Transcript, p. 60.

The State of Civil Rights at Immigration Detention Facilities

too frightened or uncertain to make a claim of sexual assault or harassment due to
cultural norms and/or conditions of detention. Organizations like the American
Immigrant Lawyers Association (AILA) are specifically concerned with the access
detainees have to individuals who are able to address them in their native languages. The
issue, raised in relation to sexual abuse, is grounded in the failure to provide adequate
translators or personnel.
The Commission finds that the evidence indicates that there are insufficient numbers of
federal government employees that interact with detained immigrants who are
sufficiently trained to handle and interact with the various political, cultural, and
socioeconomic differences between detained immigrants from various countries. The
Commission further finds that a lack of sufficient training inhibits the federal government
from fully complying with PREA language requirements.
Does DHS Adhere to PREA Requirements to Provide Individuals Information
Regarding PREA Policies?
PREA requirements for ICE, state in Section115.33 that:
(a) During the intake process, each facility shall ensure that the detainee
orientation program notifies and informs detainees about the agency's and the
facility's zero-tolerance policies for all forms of sexual abuse and includes (at
a minimum) instruction on:
(1) Prevention and intervention strategies;
(2) Definitions and examples of detainee-on-detainee sexual abuse, staff-ondetainee sexual abuse and coercive sexual activity;
(3) Explanation of methods for reporting sexual abuse, including to any staff
member, including a staff member other than an immediate point-ofcontact line officer (e.g., the compliance manager or a mental health
specialist), the DHS Office of Inspector General, and the Joint Intake
Center;
(4) Information about self-protection and indicators of sexual abuse;
(5) Prohibition against retaliation, including an explanation that reporting
sexual abuse shall not negatively impact the detainee's immigration
proceedings; and
(6) The right of a detainee who has been subjected to sexual abuse to receive
treatment and counseling.

Prison Rape Elimination Act
(b) Each facility shall provide the detainee notification, orientation, and
instruction in formats accessible to all detainees, including those who are
limited English proficient, deaf, visually impaired or otherwise disabled, as
well as to detainees who have limited reading skills.
(c) The facility shall maintain documentation of detainee participation in the
intake process orientation.
(d) Each facility shall post on all housing unit bulletin boards the following
notices:
(1) The DHS–prescribed sexual assault awareness notice;
(2) The name of the Prevention of Sexual Abuse Compliance Manager;
(3) The name of local organizations that can assist detainees who have been
victims of sexual abuse;
(4) The facility shall make available and distribute the DHS–prescribed
“Sexual Assault Awareness Information” pamphlet; and
(5) Information about reporting sexual abuse shall be included in the agency
Detainee Handbook made available to all immigration detention facility
detainees. 395
Comparatively, CBP’s DHS PREA regulations state that:
The agency shall make public its zero-tolerance policy regarding sexual abuse and
ensure that key information regarding the agency's zero-tolerance policy is visible
or continuously and readily available to detainees, for example, through posters,
detainee handbooks, or other written formats. 396
While DHS has made efforts to comply with PREA standards and make the detaining
process understandable, outside organizations suggest that the federal government needs
to do more to fully inform detained immigrants about their rights. Presently, NGOs find
that simply providing detainees with information does not facilitate understanding. The
current issue concerns detainee literacy. As more children who speak indigenous
languages enter the detention system, outside organizations find that agencies “can’t just
hand a child from Guatemala a Spanish “Know Your Rights” booklet. That is

395

6 C.F.R.§ 115.33.

396

6 C.F.R.§ 115.132.

The State of Civil Rights at Immigration Detention Facilities

insufficient. And a child’s going to have a very hard time understanding . . . . It’s got to
be more than just handing them a piece of paper.” 397
Additionally, there have been allegations that staff threatens retaliation against detainees
who report sexual assault or abuse. This indicates that DHS is not enforcing PREA’s
standards. This lack of decorum suggests a policy and practice disconnect — or at least
between expectations and execution of policy.
Potential miscommunication also exacerbates the issue of whether detainees fully
comprehend their rights, current policies, implementation practices, and general
applicability. DHS does not currently read undocumented immigrants Miranda rights. As
Maria Hinojosa, a contributor for Futuro Media Group, explained during the Commission
Briefing:
There is no process right now through which immigration agents come to
their door and say, ‘Let me explain to you exactly who I am and what I’m
doing’—let alone these are the rights you have, how you can ensure these
rights are being protected, and that you are not being taken advantage
of. 398
PREA Subpart A, which is specific to ICE, mandates that ICE provide detainees, within
30 days of the intake process, comprehensive education that explains PREA and how to
report sexual abuse and harassment. ICE must relate the information in a manner that
accommodates the detainee’s language barriers. Despite these precautions, NGOs find
these processes insufficient. Additionally, NGOs advocate that “legal orientation
programs for everyone in detention and appointed counsel, particularly for vulnerable
populations, children and the mentally ill,” would reinforce and solidify this

397

Libel, Bob, Briefing Transcript, p. 259. Moreover, “DHS has developed a Language Access Plan
outlining existing language access practices across all DHS components and future planned priorities in this
area. Among other things, ICE makes available to all detention facilities a telephonic interpretation line,
written translations of the ICE National Detainee Handbook and other critical materials and information
(including information on reporting sexual abuse and rights of sexual abuse victims), and offers “I-Speak”
materials to facility medical clinics to assist in identifying a detainee’s primary language for health carerelated interactions. ICE detention standards also require facilities to ensure that information about
detainee rights and responsibilities are communicated to detainees in a language or manner they can
understand.” Kevin Landy, in his official capacity as ICE Assistant Director for the Office of Detention
Policy and Planning (ODPP), sent the Commission additional comments in response to Commission staff
inquiry. This information is available at the U.S. Commission on Civil Rights Headquarters located at 1331
Pennsylvania N.W., Washington D.C., 20425.
398

Hinojosa, Briefing Transcript, p. 171.

Prison Rape Elimination Act
information. 399 Organizations like MALDEF and AILA fully support the implementation
of legal orientation programs. 400
The Commission finds ICE's distribution and content of detainee “Know your Rights”
materials do not sufficiently provide or inform all detained immigrants concerning their
rights because the materials are not available or explained in indigenous languages under
DHS PREA Subpart A (6 C.F.R. § 115.32). The Commission further finds that CBP must
ensure any documents applicable to DHS PREA Subpart B (6 C.F.R. § 115.132) be
available in indigenous languages. The Commission further finds that this inhibits DHS
from fully complying with PREA language requirements.
Does DHS follow PREA requirements mandating adequate ways to report sexual
assault?
According to Section 115.51 of DHS’s PREA requirements for ICE:
(a) The agency and each facility shall develop policies and procedures to ensure
that detainees have multiple ways to privately report sexual abuse, retaliation
for reporting sexual abuse, or staff neglect or violations of responsibilities that
may have contributed to such incidents. The agency and each facility shall
also provide instructions on how detainees may contact their consular official,
the DHS Office of the Inspector General or, as appropriate, another designated
office, to confidentially and, if desired, anonymously, report these incidents.
(b) The agency shall also provide, and the facility shall inform the detainees of at
least one way for detainees to report sexual abuse to a public or private entity
or office that is not part of the agency, and that is able to receive and
immediately forward detainee reports of sexual abuse to agency officials,
allowing the detainee to remain anonymous upon request.
(c) Facility policies and procedures shall include provisions for staff to accept
reports made verbally, in writing, anonymously, and from third parties and to
promptly document any verbal reports 401
Similarly, Section 115.151 of DHS’s PREA regulations for CBP states that:
(a) The agency shall develop policies and procedures to ensure that the detainees
have multiple ways to privately report sexual abuse, retaliation for reporting
399

Grisez, Briefing Transcript, p. 173.

400

Lucas, Briefing Transcript, p. 208.

401

6 C.F.R. § 115.51.

The State of Civil Rights at Immigration Detention Facilities

sexual abuse, or staff neglect or violations of responsibilities that may have
contributed to such incidents, and shall provide instructions on how detainees
may contact the DHS Office of the Inspector General or, as appropriate,
another designated office, to confidentially and, if desired, anonymously,
report these incidents.
(b) The agency shall also provide, and shall inform the detainees of at least one
way for detainees to report sexual abuse to a public or private entity or office
that is not part of the agency, and that is able to receive and immediately
forward detainee reports of sexual abuse to agency officials, allowing the
detainee to remain anonymous upon request.
(c) Agency policies and procedures shall include provisions for staff to accept
reports made verbally, in writing, anonymously, and from third parties and to
promptly document any verbal reports. 402
Despite written CBP documents stating compliance with PREA standards, the ACLU
found that detainees in CBP holding centers are:
. . . typically [placed in] congregate cells, [where] they very rarely have a
telephone that is immediately accessible to the detainees, which causes
problems with even telephoning some sort of legal help line. And also, if
they are facing any sort of sexual abuse situation, to be able to contact
anybody without the assistance of a guard. 403
With regard to child detainees, HHS’s Office of Refugee Resettlement (ORR), which is
not bound by DHS PREA, has gone through significant measures to ensure the safety of
children as “facilities are run by social workers, clinicians and trained staff.” 404
Additionally, ORR is “working on a number of different ways for reporting the sexual
abuse, [including] developing a new 800 number that’s easier for the children to access
without anyone knowing that they’re doing the call.” 405
PREA prescribes varied disciplinary standards for agency staff, and volunteers. PREA’s
presumptive disciplinary standard for staff involved in sexual abuse or harassment is
termination. However, PREA allows the agency to prescribe sanctions against a staff
member that are commensurate with the nature and circumstances of the acts, the staff
member’s disciplinary history, and comparable sanctions against other staff members.
402

6 C.F.R. § 115.151.

403

Takei, Briefing Transcript, p. 260.

404

Bena, Briefing Transcript, pp. 78–82.

405

Ibid.

Prison Rape Elimination Act
PREA prohibits staff or volunteers who are involved in sexual abuse or harassment from
further contact with detainees and mandates that the agency reports the abuse to a law
enforcement agency.
In complying with PREA, CBP finds that it has a similar rate of misconduct as would be
found in any general workforce. Within CBP, the Office of Internal Affairs is charged
with “investigating serious allegations of misconduct and inappropriate behavior.” And in
all instances, all allegations are investigated, and if proven, then corrective action is
taken.” 406
With regard to ICE, however, a PBS Frontline report found that, despite ICE’s
termination of a contract with Management and Training Corp. (MTC) for alleged sexual
abuse and assault of women detainees, other federal agencies, like the Bureau of Prisons,
are still permitted to keep contracts. 407
The Commission finds that DHS may not be providing detainees with adequate avenues
to report sexual assault or abuse. Moreover, the Commission finds that DHS may be
inadequately addressing staff misconduct with regards to sexual assault and abuse.

Conclusion
The Prison Rape Elimination Act of 2003 (PREA) is comprehensive and provides strong
protections for the detained population. However, there is no mechanism to enforce the
Act and to hold violators accountable. Additionally, there is a lack of transparency during
the investigation or punishment phases when a PREA violation is reported. Data
collection remains spotty and inconsistent. Therefore, based on analysis of the evidence
and research above, the Commission finds that:

406
407

ICE’s lack of transparency regarding their contracts with private detention
companies inhibits the assurance that PREA standards are being properly
implemented.

ICE CDFs lack accountability in complying with PREA inspection policies
because such reports are not made publicly available.

Further research must be conducted to determine whether ICE is complying with
PREA solitary confinement policies for children.

Jones, Briefing Transcript, p. 65.

Childress, Sarah, “Predictable Riot at Texas Prison Followed Years of Complaints”, PBS: Frontline, 25
Fed 2015, available at http://www.pbs.org/wgbh/pages/frontline/race-multicultural/lost-indetention/predictable-riot-texas-prison-willacy-years-complaints/.

The State of Civil Rights at Immigration Detention Facilities

Further research must be conducted to determine whether DHS is complying with
PREA standards concerning the treatment of transgender and intersex individuals.

DHS employees who interact with detained immigrants may not be insufficiently
trained to handle and interact with the various political, cultural, and
socioeconomic differences between detained immigrants from various countries.
The Commission further finds that this insufficient training inhibits DHS from
fully complying with PREA language requirements.

DHS’s current practice surrounding the distribution and content of detainee
“Know your Rights” materials may not be sufficiently providing or informing all
detained immigrants concerning their rights because the materials are not
available or explained in indigenous languages under DHS PREA Subpart A (6
C.F.R. § 115.32).

The Commission further finds that CBP must ensure any documents applicable to
DHS PREA Subpart B (6 C.F.R. § 115.132) be available in indigenous languages.

The Commission finds that DHS may not be providing detainees with adequate
avenues to report sexual assault or abuse. Moreover, the Commission finds that
DHS may be inadequately addressing staff misconduct with regards to sexual
assault and abuse.

A more detailed study must be done studying DHS detention and holding facility
compliance with PREA standards.

Immigration Detention Constitutional Issues

CHAPTER 6.

IMMIGRATION DETENTION:
CONSTITUTIONAL ISSUES

The U.S. immigration detention system raises various constitutional issues in terms of the
procedural mechanisms used to detain undocumented immigrants, conditions of
confinement, and the interference with fundamental rights. 408 Immigration detention
procedures were never meant to be criminal in nature. 409 However, based upon the
Commission’s visit to two Texas-based federally owned and contracted immigration
detention facilities, 410 the testimony from the Commission’s January briefing, 411 and
other reports, immigration detention centers treat and detain undocumented immigrants in
a manner inconsistent with protections afforded by the U.S. Constitution.
This chapter details the rights afforded to detained immigrants, the constitutional
amendments applicable to immigration detention, and discusses issues with the current
state of immigration detention in the United States. While the Commission’s purview
does not extend to issuing judicial findings regarding constitutional violations, 412 the
Commission may examine and report upon evidence indicating constitutional
violations. 413
Therefore, Chapter 6 serves as the Commission’s appraisal of federal immigration
practices that violate the Equal Protection Clause of the Fifth Amendment, discriminate
on the basis of national origin in the administration of justice afforded to detained
immigrants, and violate First Amendment rights. 414

408

Whitney Chelgren, Preventive Detention Distorted: Why It Is Unconstitutional to Detain Immigrants
Without Procedural Protections, 44 LOY. L.A. L. REV. 1477 (2011).
409

The Commission visited one federally operated (Port Isabel Detention Center) and one federally
contracted (Karnes Family Detention Center) detention facility in Texas on May 4-5, 2015.

411

The Commission held a Briefing on the constitutional issues and conditions of Immigration Detention.

412

According to Article III of the Constitution, it is the Judiciary Branch’s function to make findings in law
and equity, arising under the Constitution, and not that of the Executive Branch.
413

See 42 U.S.C. § 1975a(a)(2) (2013) (The Commission has a duty to “study and collect information”
regarding “discrimination or denials of equal protection of the laws under the Constitution of the United
States because of . . . national origin . . . .”).
414

Ibid.

The State of Civil Rights at Immigration Detention Facilities

Placing Discussion in Context; Raising Constitutional Issues
The Plenary Power
The plenary power doctrine grants Congress and the Executive Branch authority to admit,
exclude, or deport non-citizens.415 Congress’s power over immigration policy is derived
from nineteenth century U.S. Supreme Court cases 416 upholding various provisions of the
Chinese Exclusion Act of 1882 (CEA). 417 The CEA suspended the immigration of
Chinese laborers to the United States for 10 years, with the exception of those in the U.S.
prior to Nov. 17, 1880. 418 The Act not only prohibited Chinese immigrants from
obtaining U.S. citizenship, but also subjected to deportation Chinese immigrants who
were not lawfully present in the United States. 419 However, despite the draconian
reasoning behind the Supreme Court’s ruling, the plenary power solidified Congress’s
power to regulate immigration policies and laws—so long as they are compliant with the
U.S. Constitution.

Discussion
The Commission examined several constitutional issues raised by a myriad of social and
political advocacy groups, news outlets, and public reports. This portion of the report will
first address whether the federal government is detaining immigrants in a manner that is
inconsistent with the Fifth Amendment. More specifically:
•

Is the federal government detaining immigrants in a manner comparable to
punitive incarceration?

•

Is the federal government affording detained immigrants the ability to obtain
counsel?

•

Is the federal government actively inducing an ineffective assistance of counsel
by stonewalling a detained immigrant’s ability to meet with counsel?

415

See generally Zadvydas v. Davis, 533 U.S. 678 (2001), Miller v. Albright, 532 U.S. 420 (1998)
(O’Connor, J., concurring), Kleindienst v. Mandel, 408 U.S. 753 (1972), Carlson v. Landon, 342 U.S. 524
(1952).
416

Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581 (1889); Yick Wo v.
Hopkins, 118 U.S. 356 (1886).

417

Ch. 126, 22 Stat. 58 (1882).

418

Ibid.

419

See e.g. Chae Chan Ping v. United States, 130 U.S. 581 (1889).

Immigration Detention Constitutional Issues
•

Is the federal government, pursuant to the Fifth Amendment’s Due Process
Clause, prohibited by the Eight Amendment from requiring excessive bail
amounts?

Next, this portion of the report will analyze if the federal government is violating a
detained immigrant’s First Amendment rights by interfering with a detained immigrant’s
right to freely exercise religion.
Is The Federal Government Detaining Immigrants in a Manner That Is Inconsistent
with the Fifth Amendment’s Due Process Clause?
The Fifth Amendment to the U.S. Constitution provides that “no person shall be deprived
of life, liberty, or property without the due process of law.” 420 It binds the federal
government to “a number of other express provisions in the Bill of Rights, guaranteeing
fair procedure and non-arbitrary action, such as jury trials, grand jury indictments, and
non-excessive bail and fines . . . .” 421 These protections apply to all persons within the
United States and its territories, including undocumented immigrants. 422 Therefore, the
federal government violates detained immigrants’ Fifth Amendment rights if the federal
government:
-

detains immigrants in a manner that is inconsistent with the Fifth Amendment;

detains immigrants in a manner comparable to punitive incarceration;

fails to afford detained immigrants the ability to obtain counsel; and

impairs the ability of detainees to meet with counsel.

420

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment
or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in
actual service in time of war or public danger; nor shall any person be subject for the same offense to be
twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property
be taken for public use, without just compensation.”. U.S. Const. Amend. V.
421

See INTEL CORPORATION, a Delaware corporation, Plaintiff (""Intel''), v. ECONINTEL TREASURY
SYSTEMS, INC. a Delaware corporation, Trevor Underwood, an individual, Defendants (""Econintel''),
2007 WL 5079193 (S.D.Fla.); Lin v. The United States, 2006 WL 655065 (U.S.), 15; Janice HALGREN,
Appellant/ Pro Se, v. Bristol MYERS-SQUIBB, et al., Appellees, 2002 WL 32168210 (C.A.11), v-vi; See
generally Wong Wing v. United States, 163 U.S. 228, 238 (1896); See also Yick Wo v. Hopkins, 118 U.S.
369 (1886), Ex parte Wilson, 114 U.S. 417 (1885).
422

Ibid.

The State of Civil Rights at Immigration Detention Facilities

Is The Federal Government Detaining Immigrants in a Manner That Is Inconsistent
with the Fifth Amendment’s Due Process Clause?
Under the Due Process Clause, “a [civil] detainee may not be punished prior to an
adjudication of guilt in accordance with due process of law.” 423 Additionally, a detained
immigrant 424 has not been “adjudged” guilty of a crime. 425 Instead, a detained immigrant
has only had a “judicial determination of probable cause as a prerequisite to [the] restraint
of [his] liberty following [apprehension].” 426 The U.S. Supreme Court states that
“[d]eportation is not a criminal proceeding and has never been held to be punishment. No
jury sits. No judicial review is guaranteed by the Constitution.”427 Moreover, the federal
government may only detain an undocumented immigrant “to ensure his presence at trial
and may subject him to the restrictions and conditions of the detention facility so long as
those conditions and restrictions do not amount to punishment, or otherwise violate the
Constitution.”428
According to Youngberg v. Romeo, 457 U.S. 307, 315-316 (1982), detained immigrants,
at a minimum, have a right to be free from bodily restraint 429 and from unsafe detention

423

See Bell v. Wolfish, 441 U.S. 520 (1979). Bell v. Wolfish examined the constitutional rights of pretrial
detainees who were charged with a crime, but had not been formally convicted. The detainees in this case
were placed in “Pre-Trial Detention,” a form of administrative detention to ensure their presence at trial.
The basis of the decision was to determine what rights do pre-trial detainees have when being detained
prior to trial. The fact that they have not been convicted of a crime deems them civil detainees in
administrative detention - as opposed to punitive detention. Although this case stems from criminal
charges, these detainees, like detained immigrants, were placed in administrative detention - a form of civil
detention. Therefore, this case is very applicable to detained immigrants who are administratively, or in
other words civilly, detained. Moreover, detained immigrants are very similar to the detainees in this case
because if detained immigrants are found to have violated U.S. Immigration laws they are considered
criminals.; See Ingraham v. Wright, 430 U.S. 651, 671-672 (1977); Kennedy v. Mendoza-Martinez, 372
U.S. 144 (1963). Ingraham v. Wright examined the constitutional issues surrounding schools’ use of
corporal punishment to punish students. While this case involved the rights of students, it is applicable to
detained immigrants because detained immigrants are being punished in a civil setting as opposed to
punitive setting where criminals are punished. Therefore, this case is applicable for the sole purpose of
providing a context of the civil rights entitled to people who are being punished in a punitive fashion;
Wong Wing v. United States, 163 U.S. 228 (1896). Wong Wing v. United States is applicable because it is
one of the first cases examining a statute affecting those people who are unlawfully residing in the United
States.
424

Detained immigrants are considered civil detainees. See generally Denmore v. Kim, 538 U.S. 510
(2003); Zadvydas v. Davis, 533 U.S. 678 (2001).
425

See generally, Zadvydas v. Davis, 533 U.S. 678 (2001).

426

See Geerstein v. Pugh, 420 U.S. 103, 113-14 (1975).

427

Carlson v. Landon, 342 U.S. 524, 537 (1952).

428

Wolfish, 441 U.S. at 536-37 (1979) (Marshall, J., Dissenting)

429

Youngberg v. Romeo, 457 U.S. 307, 315-316 (1982) (citing Greenholtz v. Nebraska Penal Inmates, 442
U.S. 1 (1979)). This case involved the involuntary commitment of a mentally ill individual - a form of

Immigration Detention Constitutional Issues
conditions. 430 Additionally, according to Youngberg, the Court balances a civil detainee’s
right to be free from bodily restraint and unsafe conditions against the government’s
legitimate interest in maintaining order and security at detention facilities. Furthermore,
the Court entitles detention officials “to a presumption of correctness.” 431
More recent case law states that “when a [detained immigrant] is confined in conditions
identical to, similar to, or more restrictive than, those in which his criminal counterparts
are held, we presume that the detainee is being subject to ‘punishment.’” 432 Therefore,
the federal government has violated a detained immigrant’s Fifth Amendment rights if
the federal government detains an immigrant in a manner comparable to criminal
incarceration.
During the Commission’s briefing, federal officials testified that detained immigrants are
not confined in a manner comparable to criminal incarceration. 433 However, the
Commission, based on research and testimony, questions the veracity of their claims.
Several panelists stated that numerous changes are necessary to create true civil detention
settings. 434 The American Bar Association has developed civil immigration detention
standards which detail how such facilities would be structured and run to distinguish
them from criminal incarceration. 435
The Commission visited Port Isabel Detention Center on May 5, 2015, to corroborate
testimony collected during the Commission’s hearing on Jan. 31, 2015. Port Isabel
Detention Center (PIDC) is a federally owned immigration detention center located near
Harlingen, Texas. During the Commission’s visit, it was apparent that immigration
administrative detention. Therefore, this case is applicable to detained immigrants because it discusses the
rights of those involuntarily committed.
430

Ibid. (Citing Ingraham v. Wright, 430 U.S. 651, 673 (1977)).

431

Ibid. at 324.

432

Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004). This case involved the administrative detention of a
Sexually Violent Predator Act (SVPA) detainee - a form of civil detention. While this case involved
criminal matters, the 9th Circuit examined and ruled upon the due process of people detained under the
SVPA, who are considered civil detainees until they are convicted. Moreover, the 9th Circuit definitively
and consistently refer to SVPA detainees as civil detainees. Therefore, because SVPA detainees are
classified as civil detainees, detained immigrants, who are all civil detainees, are afforded the same rights.
433

See generally, U.S. Commission on Civil Rights, Briefing Testimony.

434

See, e.g. Grisez, Karen, Briefing Transcript, p. 157 (describing the detention system as using a
“correctional model.”).

435

For example, detainees would be permitted to wear civilian clothing, secure their own belongings, and
move freely throughout the facility. ABA Civil Immigration Detention Standards, American Bar
Association, 2012, available at
http://www.americanbar.org/content/dam/aba/administrative/immigration/abaimmdetstds.authcheckdam.p
df.

The State of Civil Rights at Immigration Detention Facilities

detention centers were built, house detainees, and operate like criminal penitentiaries
(Figure 5). 436
FIGURE 5. Entrance at Port Isabel Detention Center 437

All DHS-owned and contracted detention facilities are identically built. For example,
detention facilities are surrounded by two 12-foot double fences that circumscribe the
compound’s exterior and housing units. Additionally, fences are surrounded and lined
with barbed wire. Figure 6 depicts the fence line from Polk County Detention Center
(PCDC) in eastern Texas, which is identical to the fence line at PIDC.

436

See García Hernández, César Cuauhtémoc, Immigration Detention as Punishment (August 22, 2013).
UCLA LAW REVIEW, Vol. 61, No. 5, 2014, Forthcoming; U Denver Legal Studies Research Paper No. 1341, available at http://ssrn.com/abstract=2321219. (“…[W]ith only a few exceptions, the facilities that ICE
uses to detain aliens were originally built, and currently operate, as jails and prisons to confine pretrial and
sentenced felons. Their design, construction, staffing plans, and population management strategies are
based largely on the principles of command and control. Likewise, ICE adopted standards that are based on
corrections law and promulgated by correctional organizations to guide the operation of jails and prisons.
Immigration detention centers, in effect, are built and managed on the premise that immigration detainees
are just as dangerous as penal detainees.”), p.234.
437

http://www.snipview.com/q/Port_Isabel_Detention_Center.

Immigration Detention Constitutional Issues
FIGURE 6. Polk County Detention Center 438

FIGURE 7. Marion State Prison 439

438

http://www.motherjones.com/mojo/2012/11/10-worst-immigration-detention-centers-america.

439

http://www.10tv.com/content/stories/2012/01/01/marion-private-prisons.html.

The State of Civil Rights at Immigration Detention Facilities

The fence lines are identical to the fence lines at criminal penitentiaries. Figure 7 depicts
the fence line at Marion Federal Prison, a criminal facility.
Despite the similarity, a detention facility’s appearance has little impact when analyzing
whether detention centers are punitive in nature. Simply examining a detention center’s
physiognomy alone is not enough to constitute a punishment under a Fifth Amendment
analysis. 440 The Supreme Court stated that there must be more. 441 Detained immigrants
must also be treated like criminal inmates. 442
Immigration detention facilities house detainees in dormitories that are identical to
criminal penitentiaries. At PIDC, Commission staff observed that dormitories house
between 50 and 75 people, were lined with beds, and had open bathrooms and shower
areas. Comparably, criminal facilities house inmates in large units lined with beds, open
bathrooms, shower areas, and house a large number of inmates. Additionally, the
dormitories were electronically locked by heavy doors and were guarded. Figures 8-14
depicts the similarity between the dormitories at immigration detention facilities and
criminal penitentiaries.
It should be noted that at both Karnes and Port Isabel, the Commission delegation was
prohibited by detention facility officials from taking photographs. The Port Isabel
detention staff had a photographer documenting the Commission delegation’s visit
without providing the Commission with copies of the photographs.

440

See Wolfish, 441 U.S 520 (1979).

441

Ibid.

442

Jonas v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004).

Immigration Detention Constitutional Issues
FIGURE 8. Detention Facility in California 443

443

http://www.zimbio.com/pictures/jRKI3eYta86/ICE+Holds+Immigrants+Adelanto+Detention+Facility/hugg9vyIZdO.

100

The State of Civil Rights at Immigration Detention Facilities
FIGURE 9. Nogales Border Patrol Station—Children’s Housing Unit 444

444

http://www.autostraddle.com/kids-detained-in-az-provides-window-into-totally-fcked-us-immigrationsystem-240979/.

Immigration Detention Constitutional Issues
FIGURE 10. High Security Penitentiary in Coleman, Florida. 445

Immigration detention centers are also operated like criminal penitentiaries. During the
Commission’s visit to PIDC, Commission staff observed that detained immigrants were
given uniforms identical those given to prison inmates. Additionally, detained
immigrants, like criminal inmates, were marched with their hands behind their backs and
escorted to various locations within the facility. The pictures below depict procedures
that are similar between immigration detention centers and criminal penitentiaries.

445

http://www.govexec.com/defense/2012/01/inmate-assaults-on-federal-prison-officers-underscorestaffing-budget-shortfalls/35816/.

101

102

The State of Civil Rights at Immigration Detention Facilities

FIGURE 11. Department of Corrections and Rehabilitation in North Dakota 446

Moreover, evidence suggests that detained immigrants are being abused at a level
constituting punishment. Maria Hinojosa, a reporter with Futuro Media Group, testified
that detained immigrants were held in
[dormitories that were either] cold or too hot. The [dormitories] had no
windows, no way to look outside. The one window that there was, it was
kind of like a circus tent structure. The one window it—that there was
there was a red line around it so you couldn't get close to the window and
you were punished if you did. 447
Additionally, Hinojosa testified that:
We spoke to a former guard who said that she had witnessed another
guard and a supervisor beating a detainee who had answered back to an
insulting guard. She was told to take the badly injured man and put him on
the first plane back to— deported to Guatemala. She soon quit afterwards
because of an unsafe work environment. 448

446

https://sayanythingblog.com/entry/left-north-dakota-need-sentencing-reform/.

447

Hinojosa, Briefing Transcript, p.105.

448

Ibid., p. 107.

Immigration Detention Constitutional Issues
FIGURE 12. U.S. Border Patrol Agents Watch Over Undocumented Immigrants–Nogales,
AZ

Source: Reuters News 449

Hinojosa also recounted that three separate women who were detained at immigration
were:
held in a place that's commonly called (foreign language spoken), which
means "the ice box" or "the freezer." She said that they were hold—held
wet and cold with no blankets that the guards joked with them to not ask
for any more air-conditioning, taunting them about the very cold
conditions. They said they got three microwaved burritos. Often, they are
still frozen and that the water tasted like sulfur. 450
In addition to Hinojosa’s testimony, the Commission heard personal accounts regarding
detainee treatment at federal processing centers. On May 4, 2015, the Commission visited
Karnes Family Detention Center near San Antonio, Texas. 451 During the visit, the
Commission held a meeting with a group of women detainees. The Commission
questioned the detainees about how they were being treated at the Karnes facility. The
detainees responded that their experience at Karnes was much better than what they had
experienced at CBP processing centers. The detainees told the Commission that CBP had
449

http://www.reuters.com/article/2009/08/06/us-usa-immigration-idUSTRE5750MW20090806.

450

Hinojosa, Briefing Transcript, p.107. See also Bale, Rachael. "Border Crossers Face 'freezer' Detention."
U-T San Diego. Nov. 20, 2013, accessed June 3, 2015, available at
http://www.utsandiego.com/news/2013/nov/20/cir-border-detainees-freezers/.

451

Karnes Family Detention Center is an ICE-contracted facility owned by GEO Group.

103

104

The State of Civil Rights at Immigration Detention Facilities

placed them in overly crowded, freezing cells that they referred to as “hieleras” or “ice
boxes.” The detainees stated that they were given cold wet blankets and that their
children were not being given proper medical care when sick. CBP did not give detainees
the ability to a shower, to have clean clothes, or even an area to wash their hands before
eating. The detainees stated that they were forced to drink unclean water that tasted like
oil. Some detained children even suffered dehydration because they refused to drink the
water at the CBP facility. Additionally, the detainees articulated that they were only
given one meal for the day, which consisted of an old bologna sandwich. Moreover, the
detainees complained that the guards taunted them by calling them derogatory, racial
words and even threatened them with guard dogs.
The Los Angeles Times reported similar issues:
In Arizona, most were corralled behind chain-link fences topped with
razor wire, huddling for warmth on plastic mats under flimsy metallic
Mylar blankets. A television was suspended from the ceiling. Banks of
portable toilets served as sanitary facilities. Beside a recreation area, a
camouflage tarp had been strung up to shield temporary showers. 452
In addition, some female detainees with their children approached the Chair during a
tour of the grounds at Karnes and told him that a child attempted suicide by jumping
from a second floor balcony because he could not stand being in detention any longer;
that mothers taking part in a hunger strike over prolonged detention were threatened by
detention facility staff with having their children taken from them if they did not break
the hunger strike; at times they are verbally abused by the detention center staff; and that
the detention center is cleaned up or re-painted when an outside delegation visits the
detention center.

452

Hennessy-Fiske, Molly, and Cindy Carcamo. “Overcrowded, unsanitary conditions seen at immigration
detention centers.” Los Angeles Times. June 18, 2014, available at
http://www.latimes.com/nation/nationnow/la-na-nn-texas-immigrant-children-20140618story.html#page=1.

Immigration Detention Constitutional Issues
FIGURE 13. Immigrant Children Held at CBP Nogales Placement Center

Source: Arizona Central Newspaper. 453 Photo: Ross D. Franklin/Associated Press.

Even Congressional leaders have voiced concerns about the punitive nature of
immigration detention facilities. One hundred thirty-six Members of Congress signed a
letter to DHS Secretary Jeh Johnson which stated:
[W]e are disturbed by the fact that many mothers and children remain in
family detention despite serious medical needs. In the past year, we have
learned of the detention of children with intellectual disabilities, a child
with brain cancer, a mother with a congenital heart disorder, a 14- day-old
baby, and a 12-year-old child who has not eaten solid food for two
months, among many others. Recently, we learned of a three-year-old
child at the Berks County Residential Center who was throwing up for
three days and was apparently offered water as a form of medical
treatment. It was only after the child began throwing up blood on the
fourth day that the facility finally transferred her to a hospital. This is

453

Michael Kiefer, First peek: Immigrant children flood detention center, AZCentral, Arizona Republic,
June 19, 2014, available at http://www.azcentral.com/story/news/politics/immigration/2014/06/18/arizonaimmigrant-children-holding-area-tour/10780449/.

105

106

The State of Civil Rights at Immigration Detention Facilities
simply unacceptable. 454
The Commission agrees with the concerns raised by members of Congress. While the
letter from Congress addressed conditions in family detention centers, the Commission
has received reports of unacceptable conditions in border patrol facilities, adult facilities,
and family facilities. As detailed above, conditions of extreme cold, overcrowding and
inadequate food persist in CBP facilities. The Commission observed detainees held in
conditions similar to incarceration at Port Isabel Detention Center. The Commission
recognizes that some detainees at Port Isabel have been convicted of crimes, some have
been charged with crimes, others have failed to appear for immigration hearings, and
finally others are held on civil immigration matters. While the government uses various
colors of prison attire to differentiate levels of detention, it fails to treat the different
levels of detainees distinctly from each other in its day-to-day operations. As discussed in
Chapter 4, a federal judge has concluded that family detention does not comply with the
government’s obligations under the Flores Settlement Agreement. Taken together, these
conditions are inconsistent with a system of civil detention that should not seek to punish
immigrant detainees. Therefore, the Commission finds evidence indicating that DHS and
its component agencies and contractees detain undocumented immigrants in a manner
inconsistent with civil detention and instead detain many undocumented immigrants like
their criminal counterparts in violation of a detained immigrant’s Fifth Amendment
Rights.
The Right To Seek Counsel: Is the Federal Government Affording Detained
Immigrants the Ability to Obtain Counsel?
The Fifth Amendment to the U.S. Constitution mandates that “no person … shall be
deprived of life, liberty, or property…” without due process of law. 455 According to Reno
v. Flores, 507 U.S. 292, 306 (1993), “[i]t is well established that the Fifth Amendment
entitles aliens to due process of law in deportation proceedings.” Additionally, federal
courts have held that the removal process implicates an undocumented immigrants’
liberty interest. 456 Therefore, federal courts have considered access to counsel, at one’s
own expense, a requirement that assures fundamental fairness during removal
proceedings. 457 For example, in United States v. Charleswell, 456 F.3d 347, 360 (3d Cir.
454

See Congressional Letter -Appendix C.

455

U.S. Const., Amend. V.

456

A detained immigrant’s liberty interest is implicated because federal statute mandates that captured
undocumented immigrants be detained. See e.g., Zadvydas v. Davis, 533 U.S. 678, 690 (2001).

457

Immigration Detention Constitutional Issues
2006), the Third Circuit characterized a detained immigrant’s right to counsel during
removal proceedings as “so fundamental to the proceeding’s fairness” that denying this
right “rise[s] to the level of fundamental unfairness.” Furthermore, the Fifth Amendment
is not the only law that grants undocumented immigrants the right to counsel at their own
expense. The Immigration and Nationality Act (INA) guarantees undocumented
immigrants with access to counsel at their own expense. 458
Several provisions of the INA provide undocumented immigrants with a right to counsel
at their own expense. INA Section 292 directly governs a detained immigrant’s right to
counsel. Section 292 states that, “[i]n any removal proceedings before an immigration
judge and in any appeal proceedings before the Attorney General from any such removal
proceedings, the person concerned shall have the privilege of being represented (at no
expense to the Government) by such counsel ... as he shall choose.” 459 Additionally, INA
provides detained immigrants other rights in removal proceedings. For example, the INA:
•

promulgates rules that grant detained immigrants ample opportunity to obtain
counsel by placing restrictions on the removal proceeding’s timing; 460

•

mandates that undocumented immigrants are furnished with a list of pro bono
attorneys when removal proceedings have begun; 461 and

•

establishes additional protections for
incompetent individuals, and others. 462

unaccompanied

minors,

mentally

Although the INA describes these provisions as a “privilege,” several courts construed
INA as establishing a statutory right to counsel at a detained immigrant’s own expense. 463
Therefore, the federal government violates a detained immigrant’s Fifth Amendment and
statutory rights when it does not afford a detained immigrant the ability to seek legal
counsel or providing them with resources to obtain legal counsel.
hearing.”); Borges v. Gonzales, 402 F.3d 398, 408 (3d Cir. 2005) (“The Fifth Amendment entitles aliens to
due process of law in deportation proceedings.”); Rosales v. Bureau of Immigration & Customs
Enforcement, 426 F.3d 733, 736 (5th Cir. 2005) (“[D]ue process requires that deportation hearings be
fundamentally fair.”); Brown v. Ashcroft, 360 F.3d 346, 350 (2d Cir. 2004) (“The right ... under the Fifth
Amendment to due process of law in deportation proceedings is well established.”).
458

The Immigration and Nationality Act, as amended, PUB. L. 104-208, 66 Stat. 235 (Sept. 30, 1996)
(codified as 8 U.S.C. § 1362).
459

Ibid.

460

See INA §239(b)(1) (Codified at 8 U.S.C. §1229(b)(1)).

461

See INA §239(b)(2), 8 U.S.C. §1229(b)(2); 8 C.F.R. §238.1(b)(2)(iv).

462

See 6 U.S.C. §279(b)(1)(A).

463

See Castro-O’Ryan, 847 F.2d at 1312 ( indicating Section 292 of the INA, as well as its legislative
history, “confirms that Congress intended to confer a right”).

107

108

The State of Civil Rights at Immigration Detention Facilities

DHS and ORR state that they furnish detained immigrants with legal materials that
provide information detailing the immigration process and how to obtain legal
representation. 464 These flyers are available in both English and Spanish. 465 Additionally,
DHS displays a “Know Your Rights” video 466 during immigrant processing. 467 The
Commission commends DHS and ORR for providing detained immigrants with legal
material; however, evidence suggests that these practices are facial and do not have their
intended effect.
Legal representation is crucial for detained immigrants seeking asylum or entry into the
United States. 468 Statistics show that detained immigrants who obtain counsel are more
successful in their asylum claims, and therefore released from detention more often, than
those without counsel. 469 According to Figure 14, detained immigrants who had obtained
counsel were six times more likely to succeed in removal proceedings.
FIGURE 14. Effect of Counsel on Case Success for Detained Non-Citizens—2005–2012

Source: National Immigration Justice Center Report. 470 Numbers obtained from Katzmann Study Group, 2011.

464

The Commission learned that detained immigrants are given flyers dictating the immigration process
and contact information for legal services during the Commission’s visit to Karnes Family Detention
Facility and PIDC. See also Briefing Transcript, U.S. Commission on Civil Rights.
465

The Commission received a copy of the flyers during the Commissions visit to Karnes Family Detention
Facility and PIDC. See also Briefing Transcript, U.S. Commission on Civil Rights.
466

Video prepared by American Bar Association. ICE officials state the video is shown in both Spanish and
English.
467

See notes concerning Commission visits to Karnes Family Detention Center and Port Isabel Detention
Center.
468

Karen Grisez, Written Statement, p. 4.

469

Ibid.

470

Charles Roth and Raia Stoicheva, Order in the Court: Commonsense Solutions to Improve Efficiency
and Fairness in the Immigration Court, NIJC, October 2014, available at

Immigration Detention Constitutional Issues
The success rate of detained immigrants with counsel is strongly linked to an immigrant’s
ability to comprehend complex immigration law. Overall, detained immigrants are not
fluent or literate in English. 471 While detention facilities are required to provide access to
legal materials and research tools to detainees, a majority of immigration jurisprudence is
not available in Spanish or indigenous languages. Therefore, expecting detained
immigrants to understand the complex and intricate immigration system without the
assistance of counsel is fundamentally unfair.
While the INA mandates that the federal government furnish detained immigrants with
legal materials and attorney contact information, the actual procedures ICE uses to
process detained immigrants is not conducive to affording them adequate opportunity to
obtain counsel. 472 For example, ICE initially detains an undocumented immigrant in a
facility where that immigrant was apprehended. 473 However, ICE transfers these
detainees to remote detention centers within hours of their apprehension. This immediate
transfer affects a detained immigrant’s ability to secure legal representation because
his/her transfer location is generally unknown. 474 Additionally, a detained immigrant may
be transferred to a facility located over 100 miles away from where he/she was initially
apprehended. During the Commission’s briefing, Karen Grisez, on behalf of the
American Bar Association (ABA), Governmental Affairs Office, stated:
Immigration detention is particularly important to the ABA for two
reasons: One is that it impedes the access to counsel, and without the right
to appointed counsel, as was mentioned earlier this morning, the fact of
generally remote detention locations, much less the conditions that pertain
in those facilities, makes it extremely difficult for people to access pro
bono representation.

http://immigrantjustice.org/sites/immigrantjustice.org/files/Order%20in%20the%20Courts%20%20Immigration%20Court%20Reform%20White%20Paper%20October%202014%20FINAL2.pdf .
471

Commission observed that a majority of detained population did not speak or understand English at
Karnes Family Detention Facility and Port Isabel Detention Center.
472

The Commission visited RAICES Immigration Services. The Commission was apprised of various
issues detained immigrants face during the removal process.
473

Geoffrey Heeren, Pulling Teeth: The State of Mandatory Immigration Detention, 45 HARV. C.R. C.L. L.
REV. 601, 614 (2010).
474

The Commission learned that immigrants detained at Port Isabel Detention Facility and Karnes Family
Detention Facility were apprehended from various places near the Rio Grande Valley and throughout
Texas.

109

110

The State of Civil Rights at Immigration Detention Facilities

Additionally, the federal government’s policies and procedures adversely affect detained
immigrants who are subject to expedited removal. According to Karen Lucas, Associate
Director of Advocacy for the American Immigration Lawyers Association (AILA):
Every day at Artesia, AILA member attorneys saw that the pressure to
rush women and children through the deportation process was resulting in
the denial of many legitimate asylum claims—both by asylum officers and
by judges—without legal foundation. Officers interviewed families for
their credible fear claims less than three days after their arrival. The speed
with which asylum officers were making credible fear decisions was also
very fast: 6.4 days on average. Moreover, some asylum officers would ask
questions during the credible fear interviews using legal and statutory
language that the detainees could not understand. Notice to attorneys of
their clients’ credible fear interviews was often inadequate, and some
clients were even encouraged to go forward with their interviews without
their attorneys. 475
The INA states that a detained immigrant must be given ample time to obtain legal
counsel before removal proceeding begins. 476 Detained immigrants who are subjected to
expedited removal are forced to find counsel in a matter of hours because of the speed of
the expedited removal process. 477 This relatively short time frame is inadequate for
detained immigrant to obtain counsel. 478 Additionally, detained immigrants are usually
bombarded with complex legal information detailing their rights that are often times not
in Spanish or indigenous languages. 479 Consequently, detained immigrants may not
understand their rights – including their ability to obtain counsel - or they may not
understand their rights because DHS presented them with a large amount of complex
information and expected them to digest the information within a short time frame. 480
Therefore, the expedited removal process creates a fundamentally unfair process by not
affording detained immigrants the proper ability to obtain counsel.
Moreover, DHS employees may be proactively discouraging detained immigrants from
accessing and obtaining legal services. For example, Ellen Miller from CARA Pro Bono
475

Karen Lucas, Written Testimony, p. 12.

476

See INA §239(b)(1) (Codified at 8 U.S.C. § 1229(b).

477

RAICES and CARA Pro Bono Legal Services told the Commission that detained immigrants who are
subject to the expedited removal process often times do not have representation.

478

Ibid.

479

Ibid.

480

Ibid.

Immigration Detention Constitutional Issues
Project recounted an event where ICE banned a nun who announced the availability of
legal services to detained immigrants after a religious service. 481 Miller also stated that
many women are not aware of their ability to obtain pro bono legal services and appear
pro se 482 during immigration proceedings. 483 Furthermore, the Commission learned that
phone services were arbitrarily cut when detained immigrants attempted to dial a number
to contact outside legal services. This is significant because ICE monitors all detainee
incoming and outgoing phone calls. 484 Additionally, DHS and its contract facilities
require detained immigrants to pay for phone calls. 485 Many detained immigrants migrate
to the United States without money or the ability to contact family members. 486
Therefore, a detained immigrant who does not have the resources to pay to call an
attorney while in detention is left without recourse.
Language barriers may also inhibit a detained immigrant’s ability to procure counsel.487
For example, ICE is required to distribute a list of legal services and pro bono attorney
contact numbers to detained immigrants. 488 According to an ICE official, these lists were
said to have been available in both English and Spanish. The Commission asked for a
copy of this list in each available language during the Commission’s visit to Karnes
Family Detention Center, but the Commission had never received the copies that were
promised by one ICE official. Furthermore, although a majority of ICE detainees come
from Spanish-speaking countries, many of these immigrants speak indigenous languages
that may not be consistent with traditional Spanish linguistic norms. 489

481

The Commission visited RAICES Legal Services on May 4, 2015. Ellen Miller, an attorney from CARA
Pro Bono Legal Services, attended the meeting. She began detailing various access-to-counsel issues that
detained immigrants were facing.
482

Pro Se is a term used to describe a person who is appearing at a court hearing on his or her own behalf
without the representation of counsel.

483

RAICES and CARA Pro Bono Legal Services told the Commission that detained immigrants who are
subject to the expedited removal process often times do not have representation.

484

The Commission noted, during the Commission’s visit to Karnes Family Detention Center, that detained
immigrants were required to pay for any phone call while they were detained.
485

Ibid.

486

See generally, Commission Briefing Transcript.

487

Karen Grisez, Written Statement, p. 4.

488

See supra, note 449.

489

Unaccompanied Alien Children: An Overview. R43599. By Lisa Seghetti, Alison Siskin, and Ruth Ellen
Wasem. Washington, DC: U.S. Government Printing Office, 2014.

111

112

The State of Civil Rights at Immigration Detention Facilities

While the federal government has some commendable practices, many of DHS practices
affect detained immigrants’ ability to secure and obtain legal counsel at their own
expense, despite immigrants’ rights under the Fifth Amendment and the INA to do so.
Several resources indicate that the federal government and its contract facilities
intentionally interfere with a detained immigrant’s ability to access and speak with legal
counsel. 490 For example, according to Karen Lucas, immigration judges have
“improperly hindered counsel’s ability to speak and advocate for their clients during . . .
credible fear reviews.” 491 Immigration judges were not the only federal government
officials who have been reported to impede a detained immigrant’s access to counsel.
Reports indicate that CBP consistently places barriers obstructing a detained immigrant’s
access to counsel. The following three statements were taken from an AILA and Penn
State Law joint report 492:
Statement 1 493

490

American Immigration Council and Penn State Law, Behind Closed Doors: An Overview of DHS
Restrictions on Access to Counsel. PENN STATE LAW, available at
https://pennstatelaw.psu.edu/_file/Immigrants/LAC_Right_to_Counsel.pdf .
491

Karen Lucas, Written Testimony.

492

Ibid.

493

Ibid.

Immigration Detention Constitutional Issues
Statement 2 494

Statement 3 495

There are also reports that ICE hinders detained immigrants’ ability to communicate with
counsel. During the Commission’s visit to Karnes Family Detention Facility and Port
Isabel Detention Center, a CARA representative informed the Commission that ICE and
detention officials prohibit immigrant attorneys from bringing basic office equipment
when visiting with their clients. Government attorneys, on the other hand, were allowed
that privilege. Additionally, ICE and detention officials arbitrarily create rules that
interfere with an attorney’s ability to meet with their client. For example, during the
Commission’s meeting with RAICES, the Commission learned that attorneys were being
denied entrance to detention facilities because they were carrying cell phones when cell
phones previously were allowed. The following is an account was taken from an AILA
and Penn State Law joint report 496:
494

Ibid.

495

Ibid.

113

114

The State of Civil Rights at Immigration Detention Facilities

In addition to the accounts above, DHS and DHS-contracted facilities monitor all
incoming and outgoing phone calls. 497 When Commission staff questioned an ICE
official regarding the phone monitoring policy and how that policy affects the “attorneyclient privilege,” the ICE official stated that all attorney-client calls were not
monitored. 498 However, the ICE official did not explain the safeguards ensuring that
attorney-client calls remained confidential. 499 Listening to an attorney’s conversation
with his/her client would greatly prejudice a detained immigrant because it would give
the government insight to privileged information that an attorney may use during
proceedings. Therefore, the federal government’s actions substantially give an unfair
advantage to the government
Evidence indicates that federal employees are interfering with an attorney’s ability to
represent clients. 500 Federal detention employees actively deny that detained immigrants
have a right to counsel or stonewall attorneys from being present during detainee
interviews with immigration officials. 501 Generally, an attorney acts on a client’s behalf
in all matters pertaining to the scope of representation. 502 Additionally, the federal
government prevents an immigrant’s attorneys from bringing necessary office supplies
497

The Commission visited Karnes Family Detention Facility and observed flyers on facility walls
explaining that all calls would be monitored.
498

Ibid.

499

Ibid.

500

See American Immigration Council and Penn State Law, Behind Closed Doors: An Overview of DHS
Restrictions on Access to Counsel. PENN STATE LAW, available at
https://pennstatelaw.psu.edu/_file/Immigrants/LAC_Right_to_Counsel.pdf.
501

Ibid.

502

It is generally understood amongst attorney opposing counsel deals directly with a person’s attorney.

Immigration Detention Constitutional Issues
that are critical for delivering effective counsel during their visits with clients. 503 These
prohibitions have consistently hindered immigration attorneys from timely filing
necessary documents on their clients’ behalf. Federal employees appear to impair the
attorney-client relationship when they prohibit counsel from being present during a
detainee client’s interview or from bringing necessary equipment. 504
Bail: Is the federal government, pursuant to the Fifth Amendment, required to abide by
the Eighth Amendment protection against excessive bail amounts?
The Fifth Amendment to the U.S. Constitution protects against excessive bail amounts.505
However, such protections do not apply to immigration detention cases because they are
civil in nature. 506 Additionally, the Supreme Court has stated that the federal executive
and legislative branches have the discretion to deny or set bail amounts in immigration
deportation proceedings. 507 Therefore, detained immigrants do not have constitutional
recourse to challenge bail amounts. 508 When bail is indeed set for detained immigrants,
the national average is approximately $5,200. However, it appears to the Commission
that the processes by which bond amounts are set and the range of the bond amounts are
inconsistent and perhaps punitive. 509 Concern has also been raised that detention

503

Ibid.

505

See generally U.S. v. Salerno, 481 U.S. 739 (1987).

505

See generally U.S. v. Salerno, 481 U.S. 739 (1987).

506

Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905 (1893) (holding the Eighth
Amendment inapplicable to the deportation of aliens on the ground that “deportation is not a punishment
for crime.”

507

See Carlson v. Landon, 342 U.S. 524 (1952).

508

See Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905 (1893); See also
Bamidele v. Gerson, 995 F.2d 223 (5th Cir. 1993)(finding that ‘because a detained immigrants current
“imprisonment is a result of a deportation proceeding and not a criminal conviction, the Eight Amendment
is inapplicable.”); Avramenkov v. I.N.S., 99 F.Supp.2d 210, 218 (D. Conn. 2000) (Finding that mandatory
pre-removal detention under a provision of the INA does not violate the Eighth Amendment and noting that
“there can be no constitutional violation when a Petitioner’s detention is not punitive[,] but instead is
incidental to a legitimate purpose.”).
509

Quote from Karen Lucas’ written statement:

Once an individual is found to have a “credible fear” of persecution, Immigration and Customs
Enforcement (ICE) is required by the Immigration and Nationality Act §236(a) to assess her individually
for release. But in Karnes and Dilley, as in Artesia, ICE is abdicating this responsibility and detaining
across the board, with rare exceptions. ICE is refusing to consider bond, release on recognizance,
supervised release, or any form of ATD, regardless of individual circumstances. Moreover, when that
individual is then able to go before an immigration judge for a bond hearing, ICE uniformly opposes bond
or demands an extremely high bond, submitting the same boiler plate legal brief in every case and arguing
that every Central American family is a national security risk – ignoring years of legal precedent on the
appropriate factors for release and instead relying on a single, factually inapposite case, Matter of D-J. At
Artesia, this resulted in widely divergent bond amounts from Immigration Judges that could go as high as

115

116

The State of Civil Rights at Immigration Detention Facilities

determinations may be made, and bond amounts may be set, in order to help keep full the
nightly 34,000 beds which Congress has required funded. 510
Is the Federal Government Violating a Detained Immigrant’s First Amendment Rights
by Interfering with a Detained Immigrant’s Right to Free Exercise of Religion?
The First Amendment to the U.S. Constitution states that “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof[.]” 511 Additionally, federal law states, “the government shall not substantially
burden a person’s exercise of religion even if the burden results from a rule of general
applicability.” 512 Below, the Commission analyzes whether the federal government and
federally contracted, privately owned detention facilities inhibit detained immigrants’
ability to freely exercise religion.
Are detainees able to enforce constitutional rights against contract detention facilities?
People who are detained by the federal government retain the right to free exercise of
their religion, subject to reasonable restrictions appropriate to the detention context.513
Although the free exercise of religion is protected by both the Constitution and federal
statute, the Commission received testimony that detainees may not be able to enforce
their constitutional rights because of limitations the Supreme Court has imposed on
constitutional liability, particularly in contract detention facilities. Panelist Bob Libal
stated that there are two Supreme Court decisions “limiting the scope of Bivens liability
for constitutional violations by private prison employees and private prison
companies.” 514 Panelist Carl Takei clarified, “Malesko and Pollard are the two Supreme
Court cases. . . . that make it essentially impossible to subject a private prison company
or a private prison employee to Bivens constitutional liability.” 515

$20,000 and $30,000 – well above the national average of $5,200 and well out of the reach of most
detainees.
510

“In Texas we've observed ICE setting bond determinations for individuals in order to keep detention
facilities full, ostensibly to meet the quota.” Quote from Bob Libal, Executive Director, Grassroots
Leadership, unedited transcript p. 219.

511

U.S. Const., Amend. I.

512

See Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.

513

See Tarpley v. Allen County, Indiana, 312 F.3d. 895 (7th Cir. 2002) (Finding that not allowing an inmate
to use a personal Bible containing commentary did not violate the free exercise clause.); See generally,
O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987).
514

Libal, Bob, Briefing Transcript, p. 247 “Bivens” refers to actions brought under Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), which permits lawsuits for damages for
constittional harms.
515

Takei, Briefing Transcript, p. 258.

Immigration Detention Constitutional Issues
In Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001), the Court held that there
is no implied private right of action under Bivens for damages against private entities that
engage in constitutional deprivations while acting under color of federal law. Minneci v.
Pollard, 132 S. Ct. 617 (2012) held that there is no Bivens claim for an 8th amendment
violation against employees of a privately operated federal prison, since state tort law
provides adequate alternative remedies. Taken together, these cases limit the ability of
detainees to bring a claim for violation of their constitutional rights. 516
Although these precedents make it difficult for detainees to sue a contract detention
facilities for a violation of the right to free exercise of their religion, 517 other remedies
may be available under the Constitution or Religious Freedom Restoration Act, 518 such as
injunctive relief.
Is the Federal Government Infringing on a Detained Immigrant’s Right to Exercise
Religion?
The First Amendment and federal law prohibit the federal government and its agencies
from imposing a substantial burden on religious exercise unless the government
demonstrates that imposition of the burden on that person[:] (1) is in furtherance of a
compelling government interest; and (2) is the least restrictive means of furthering that
compelling government interest. 519 According to Thomas v. Review Bd. Of Ind.
Employment Sec. Div., 450 U.S. 707, 718 (1981), a substantial burden is defined as
government action that “put[s] substantial pressure on an adherent to modify his behavior
516

In dissent, Justice Stevens noted that the holding of Malesko puts people detained by the federal
government at a disadvantage as compared to their state counterparts:
Indeed, it is the Court's decision that creates asymmetry—between federal and state prisoners
housed in private correctional facilities. Under 42 U.S.C. § 1983, a state prisoner may sue a
private prison for deprivation of constitutional rights, see Lugar v. Edmondson Oil Co., 457 U.S.
922, 936–937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (permitting suit under *82 § 1983 against
private corporations exercising “state action”), yet the Court denies such a remedy to that
prisoner's federal counterpart. It is true that we have never expressly held that the contours of
Bivens and § 1983 are identical. The Court, however, has recognized sound jurisprudential reasons
for parallelism, as different standards for claims against state and federal actors “would be
incongruous and confusing.” Butz v. Economou, 438 U.S. 478, 499, 98 S.Ct. 2894, 57 L.Ed.2d 895
(1978) (internal quotation marks omitted); cf. Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693,
98 L.Ed. 884 (1954) (“In view of our decision that the Constitution prohibits the states from
maintaining racially segregated public schools, it would be unthinkable that the same Constitution
would impose a lesser duty on the Federal Government”).
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 81-82 (2001) (Stevens, J., dissenting).
517

Additionally, the Court has expressed skepticism that a Bivens action should ever be available for a free
exercise claim, whether or not the defendant is a private contractor. See Ashcroft v. Iqbal, 556 U.S. 662,
675 (2009).

518

42 U.S.C. § 2000bb et seq.

519

42 U.S.C. § 2000bb-1(b).

117

118

The State of Civil Rights at Immigration Detention Facilities

and to violate his beliefs,” or “one that forces a person to ‘choose between following the
precepts of her religion and forfeiting [government] benefits, on the one hand, and
abandoning one of the precepts of her religion . . . on the other hand.” 520
Federal officials have stated that all detainees are afforded an opportunity to exercise
their religion free from interference. 521 The Commission questions the assertion based on
reports from the American Arab Anti-Discrimination Committee (ADC) that DHS
detention facilities are interfering with Muslim detainees’ religious rights. DHS
facilities 522 provide Muslim detainees with special services for Ramadan. This includes
allowing for special prayer times and coordinating meals and meal times in accordance to
Ramadan dietary practices. For example, during Ramadan, Muslim detainees are
awakened before sunrise to receive their breakfast and then receive their dinner after
sundown. 523 However, ADC indicates that Steward Detention Facility, a CCA-owned and
federally contracted detention center, is punishing detained immigrants by removing
them from the “Ramadan List” 524 and interfering with the Muslim prayer traditions. 525

The Ramadan List 526
On Oct. 8, 2014, ADC emailed a CCA attorney concerning the issues listed above. 527 On
Nov. 7, 2014, the CCA attorney responded by answering ADC’s concerns. In the email
exchange, ADC questioned CCA as to why the detention facility removed several
detainees from the Ramadan List for breaking the Ramadan fast on one day. The CCA
attorney replied by saying that to understand what actually occurred, it is important to
understand the meal procedure for Ramadan participants.
According to CCA, detainees observing the Ramadan fast are served breakfast before
sunrise, and a hot dinner tray plus a sack supper after sunset. They are permitted to take
the sack supper back to their dormitory. Two of the listed detainees violated the process
on at least one occasion that was observed. CCA believes that the process is clearly
520

Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006) (citing Sherbert v. Verner, 374 U.S. 398, 404 (1963).
See generally Hobbs v. Holts, 135 S.Ct. 853 (2015).
521

An ICE official told Commission Staff that detainees were afforded the right to exercise religion freely
during the Commission’s visit to PIDC.
522

This includes federally contracted, privately owned detention facilities.

523

O'Lone v. Estate of Shabazz, 482 U.S. 342, 352, 107 S. Ct. 2400, 2406, 96 L. ED. 2d 282 (1987).

524

List of all detainees wishing to participate in Ramadan.

525

See American Arab Anti-discrimination Committee supplemental report–Steward Detention Facility
Document.
526

A list of detainees who wish to participate in Ramadan.

527

Email Correspondence between ADC and CCA. Sent to Commission via email in PDF form.

Immigration Detention Constitutional Issues
communicated, detainee participation is voluntary, and that violating the rules in this
manner means that these detainees were taking as many as five meals each day. None of
the detainees cited as violating the meal procedures assert that there was any religious
motive or meaning for these actions, and none have filed grievances as a result of being
removed from the Ramadan participant list. 528
ADC stated that the current review process with the chaplain, requiring placement of the
detainees back on the Ramadan List, is insufficient. The process can take anywhere from
a few days to weeks. Thus, inmates are forced to choose either to starve themselves or to
violate their religious beliefs by eating with the general population, as they are not
allowed to eat with the other Muslim inmates after sunset and before sunrise. 529
CCA explained that if detainees violate the rules of the process, they are not placed back
on the Ramadan List. The only exception is if there was a mistake and no rule violation
occurred. This occurred once this year over a misunderstanding about picking up sack
suppers. It was corrected the next day. Again, no grievances have been filed in this
regard. 530
ADC stated that “Muslim inmates cannot be removed from the Ramadan list based on
determination of prison officials that they are not fasting. Fasting is a personal religious
decision; a prison official cannot tell inmate[s] how to practice his faith.” 531
CCA clarified that planning for detainee participation in all aspects of Ramadan (and
other religious observances of various types) is a complex process that begins weeks
before Ramadan. The chaplain actively advises detainees of the process and solicits
feedback from all Muslim detainees as to their intent to participate. If they indicate they
wish to participate in the Ramadan meal schedule, they receive follow-up memoranda to
verify their intentions and to make sure any additional dietary restrictions such as
allergies are considered. Thereafter, the meal schedule, food ordering, and preparation for
the entire facility are organized and adjusted. There are not only significant logistical
issues in this, but there are also important security issues, as the movement of detainees is
carefully restructured during this time so that Ramadan participants can eat and
participate in communal prayer at appropriate times. CCA states that, no one instructs

528

Ibid.

529

Ibid.

530

Ibid.

531

Ibid.

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The State of Civil Rights at Immigration Detention Facilities

any Muslim detainee how to practice his faith. Rather, an opportunity to participate in the
fast is provided. 532
However, there are constitutional concerns raised in the conversation between ADC and
CCA. CCA cannot remove a detained immigrant who is participating in Ramadan from
the Ramadan List simply because the detained immigrant failed to fast. Federally
contracted, privately owned facilities like CCA’s Stewart Detention Facility cannot
subject a detained immigrant to “choose between following the precepts of her religion
and forfeiting [government] benefits, on the one hand, and abandoning one of the
precepts of her religion . . . on the other hand,” if that detained immigrant is hungry. 533
This places a substantial burden on the detained immigrant. 534 Additionally, CCA neither
has a justifiable reason for removing a detained immigrant from the Ramadan List that
serves a legitimate government interest nor serves the least restrictive means possible by
removing the detained immigrant from the Ramadan List. Removing a detainee from a
religious practice list serves no legitimate interest other than punishing a detainee for
breaking fast. One less restrictive way for interfering with a detained immigrant’s
religious practice for breaking a detention regulation would be to reduce the amount of
leisure time afforded to that detained immigrant.
Therefore, because a CDF removed a detained immigrant from a list enabling that
immigrant to practice his religion without advancing a legitimate government interest in
the least restrictive means possible, the federal government may be acting in such a way
that a court would find an infringement of a detained immigrant’s right to freely exercise
religion.
Prayer Practices
ADC also questioned CCA about its alleged interference with detained immigrant prayer
practices. ADC specifically addresses a series of questions to the Warden at the CCA-run
Stewart Detention Facility (Stewart) in Lumpkin, Georgia.
First, ADC contends that CCA prohibited the free exercise of religion by preventing
inmates of the Muslim faith from praying together. The ADC also expressed concerns

532

Ibid.

533

Email Correspondence between ADC and CCA. Sent to Commission via email in PDF form.

534

Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006) citing Sherbert v. Verner, 374 U.S. 398, 404 (1963).

Immigration Detention Constitutional Issues
that on Oct. 4, 2014, Stewart made the Muslim inmates sign a contract before allowing
them to participate in communal prayer. 535
In response, the Stewart detention facility stated that CCA allowed Muslim inmates from
all the units to pray together during Ramadan and Eid‐ul‐Adha. 536 CCA stated that in
general, detainees of differing security levels are not permitted to mix for prayer or the
activities. In addition, separate detainees are not permitted to be in the same communal
prayer groups. There are security reasons for this policy. An exception was made on
October 4, 2014. 537 This was not easy for the facility to arrange, but it was done for that
particular day. Stewart also stated that there is no contract for communal prayer
participation; however, there is a sign‐up sheet. CCA reports that no grievances have
been filed regarding this issue.
ADC also expressed concerns that “call-outs” for Muslim detainees were consistently
between 30 minutes and two hours late for Jumah Prayer. According to ADC, Stewart
engages in call‐out of Muslim detainees 10 minutes for scheduled prayer. ADC’s primary
concern is that the late call-out does not allow a sufficient time for Muslim inmates to
pray at the specific time in accordance with their faith. Requests were made to Stewart to
schedule the call‐out times earlier, but these issues were not addressed.
CCA says that it is inaccurate to state that there has been "consistent" lateness of 30
minutes to two hours for the beginning of Jumah prayer. It contends that there have been
occasions when meals ran late, causing count to run late, resulting in the Jumah prayer
beginning late. Stewart is a secure detention center, and the necessity of an accurate count
is plain. Stewart posits that this is not a normal occurrence, and there have been no
grievances filed regarding this issue. 538
ADC also complained about stepping on prayer rugs during prayers. CCA responded
there has only been one assertion of this type, regarding one officer. Detainee accounts,
and her own, are that she stepped over a rug. CCA states that the officer did not do this
with any malice. The officer was counseled and disciplined, and the issue was concluded
the day following the incident. The officer is no longer in this same housing unit. The

535

Email Correspondence between ADC and CCA. ADC sent a copy of the emails to the Commission via
emailed PDFs.
536

Email Correspondence between ADC and CCA. ADC sent a copy of the emails to the Commission via
emailed PDFs.
537

The Commission was not provided with an explanation.

538

Ibid.

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The State of Civil Rights at Immigration Detention Facilities

core of this issue seems to be a demand by one or more detainees that the officer be
terminated. 539
Despite the issues raised by ADC, there is insufficient evidence indicating that CCA is
violating a detained immigrant’s freedom to freely exercise religion by consistently being
late in allowing Muslim detainees to conduct their prayers. In Jihad v. Fabian, 680 F.
Supp 2d. 1021, 1027 (2010), prison officials refused to allow a Muslim prisoner to
worship outside, but instead afforded the Muslim prisoner specified worship times at a
designated area. The court found that this placed a substantial burden on the inmate.
However, the court stated that it agrees with the magistrate judge that the increased
movement of prisoners would jeopardize their safety if inmates were allowed to leave
their cells five times a day to pray. In addition, MCF–STW's policy of allowing prayer
during scheduled worship services or, alternatively, within the confines of an inmate's
cell, is the least restrictive means of achieving the defendants' compelling interest in
safety and security. See Singson, 553 F.3d at 662 (“Prison safety and security are
compelling government interests.”). Accordingly, Jihad's objection has no merit.
Based on the court’s ruling in Fabian, 540 evidence does not show that CCA violated
detained immigrants’ right to freely exercise religion. Although CCA was consistently
late with allowing Muslim detainees to conduct their prayer times, evidence suggests that
there were legitimate governmental concerns. 541 CCA stated that “there have been
occasions when meals ran late, causing count to run late, resulting in the Jumah prayer
beginning late. This is a secure detention center, and the necessity of an accurate count is
plain. Fabian stated that “prison safety and security are compelling government interest.”
In this instance, CCA had to make sure that their detention facility was secure before
affording detained immigrants their prayer time. Although securing the facility caused at
most a two-hour delay in Muslim detainee prayer times, CCA had a legitimate
government interest to do so. Therefore, evidence indicates CCA did not inhibit their
Muslim detainees’ freedom to exercise religion.
Therefore, the Commission suggests that there is evidence indicating that the federal
government’s consistent tardiness in allowing detained immigrants the ability to freely
exercise religion did not rise to a level where a court would find an infringement of a
detained immigrants First Amendment right to freely exercise religion.

539

Ibid.

540

Jihad v. Fabian, 680 F. Supp 2d. 1021, 1027 (2010).

541

See Ibid.

Immigration Detention Constitutional Issues

Conclusion
Based on the evidence and the analysis above, the Commission finds:
-

The federal government’s treatment of detained immigrants may be inconsistent
with the Fifth Amendment’s right not to be deprived of liberty without due
process of law.

The federal government’s policies affecting a detained immigrant’s ability to
obtain counsel may rise to a level where a court would find such practices to be
inconsistent with the Fifth Amendment’s Due Process Clause.

The federal government practices that substantially interfere with a detained
immigrant’s effective assistance of counsel may rise to a level where a court may
find such practices to be inconsistent with the Fifth Amendment’s Due Process
Clause.

There is evidence indicating that because a CDF removed a detained immigrant
from a list that enables that immigrant to practice his religion without advancing a
legitimate government interest in the least restrictive means possible, the federal
government may be violating a detained immigrant’s right to freely exercise
religion.

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The State of Civil Rights at Immigration Detention Facilities

FINDINGS AND RECOMMENDATIONS
Findings
1) Certain ICE facilities are not fully complying with PBNDS 2011 medical care
standards.
2) Contract detention facilities, including the Polk County Secure Adult Detention
Facility, Karnes County Residential Center, Denver Contract Detention Facility,
Northwest Detention Center, Adelanto Detention Center, and Willacy County
Corrections Facility have failed to comply with DHS standards for medical care
including ignoring serious medical conditions, overmedicating detainees, failing
to administer proper medical protocols and delaying transfer to a hospital setting.
ICE facilities are not adhering fully to PBNDS 2011 LGBT standards, including
housing of transgender detainees according to their birth genders, preventing
harassment of gender non-conforming detainees, and overusing solitary
confinement for LGBT detainees.
3) Little testimony & documentation were obtained as to compliance with PBNDS
LGBT standards by privately owned detention facilities.
4) No complaints were found during the Commission's investigation of compliance
with food standards at ICE facilities.
5) Contract detention facilities, including Willacy County Correctional Facility,
Etowah County Detention Center, and Stewart Detention center have not
complied with NDS contractual standards to provide detainees with nutritious
food.
6) Karnes and Port Isabel are among facilities that are not providing their
populations with adequate legal information or presentations about detainee
rights.
7) Certain contract detention facilities, including Stewart Detention Center and
North Georgia Detention Center have not complied with the NDS standard
regarding detainees’ access to legal libraries.
8) There is anecdotal evidence that DHS and ORR have violated TVPRA standards,
including holding children longer than 72 hours and not conducting sufficient
screenings before deportation.
9) DHS is not complying with the Flores Settlement Agreement Standards, including
but not limited to, treatment and interactions with both unaccompanied children
and those detained with family.
10) Oversight is necessary for implementation of ORR's corrective action plans.
11) There is a lack of transparency regarding private detention facilities because the
facilities’ records are not subject to FOIA.
12) ICE CDF's compliance with PREA inspection standards and policies cannot be
determined as inspections are confidential and thus lack transparency.

Findings and Recommendations
13) The Commission was unable to determine whether ICE is complying with PREA
solitary confinement policies concerning children.
14) The Commission was unable to determine whether ICE and CBP comply with
PREA standards regarding treatment of transgender and intersex individuals. DHS
does not sufficiently train employees to interact with detainees who do not speak
English or Spanish and who face other communication barriers because of
political, cultural, and socioeconomic differences. This lack of training inhibits
compliance with PREA’s language requirements.
15) ICE's distribution of “Know Your Rights” materials fails to inform immigrants
who speak indigenous languages as required pursuant to DHS PREA Subpart A (6
CFR §115.32).
16) DHS does not provide detainees with adequate procedures to report sexual assault
and abuse.
17) DHS inadequately addresses staff misconduct regarding sexual assault and abuse.
18) DHS, its component agencies, and contractors detain undocumented immigrants
in a manner inconsistent with civil detention and instead detain undocumented
immigrants like their criminal counterparts in violation of detained immigrants’
Fifth Amendment Rights. Further, ICE is failing to comply with the Flores
agreement by holding children in conditions that are not the “least restrictive
setting.” Adults are being held in conditions similar to criminal incarceration in
violation of standards of civil detention.
19) Practices at detention facilities, including requiring detainees to pay for telephone
calls to their attorneys, inhibit the detainees’ Due Process rights, including access
to counsel, assistance of counsel, and allowing working conditions for counsel
which allow them to perform their jobs efficiently and thoroughly.
20) The federal government’s treatment of detained immigrants may be inconsistent
with the Fifth Amendment right to be free from punishment without due process
of law.
21) CDFs acting under federal contracts may be interfering with detained immigrants’
First Amendment right to freely exercise religion.
22) There is anecdotal evidence that some detainees are being denied their right to the
free exercise of religion.
23) The process by which bond amounts are set and the range of the bond amounts
are inconsistent and perhaps punitive.
24) Evidence indicates that federal employees are interfering with an attorney’s ability
to represent clients.

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The State of Civil Rights at Immigration Detention Facilities

Recommendations:
1) The Department of Homeland Security should convene an intergovernmental
compliance task force to investigate, analyze, and strengthen compliance
regiments carried out by the ICE Enforcement and Removal Operations’
Detention Standards Compliance Unit.
2) DHS, ICE Enforcement and Removal Operations, all applicable DHS
components, and the Government Accountability Office should undertake an
extensive review of all contracts issued to third-party facility management
companies and enforce the adoption of, and compliance with, the 2011 PBNDS
standards to ensure uniform implementation of medical treatment standards for,
and the proper treatment of, LGBT immigrant detainees. The Government
Accountability and/or an Inspector General should investigate and research
whether, and to what extent, ICE, DHS, and contract facilities are fully complying
with PBNDS medical standards.
3) Much work needs to be done to ensure detainees’ access to Due Process and the
right to assistance of counsel under the Fifth Amendment and the INA. DHS, its
component agencies, the Department of Justice, and the Government
Accountability Office should examine the legal rights education and access to
counsel being provided to detainees and the obstacles to that access. These
entities should propose, and DHS should implement, best practices for legal
education of detainees and their access to counsel. Issues to be examined, and
remedied as needed, include but are not limited to: legal rights presentations to
detainees of all ages and language competencies; access to information about
available, qualified counsel; access to free and private telephone calls to counsel;
access to private meetings with counsel; availability of translators – especially in
indigenous languages -- to assist detainees in communicating confidentially with
attorneys; the ability of counsel to bring basic operating supplies into private
meetings with counsel; and access to bond hearings. Congress should pass, and
the President should sign, legislation extending the right to counsel in
immigration detention proceedings to all indigent detainees. Eligibility for this
access to counsel should begin at the time of detainment.
4) DHS and ORR should increase resources to ensure compliance with TVPRA,
including reducing hold times for children, increasing the accuracy of screenings
prior to release or deportation, and ensuring the accuracy of the information
shared prior to releasing detainees.
5) Given the evidence presented in this Report, and in light of the recent District
Court ruling on DHS’s compliance with Flores Settlement, the Commission
recommends that DHS act immediately to release families from detention.
6) The Government Accountability Office and/or an Inspector General should
undertake an extensive review of ORR’s corrective action plans to be

Findings and Recommendations
accompanied with continual monitoring of ORR’s efforts. DHS, DOJ and HHS
should devise a comprehensive plan and build the infrastructure to ensure
compliance as outlined in the subsequent corrective plans and monitoring
infrastructure.
7) As contract facilities are delegated government duties in the oversight and
management of detention facilities, procedures must be put in place to ensure
transparency, including access to facility records to ensure compliance with
PBNDS and other government regulations.
8) DHS and its components involved in the detainment of immigrants must institute
extensive and comprehensive staff training to address cultural sensitivity and
competency, language barriers, and comprehension of the political climates in
which detainees were immersed prior to apprehension.
9) The Office of the Inspector General and Homeland Security and the Office of
Government Accountability must perform more detailed study and monitoring
regarding DHS detention and holding facility compliance with PREA standards.
10) DHS and other involved entities, including border patrol, must ensure that
individuals who speak indigenous languages or dialects are provided with all
necessary information in a language they understand. Because of challenges with
obtaining translation services, these individuals are isolated in detention, often
unable to communicate with guards or even with the attorneys serving that
detention facility. They cannot access the medical, social and legal services they
need from detention and cannot meaningfully prepare an asylum case. Therefore,
DHS should individually evaluate each detainee who speaks an indigenous
language to determine if detention is appropriate.
11) DHS must ensure the provision of appropriate education and mental and medical
health care for all detained adults, children, and youth. DHS must ensure cultural
competency and life skills training for detained adults so that they will be as
prepared as possible to function in American society upon release from detention.
12) The Commission heard testimony from government expert officials, legal experts
and community advocates. The Commission hereby adopts the following
recommendations as suggested by briefing panelists:
a. DHS should look at alternatives to detaining families, such as releasing the
families to custodial agents in the United States;
b. Pastoral care should be available at the time of processing for all detainees
when they are first checked into immigration detention facilities;
c. DHS and its component agencies should adopt policies to grant journalists
access to contracted and ICE-operated facilities and to the people detained
therein;
d. DHS and its component agencies should strengthen due process
protections and Know-Your-Rights presentations to immigrants –

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The State of Civil Rights at Immigration Detention Facilities

including children and youth – who are released from detention so that
they understand that their rights as immigrants and residents in the United
States;
e. DHS, its agency components, and federal agency partners should begin to
transform the detention system to one of services provided versus
enforcing black letter law;
f. DHS and its component agencies should provide legal orientation
programs for everyone in detention along with appointed counsel,
particularly for vulnerable populations: children and the mentally ill.
g. DHS and its component agencies involved in apprehension and detention
of immigrants should work to change the statute on mandatory detention
for arriving aliens so as to take away ICE’s decision making being based
on meeting bed quotas;
h. DHS and its component agencies involved in apprehension and detention
of immigrants should work to detain when absolutely necessary: only
under extraordinary circumstances.
i. DHS, its component agencies, and any entity contracted to provide
detention services should adopt the Civil Immigration Detention Standards
published by the American Bar Association in August 2012.
13) DHS, its agency components, the Office of Refugee Resettlement, the Department
of Justice, and its component agencies should work to implement a program to
provide government-funded counsel for detainees.
14) The Government Accountability Office and/or an Inspector General should
undertake investigation into whether, and if so, how the 34,000 per-night bed
requirement put in place by Congressional appropriations language impacts
agency decisions to detain or parole immigrants.
15) The Government Accountability Office and/or an Inspector General should
undertake investigation into the manner in which detained immigrants are given
access to bond hearings, the manner in which bonds are set, why vast
inconsistencies exist among bonds set for detained families, and why many bonds
are set at amount which may be completely out of detainees’ reach.
16) The Commission also recommends the following as proposed by the American
Immigration Lawyers Association:
a. ICE must exercise its responsibility to make individualized custody
and release determinations in all cases. ICE should apply longstanding
precedent on the factors to be considered – public safety and flight risk –
and make determinations that are appropriate to the age and special
vulnerabilities of the individual and that comply with the law. In all cases,
ICE should choose the least restrictive means necessary to achieve

Findings and Recommendations
government’s interest in ensuring compliance with immigration
proceedings and removal orders.
b. DHS and EOIR must improve the credible fear process to ensure that
those who fear persecution can exercise their right to seek asylum in
the U.S. This includes ensuring meaningful access to and participation by
counsel at every stage of the proceedings. It also includes ensuring that
every individual has participated in person in a Legal Orientation
Presentation (LOP) and has be given sufficient opportunity and time to
speak with an attorney before a credible fear interview.
c. DHS must ensure that all detention settings ensure full and
meaningful access to representation by legal counsel. This must include
unlimited free telephone communication (including voicemail) to and
from attorneys.
d. ICE must ensure that the conditions of immigration detention comply
with existing policies and the Constitution. This should be accompanied
by engaged and robust oversight by Congress, a timely and effective
complaint mechanism, and meaningful consequences for officers and for
facilities (including contract facilities).
e. Congress should not fund family detention and should reduce its
funding for immigration detention generally. Instead, Congress should
increase funding for alternatives to detention (ATDs), including
community based support and case management, for individuals who
cannot otherwise be released. These ATDs are less costly and more
humane that institutional detention.
17) The Commission also recommends the following as proposed by the Human
Rights Campaign:
a. DHS must fully implement PREA and its detention standards. This
means DHS should ensure that all facilities comply with the agency's
PREA regulations, including private contracting facilities. And that
appropriate PREA audits take place at each facility in a timely manner.
b. Given the heightened risk of sexual assaults, using limited resources to
detain transgender individuals should not be an ICE priority, except
for cases involving serious public safety concerns.
c. In cases where the statute requires mandatory custody, DHS should
categorize all forms of detention, such as home confinement and
community-based supervision as detention, even for those subject to
mandatory custody. This would remove non-dangerous LGBT
individuals from those dangerous confinement facilities.
d. The Government Accountability Office should specifically investigate
reports of sexual assault and violence against LGBT detainees,

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The State of Civil Rights at Immigration Detention Facilities

including the number of substantiated, unsubstantiated and unfounded
allegations, as well as steps that are being taken to protect LGBT detainees
from unique and pervasive harassment.
e. DHS should issue a written and publicly-available report on the
progress made to implement PREA regulations with special emphasis
on provisions related to transgender detainees. This includes improved
training, identifying LGBT detainees and screening and appropriate
placement, separate shower access for transgender detainees, and
consideration of LGBT status in sexual assault incident reviews.
f. DHS should provide the Commission a written response on the status
of implementing each recommendation from the 2004 GAO report on
prevention and detection of sexual assault and abuse in DHS
confinement facilities. DHS received a copy of the draft report and
concurred with all of the recommendations except one, noting that it
would implement them through 2015.
18) The Department of Justice and all of the applicable agency components should
examine the Legal Orientation program and re-work it to be implemented
nationally, including at the first instance of apprehension by border patrol agents
so that immigrants not only understand their rights, but their obligations and
responsibilities. When reworking the program, the agencies should consider the
different languages serviced. The agencies should extend the Legal Orientation
program to get non-governmental organizations into border patrol facilities so that
detainees can be serviced at short-term detention facilities.

Appendix A

APPENDIX A

Statement by Secretary Jeh C. Johnson on Family Residential Centers
ICE Director Saldaña and I understand the sensitive and unique nature of detaining
families, and we are committed to continually evaluating it. We have concluded that we
must make substantial changes to our detention practices when it comes to families.
Last summer we faced an unprecedented spike in illegal migration from Central America.
A substantial part of that migration was adults who brought their children with them. In
order to avoid a situation, after apprehension, in which we simply processed these
individuals, escorted them to bus stations and released them, we increased our detention
capacity.
We took a number of other steps in response to last summer’s spike, working with our
government counterparts in Mexico and Central America. This year the number of those
apprehended at our southern border – an indicator of total attempts to cross the border
illegally – while still high, is down considerably from before. Indeed, if the current trend
this fiscal year continues, the annual number of total apprehensions at our southern border
will be the lowest since the 1970s.
We continue to be vigilant in watching for any upswings in this migration pattern, and we
know we must be prepared to respond in that event. We have also increased our capacity to
focus our enforcement resources effectively on those who have recently crossed the border
illegally, and on those who represent threats to public safety.
I and other DHS officials have conducted numerous visits to family residential centers. I
personally visited the Karnes, Texas facility on Monday of last week. While there, I
inspected the facility, the lodging, the dining area and the classrooms for children, and
spoke directly and privately with the health providers. Most significant, I spoke with
dozens of Central American mothers at the facility who came to this country illegally
seeking a better life for their children and themselves.
I have reached the conclusion that we must make substantial changes in our detention
practices with respect to families with children. In short, once a family has established
eligibility for asylum or other relief under our laws, long-term detention is an inefficient
use of our resources and should be discontinued.

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The State of Civil Rights at Immigration Detention Facilities

In May, ICE announced a first round of reforms which we have already begun to
implement; they include:
First, we have begun reviewing the cases of any families detained beyond 90 days to
evaluate whether detention during the pendency of their immigration case is still
appropriate. Priority is being given to the review of the cases of families who have been in
these residential centers the longest.
Second, we have discontinued invoking general deterrence as a factor in custody
determinations in all cases involving families.
Third, we are appointing a Federal Advisory Committee of outside experts to advise
Director Saldaña and me concerning family residential centers.
Fourth, we are undertaking additional measures to ensure access to counsel, attorneyclient
meeting rooms, social workers, educational services, comprehensive medical care, and
continuous monitoring of the overall conditions at these centers.
Today we are announcing additional important reforms. In the last few days, Director
Saldaña and her senior immigration enforcement team have presented me with a plan to
offer release with an appropriate monetary bond or other condition of release to families at
residential centers who are successful in stating a case of credible or reasonable fear of
persecution in their home countries. Further, Director Saldaña has also presented me with
criteria for establishing a family's bond amount at a level that is reasonable and realistic,
taking into account ability to pay, while also encompassing risk of flight and public safety.
I have accepted and approved this plan.
Additionally, I am directing that USCIS conduct credible fear and reasonable fear
interviews within a reasonable timeframe. In substance – the detention of families will be
shortterm in most cases. During that time, we will have the opportunity to confirm
accurate address and sponsor information so that ICE can more effectively monitor and
ensure compliance with immigration obligations. During that time, families will also
receive education about their rights and responsibilities, including attendance at
immigration court hearings and other reporting requirements.
Finally, continued use of family residential centers will allow for prompt removal of
individuals who have not stated a claim for relief under our laws.
Our larger hope is that Central American families will heed our repeated calls to find a safe
and lawful path for the migration of children to the United States. Late last year, we
established incountry refugee processing in Guatemala, El Salvador and Honduras, for the
children of those lawfully present in the United States. We continue to encourage families
to take advantage of that program. I have personally seen enough to know that the path of

Appendix B
illegal migration from Central America to our southern border is a dangerous path and it is
not for children.
We also urge Congress to grant President Obama's $1 billion request for aid to Central
America, to finally and firmly address the underlying causes of illegal migration in
Guatemala, Honduras and El Salvador – the socalled "push factors."
Border security continues to be one of my top priorities as Secretary of Homeland Security.
As I have said before, our borders are not open to illegal migration. I know also that we
must enforce our immigration laws in a fair and humane manner, consistent with our values
as Americans.

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The State of Civil Rights at Immigration Detention Facilities

APPENDIX B

Appendix C

APPENDIX C
The United States Congress House of Representatives drafted and sent the letter below to
DHS Secretary Jeh Johnson.

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Appendix C

137

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The State of Civil Rights at Immigration Detention Facilities

Appendix C

139

140

The State of Civil Rights at Immigration Detention Facilities

Appendix C

141

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The State of Civil Rights at Immigration Detention Facilities

Appendix C

143

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The State of Civil Rights at Immigration Detention Facilities

Appendix C

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The State of Civil Rights at Immigration Detention Facilities

Statement of Chairman Castro

COMMISSIONER STATEMENTS AND REBUTTALS
Statement of Chairman Martin R. Castro
“Nihil humanum a me alienum puto,” said the Roman poet
Terence: 'Nothing human is alien to me.' The slogan of the old
Immigration and Naturalization Service could have been the
reverse: To us, no aliens are human.”
— Christopher Hitchens, Hitch-22: A Memoir
“To us, no aliens are human,” should be the motto of the U.S. Immigration and Customs
Enforcement (ICE) and Customs and Border Patrol (CBP). From what I have witnessed
personally, from the data and testimony we have gathered for this Enforcement Report
and from regular press accounts, there is no doubt in my mind that those immigrants
being apprehended at our border by CBP and detained by ICE in its own and in for-profit
prison company-run facilities are treated as less than human.
This de-humanization of immigrants has been occurring over a long period of time in our
country. From calling immigrants “illegal aliens” and “invading hordes,” to the most
recent rantings of presidential candidates spewing anti-immigrant, anti- Latino and antiMexican vitriol, we have witnessed the creation of an environment which condones the
inhumane treatment of immigrants, especially those coming from Latin America. Indeed,
as I write this statement, there are news accounts of two Boston men beating a homeless
Latino man because they were inspired by the anti-Latino rhetoric of a current
Presidential candidate.1
The impetus for the Commission to vote to examine the state of civil rights at
immigration detention centers, at my request, was the arrival in 2014 of the tens of
thousands of children fleeing violence and instability in Central America, and making the
dangerous trek north, many unaccompanied by their parents. Initial accounts in the
media and through advocacy organizations like the National Immigrant Justice Center,2
made it clear that these children were also enduring abuse, rape, and extreme conditions
while in the custody of the United States government. The Commission’s Enforcement
Report corroborates many of these conditions.

A Trump-Inspired Hate Crime in Boston, by Russel Berman, August 20, 2015, The Atlantic,
http://www.theatlantic.com/politics/archive/2015/08/a-trump-inspired-hate-crime-in-boston/401906/, last accessed on
August 21, 2015.
2 Letter sent to DHS by the National Immigration Justice Center and concerned organizations on June 11, 2014
detailing abuse as recounted to them by unaccompanied minors, Systemic Abuse of Unaccompanied Immigrant
Children by U.S. Customs and Border Protection,
http://www.immigrantjustice.org/sites/immigrantjustice.org/files/FINAL%20DHS%20Complaint%20re%20C
BP%20Abuse%20of%20UICs%202014%2006%2011.pdf.
1

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Commissioner Statements and Rebuttals
Immigration detention3 has become one of the fastest-growing and least-examined types
of incarceration in the United States. ICE, along with state and local police enforcement
agencies, has placed a heightened focus on removal of unauthorized immigrants
nationwide. This heightened focus, coupled with policy changes at the federal and state
level, has resulted in increased detention4 rates and a greater reliance on state, local and
private detention facilities to house the detainees.
Although ICE is authorized to detain immigrants during removal proceedings, ICE does
not own or maintain enough facilities to house the number of immigrants that are
currently being detained. ICE currently directly owns and operates six secure detention
facilities, called Service Processing Centers (SPCs),5 which house 13% of the detainee
population. The remaining 87% of the detainees are housed in different types of facilities
nationwide. Seventeen percent of detainees are housed in seven contract detention
facilities (CDFs), which are run solely for ICE by independent contractors. Sixty-seven
percent of detainees are housed in detention facilities run by State and local governments
through Inter-governmental Service Agreements (IGSAs). The final three percent of
detainees are housed through an arrangement with the Federal Bureau of Prisons (BOP)
for the Federal Detention Centers.6
Each year ICE detains more than 400,000 immigrants and asylum seekers7 who are
predominantly housed in contracted facilities. This detention outsourcing has resulted in
inconsistent treatment of immigrant detainees and a heightened exposure to abusive
treatment due to varied levels of training and sensitivity around the detainees’ unique needs
(social, cultural and language isolation; fear of retaliation; lack of information on their
legal rights; and, lack of access to legal counsel).8 About half of all detained immigrants do
not have a criminal record; they are torture survivors, victims of human trafficking, asylum
seekers, or families with small children.9 Yet, the ICE detention system continues to be
modeled after the punitive criminal detention system, which contradicts the civil and nonpunitive nature of the immigration detention system. Although the Department of
Homeland Security (DHS) has indicated their intent to overhaul the U.S. immigration
Immigration detention is non-criminal custody. Detained immigrants remain in custody while they await
deportation or the granting of a right to stay in the United States. See: “Immigration Detention Overview and
Recommendations”, p. 4, fn. 1-2, at http://www.ice.gov/doclib/about/offices/odpp/pdf/ice-detention-rpt.pdf.
4 The Department of Homeland Security defines a detention as the seizure and incarceration of an alien in order to
hold him/her while awaiting judicial or legal proceedings or return transportation to his/her country of citizenship.
See: Annual Report, August 2010, Immigration Enforcement Actions: 2009, p. 2, “Box 1” section at
http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_2009.pdf.
5 Department of Homeland Security, Congressional Budget Justification, FY 2012, Departmental Management and
Operations, p. 33 at: http://www.dhs.gov/xlibrary/assets/dhs-congressional-budget-justification- fy2012.pdf.
6 Id.
7 The Fiscal Year 2011 Budget for ICE before the House Committee on Appropriations Subcommittee on Homeland
Security, 111th Cong. (2010).
8 National Prison Rape Elimination Commission Report, 176 (June 2009) at: www.ncjrs.gov/pdffiles1/226680.pdf;
National Immigrant Justice Center, “Defending Human Rights and due Process: A Policy Brief,” August 2011, p. 2. at:
http://www.immigrantjustice.org/sites/immigrantjustice.org/files/Policy%20brief%20PREA%202011%2008
%2030%20FINAL.pdf
9 See: Immigration Detention, at: http://www.aclu.org/immigrants-rights/detention.
3

Statement of Chairman Castro
system in an effort to improve and prioritize health, safety and uniformity across all
detention facilities, their efforts appear to be nothing but lip service and have resulted in
very little change on the ground. Meanwhile, egregious human rights and constitutional
violations continue to occur in detention facilities.
ICE has combined their heavy-handed approach to enforcement with a light-handed
approach to the daily responsibilities of detention in their outsourced facilities. This has
resulted in inadequate delivery or non-delivery of medical and mental health treatment and
increased allegations of sexual abuse of immigrant detainees. Unlike criminal inmates,
persons detained by ICE must deal with a dual system of approval for care. They must first
try to be seen by the facility’s doctor and then they must wait for federal approval in order
to receive care within the facility.10 The Division of Immigration Health Services’
(DIHS)11 standard of care for deciding whether to provide or deny medical care is “to keep
detained immigrants healthy enough to be deported.”12 This standard has contributed to the
death of 138 detainees in ICE custody13 and to numerous cases where ICE has either failed
to respond to all of the health problems of individual detainees or responded only after
considerable delays. In addition, according to government documents, nearly 200 claims of
sexual abuse of detainees in detention facilities across the country have been reported to
the Department of Homeland Security since 2007 alone.14 This number fails to take into
account the number of allegations that go unreported.
While the Commission did not find that DHS is torturing detained immigrants, I believe
that certain DHS-owned facilities and CDFs are subjecting detained immigrants to
torture-like conditions. The Torture Victim Protection Act of 199115 (TVPA) defines
“torture” as:
[A]ny act, directed against an individual in the offender's custody or
physical control, by which severe pain or suffering (other than pain or
suffering arising only from or inherent in, or incidental to, lawful
sanctions), whether physical or mental, is intentionally inflicted on that
individual for such purposes as obtaining from that individual or a third
person information or a confession, punishing that individual
ACLU, Detention and Deportation in the Age of ICE: Immigrants and Human Rights in Massachusetts, ACLU of
Massachusetts, December 2008, p. 54 at https://aclum.org/app/uploads/2015/06/reports-detention-and- deportationin-the-age-of-ice.pdf.
11 DIHS acts as the agent and final health authority for ICE on all off-site detainee medical and health related matters.
See: Inter-governmental Service Agreement, p. 5, Article VI. Medical Services, G, at
http://www.ice.gov/doclib/foia/isa/r_droigsa070021alleganycountyny.pdf.
12 See: System of Neglect, by Dana Priest and Amy Goldstein, May 2008, The Washington Post, at
http://www.washingtonpost.com/wp-srv/nation/specials/immigration/cwc_day1_printer.html.
13 List of Detainees in ICE Custody, October 2003 – December 2, 2013,
http://www.ice.gov/doclib/foia/reports/detaineedeaths2003-present.pdf; See also: ICE news releases
announcing detainee deaths,
http://www.ice.gov/news/releases/index.htm?top25=no&year=all&month=all&state=all&topic=05. 14 See:
ACLU, Sexual Abuse in Immigration Detention at https://www.aclu.org/node/17141.
15 Torture Victim Protection Act of 1991, PL – 102-256, 106 Stat. 73 (March 12, 1992).
10

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Commissioner Statements and Rebuttals
for an act that individual or a third person has committed[,] or is
suspected of having committed, intimidating or coercing that individual
or a third person, or for any reason based on discrimination of any kind.16
The evidence contained in this entire Report suggests that some DHS-owned facilities and
CDFs might be subjecting detained immigrants to torture-like physical and emotional
pain. Chapters 3, 4, and 5 of this Report details evidence suggesting that immigration
detention facility officials punish detained immigrants for crossing the U.S. Border
without proper documentation. For example, detainees are held in unjustifiably cold and
overly crowded detention cells, only given one meal during processing, forced to drink
unclean and possibly toxic waters, not given proper medical care for legitimate and
possibly deadly diseases or ailments, not given an opportunity to shower or cleanse
themselves in some instances, and sometimes beaten and sexually abused by guards and
detention officials.17
One of the most profound experiences during my Chairmanship of this Commission
occurred on our fact-finding visits to immigration detention centers in Texas in May 2015.
At Karnes Family Detention Center, a CDF, run by the GEO Group, Inc. (GEO), we were
immediately given a taste of what life can be like in these detention centers. We were not
allowed to bring in our phones, cameras or any type of device to document our
observations, except pen and paper. Once we were admitted to the detention facility, staff
from both ICE and GEO met us. When I asked the detention center staff about a hunger
strike we had read about in the news at Karnes,18 the staff person in charge denied it and
said, “You can’t believe everything you read.” Yet, a short time later, I personally spoke
to mothers who were part of the hunger strike. They told me in Spanish, over the protests
of the detention center officials who were demanding that I not speak to the women and
who were pulling at my sleeve to get me to move on, that they had been at Karnes with
their children for almost a year; that they were part of the hunger strike until the detention
center officials threatened to take away their children unless they gave up the hunger
strike. As a parent, I cannot imagine a more terrorizing prospect than having my children
torn away from me. Imagine such a threat to a detained immigrant mother, in custody for
almost a year, and whose very safety and security depends on the largesse of the detention
staff. This is unacceptable conduct and in my estimation is conduct akin to torture.
Ibid Sec. 3(b).
e.g. The National Immigrant Justice Center, Esperanza Immigration Rights Project, Americans for Immigrant
Justice, Florence Immigrant & Refugee Rights Project, and the ACLU, June, 11 2014, Correspondence to Megan H.
Mack, Officer for Civil Rights and Civil Liberties, and John Roth, DHS Inspector General. ABA Delegation to KSPC
to Victore Cerda, Acting Director, Office of Detention and Removal Operations, July 20, 2004, Observational Tour of
the Krome Service Processing Center, Miami, FL, available at
http://www.ice.gov/doclib/foia/dfra/2004/kromeserviceprocessingcentermiamiflapril162004.pdf; Statement of Karen
Grisez, Esq. Submitted to U.S. Commission on Civil Rights [hereinafter Grisez Statement], available in the
Commission’s “Panelists Statement” section of the Report.
18 See: Mothers launch a Second Hunger Strike at Karnes Family Detention Center at
http://www.huffingtonpost.com/2015/04/14/detention-center-hunger-strike_n_7064532.html.
16

17See

Statement of Chairman Castro
In addition to physical pain, some DHS-owned facilities and CDFs subject detainees to
torture-like mental pain and suffering.19
According to the TVPA:
Mental pain or suffering refers to prolonged mental harm caused by or
resulting from:
a. The intentional infliction or threatened infliction of severe physical
pain or suffering;

b. The administration or application, or threatened administration or
application, of mind altering substances or other procedures calculated
to disrupt profoundly the senses or the personality;
c. The threat of imminent death; or

d. The threat that another individual will imminently be subjected to
death, severe physical pain or suffering, or the administration or
application of mind altering substances or other procedures calculated
to disrupt profoundly the senses or personality.20
Based on evidence contained in the entire Enforcement Report, I believe that DHS may
be subjecting detained immigrants to torture-like mental pain and suffering. There are
detention officials and guards that intentionally cause and threaten detainees with
physical pain or suffering.21 There is evidence showing that some guards are dissuading
detainees from reporting unlawful conduct by threatening physical pain, attack from
guard dogs, and separation from children.22 Additionally, there have been instances where
detention officials and medical staff have given detained immigrants copious amounts of
medication to subdue them into prolonged sleep.23 Imagine you are an asylum seeker
fleeing torture and violence in your home country, expecting you’ve reached safety in the
19 The evidence providing the basis for these assertions are found earlier in the discussion detailing detainee treatment
in the Report.
20 Ibid. Sec. 3(b)(2) et seq.
21 See e.g. The National Immigrant Justice Center, Esperanza Immigration Rights Project, Americans for Immigrant
Justice, Florence Immigrant & Refugee Rights Project, and the ACLU, June, 11 2014, Correspondence to Megan H.
Mack, Officer for Civil Rights and Civil Liberties, and John Roth, DHS Inspector General. ABA Delegation to KSPC
to Victore Cerda, Acting Director, Office of Detention and Removal Operations, July 20, 2004, Observational Tour of
the Krome Service Processing Center, Miami, FL, available at
http://www.ice.gov/doclib/foia/dfra/2004/kromeserviceprocessingcentermiamiflapril162004.pdf; Grisez Statement;
Mukhopadhyay, Riddhi (2008) "Death in Detention: Medical and Mental Health Consequences of Indefinite
Detention of Immigrants in United States," 7 SEATTLE JOURNAL FOR SOCIAL JUSTICE (2);art 19, p. 702, available at:
http://digitalcommons.law.seattleu.edu/sjsj/vol7/iss2/19,; See generally, Anil Kalhan, Rethinking Immigration
Detention, 110 COLUM. L. REV. Sidebar 42 (2010), Lisa A. Cahan, Constitutional Protections of Aliens: A Call for
Action to Provide Adequate Health Care for Immigration Detainees, 3 J. HEALTH & BIOMEDICAL L. 343 (2007), Brian
L. Aust, Fifty Years Later: Examining Expedited Removal and the Detention of Asylum Seekers Through the Lens of
the Universal Declaration of Human Rights, 20 HAMLINE J. PUB. L. & POL'Y 107 (1998).
22 Ibid.

151

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Commissioner Statements and Rebuttals
U.S. and then being victimized by the extreme conduct outlined in this Report. You would
no doubt find these conditions24 to be akin to torture if they were inflicted upon you.
Again, while it may be argued that these acts inflicted on detained immigrants may not be
technical violations of the TVPA, I dare anyone reading this Report to be subjected to the
conduct to which these detained immigrants are subjected to and not feel that you were
being tortured as a result. This conduct must come to an end. Our country must end the
detention of immigrants who pose no threat to this country and for whom less restrictive
and less expensive forms of monitoring are easily available.
So, what is driving all of this detention? Is it that the number of undocumented immigrants
has increased so dramatically that we must take to incarceration to keep our nation from
being “overrun?” No. In fact, the amount of undocumented immigration has been relatively
stable over the last five years.25 Is it that immigrants who are coming without
documentation are more dangerous than in the past and are committing more crimes than
past immigrants? No. Studies show that communities with immigrant populations are
actually safer and have less crime than non-immigrant communities.26 Then what valid
reason could exist for this explosion of immigration incarceration? Well, no valid reason.
However, the answer to that question is PROFIT.
The “incarceration industrial complex” has extended its tentacles from running traditional
prisons on a for-profit basis, to their new growth market—immigration detention.
Companies such as Corrections Corporation of America and GEO Group have led the way
in creating the demand for jailing immigrants. By lobbying Congress, private interests
have created a Congressionally mandated “bed quota” which requires that ICE keep an
average daily custody number of 34,000 immigrants in detention, increasing dramatically
in number and cost ($2.8 billion) since its inception in 2006.27 This expansive and
expensive growth has occurred despite the fact that there are cheaper alternatives to
detention, and in the face of direct bars, such as in the case of family detention.
Unfortunately, the history of our country is marred by the fact that private interests, with
the support of government, have denied human beings their freedom for economic gain.
Indeed, immigration detention has recently been called the “largest mass incarceration
Ibid.
See Tortured and Detained: Survivor Stories of Immigration Detention, at
http://www.uusc.org/sites/default/files/report_torturedanddetained_nov2013.pdf.
25 See 5 Facts about Illegal Immigration in the U.S. at http://www.pewresearch.org/fact-tank/2015/07/24/5- factsabout-illegal-immigration-in-the-u-s/.
26 See The Mythical Connection Between Immigrants and Crime at http://www.wsj.com/articles/the-mythicalconnection-between-immigrants-and-crime-1436916798; and Immigrants and Safer Communities at http://www.ascoa.org/sites/default/files/ImmigrantsandSaferCommunitiesFactSheet.pdf.
27 See Controversial quota drives immigration detention boom at
https://www.washingtonpost.com/world/controversial-quota-drives-immigration-detentionboom/2013/10/13/09bb689e-214c-11e3-ad1a-1a919f2ed890_story.html; and Eliminate the Detention Bed Quota at
http://www.immigrantjustice.org/eliminate-detention-bed-quota#.VddZkHhFK_0.
23
24

Statement of Chairman Castro
movement in U.S. history."28 It is amazing to me how many Americans are not aware of
the for-profit prison industry and its impact on the fabric of our nation. Jailing people for
profit is obscene, it has gone on for too long, and it must end now.
I’m proud to have been appointed to this role as Chair of the Commission by President
Barack Obama. For me, the first Latino Chair of the Commission, to have been appointed
by the first African American President, is a testament to the power of the American
Dream. Because of where we come from, and the challenges we had to overcome as
people of color and as the children of foreign-born parents, I have almost always been in
agreement with the policies of the Obama Administration. I am proud of what he has
done on Deferred Action for Childhood Arrivals (known as DACA) and his expansion of
this concept in his recent Executive Orders on immigration. Thus, I am sorely
disappointed to see that the Administration is not in agreement with a recent U.S. District
Court ruling that holds that family detention is illegal and a violation of the 1997 Flores
Settlement Agreement, and that unless they pose a danger to national security or are a
flight risk, they must be released immediately.29 The President should immediately direct
DHS to comply with Judge Dolly Gee’s order and release all family detainees, who do not
pose the aforementioned risks.
We are better than this.
We must bring humanity back to our immigration system; we must eliminate the profit
motive from our incarceration decisions; and we must not imprison children and their
mothers who are seeking asylum in our country. We must return to the principles
enunciated by George Washington in 1788, which ring true today:
“I had always hoped that this land might become a safe and agreeable
asylum to the virtuous and persecuted part of mankind, to whatever nation
they might belong.”
To do otherwise makes us less than who we really are as a nation.

28 See Ending Mass Incarceration, But Not for Immigrants: A Tale of Two Policies at
http://www.huffingtonpost.com/anita-sinha/ending-mass-incarceration-but-not-forimmigrants_b_7874750.html.
29 See Seung Min Kim, “DOJ Fights Family Detention Ruling,” Politico, August 7, 2015, available at
http://www.politico.com/story/2015/08/undocumented-immigrants-detention-ruling-justice-department-121153; see
also Judge Gee’s order on Jenny L. Flores, et. al. v. Jeh Johnson, et. al issued July 24, 2015 at
http://graphics8.nytimes.com/packages/pdf/us/FloresRuling.pdf; and Dems lash out at administration over detained
immigrations at http://thehill.com/homenews/house/250622-dems-lash-out-at-administration-over- detainedimmigrants.

153

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Commissioner Statements and Rebuttals

Statement of Vice Chair Patricia Timmons-Goodson
With the Concurrence of Commissioner Michael Yaki
There's a lot of data and information about how detainees are treated. And
even you know, just basic information about when and how they are
detained, . . . it would be wonderful if the Commission were to weigh in on
that and make the recommendation that those be made public.”
—Karen Lucas, Associate Director of
Advocacy for the American Immigration
Lawyers Association (AILA)

The 2014 news reports of an influx of immigrant children and families arriving at our
border after dangerous travels over hundreds of miles brought the problem of immigration
to the forefront of America’s consciousness. 1 Among other news, the media reports
highlighted the vulnerability of immigrants once they arrive at the border and the necessity
for a multifunctioning border patrol system.
As America’s civil rights watchdog, the United States Commission on Civil Rights (the
“Commission”) must contribute solutions to this historically unprecedented problem. To
that end, the Commission held a briefing and issued a report 2 that emphasized the federal
government’s response to the influx of immigrants and that shed light on solutions offered
by different entities. While the Commission’s Report thoroughly presents the complexities
of immigration detention and provides recommendations to protect the civil rights of
detainees, this statement focuses attention on the need for more transparency of Contract
Detention Facilities (CDFs) with whom the federal government contracts to house
immigrant detainees.
Immigration Detention Facilities
Immigrations and Customs Enforcement (ICE) was formed pursuant to the Homeland
Security Act of 2002 following the events of September 11, 2001. ICE is tasked with
“promot[ing] homeland security and public safety through the criminal and civil
enforcement of federal laws governing border control, customs, trade, and immigration.” 3
1

El Salvador, Guatemala, and Honduras account for much of the recent surge of unaccompanied child
immigrants. Moreover, there have been considerable increases in the numbers of young children and female
minors at the U.S. border. While the bulk of the unaccompanied minors that have been apprehended are
teenage boys, the proportion of children that are 12 or younger has increased from 9% in FY2013 to 16% in
FY 2014, and the proportion that are girls has increased from 19% in FY 2013 to 28% in FY 2014.
2

2015 Statutory Enforcement Report: The State of Civil Rights at Immigration Detention Facilities,
(“Commission Report”).

Id. at 14.

Statement of Vice Chair Timmons-Goodson
The Detention Management Division, part of ICE’s Enforcement and Removal Operations
(ERO), oversees the civil detention system, which holds a highly transient and diverse
detainee population. ERO identifies, apprehends, and removes aliens when it deems
necessary, and oversees the confinement of detainees across facilities in accordance with
immigration detention standards. 4
A series of laws authorize ICE to continuously detain a large number of illegal immigrants.
The Immigration and Nationality Act authorizes ICE to detain aliens believed to be
removable while awaiting a determination of whether they should be removed from the
United States as well as aliens ordered removed, and mandates that ICE detain certain
categories of aliens. 5 Both the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 6 and the Intelligence Reform and Terrorism Prevention Act of 2004 7 resulted
in an increase in the number of detention beds. In 2014, Congress appropriated funding to
maintain 34,000 detention beds. 8
ICE fulfills its responsibility to maintain 34,000 beds by applying various sets of national
detention standards at over 250 detention facilities. DHS and ICE oversee the operations of
these facilities and ensure that they adhere to detention standards by employing a variety of
oversight mechanisms that can include inspections and continuous on-site monitoring. 9
However, the Commission’s Report suggests that CDFs may not be complying with the
national detention standards and consequently, may be violating the civil rights that the
standards are designed to protect. 10

U.S. Government Accountability Office, Immigration Detention: Additional Actions Needed to Strengthen
Management and Oversight of Facility Costs and Standards, GAO 15-153, Oct. 2014, available at
http://www.gao.gov/products/GAO-15-153, (“GAO Report”) (noting 2000 NDS, 2008 PBNDS, 2011
PBNDS).
5

Pub. L. 89-236, 79 Stat. 911.

Pub. L. 104-208, 110 Stat. 3009.

Pub. L. 108–458, 118 Stat 3734 (“the Secretary of Homeland Security shall increase by not less than 8,000
in each of the fiscal years 2006 through 2010, the number of beds available for detention and removal
operations . . .”)
8

See Consolidated Appropriations Act of 2014, PUB. L. No. 113-76, 128 Stat. 5, 251. (“funding made
available under this heading shall maintain a level of not less than 34,000 detention beds through September
30, 2014”).
9

GAO Report, supra note 4, at 2.

Commission Report, p. 29 (noting that “the Commission has received complaints from civil and human
rights organizations such as the American Civil Liberties Union (ACLU), the American Bar Association
(ABA), the American Immigration Lawyers Association (AILA), the Grassroots Leadership, the Mexican–
American Legal Defense Fund (MALDEF), and the Human Rights Campaign (HRC) concerning how ICEowned facilities and CDFs treat immigrant detainees while in custody.”)

155

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Commissioner Statements and Rebuttals
Role of Contract Detention Facilities (CDFs)
Federal and state governments have a long history of outsourcing government services to
private firms. 11 During the 1980s, our federal government began a War on Drugs that
placed great pressure on local, state, and federal governments to address increased
incarceration, overcrowded prisons, and rising costs. 12 Thus, the 1980s marked an
escalation in outsourcing. 13
Proponents of the outsourcing of prison management and services believe that outsourcing
is more cost-efficient than public prisons. Legal scholars Alfred Aman and Carol
Greenhouse refer to this theory as “the efficiency story” which rests on three premises:
“first, that government services are characteristically unduly encumbered with unnecessary
costs and so-called red tape; that market competition produces a sort of Darwinian effect of
favoring the fittest; and third, that competition is consistently a feature of private sector
markets.” 14
On the other hand, opponents of private prison contracts present several arguments against
outsourcing. First, opponents of outsourcing believe that the cost differential between
private and public prisons is minimal. Second, opponents argue that the profits of
corporations have been prioritized ahead of prison conditions and the economic burden on
families. Third, there is very limited competition, and in some cases, no competition
between private corporations. 15
Two private companies have led the growth in private prisons ─ Corrections Corporation of
America (CCA) and the GEO Group (GEO). 16 According to recent data:
CCA now controls 92,500 beds across 67 prisons; GEO controls more than
61,999 corrections beds in 56 facilities, as well as many community-based
and prerelease facilities…the private prison industry houses more than 8%
of the nation’s prisoners, nearly 18% of federal prisoners, and nearly half of
immigration detainees in the United States. From 2000 to 2011, the number
11

Adrian Smith, Private vs. Public Facilities: Is it Cost Effective and Safe?, Corrections.com, June 6, 2012,
available at. (noting that the outsourcing of confinement and care of prisoners can be traced back to a time
after the American Revolution).
12

Alfred C. Aman, Jr. & Carol J. Greenhouse, Prison Privatization and Inmate Labor in the Global Economy:
Reframing the Debate Over Private Prisons, 42 Fordham L.J. 355, 377 (2014) (noting the spike in federal
incarceration in the decade between the late 1980s and the late 1990s was due to the increase in convictions of
non-violent drug offenders. As a result, governments also had to contend with overcrowded prisons and the
rising costs of maintaining prisons).

Smith, supra note 11, at 1.

Id., at 374.

Id.

Tom Barry, The Shadow Prison Industry and Its Government Enablers, Center for International Policy, Jan.
11, 2010, available at http://www.ciponline.org/research/html/shadow-prison-industry-government-enablers.

Statement of Vice Chair Timmons-Goodson
of federal prisoners in private facilities increased almost 150%, while the
number of state prisoners in private facilities increased nearly 23%. GEO
took in more than $1.48 billion in revenue in 2012 from various government
contracts, 36% of which came from the federal government, and earned
more than $208 million in profit. CCA received nearly $1.76 billion in
revenue in 2012 (43% from the federal government), and earned $156
million in net profit. Government contracts contribute the vast majority of
industry revenue in the form of taxpayer dollars. 17
CCA and GEO run several contract detention facilities. More than half of the immigrant
detention beds are in detention centers run by the GEO. 18 Yet, according to Grassroots
Leadership, GEO’s prisons and detention facilities under contract with the federal
government have a record of poor performance and appalling conditions. Such conditions
include death in custody, overcrowding, lack of medical care, and extreme isolation. 19
Lack of Transparency in CDFs
A contract acts as the primary governance tool in the relationship between the government
and private prison companies. For example, CDFs are only required to follow standards set
forth in their individual contracts; they do not uniformly follow national detention
standards. Fortunately, ICE provides CDF contracts on its website, 20 and in so doing,
makes a positive first-step in CDF transparency. Unfortunately, ICE falls short of the kind
of transparency the public requires to determine whether immigrant detainees are being
treated fairly in CDFs.
Some briefing panelists note that private contractors are not subject to the Freedom of
Information Act (“FOIA”). Under FOIA, federal agencies are required to disclose their
records upon request, with some exceptions. Anyone can request records about immigration
detention facilities as long as the facility is owned and operated by the government. 21 Thus
far, CDFs ─ not owned and operated by the government ─ are exempt from FOIA. As an
ACLU representative stated:
17

Mike Tartaglia, Private Prisons, Private Records, 94 B.U.L. Rev. 1689, 1695 (2014).

Cristina Parker, Judy Greene, Bob Libal, & Alexis Mazón, For-Profit Family Detention: Meet the Private
Prison Corporations Making Millions By Locking Up Refugee Families, Grassroots Leadership (2014),
available at http://grassrootsleadership.org/reports/profit-family-detention-meet-private-prison-corporationsmaking-millions-locking-refugee.
19

Id.

U.S. Immigrations and Custom Enforcement, FOIA Library, available at http://www.ice.gov/foia/library.

Alex Park, Will Private Prisons Finally Be Subject to the Freedom of Information Act? Mother Jones, Dec.
16, 2014, available at http://www.motherjones.com/mojo/2014/12/will-private-prisons-ever-be-subject-openrecords-laws.

157

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Commissioner Statements and Rebuttals

[T]here is actually a quite serious problem with the FOIA loophole for
private prisons. [For example,] if a facility is run directly by ICE, then it’s
subject to FOIA; [however,] if it is run by a private prison company, it’s not
subject to FOIA except to the extent that the records relating to the facility
are in ICE’s actual possession. 22
For example, the Commission’s Report notes the difficulties in determining whether private
contractors are meeting the Prison Rape Elimination Act of 2003 (PREA) standards and the
most recent version of other national detention standards. On the one hand, an ICE
representative stated that “all . . . private contractor facilities adhere to the most recent,
most rigorous level of detention standards.” 23 In addition, ICE requires CDFs to apply
PREA and the latest standards when both parties renegotiate their contracts. On the other
hand, advocates for detained immigrants note that immigrant detainees in CDFs experience
conditions that fall short of the government’s current detention standards. 24 Subjecting
CDFs to FOIA would shine a light on the conditions that immigrant detainees face.
Solutions to CDFs’ Lack of Transparency
The Commission’s Report found that (1) a lack of transparency exists regarding private
detention facilities because the facilities’ records are not subject to FOIA, (2) ICE CDF's
compliance with PREA inspection standards and policies cannot be determined as
inspections are confidential and thus lack transparency, and (3) certain CDFs have failed to
comply with standards for medical care, nutritious food, access to legal libraries, and
possibly the right to freely exercise religion.
Given the above findings, I commend a number of solutions to improve transparency of
CDFs. One promising solution to CDF transparency is proposed by Congresswoman Sheila
Jackson-Lee (D-TX 18th District). In May 2015, Congresswoman Jackson-Lee
reintroduced legislation known as the Private Prison Information Act (PPIA) which would:
[subject] records relating to the operation of and prisoners in a prison or
other correctional or detention facility that is owned or operated by a
nongovernmental entity, state, or local government and that incarcerates or
detains federal prisoners pursuant to a contract or agreement with a federal
agency to the Freedom of Information Act in the same manner as records

See Briefing Transcript, Testimony of Carl Takei, American Civil Liberties Union, U.S. Commission on
Civil Rights, January 30, 2015, p. 258.
23

Kevin Landy, Briefing Transcript, pp. 69–70.

Commission Report, pp. 32-36.

Statement of Vice Chair Timmons-Goodson
maintained by a federal agency operating a federal prison or detention
facility. 25
If the PPIA becomes law, CDFs would be forced to demonstrate unprecedented levels of
transparency, and the public would gain access to immigrant detainee data that is not
readily-available.
The Briefing produced other solutions that I view as good steps to address the issue of CDF
transparency. I strongly urge policy makers to adopt the following solutions so that we can
protect the civil rights of immigrant detainees.
•

•

•
•

•

The Department of Homeland Security should convene an intergovernmental
compliance task force to investigate, analyze, and strengthen compliance regiments
carried out by the ICE Enforcement and Removal Operations’ Detention Standards
Compliance Unit.
DHS, ICE Enforcement and Removal Operations, all applicable DHS components
and the Government Accountability Office should undertake an extensive review of
all contracts issued to third-party facility management companies and enforce the
adoption of, and compliance with, the 2011 PBNDS standards to ensure uniform
implementation of medical treatment standards for, and the proper treatment of,
LGBT immigrant detainees. The Government Accountability and/or an Inspector
General should investigate and research whether, and to what extent, ICE, DHS, and
contract facilities are fully complying with PBNDS medical standards.
As contract facilities are delegated government duties in the oversight and
management of detention facilities, procedures must be put in place to ensure
transparency, including access to facility records to ensure compliance with PBNDS
and other government regulations.
DHS and its component agencies should adopt policies to grant journalists access to
contracted and ICE-operated facilities and to the people detained therein.
DHS, its component agencies, and any entity contracted to provide detention
services should adopt the Civil Immigration Detention Standards published by the
American Bar Association in August 2012.
Document the reasons facilities cannot be transitioned to the most recent
standards. 26

H.R. 2470, 114th Cong. (2015).

GAO Report, supra note 4, at 1.

159

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Commissioner Statements and Rebuttals

Statement of Commissioner Roberta Achtenberg
With the Concurrence of Vice Chair Timmons-Goodson
and Commissioner Michael Yaki

Introduction

The conditions under which the United States government detains undocumented
immigrants present serious, disturbing, and compelling questions. The 2015 Statutory
Enforcement Report 1 (“Report”) of the United States Commission on Civil Rights 2
(“Commission”) presents a strong, comprehensive assessment of the troubling facts of the
conditions of immigrant detention. The Report also examines the U.S. government’s
compliance, or lack thereof, with the Performance Based National Detention Standards
(PBNDS) 3 and the Prison Rape Elimination Act (PREA). 4 The Commission’s assessment is
based upon an in-depth investigation which included detailed research, a comprehensive
briefing in January 2015, and a visit by most Commissioners and several key staff members
to an immigrant family detention center and to an adult detention center in Texas in May
2015. 5
Alarmingly, the Commission found that “[t]he federal government’s treatment of detained
immigrants may be inconsistent with the Fifth Amendment right to be free from
punishment without due process of law.” 6 The Report makes a wide-ranging and detailed
series of findings and recommendations. The Report proposes investigations and
improvements in many areas. This Statement seeks to highlight the most important of those
findings and recommendations. This Statement also proposes further action to investigate
and improve: 1) the conditions under which the U.S. government detains immigrant
families; 2) those detainees’ due process right to, and meaningful access to, the counsel
who can make a critical difference in the outcome of their cases; 3 the process by which
immigrant bond or bail amounts are set when parole is granted, and the vast range of -- and
seemingly unrealistic dollar amounts of –- those bonds; and 4) the impact of the
1

Public Law 103-419 (S.2372), codified at Sec. 3 U.S.C. 1975a(d)(1).

Public Law 103-419 (S.2372). The Civil Rights Act of 1957 created the U.S. Commission on Civil Rights.
As an independent, bipartisan, fact- finding federal agency, our mission is to inform the development of
national civil rights policy and enhance enforcement of federal civil rights laws.
3

See, e.g., What We Do, 2011 Operations Manual ICE Performance-Based National Detention Standards,
U.S. Immigration and Customs Enforcement, available at http://www.ice.gov/detention-standards/2011.
4

Prison Rape Elimination Act of 2003, Public Law 108-79, 117 Stat. 972 (2003), codified at 42 U.S.C §
15601-15609.
5

Commission staff members who worked on all stages of the investigation and the resultant Report are to be
commended for their commitment and diligence.

Statutory Enforcement Report: The State of Civil Rights at Immigration Detention Facilities, United States
Commission on Civil Rights, Sept. 2015, Finding #20, p. 125, available at usccr.gov, (hereinafter “Report”).

Statement of Commissioner Achtenberg
Congressional requirement that the U.S. Department of Homeland Security (“DHS”)
maintain and pay for 34,000 immigrant detention beds per night upon decisions about
detention in lieu of parole.

II.

The U.S. Department of Homeland Security and its private contractors often
detain immigrant families in conditions which approximate those of
incarceration, notwithstanding the civil nature of immigration proceedings.
A.

Conditions of Detention

The Commission found the conditions in which DHS and its contractors keep immigrant
detainees to be seriously deficient. Examples include serious failures in provision of
nutritious and adequate food, reasonable ambient temperatures, 7 medical care, 8 education,
and, for unaccompanied migrant children in particular, detention in the least restrictive
setting possible. 9 The lack of transparency which inhibited the Commission from
ascertaining DHS’ contract entities’ compliance with PREA inspections and the solitary
confinement of children 10 causes particular concern. The Commission also found
“anecdotal evidence that DHS and ORR [Office of Refugee Resettlement] have violated
TVPRA [Trafficking Victims Protection Reauthorization Act of 2007] standards, including
holding children longer than 72 hours and not conducting sufficient screenings before
deportation.” 11
The net result of these failures by DHS and private contractors is that, effectively, children
– including infants and toddlers - are growing up for significant lengths of time under
conditions which almost replicate those of adult incarceration. This is horribly traumatic for
the children and should be unacceptable to persons of conscience. While at the Karnes
Family Detention Center in May 2015, Commissioners met with detainees under the
supervision of Center staff. Commissioners observed very young children appearing
lethargic and depressed. The children were listless, sitting motionless and silent in their
mother’s laps for extended periods during the meeting. Detained mothers reported children
losing weight while in the facility and even exhibiting suicidal behaviors.
Also during the visit to Karnes, Commissioners learned that processing cells afford
detainees no real privacy when they need to use the toilet. After admission, multiple
families are housed together in single rooms. All residents of each individual room must
share a single bathroom. Families have no privacy or the ability to have confidential
conversations. Families must live under a slew of arbitrary rules, such as a mandatory early
lights-out time. After lights-out, mothers are supposed to leave their rooms only to get food
7

Id., pp. 57-58.

Id., Findings #1 and 2, p.124.

Id., Finding #18, p. 125.

Id., Finding #13, p. 125.

Id., Finding #8, p. 124.

161

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Commissioner Statements and Rebuttals
if they are hungry. Detained mothers are not allowed to leave their children in anyone else’s
care. Children have limited access to outside play in a courtyard fully surrounded and
enclosed by buildings. Unlike inmates in many prisons with fenced exercise yards, children
cannot see the world outside of the courtyard. Playpens for infants and toddlers may be
unsafe.
On June 24, 2015, fewer than sixty days before the Commission adopted the Report, DHS
Secretary Jeh Johnson issued a statement (“DHS Statement”) which implicitly recognized
many of DHS’ shortcomings and deficiencies. Secretary Johnson reiterated his May 2015
commitment to improving detainees’ access to social workers, education, and medical care.
The DHS Statement also promised “continuous monitoring of the overall conditions at
these [family detention] centers.” 12 The Report notes that it is unclear at this time “whether
these announced changes will be implemented and if so, how effective their operation will
be.” 13

Recommendations

The Commission recommended that “DHS must ensure the provision of appropriate
education and mental and medical health care for all detained adults, children, and youth.
DHS must ensure cultural competency and life skills training for detained adults so that
they will be as prepared as possible to function in American society upon release from
detention.” 14 The Commission also recommended that “DHS and ORR should increase
resources to ensure compliance with TVPRA including reducing hold times for children,” 15
and that “[t]he Office of the Inspector General and Homeland Security and the Office of
Government Accountability must perform more detailed study and monitoring regarding
DHS detention and holding facility compliance with PREA standards.” 16
The success or failure of the monitoring efforts which the Commission recommends
obviously will turn upon the thoroughness of the approach. The importance of an
exhaustive review of living conditions and access to medical, educational, and food
services at each and every detention center, whether run by DHS or by a private contractor,
cannot be overstated. The investigators must have authority to observe conditions of
detention during unannounced visits, and must be allowed private meetings with detainees
and staff members who wish to speak to them. DHS should undertake special effort to
ensure that facility staff members are advised of federal whistleblower protections. Facility
records must be reviewed very thoroughly, also on an unannounced basis. Contracts with
12

Statement By Secretary Jeh C. Johnson On Family Residential Centers, U.S. Department of Homeland
Security, June 24, 2015, available at http://www.dhs.gov/news/2015/06/24/statement-secretary-jeh-cjohnson-family-residential-centers (hereinafter “DHS Statement”).
13

Report, p. 18.

Id., Recommendation #11, p. 127.

Id., Recommendation #4, p. 126.

Id., Recommendation #9, p. 127.

Statement of Commissioner Achtenberg
private facilities must be reviewed very carefully to ensure that they promote and achieve
compliance with all applicable federal laws. DHS should develop and ensure
implementation of best practices for the housing, care, and education of detained families
and unaccompanied immigrant youth.

III.

The U.S. Department of Homeland Security and its private contractors often
deprive detained immigrant families of their Fifth Amendment Due Process
and statutory rights to counsel in detention and asylum cases.
A.

Current Sources of the Right to Counsel

As discussed in the Report,
[t]he Fifth Amendment to the U.S. Constitution mandates that “no person …
shall be deprived of life, liberty, or property…” without due process of
law. 17 According to Reno v. Flores, 507 U.S. 292, 306 (1993), “[i]t is well
established that the Fifth Amendment entitles aliens to due process of law in
deportation proceedings.” Additionally, federal courts have held that the
removal process implicates an undocumented immigrants’ liberty interest. 18
Therefore, federal courts have considered access to counsel, at one’s own
expense, a requirement that assures fundamental fairness during removal
proceedings. 19 For example, in United States v. Charleswell, 456 F.3d 347,
360 (3d Cir. 2006), the Third Circuit characterized a detained immigrant’s
right to counsel during removal proceedings as “so fundamental to the
proceeding’s fairness” that denying this right “rise[s] to the level of
fundamental unfairness.” Furthermore, the Fifth Amendment is not the only
law that grants undocumented immigrants the right to counsel at their own
expense. The Immigration and Nationality Act (INA) guarantees
undocumented immigrants … access to counsel at their own expense. 20, 21

U.S. Const., Amend. V.

A detained immigrant’s liberty interest is implicated because federal statute mandates that captured
undocumented immigrants be detained. See e.g., Zadvydas v. Davis, 533 U.S. 678, 690 (2001).

Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005) (“The right to counsel in immigration proceedings
is rooted in the Due Process Clause.”); Dakane v. U.S. Attorney General, 399 F.3d 1269, 1273 (11th Cir.
2005) (“It is well established in this Circuit that an alien in civil deportation proceedings ... has the
constitutional right under the Fifth Amendment Due Process Clause ... to a fundamentally fair hearing.”);
Borges v. Gonzales, 402 F.3d 398, 408 (3d Cir. 2005) (“The Fifth Amendment entitles aliens to due process
of law in deportation proceedings.”); Rosales v. Bureau of Immigration & Customs Enforcement, 426 F.3d
733, 736 (5th Cir. 2005) (“[D]ue process requires that deportation hearings be fundamentally fair.”); Brown v.
Ashcroft, 360 F.3d 346, 350 (2d Cir. 2004) (“The right ... under the Fifth Amendment to due process of law in
deportation proceedings is well established.”).
20

The Immigration and Nationality Act, as amended, Public Law 104-208, 66 Stat. 235 (Sept. 30, 1996)
(codified as 8 U.S.C. § 1362).
21

Report, pp. 106 – 107.

163

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Commissioner Statements and Rebuttals
Detained immigrants are subjected to difficult, if not inhumane, conditions in secure
facilities for unacceptable lengths of time. These environments are akin to those faced by
adult criminal defendants and convicts who have been afforded a constitutional right to
government-paid counsel. Immigrant detainees do not have a right to government-funded
counsel, and the fundamental unfairness of this inequity calls out for remedy. This is true
for adult detainees, adults detained with their children, and, astonishingly, for
unaccompanied children. The conditions are tantamount to punishment, and the right to
counsel should pertain.

Consequences of Lack of Access to Counsel

The consequences of lack of access to paid, affordable, or volunteer counsel are real and
dramatic. As the Report demonstrates, there is a direct causal relationship between
representation by counsel and detained immigrants’ success rates in securing parole while
their proceedings are in motion. 22
The consequences of the lengthy detentions which most immigrants face are real and
dramatically damaging. Because lack of access to counsel prolongs most family detentions,
infants and children are living and growing in unacceptable conditions for months on end
and, in some cases, a year or more. Stressful conditions of detention compound the traumas
which detainees experienced in their home countries, including domestic violence and
gang-related violence, and during their difficult journeys to the U.S. border. There is a
humanitarian need to shorten detention to the greatest degree possible, especially for
detainees with credible asylum claims. These women and children need to be able to
establish free lives in the U.S. as quickly as possible in order to recover from their physical
and emotional ordeals.
Lack of sufficient counsel also clogs immigration court dockets as continuances are granted
so that detainees may have more time to seek counsel. For example,
the Executive Office for Immigration Review … within [the U.S.
Department of] Justice has estimated that there were as many as 4,444
master calendar hearings for unaccompanied children from July 18 [2013] to
September 2 [2014]. In that same time frame, EOIR said there were 2147
continuances so the child could seek counsel. And of the 345 cases
completed, 323 or more than 90 percent were marked as instances where the
child had no legal representation.” 23

Barriers to the Exercise of the Right to Counsel

Id., p. 108. See also Rogers, David, Child Migrants Without Lawyers Pay A High Price, Politico, April 27,
2015, available at http://www.politico.com/story/2015/04/child-migrants-deportation-117402.html.

Rogers, David, Counsel for Child Migrants Battle Rages On, Politico, September 30, 2014, available at
http://www.politico.com/story/2014/09/child-migrants-legal-counsel-111473.html#ixzz3jCjWBXFg.

Statement of Commissioner Achtenberg

Those detainees who may be in a position to exercise their Fifth Amendment and statutory
rights to paid or volunteer counsel experience significant barriers to doing so.
The Commission found instances in which detainees were not adequately informed of their
right to counsel and other legal rights, as required by law. 24 The Commission further found
that language barriers, in particular those faced by indigenous language speakers, went
unaddressed in the provision of legal rights education to detained immigrants. 25 Inadequate
access to law libraries 26 further complicates detainees’ attempts to advance their causes.
Detainees who are able to secure counsel cannot be sure that DHS and/or its private
contractors will allow their attorneys to provide zealous representation, unimpaired. In May
2015, in conjunction with the Commission’s visit to detention facilities, members of the
Commission and its staff met with advocates from the University of Texas law school.
Advocates told of being forced by facility staff to wait an hour or more to be cleared for
entry to meet with their clients, and of not being able to bring laptop computers, cell
phones, or pens into client meetings. The resultant need to handwrite declarations and
documents, sometimes in pencil, clearly impedes with representation by requiring multiple
visits to complete simple tasks. Detainees’ advocates reported to the Commission that the
facilities’ criteria for admitting counsel sometimes changes on a daily basis. The
Commission found, overall, that “[e]vidence indicates federal employees are interfering
with an attorney’s ability to represent clients.” 27 More specifically, the Commission found
that
[p]ractices at detention facilities, including requiring detainees to pay for
telephone calls to their attorneys, inhibit the detainees’ Due Process rights,
including access to counsel, assistance of counsel, and allowing working
conditions for counsel which allow them to perform their jobs efficiently
and thoroughly. 28

The June 24, 2015 DHS Statement promises that the agency is “undertaking additional
measures to ensure access to counsel … [and] attorney-client meeting rooms.” 29 These
developments will be most welcome if and when implemented.

Shortage of Available Counsel for Unaccompanied
Immigrant Children

Report, Finding 6, p. 124.

Id., Finding 15, p. 125.

Id., Finding 7, p. 124.

Id., p. 125.
Id., Finding 19, p. 125.

28
29

DHS Statement, n. 12 supra.

165

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Commissioner Statements and Rebuttals

The lack of access to counsel is particularly troubling with regard to unaccompanied
immigrant children who are facing deportation proceedings. Data released in early August
2015 by the Executive Office of Immigration Review (EOIR) of the U.S. Department of
Justice (“DOJ”) demonstrated that
among the 13,451 cases completed … [between] July 18, 2014 [and July 28,
2015], barely half the children had legal representation. … [F]rom July 18 to
Dec. 23, 2014, … EOIR tallied 4,250 case completions, in which just 27
percent of the children had an attorney. By mid-April this year, that share
had grown to about 40 percent. Just counting the cases completed from April
through July, about 58 percent of the children impacted were assisted by
counsel. … And the record continues to show that those without lawyers are
most likely to receive orders of removal or feel pressured to agree to
voluntary departure. … Overwhelmingly, children without attorneys have
been most vulnerable, and of the 7,237 deportation orders since last July,
6,315 were issued in absentia. 30

E.
Expanding Access to Counsel for Unaccompanied
Immigrant Children
The U.S. Department of Health and Human Services (“HHS”) has made some money
available to procure access to counsel for unaccompanied minors. In 2014, HHS allocated
$4.2 million and awarded contracts to the U.S. Committee for Refugees and Immigrants
and to U.S. Conference of Catholic Bishops for direct representation of minors facing
deportation hearings. This allocation may serve only approximately one-third of the youth
who are in the deportation hearing process. HHS planned to spend up to $9 million for legal
services for immigrant youth during Fiscal Year 2015. 31 On June 17, 2015, DOJ filed
Defendants’ Notice of Proposed Action By the Department of Health and Human Services
Concerning New Funding for Representation of Unaccompanied Alien Children in J.E.F.M.
v. Lynch. In this Notice, DOJ asserted that HHS determined on June 15, 2015, that
“funding is available in its remaining FY 2015 budget to issue Requests for Proposals
(RFP) for contracts to provide legal services and direct representation to
unaccompanied alien children.” 32
30

Rogers, David, Obama Plan Leaves Child Migrants Adrift, Politico, August 15, 2015, available at
http://www.politico.com/story/2015/08/obama-plan-leaves-child-migrants-adrift121254.html#ixzz3jD7E02Oa. See also Rogers, David, Child Migrants Face New Crisis: Uneven Justice,
Politico, March 5, 2015, available at http://www.politico.com/story/2015/03/child-migrants-face-new-crisisuneven-justice-115790.html.
31

Rogers, David, Migrant Children: Out of Sight, Still in Mind, Politico, October 11, 2014, available at
http://www.politico.com/story/2014/10/child-migrants-111795.html.
32

J.E.F.M. v. Lynch, discussed infra in Sec. IV(A) as J.E.F.M. v. Holder. Notice available at
https://ecf.wawd.uscourts.gov/doc1/19716388860.

Statement of Commissioner Achtenberg

Litigation and legislation may improve access to counsel for detained
immigrants.

The American Civil Liberties Union and the Northwest Immigrant Rights Project filed the
class action suit J.E.F.M., et al. v. Holder in July 2014 in the U.S. District Court for the
Western District of Washington at Seattle. Plaintiffs assert that immigrant children have a
Fifth Amendment right to government-funded counsel. Judge Thomas R. Zilly kept alive
and open the question of a Fifth Amendment Due Process right to government-paid counsel
in his April 13, 2015 ruling, despite DOJ’s attempt to have the case dismissed outright on
jurisdictional grounds. 33
Rep. Hakeem Jeffries (D-NY) introduced H.R. 1700, the Vulnerable Immigrant Voice Act,
on March 26, 2015 after H.R. 4936, the same act of 2014, failed to move. H.R. 1700 simply
seeks to “amend section 292 of the Immigration and Nationality Act to require the Attorney
General to appoint counsel for unaccompanied alien children and aliens with serious mental
disabilities, and for other purposes.” 34 The bill was referred to the Subcommittee on
Immigration and Border Security of the House Committee on the Judiciary on April 29,
2015. 35

Recommendations

Whether children and youth in detention are accompanied by a parent or not, this reality is
the same: young people from infancy through their teen years are spending critical
developmental time -- during which socialization, education, and development of life skills
are critical -- living in conditions largely reserved for adult criminals.
The Commission recommended that:
[m]uch work needs to be done to ensure detainees’ access to Due Process
and the right to assistance of counsel under the Fifth Amendment and the
INA. DHS, its component agencies, the Department of Justice, and the
Government Accountability Office should examine the legal rights
33

J.E.F.M. v. Holder, et al., No. 2:14-cv-01026, U.S. District Court for the Western District of Washington at
Seattle. The docket is available at https://ecf.wawd.uscourts.gov/cgi-bin/DktRpt.pl?101538747635567L_1_0-1. The Amended Complaint is available at https://ecf.wawd.uscourts.gov/doc1/19715954152. DOJ’s
Motion to Dismiss as Moot, filed on June 29, 2015 is available at
https://ecf.wawd.uscourts.gov/doc1/19716407677. The April 13, 2015 Order is available at
https://ecf.wawd.uscourts.gov/doc1/19716285378.
34

Vulnerable Immigrant Voice Act, H.R. 1700, available at
https://www.congress.gov/114/bills/hr1700/BILLS-114hr1700ih.pdf.

All Actions, Vulnerable Immigrant Voice Act, Congress.gov, available at
https://www.congress.gov/bill/114th-congress/house-bill/1700/allactions?q={%22search%22%3A[%22Vulnerable+Immigrant+Voice+Act+2014%22]}&resultIndex=1.

167

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Commissioner Statements and Rebuttals
education and access to counsel being provided to detainees and the
obstacles to that access. These entities should propose, and DHS should
implement, best practices for legal education of detainees and their access to
counsel. Issues to be examined, and remedied as needed, include but are not
limited to: legal rights presentations to detainees of all ages and language
competencies; access to information about available, qualified counsel;
access to free and private telephone calls to counsel; access to private
meetings with counsel; availability of translators – especially in indigenous
languages -- to assist detainees in communicating confidentially with
attorneys; the ability of counsel to bring basic operating supplies into private
meetings with counsel; and access to bond hearings. Congress should pass,
and the President should sign, legislation extending the right to counsel in
immigration detention proceedings to all indigent detainees. Eligibility for
this access to counsel should begin at the time of detainment. 36

In the continued absence of such overarching legislation, Congress should pass, and the
President should sign, the Vulnerable Immigrant Voice Act, if only as a stop-gap measure.
The relief which enactment would grant to unaccompanied immigrant children and
immigrants with significant mental health concerns would be helpful indeed. The ultimate
remedy to the lack of counsel for children, however, must go beyond this and provide
government-funded counsel for all children who cross our border without documentation,
whether they are unaccompanied or not.
Advocates should push and courts should address the question posed in J.E.F.M.: whether
there is a Fifth Amendment Due Process right to counsel for detained immigrants. At a
minimum, if the conditions of detention for immigrants are akin to those in which criminal
defendants and convicts – who are afforded a right to counsel – the right might be drawn by
analogy.
HHS should report publicly upon whether it did indeed engage the legal services
contractors and spend the money in Fiscal Year 2015 for counsel for unaccompanied minor
children that it announced it planned to do in its June 2015 Notice of Proposed Action By
the Department of Health and Human Services Concerning New Funding for
Representation of Unaccompanied Alien Children in J.E.F.M. v. Lynch.
Congress should appropriate in the nation’s Fiscal Year 2016 budget adequate funds to
HHS for legal representation of unaccompanied immigrant children.

IV.

The bases upon which immigrants’ eligibility for release on bond, and the
process by which unrealistic bond amounts are set in some cases, cannot be
readily ascertained.

Report, Recommendation #3, p. 126.

Statement of Commissioner Achtenberg
A.

Background

The Commission has not heard adequate explanations of the processes by which detainees’
eligibility for release on bond and those by which the amounts of such bonds are
determined. In these murky areas, the Report credited and quoted Karen Lucas, Associate
Director of Advocacy of the American Immigration Lawyers Association. Ms. Lucas stated
that
Once an individual is found to have a “credible fear” of persecution, Immigration and
Customs Enforcement (ICE) is required by the Immigration and Nationality Act §236(a) to
assess her individually for release. But in Karnes and Dilley, as in Artesia, ICE is abdicating
this responsibility and detaining across the board, with rare exceptions. ICE is refusing to
consider bond, release on recognizance, supervised release, or any form of ATD, regardless
of individual circumstances. Moreover, when that individual is then able to go before an
immigration judge for a bond hearing, ICE uniformly opposes bond or demands an
extremely high bond, submitting the same boiler plate legal brief in every case and arguing
that every Central American family is a national security risk – ignoring years of legal
precedent on the appropriate factors for release and instead relying on a single, factually
inapposite case, Matter of D-J. At Artesia, this resulted in widely divergent bond amounts
from Immigration Judges that could go as high as $20,000 and $30,000 – well above the
national average of $5,200 and well out of the reach of most detainees. 37

As the Report references, 38 the DHS Statement promises that DHS is working on
a plan to offer release with an appropriate monetary bond or other condition
of release to families at residential centers who are successful in stating a
case of credible or reasonable fear of persecution in their home countries.
Further, [we are also developing] … criteria for establishing a family's bond
amount at a level that is reasonable and realistic, taking into account ability
to pay, while also encompassing risk of flight and public safety. 39

B. Recommendations
The Commission found that "[t]he process by which bond amounts are set and the range of
the bond amounts are inconsistent and perhaps punitive." 40
The Commission recommended that “[t]he Government Accountability Office and/or an
Inspector General should undertake investigation into the manner in which detained
immigrants are given access to bond hearings, the manner in which bonds are set, why vast

Id., footnote 509, p. 115.

Id., p. 18.

DHS Statement, supra n. 12.

Report, Finding #23, p. 125.

169

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Commissioner Statements and Rebuttals
inconsistencies exist among bonds set for detained families, and why many bonds are set at
amount which may be completely out of detainees’ reach.” 41
DHS must make the bond determination system operate more rationally and produce
outcomes consistent with Due Process and Equal Protection principles. DHS should
promulgate rules and set policies which standardize both the process by which bond
requests are considered and the amounts of any bonds granted are determined. DHS has the
benefit of expertise and the ability to review closely what has happened – and continues to
happen – to detainees who seek and deserve release. DHS should propose standards which
aim to set bonds at the minimum amounts necessary.

The existence of a possible link between detainee bed availability and decisions to
release or detain immigrants raises concern.
A.

Background

The Report notes that “in 2014, through an appropriations act, Congress mandated that
DHS maintain 34,000 immigrant detention beds per day.” 42 The extent to which this
requirement may affect the entire detention and release process merits inquiry. For
example, Border Patrol has the authority at the time of apprehension to determine if an
immigrant will be detained or released.
After an initial decision to detain has been made, as the Report notes, “Concern has also
been raised that detention determinations may be made, and bond amounts may be set, in
order to help keep full the nightly 34,000 beds which Congress has required funded.” 43
Specifically, the Commission was told that, “In Texas we've observed ICE setting bond
determinations for individuals in order to keep detention facilities full, ostensibly to meet
the quota.” 44
With regard to contract facilities, in particular, it is worth noting the potential for conflicts
of interest. Extended detention times help an institution maintain full occupancy. To the
extent that unfettered access to counsel contributes to timely disposition, the economic
incentive for the institution to spawn policies that constrain attorney/client access and
increase time in detention must be closely scrutinized.

Recommendations

Id., Recommendation #15, p. 128.

Id., pp. 4-5.

Id., pp. 115-116.

Id., Statement of Bob Libal, Executive Director, Grassroots Leadership, footnote 510, p. 116.

Statement of Commissioner Achtenberg
The Commission recommended that “[t]he Government Accountability Office and/or an
Inspector General should undertake investigation into whether, and if so, how the 34,000
per-night bed requirement put in place by Congressional appropriations language impacts
agency decisions to detain or parole immigrants.” 45
The complex circumstances involving immigrant detention and the roles played by various
entities render it fair to question whether the existence of the 34,000 per-night bed quota
impacts detention decisions at the border and throughout the process. Such an inquiry
should examine not only the roles of entities which have a financial stake in the decisions,
but also the extent of their pecuniary gain as a result of those choices. DHS should
promulgate rules and craft policies which reduce conflicts of interests in detention
decisions. If necessary, Congress should pass, and the President should sign, legislation
which the per-night bed quota.

VI.

Conclusion

Overall, the conditions under which DHS detains immigrants – especially children, whether
with their families or on their own – are shocking to the nation’s conscience. As the
proverbial nation of immigrants, founded by immigrants, we must do our best to uphold
humane and compassionate values. DHS has legal and moral obligations to improve in all
regards the conditions under which immigrants are detained. That DHS fails to ensure
adequate nutrition for detained immigrant children is reprehensible. That DHS fails to
provide standard medical care for serious chronic conditions and in response to accidents
begs disbelief. That tiny children are spending significant portions of their lives in
conditions approximating those of adult incarceration is shameful.
DHS must improve the process by which detention decisions are made and standardize the
manner in which bond decisions are determined. DHS, HHS, Congress, and the President
must take all available courses of action to secure and meaningfully implement a Due
Process right to counsel for all undocumented immigrants. DHS, Congress, and the
President must make every effort to investigate the legitimacy of the 34,000 per-night bed
quota. DHS, Congress, and the President must ensure that stakeholders who stand to profit
from their work with immigrant detainees not be allowed to put their financial interests
ahead of the Due Process and humanitarian interests of such detainees, whether adults or
children.

Id., Recommendation #14, p. 128.

171

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Commissioner Statements and Rebuttals

Dissenting Statement of Commissioner Gail Heriot
Long before any evidence was gathered, the Chairman’s proposal to undertake this study
had already concluded that “egregious human rights and constitutional violations continue
to occur in detention facilities.” 1 That proposal was adopted by the Commission on July 25,
2014.
The Commission thus went into this project intent on uncovering a scandal. Instead of
conducting an actual investigation, it structured its initial fact-finding simply to amplify
stale rumor and innuendo. No effort was undertaken to establish whether the allegations—
all of which were already public—were fact or fancy. The point was simply to give the
witnesses an opportunity to make the allegations again at our briefing on January 30,
2015—this time before the C-Span cameras.
Following the testimony of a panel composed largely of activists and advocates, Chairman
Castro remarked dramatically before the television audience:
… I am shocked to hear the consistency among different facilities we talked
about today, the kind of abuse, sexual and otherwise, that’s occurring. Th[is]
does not seem to be an isolated incident. What you described, Ms. Hinojosa,
is similar, if not identical to what we saw in the complaint from NIJC and
the ACLU, what Sister [Norma Pimentel] saw, and what happens in other
facilities we’ve gotten reports of. So, to me that says there’s clearly a
culture of this going on. (Tr. at 127 [italics added].)
But the witnesses were selected precisely because they had earlier made the allegations
they were then making before the Commission. Of course their testimony would be
uniformly troubling. That is why they were asked to testify. Under the circumstances, no
one should be shocked by the consistency.
Moreover, the most significant allegation of sexual abuse made at the briefing had already
been found to be without evidentiary foundation after an extensive investigation conducted
at the direction of the DHS Inspector General. The results of that investigation were

Martin R. Castro, 2014 Briefing Proposal: The State of Civil Rights at Immigration Detention Facilities at 2
(June 2014). This language re-appears in Chairman Castro’s Statement in this Report. Castro Statement at
149.

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Dissenting Statement of Commissioner Heriot
contained in a report issued weeks before our briefing. 2 For reasons I cannot understand, no
reference to those results was included in the body of this report. 3
Our job should have been to examine the allegations concerning detention conditions and
try to determine whether they were true (as the DHS Inspector General did). This would
have involved piecing together what happened the best we could from the records and
witnesses. Almost certainly we would have been able to shed light on some of the
allegations, but not on others. But the Commission preferred to rely on hearsay-uponhearsay anecdotes that were told to us by witnesses or written about by media outlets
ranging from international news services like Aljareeza and National Public Radio to local
“alternative weekly” newspapers like New Times Broward-Palm Beach. 4
It is said that where there is smoke, there is fire. But sometimes where there is smoke, there
is only a smoke-making machine, busily stoked by publicists working for activist
2

Memorandum to DHS Secretary Jeh C. Johnson from DHS Inspector General John Roth dated January 7,
2015: Investigative Summary—GEO Group Incorporated Detention Facility, Karnes City, Texas at 2-3. See
infra at Section D.1 at 204-205 (describing DHS Inspector General’s memorandum).

Other allegations of a sexual nature have also turned out to be less striking than they originally seemed when
brought to the Commission’s attention. In her statement, Maria Hinojosa wrote, “A GAO audit … found that
ICE had received more than 200 allegations of sexual abuse between 2009 and 2013.” Hinojosa Statement at
8. I wish she had also pointed that the 215 allegations were from among 250 facilities, accounting for 1.2
million admissions. Such a rate over the course of several years would not be out of the ordinary for a place of
business. Moreover, I believe she should have pointed out that only 7% of these allegations were found to be
substantiated (i.e. an investigation determined that the alleged incident took place). Approximately five times
that number (38%) were found to be “unfounded” (i.e. an investigation determined that the alleged incident
did not occur). The rest (55%) were classified as “unsubstantiated” (i.e. neither proven nor disproven after an
investigation). Of the 15 substantiated cases, 11 involved detainee-on-detainee conduct and 4 involved staffon-detainee conduct. Typical of the accusations were “A male detainee grabbed another male detainee by his
genitalia,” and “A male detainee grabbed two other males’ buttocks.” Among the accusations against staff
members was “A male guard intimidated and coerced a transgender detainee assigned to protective custody to
display the detainee’s breasts and the guard inappropriately touched himself in view of the detainee” and “A
female guard attempted sexual intercourse with a male detainee.” The former was prosecuted in state court;
the latter was referred for prosecution to the local U.S. Attorney’s Office, but the U.S. Attorney declined to
pursue the matter. Note that “unsubstantiated” cases included cases in which the incident was found to have
occurred, but was determined not to constitute sexual abuse or assault (8% of unsubstantiated cases). It also
included cases in which the alleged victim (who was not necessarily the complainant) chose not to cooperate
or recanted or denied the allegation (29% of unsubstantiated cases), and cases where video surveillance
footage was available but did not corroborate the allegation (8% of unsubstantiated cases). See Government
Accountability Office, Immigration Detention: Additional Actions Could Strengthen DHS Efforts to Address
Sexual Abuse, GAO-14-38 at 17-18 (November 2013). The GAO stated, “Detainees may also report false
allegations—for example, in an attempt to delay deportation—according to officials at the facilities we
visited.” Id. at 17.
4

In his Statement, Chairman Castro states that “accounts in the media and through advocacy organizations …
made it clear that these children were also enduring abuse, rape, and extreme conditions while in custody” and
that this report “corroborates many of these conditions.” Castro Statement at 1. I would have to disagree with
that. Repeating allegations is not the same as corroborating them. The exception is the allegation that it tends
to be cold at the facilities the Border Patrol initially takes illegal entrants that it has picked up near the border.
We did generate our own evidence of that. See infra at 210.

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Commissioner Statements and Rebuttals
organizations. 5 When the Commission fails to take its fact-finding mission seriously, it runs
the risk of becoming part of such a smoke-making apparatus. That is very far from the
Commission’s intended function. 6
Only after the report was mostly finished did we finally manage to visit two immigration
detention facilities—the Karnes County Residential Center and the Port Isabel Processing
Center. Members of the Commission worried that we would look foolish if we released a
report on immigration detention centers that depended entirely on allegations by immigrant
advocates and journalists. And, of course, they were right to worry.
But a funny thing happened on the way to exposing “egregious human rights and
constitutional violations.” The detention centers weren’t nearly as bad as we had been led
to believe. 7 Indeed, the Karnes facility was surprisingly attractive for a detention center.
Some of our Commission members and staff appeared to be quite surprised at the quality of
treatment they saw. When we were led to a room at the Karnes facility that contained rows
and rows of brand new brand-name clothing and told that new arrivals were permitted to
select six outfits for themselves and each of their children, the looks on the faces of my
colleagues were of astonishment. Questions were asked: “These clothes aren’t new, are
they?” Yes, they are new, the tour guide explained. “I guess they are donated, right?” No,
the tour guide replied, they are purchased by GEO (the private company that owns and
manages the Karnes facility in cooperation with ICE). 8
What we found at Karnes and Port Isabel is, of course, not conclusive proof that any
particular allegation against ICE or against a particular detention facility is untrue or that
there aren’t less dramatic problems at detention centers that should be corrected. 9 But it
makes allegations of a “culture of abuse” in detention facilities much less credible. The real
scandal in this report is how little first-hand observation of fact or critical analysis has gone
into it. Both the detainees and the detention center employees deserve better. So do the
taxpayers.
A. An Example: The Maggot Allegations
5

The smoke-making machine reference is usually attributed to John F. Kennedy.

As then-Senate Majority Leader Lyndon Baines Johnson put it, the Commission’s task is to “gather facts
instead of charges.” “It can sift out the truth from the fancies; and it can return with recommendations which
will be of assistance to reasonable men.” 103 Cong. Rec. 13,897 (1957)(Statement of Sen. Johnson).
7

See infra at Section D (which I put together largely from my notes of what I saw at Karnes and Port Isabel).

See infra at Section D.1.

For example, I agree with Commissioner Kladney that the prohibition on allowing other residents to watch
one’s own children while consulting with one’s lawyer is not a good idea. Some women may not be able to be
frank if their children are within earshot. See Kladney Statement at 248.

175
Dissenting Statement of Commissioner Heriot

Consider, for example, the testimony by Ms. Maria Hinojosa that the food served at
Willacy Detention Center was full of live maggots. As the report puts it, “One individual
testified to have seen maggots in food while visiting Willacy.” See Report at 41.
Here’s what Ms. Hinojosa actually stated before the Commission—that somebody else saw
the maggots:
Our whistleblower is Twana Cooks-Allen. … She had heard the complaints
about food and couldn’t believe her eyes when a detainee brought her a napkin
with a scoop of food (oatmeal, rice, beans) and when she opened up the napkin it
had squirming live maggots. And this is what detainees were expected to eat. …
That is when she got the information out to Commissioner Schriro. (Hinojosa
Written Testimony at 7. See also Tr. at 118.)
The allegation of “maggots” 10 in the food at the Willacy County Detention Center first
started surfacing about eight years ago. It is neither obviously true nor obviously false, but
if you want to get somebody’s attention, complaining that the food has maggots in it is an
excellent strategy. It is therefore an allegation that cries out to be examined, not accepted
without reflection. Once such an allegation is made, it will tend to be repeated in lurid
detail and attributed to other places and times.
Tracking down whether it was true would be difficult at this late date, and possibly not
worth the candle given that Willacy County Detention Center no longer exists. The facility,
which was originally operated by Management & Training Corporation, was converted to a
correctional facility in 2011 and closed earlier this year.
Ms. Hinojosa appears to have heard the story from a “Commissioner Schriro” who in turn
heard it from Ms. Cooks-Allen, who had been a mental health coordinator at Willacy some
years ago. Even if Ms. Cooks-Allen’s statement was true and accurate in terms of her firsthand observation, that would still not answer the question of where the napkin full of food
came from. Did the detainee who presented it to her take it off his own plate? Or did he get
it from another detainee? If he got it from another detainee, where did that detainee get it?
It is odd that food that requires cooking—like oatmeal and rice & beans—would have live,
squirming maggots in it; one would expect them to be cooked. It is also odd that oatmeal
and rice & beans would be served together in the same meal. Is it possible this food was
taken from the garbage pail instead of from a plate of food? Was the detainee who gave Ms.

I suspect that, if true, it was not maggots (housefly larvae) but rather the larvae of pantry moths (plodia
interpunctella or ephestia kuehniella). Alas, I speak from experience when I say that pantry moths are hard to
get rid of. For what it is worth, they are less likely to carry pathogens than houseflies.

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Commissioner Statements and Rebuttals
Cooks-Allen the napkin full of food one of her mental health patients? If so, is there reason
to believe his statement about where he got the food is particularly untrustworthy?
We can ask those questions, but we have probably arrived too late to get answers. The best
we can do is look to see what investigations were conducted into the matter back when it
allegedly happened and ensure it is not happening now. Fortunately, there are some reports
of earlier investigations (though I had to uncover them myself with a Google search).
That touches on one of the major flaws in this report. It fails to sufficiently convey the
substantial oversight bureaucracy that exists to ensure that prisons, jails and immigration
detention facilities are properly run. When a public accusation of mismanagement like the
“maggot allegation” at Willacy is made, you can bet that a number of government and
independent investigations will soon be undertaken. The investigators may not be able to
conclusively determine whether the allegation was true, but such near-in-time
investigations can shed brighter light on the allegation than we can and can better ensure
that it will not happen again.
On August 28, 2007, a few weeks after the “maggot allegation” arose, an American Bar
Association delegation visited Willacy. The delegation had quite a few criticisms for
Willacy (though none so lurid as the accusations that were leveled at our briefing). But it
had nothing bad to say about the food. While it acknowledged the Willacy “maggot
allegation,” it stated that Willacy appeared to meet the appropriate standards in the area of
food service. It was clear the members of the ABA team had serious doubts about the
allegation. 11
Two months after the ABA delegation visited Willacy, a two-day Technical Assistance site
visit was conducted by the Commission on Accreditation for Corrections. The visit had
been requested by ICE for the specific purpose of following up on the allegations of
maggots in the food.
The Technical Assistance team members included food service professionals, and they
were hardly pushovers. They found a number of problems with the Willacy facility. For
example, they found that “food in the dry storage area as well as the freezer are stacked too
high,” causing boxes on the bottom to be crushed. In examining the refrigerator
temperature logs, they found that on occasion the temperature had crept above 40 degrees.
But I suspect few family kitchens anywhere would score perfectly. Indeed, few families

Memorandum of American Bar Association Delegation to Willacy Detention Facility to James T. Hayes,
Jr., Acting Director, Office of Detention and Removal, Immigration and Customs Enforcement (March 7,
2008).

177
Dissenting Statement of Commissioner Heriot
even keep a refrigerator temperature log. As refrigerator doors open and close, sometimes
temperatures briefly climb higher than they should.
Interviews conducted by the Technical Assistance team members with detainees did not
turn up the kinds of complaints that one would expect if conditions were as appalling as
media coverage of the “maggot allegation” had been true. Female and male detainees were
interviewed separately. The report summarized their view thusly:
1. Female Detainee Responses:
•
•
•
•
•
•
•
•

Too many sandwiches and no condiments (ketchup, mustard, mayo)
Too many onions – onions smell up the food & tray no variety
They serve the same food all the time too many eggs
Would like some variety.
Would like to have cheese and jalapeno peppers, and tomatoes/salsa added to
the scrambled eggs.
Delicious.
Grateful for the food.
Love it!

2. Male Detainee Responses
•
•
•
•
•
•
•
•
•
•
•
•

Not as good; today was ok.
Too many sandwiches (Cold Cuts)
Too many eggs
Rice – over/under cooked
Want more coffee
Vegetarian reports no variety. Lunch today was baked potato & rice
Salad – no dressing
Bland – no spice/enhancements
Cups & spoons -- not washed properly
Want more than just white bread for sandwiches – want more tortillas
Milk is outdated – beyond dates
Would like to supplement food from commissary – i.e., Cup-a-Soup and ramen
noodles (Commission on Accreditation for Corrections Technical Assistance
Report on Willacy County Processing Center (October 8-9, 2007) at 7.)

You can bet that Willacy was never in any danger of receiving even one Michelin star. But
the complaints being made by the detainees are not nearly the kind you’d expect if the
facility had been serving maggot-ridden food. The site team drew the following conclusion:

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Commissioner Statements and Rebuttals
The issues reported by the media were not observed during this technical
assistance. While there are many improvement opportunities based on the
recommendations made during this technical assistance; however, conditions
were not as bad as the media had portrayed. It is evident that the media took
a small part of the situation and highlighted the isolated report of maggots
and portrayed it as more than what it really was. Conditions were not found
to be in deplorable conditions as reported. (Id. at 8-9.)
Our report also states that “a hunger strike took place at Stewart, located in Lumpkin, GA,
due to detainees being served maggot-filled food” and originally cited Ms. Hinojosa’s
written testimony for this point. See Report at 41. But Ms. Hinojosa made no such
allegation. When I requested more information as to the source for this allegation, I was
next directed to what appears to be an undated newsletter from an activist organization
calling itself “Detention Watch Network.” It stated:
ICE claims that detention facilities provide “healthy and palatable” meals,
but testimonies of people in detention indicate that the food being served is
anything but healthy or palatable. In facilities including Etowah (AL),
Hudson (NJ), Baker (FL), Glades (FL), Irwin (GA), Polk (TX), Adelanto
(CA), Stewart (GA), and Eloy (AZ), individuals continue to send complaints
about the quality and quantity of food provided. They report lengthy periods
between meals, small portions, and food quality so poor that worm- and
maggot-infested food has been served. (Detention Watch Network, Expose
& Close: One Year Later at 8.)
Again, however, the source didn’t support the allegation. Yes, it mentioned worm- and
maggot-infested food, but if one reads further one see that the allegations were from two
anonymously-quoted detainees. Neither mentioned Stewart. They cited Adelanto and Irwin.
At the end of the newsletter is the following disclaimer: “Except where a publication is
cited, the information reported here is based solely on claims made by detained individuals
without independent corroboration.” (Id at 12.)
Even if these witnesses had mentioned Stewart, this document would not be the kind of
evidence that the Commission should be relying on in its report—at least not if it does not
also obtain the near-in-time food service inspection reports for those facilities. It does not
surprise me in the least that rumors of maggot-infested food would circulate. When I was a
girl growing up in Fairfax, Virginia (not a part of the country known for serving unsanitary
food), rumors often flew that the food in the school cafeteria was maggot-infested. School
children love that sort of story. If it happened to somebody’s cousin twenty years ago in
Nome, Alaska, we’d have heard that it happened yesterday to the students at our school
during the lunch period preceding ours. To my knowledge, it was never true of any school I
attended. But if it was true of some Fairfax County school lunch cafeteria at some point in

179
Dissenting Statement of Commissioner Heriot
time, it was certainly an isolated incident and not a general indication of unsanitary
conditions.
I Googled “Stewart Detention” and “maggot” myself and found that an unsourced
allegation of maggot-infested food had indeed been made in the Atlanta JournalConstitution. 12 But it had been immediately followed with this information:
ICE denied there was a hunger strike at Stewart, which is operated by
Nashville-based Corrections Corporation of America. . . . ICE said the food
at the Stewart [Detention Facility] meets federal standards and is monitored
by a registered dietician. A health inspector looked into an anonymous tip
about maggots in the food at Stewart but didn’t find any. State health
inspectors gave Stewart’s dining facility a 96 percent score following an
April inspection [which was two months before the complaint about the
facility’s food were made], ICE said. 13
There are several things the Commission’s report could have done. It could have chosen not
to entertain the various “maggot allegations” at all, given the fact that the investigations
before or immediately after the allegations arose tended to show a lack of a serious problem
(and, in the case of Willacy, the fact that it is no longer in operation and the allegation is
eight years old). But if it chose to highlight the allegations, it was obliged to include the
evidence that the allegations were either false or isolated problems at worst. The
Commission needed to reference the reports of the ABA and the Technical Assistance team
at Willacy, the Georgia health inspectors’ report at Stewart and any other relevant report.
Moreover, the Commission should have more fully discussed the various ways in which
food service at detention centers is routinely inspected to ensure that the food being served
is healthy. From reading this report, one gets the idea that nobody ever inspects the kitchens
at immigration detention centers, and that the U.S. Commission on Civil Rights is the only
institution standing between detainees and unsanitary food. That is very far from the case.
Inspection tours, including inspections by food service experts, are being regularly
conducted at these facilities. These multiple inspections are not a guarantee of consistently
sanitary food. No doubt slip-ups will occur, just as they do in restaurants and family

In the meantime, this Report was amended to cite the oral testimony of Steven Conry, as quoted in the
Commission’s briefing transcript at 132, for the proposition that maggots appeared in food at Stewart. But
Conry didn’t testify to that proposition either. At the cited page, Conry discusses accommodations for Muslim
detainees at Stewart who have special dietary needs for religious reasons. This testimony had nothing to do
with maggots.
13

Riot Tied to Food Served at South Georgia Immigration Detention Center, Atlanta Journal-Constitution
(June 19, 2014).

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Commissioner Statements and Rebuttals
kitchens. But these repeated efforts are much more likely to have the desired effect than our
one-shot investigation is.
Finally, the Commission could have inspected the kitchens and conducted its own
systematic poll of large numbers of detainees concerning the food.
What the Commission did instead is peculiar: It concluded that there is no evidence that
federally-run facilities have a problem with food service, but “that certain [privately-run
detention facilities] are not fully adhering to contractually set standards and are not
providing detainees with nutritious food in sufficient quantities” 14
Put simply, not having even darkened the door of the actual kitchen facilities of any
detention center, even at the two facilities that we visited, the Commission decided to credit
food rumors. Not only did it decide not to credit the near-in-time investigations, which
found no evidence to support those rumors, it apparently chose not to mention the
investigations.
One reason for the Commission’s decision to credit the rumors is obvious: After having
concluded before the investigation that “egregious human rights and constitutional
violations continue to occur in detention facilities,” 15 it was hell-bent on finding those
violations. Evidence from food preparation experts that tended to indicate the contrary had
to be ignored. Indeed, most of the detainees with whom we spoke at Karnes and Port Isabel
were content with the food and hence their views had to be swept out of the way too. 16
But the distinction drawn in the Report between government-run and privately-run facilities
is especially misguided. Curiously, the only non-rumor evidence of food services problems
at immigration detention centers that I have been able to uncover is against a governmentrun location (the ICE-run Florence Service Processing Center in Florence, Arizona), not a
privately-run one. 17 The allegation is old, and hence the problem has presumably been
corrected.
14

Report at 124 and 42.

See text and note at n. 1.

When members of the Commission asked a couple of dozen detainees at Karnes and at Port Isabel, the
response was generally positive. One woman at Karnes was concerned that her baby did not like the food and
had gone back to breastfeeding as a result. But if the worst that can be said about the food at Karnes is that not
all the children like it, that speaks well for Karnes. No cafeteria, family kitchen or Five-Star Michelin
restaurant has ever produced food that every child likes. See infra at Section D1. It is worth pointing out that,
according to our tour guide at Karnes, food service personnel make efforts to adjust the cuisine to suit the
tastes of residents. For example, when residents were found to prefer black beans to pinto beans and corn
tortillas to flour tortillas, adjustments were made to menus. Id.

It is possible there are other reports out there. These are the kind of evidence that the full-time Commission
staff should have obtained in the course of the year. Instead, I have had to do it over the course of the month
since I received the first draft of the report. The Commission rules require that Commissioners (who are part-

181
Dissenting Statement of Commissioner Heriot
The report on Florence, an ICE-run facility, stated:
The tour of the kitchen prep and dish washing areas were not clean. The floors
needed scrubbing and repaired [sic]. There was a large surface hole in the floor
near the end of the floor drain that is a safety and health hazard. It had standing
water which appeared to be old, needed draining and floor repaired. Ovens and
back plates had not been cleaned, and there was evidence of built-up grease and
grime. Inside one oven had leftover food in it, which appeared not to have been
clean for several days. … Mousetraps were located throughout the kitchen area.
There were mouse feces on top of the dishwashing machine. It is evident that
there is a rodent problem in the kitchen area. (See Commission on Accreditation
for Corrections, Technical Assistance Visit Report at 6 (July 16-18 [2007].) 18
It is not clear why rumors about unsanitary conditions at privately-run facilities made it into
this report, while documented unsanitary conditions at ICE-run facilities did not. It is hard
to avoid the conclusion that this Commission is employing a double standard.
B. Privately-Run Detention Centers Should Not Be Viewed with Greater Suspicion than
Government-Run Facilities.
Businesses that contract with the federal and state governments to furnish correctional and
detention services are the bête noir of many Progressives, apparently including some
members of the Progressive caucus here at the Commission and maybe even some of the
staff. 19 As I have outlined in Part A, this bias has seeped into this report, including some of
the Statements by my fellow Commissioners. 20 Chairman Castro’s statement is particularly
time) be given 30 days after the adoption of the report’s final draft by the Commission to draft their
Statements. That ordinarily would have given me two months, working part time, to work to correct the
report’s defects and, failing that, to write my own statement. For this report, the 30-day period was shortened
to a week.
18

See also Ana Arboleda & Dorian Ediger-Seto, Seeking Protection, Enduring Prosecution: The Treatment
and Abuse of Unaccompanied Undocumented Children in Short-Term Immigration Detention 13 (August
2009)(containing allegations that the food in certain ICE-run facilities “was unappetizing, insufficient, and
often smelled as if it had gone bad”).
19

The issue has received considerable attention in the media. For example, Corrections is a 2001
documentary film directed by Ashley Hunt. She describes it this way: “Corrections is a story of justice turned
to profit, where the war on crime has found new investors: Venture Capital and For-Profit Prisons, the story
of the Private Prison. … [A]t a time when our citizens are exposing big tobacco corporations and breaking up
Microsoft, there is growing suspicion over corporate corruption as well. Corrections bring these growing
concerns together with an innovative documentary in the tradition of filmmakers Emile Di Antonio and Erroll
Morris, and such films as Roger and Me.” See www.imdb.com/title/tt0280573/
20

The Report’s discussion of food service, which I discussed in Section A, is just one example. Its discussion
of medical care is similar. For ICE-run facilities, the Commission finds only that “additional research” is
needed. Report at 32. But for “certain privately owned detention centers,” the Commission jumps right in and
finds they “are not complying with DHS detention [medical] standards.” Report at 36. In both cases, actual
evidence (as opposed to rumor and innuendo) is lacking.

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Commissioner Statements and Rebuttals
overwrought, claiming that “[t]he ‘incarceration industrial complex’ has extended its
tentacles from running traditional prisons on a for-profit basis, to their new growth
market—immigration detention.” Castro Statement at 152. “Jailing people for profit is
obscene,” he wrote, “it has gone on for too long, and it must end now.” Id. at 153. 21
One could argue that milder forms of this bias are just part of a more general skepticism on
the part of modern Progressives toward government outsourcing. 22 But somehow privatelyrun prison and detention facilities have tended to be especially controversial—despite some
evidence that private prisons are actually better managed than government-run prisons. See
e.g., Charles H. Logan, Well Kept: Comparing Quality of Confinement in Private and
Public Prisons, 83 J. Crim. L. & Criminology 577 (1992)(comparing three women’s
prisons, one state-run, one federally-run and one privately-run and concluding that while
“all three prisons are regarded as having been high in quality, the private prison
outperformed its governmental counterparts on nearly every dimension”). 23
Another way in which the Report manifests its bias is the suspicion with which it views the fact that the
federal government cannot simply unilaterally change a contract with a detention facility to suit its purposes.
As a result, changes in the applicable standards to which the company can be held cannot be altered at the will
of the government; new standards must either be phased in when the contract comes up for renewal or be
made part of a midterm renegotiation. This is normal. These contracts are carefully drafted and negotiated to
give both parties the incentives necessary to run the detention center properly. The company is entitled to a
certain amount of money for those services, neither more nor less. If more duties are required of it than the
contract originally contemplated, it must be compensated for those increased duties. That’s what contracts are
all about. By contrast, the federal government can require its own facilities to change immediately if it so
desires. Unlike companies that contract to provide correctional or detention services, the federal employees
who work at correctional or detention facilities get their salaries adjusted every year and (more importantly) if
they decide they do not want to perform the duties required of them, they are free to quit their jobs, no
questions asked. If a private company under contract decides that it just doesn’t want to provide correctional
or detention services anymore, it will be sued. Once it has committed itself to perform, it doesn’t get a choice
anymore. That’s why it is not required to perform if it hasn’t committed itself to do so. There is nothing
nefarious about any of this.
21

Vice Chair Timmons-Goodson’s statement is more measured than the Chairman’s, but she still spends an
inordinate amount of her time discussing privately-run detention facilities, especially given that nothing we
uncovered showed that privately-run facilities were any less well run than ICE-run facilities. She does point
out a significant difference between ICE-run and privately-run facilities. The former are subject to the
Freedom of Information Act and the latter, like all government contractors, are not. Some lawmakers have
advocated changing this. Given that this was not an issue that the Commission explored in depth, I express no
opinion on it other than it would have been worth exploring. The Commission itself could have easily
subpoenaed any material it had use for in drafting a balanced report. It apparently did not think that such
material would be useful.
22

See, e.g., Michelle Chen, When the Government Outsources to Private Companies, Inequality Gets Worse,
The Nation (March 24, 2014); Rebecca Paley, Fighting for the Down and Out(sourced), Mother Jones
(May/June 2004). See also Protesters Oppose [North Miami Beach] Plan to Privatize Trash Hauling, Miami
Herald (August 4, 2015); David Giambusso, Newark Sanitation Workers Demand Mayor Booker Reconsider
Privatizing Jobs, The Star Ledger (Newark) (August 12, 2010).
23

Part of the lack of good will toward privately-run prisons, jails and detention centers may be the result of
misunderstandings. For example, the issue of private prisons was touched on ever-so-slightly in a previous report of
the Commission. See U.S. Commission on Civil Rights, Enforcing Religious Freedom in Prison 110 (2008)(Statement
of Commissioners Arlan Melendez and Michael Yaki). In that report, Commissioners Melendez and Yaki worried

183
Dissenting Statement of Commissioner Heriot

Anyone holding the belief that government-run detention facilities are superior to privatelyrun detention facilities would have experienced some cognitive dissonance during the
Commission’s tour of Karnes and Port Isabel. While both facilities appeared to be well run,
there is no doubt as to which facility a reasonable person would prefer to be assigned to.
Karnes was cleaner, more modern and generally more attractive than Port Isabel. 24 Indeed,
Karnes, which is run by the GEO Group, Inc. (“GEO”), has been criticized for being too
attractive by Members of Congress and by Fox News. 25 Representative Lamar Smith called
staying at Karnes a “Holiday on ICE” while Fox News commentator Greta Van Susteren
called it “the Ritz Carlton of federal detention centers,” citing its “big screen t.v.s,
basketball courts and a hair salon.” Praise like that for the ICE-run Port Isabel facility
would have flunked the laugh test.

about whether private facilities would be held to operate under color of law for Section 1983 purposes. In fact, the
issue of whether private prisons stand in the shoes of the state government for Section 1983 has been definitively
resolved by the courts in the obvious way. Of course they can be. Rosborough v. Management & Training Corp., 350
F.3d 459 (5th Cir. 2003)(per curiam); Skelton v. Pri-Cor, Inc., 963 F.2d 100 (6th Cir. 1991), cert. denied, 503 U.S. 989
(1992); Palm v. Marr, 174 F. Supp. 2d 484, 487-88 (N.D. Tex. 2001); Kesler v. King, 29 F. Supp. 2d 356, 370-71
(S.D. Tex. 1998). See also Correctional Services Corp. v. Malesko, 534 U.S. 61, 72 n. 5 (2001)(“[s]tate prisoners …
already enjoy a right of action against private correctional providers under 42 U.S.C. § 1983”)(dictum). Indeed, private
corporations operating correctional (or detention) facilities on behalf of states should be relieved that courts have held
that they are subject to Section 1983 in this context. If they are not operating under both the color and fact of law, they
would be guilty of a serious crime for confining individuals against their will and subject to liability for false
imprisonment. See Model Penal Code at § 212.1—212.3; Restatement (Second) of Torts at § 35.
Although the Supreme Court in Malesko did not recognize a Bivens-style action against a corporate half-way house
operator for the federal government, it was not because they are not operating under color of law. Rather, the Court
simply declined to extend the already-extraordinary Bivens action to non-employees of the federal government, noting
that “alternative remedies are at least as great, and in many respects greater, than anything that could be had under
Bivens.” Id. at 72. The most obvious such remedy is the “parallel tort claim that is unavailable to prisoners housed in
[federal] facilities.” A tort claim against a corporate half-way house operator can be enforced in federal courts (when
the requirements for diversity jurisdiction are met) or in state court (under all circumstances). Id. at 71-72.
When the Malesko Court stated that the remedies against a corporate halfway house operator “are at least as great, and
in many respects greater, than anything that can be had under Bivens,” it was likely referring to the constellation of
sovereign and official immunity issues that make lawsuits against the federal government and its employees difficult.
In Richardson v. McKnight, 521 U.S. 399 (1997), the Court went so far as to hold that prison guards employed by
private prison corporations were not entitled to the same qualified immunity as government employees. It is thus in
some ways easier to maintain an action against a prison guard employed by a government contractor than it is against a
prison guard who is a government employee. The same rule would likely apply to the government contractor itself, at
least in most contexts.
24
25

See infra at Section D.

Edwin Mora, New Rules Make Detention for Illegal Aliens a “Holiday on ICE”, CNSNews.com (March 29,
2012); Greta Van Susteren, Inside Swanky New Detention Center for Illegal Immigrants, Fox News (August
1, 2014), http://video.foxnews.com/v/3709051485001/inside-swanky-new-detention-center-for-illegalimmigrants/?#sp=show-clips. See also Immigrant Detention Center Has Hair Salon for Women,
Houston.CBSlocal.com (August 1, 2014).

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Commissioner Statements and Rebuttals
More important, immediately after our briefing, I asked one of the witnesses, Kevin Landy,
Assistant Director for the ICE Office of Detention Policy and Planning, whether privatelyrun detention facilities have more problems than government-run facilities. He told me that
they do not, and that the more significant differences are not between private and
government facilities, but rather between dedicated and non-dedicated facilities. Put
differently, those facilities that are run exclusively as detention facilities tend to do a good
job adhering to standards, whether government run or privately run. But facilities that are
primarily prisons or primarily jails (but which agree to house some immigration detainees
since they have some excess capacity) are sometimes less familiar with the special
standards that apply to immigration detention facilities and may therefore make mistakes.
So what is all the fuss about? Why does this report attempt to suggest that privately-run
facilities serve maggot-infested food, while government-run facilities are okay? Why does
it cite unsourced complaints about the food at privately-run facilities, while ignoring one
unsourced and one fully sourced complaint about the food at government-run facilities?
Usually when a particular public policy concern is getting exponentially more attention
than it is due relative to other concerns, it makes sense to ask the age-old question: Cui
Bono? (Who stands to benefit?) In this case, it is worth noting that there is a longstanding
battle between private providers of correctional and detention services and prison/security
guard unions. 26 Prison guards at government-run facilities are paid more generously than

See, e.g., Matt Dixon, New Contracts Give Private Prison Giant Nearly 80 Percent of Florida’s Private
Prison Market, The Florida Times-Union (December 16, 2013)(stating that a proposal to move 14,500 South
Florida prisoners to private prisons “was fiercely opposed by unions who represented state correctional
officers”); Scott Whipple, Unions Say Outsourcing Corrections is Failed Idea, New Britain Herald (October
25, 2010)(“‘Privatization will close prisons and the economic effect on surrounding communities will be
devastating,’ AFSCME Local 387 President Dwayne Bickford predicted. ‘Connecticut’s track record shows
that privatization equals corruption at the highest levels of government.’”); Dan Morain, Davis to Close
State’s Privately Run Prisons; Funding: Elected with the Help of $2.3 million from Guards’ Union, Governor
Includes Plan in Budget, Los Angeles Times (March 15, 2002)(“Gov. Gray Davis is ending California’s
experiment with privately operated prisons, fulfilling his promise to a state prison guard union that spent $2.3
million to help elect him four years ago. … Davis’ budget proposes closing five of California’s nine private
prisons on June 30 and phasing out the rest as their operating contracts expire. He cites budget concerns,
saying that the state can save about $5 million by closing the minimum-security facilities. Others, including
the legislative analyst’s office, dispute the potential savings. Although administration officials cited problems
with some private prisons, recent audits by the California Department of Corrections gave high marks to all
five facilities slated for closure”)(paragraph breaks deleted). See also Jennifer Warren, When He Speaks,
They Listen: In 20 Years, Don Novey Has Built the Once Powerless California Prison Guards Union into One
of the Most Influential and Richest Forces in State Politics, Los Angeles Times (August 21, 2000)(Identifying
the California prison guards’ union, the California Correctional Peace Officers Association—as the No. 1
donor to legislative races in the 1998 election cycle and stating that its president “has stalled efforts to expand
private prisons in California”); Charles H. Logan, Private Prisons: Cons and Pros 11 (1990)(“Unions were the
major force behind legislation in Pennsylvania imposing a one-year moratorium on new privatization of
prisons or jails. They also forced the nonrenewal of a jail management contract in that state when the
AFSCME threw its support behind two candidates for county commission running on a ‘take back the jail’
platform”).

185
Dissenting Statement of Commissioner Heriot
those at privately-run facilities.27 Indeed, it is largely because privately-run facilities tend to
be more economical that governments find them appealing.
University of Connecticut sociologist Charles H. Logan put it this way:
Probably the most powerful opponent to private prisons is the AFSCME,
which is the sixth largest of all the AFL-CIO international unions. It
represents over 50,000 corrections workers nationally. As of 1981,
correctional employees were unionized in 29 of 52 jurisdictions (state,
federal and District of Columbia). Union strength is weakest in the southern
tier of the United States, which is where the private prison industry has
concentrated most of its efforts. The AFSCME and other public employee
unions are opposed to contracting out virtually all public services, but their
opposition to prison privatization seems especially vehement. 28
Michael Jacobson, Executive Director of the Vera Institute and hardly a political
conservative on incarceration issues, agreed:
Private prisons are anathema to public prison unions. They threaten the
number of prison jobs held by their members and pose a significant potential
threat to their long-term viability should they gain too much of a foothold in
a particular state. Therefore, it can be reliably predicted that any political
capital accumulated by public corrections unions will be used to ward off
prison privatization. 29
None of this is to say that my Progressive colleagues are wrong to view companies that
provide correctional and detention services with some level of skepticism. When (and if)
such an organization lobbies for high levels of detention, its motives should be viewed
skeptically. But don’t stop there. It’s not just so-called “for profit” enterprises whose
motives should sometimes be greeted with skepticism. 30 When unions lobby for high levels
27

Nancy Heitzeg, The High Cost of Profit, Racism, Classism, and Interests Against Prison Privatization in
Byron Eugene Price & John Charles Morris, 3 Prison Privatization: The Many Facets of a Controversial
Industry 42 (2012)(“Union opposition to privatization is based not only on the failure of privatization to
create the promised quality jobs in private prisons. … Corrections officers are paid substantially less in
private facilities ….”).
28

Charles H. Logan, Private Prisons: Cons and Pros 11 (1990).

Michael Jacobson, Downsizing Prisons: How to Reduce Crime and End Mass Incarceration 68 (2005).
Jacobson notes that the state with the largest number of private prisons in 2001—Texas with 42 out of the 158
private prisons then in existence—had at the time no prison guard union. Id. at 69.
30

“For profit” appears to be a derogatory term in the Progressive lexicon. It should not be. See James
Boswell, I The Life of Samuel Johnson, LL.D. 464 (1791) (“‘There are few ways in which a man can be more
innocently employed than in getting money’”)(quoting Johnson). See also Adam Smith, 1 The Wealth of
Nations ch. II, 26-27 at para. 12 (1776) (“It is not from the benevolence of the butcher, the brewer or the

186

Commissioner Statements and Rebuttals
of detention 31 or against privately-run correctional and detention facilities, their motives
should be suspect too. 32 Similarly, when government officials argue for the preservation or
expansion of government bureaucracies (and hence for their authority and budget), their
statement should be met with a wry smile and their motives examined carefully. 33
The core defect of Progressivism is its tendency to assume the good faith of political and
government actors, while doubting the motives of individuals acting in their private
capacity. If anything, the ranking should be reversed, given the greater difficulty of
channeling the activities of government actors into areas that are in the public interest. 34 But
in the context of immigration detention one will not go too far wrong by employing equal
levels of skepticism.
C.
A Central Issue Is Whether Detention is a Useful Practice or Whether Federal
Authorities Would Do Better to Release Current Detainees into Alternative to Detention
Programs, Thus Relying on the Those Detainees to Voluntarily Show Up for Their
Hearings.

baker that we expect our dinner, but from their regard to their own interest. We address ourselves not to their
humanity but to their self-love, and never talk to them of our own necessities, but of their advantages”).
31

See Alexander Volokh, Privatization and the Law & Economics of Political Advocacy, 60 Stan. L. Rev.
1197 (2008)(pointing out that prison guard unions are in fact active advocates of pro-incarceration policies).
32

The two are very similar for these purposes. In theory, publicly traded corporations engaged in government
contracting—like the GEO Group, Inc. and Corrections Corporation of America—are operated for the benefit
of their investor-beneficiaries, the most typical of whom are (ultimately) ordinary individuals saving for or in
the midst of their retirement. While not directly relevant here, some argue that in practice, so-called for-profit
corporations are sometimes hijacked for the benefit of management-level employees, who have a lot more
control over the corporation’s activities and hence the ability to consciously or unconsciously direct the
corporation’s activities to enhance their own interests and prestige. Similarly, public employees’ unions are in
theory operated for the benefit of their members. Again, arguments can be made that they are often run more
for the benefit of management-level union employees, who have a lot more control over their activities than
rank-and-file members. Either way, both institutions—government contractors and public employees’
unions—are similar in their desire for profit in exchange for their services.
33

A whole branch of economics is devoted to the study of how ordinary rules of human self-interest play out
in the area of government and politics. See, e.g., Iain McLean, Public Choice: An Introduction (1991). Its
bottom line is simple: Human beings do not change their stripes because they are engaged in politics, get
elected to public office or get a government job. Indeed, in some ways, especially given government’s power
to coerce, it is more difficult to channel the self-interest of politicians and government workers in a way that
comports with the public interest than it is to channel the self-interest of private sector actors to do so. In
theory, governments are run in the public interest. But in practice, the “public interest” is an amorphous
concept and thus easily confused with the interests of those who mostly directly influence, control and
manage the apparatus of government. Id.
34

Id.

187
Dissenting Statement of Commissioner Heriot
Several of the advocates who testified at our briefing have taken the position that detention
is appropriate only as a last resort 35—quite apart from whether detention conditions are
deplorable. 36 In their view, the current system should be replaced with one under which
35

See, e.g., Written Testimony of Karen Lucas at 9 (“No one should be deprived of their liberty except as a
last resort. Everyone should be placed in the least restrictive setting necessary to serve the government’s
legitimate interest.”).
36

The argument is frequently bolstered by attempting to point out that the detainees have not been charged
with a crime. It is worth pointing out, however, that most, but not all, detainees have indeed committed a
crime and that a more appropriate statement would be that they haven’t been convicted of a crime (much like
those arrested and put in jail have not been convicted of a crime). Those who attempt to enter the country
surreptitiously or under false pretenses are guilty of the crime of improper entry (even if they could have
gained entry to the country by presenting themselves to a proper official at a proper port of entry and properly
requesting asylum). The fact that they have not been charged (and may never be) is simply a matter of
prosecutorial discretion. The first such entry is a misdemeanor, and any subsequent illegal entries are felonies:
8 U.S.C. § 1325—Improper Entry by an Alien
(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of
facts
Any alien who
(1) enters or attempts to enter the United States at any time or place other than as designated by immigration
officers, or
(2) eludes examination or inspection by immigration officers, or
(3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or
the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under
title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense,
be fined under title 18, or imprisoned not more than 2 years, or both.
Adult detainees apprehended while attempting an improper entry usually fall into one of two categories. If
they cannot articulate a credible fear that would entitle them to an asylum hearing, they are guilty of improper
entry, but prosecution is not usually regarded as worthwhile, since they are subject to expedited removal and
will thus quickly be leaving the country. If they can allege a credible fear, they may be entitled to a hearing to
adjudicate whether they are in fact eligible for asylum and they may be detained prior to that hearing in order
to ensure their appearance. If they are found to be ineligible for asylum, they are subject to removal. At that
point, prosecution is not a particularly appealing option, especially given the cost of incarceration. If they are
found to be entitled to asylum, they have often already been detained for longer than they would have been
sentenced. Consequently, even though they were still illegal entrants, prosecution is again not an appealing
option.
Other detainees are legal entrants who were convicted of a crime during their stay and are hence subject to
deportation under 8 U.S.C. § 1227(a)(2).
In any event, all of these detainees are being held not as a form of punishment for a crime, but as a means of
ensuring their attendance at their hearing, and if it turns out they are not entitled to remain in the United
States, to assure their removal. Bell v. Wolfish, 441 U.S. 520 (1979), concerned pretrial detainees awaiting
criminal trials, but the principles established in that case apply equally to immigration detainees. In Bell, the
Court held that in evaluating the constitutionality of detention conditions, the proper question is “whether
those conditions amount to punishment of the detainee.” Id. at 535. The Court went on to state:
[I]f a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental
objective, it does not, without more, amount to “punishment.” Conversely, if a restriction or condition is not
reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that

188

Commissioner Statements and Rebuttals
many more are released on bond or on their own recognizance. They favor combining this
with supervision programs designed to encourage attendance at hearings. 37
A central issue therefore is how would the rate at which aliens simply disappear increase if
more were released. 38 Unfortunately, this is an area for which the statistics are in a state of
disarray. Numbers cited vary wildly. I wish this were something the Commission had tried
to sort out. Instead of sinking its teeth into this crucial issue, however, the report simply
the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees
qua detainees. (Id. at 539.)
The constitutional question is thus whether detaining those who are currently being detained is “purposeless.”
If it could be found that they are no more or less likely to show up for their hearing and comply with removal
orders regardless of whether they are detained or not detained, then detention itself (as opposed to some
particular aspect of detention) may be arbitrary or purposeless. Virtually 100% of those who are detained
show up for their hearings. That same cannot be said for those who are released on bond or on their own
recognizance. It therefore seems unlikely that a court could find the detention itself unconstitutional.
37

One argument in favor of decreased detention coupled with increased non-detention intensive supervision is
that intensive supervision is less costly than detention. This is true, though one countervailing consideration is
the length of time to adjudicate a case. Detention cases are ordinarily fast-tracked. While intensive
supervision is much cheaper per unit of time, non-detained aliens take longer to have their cases fully
litigated.

It cannot be emphasized enough that the purpose of immigration detention is to ensure that they do not
disappear prior to the disposition of their case. Karen Lucas, Associate Director of Advocacy at the American
Immigration Lawyers Association, stated in her written testimony that “the purpose of detention, according
[to DHS] Secretary [Jeh] Johnson, was to deter other mothers and children in the violence-torn region in the
Northern Triangle—El Salvador, Guatemala, and Honduras.” She condemns him for this, stating, “Detaining
one person to deter another is wrong.” But regardless of when one can ethically and legally use detention of
this kind as a general deterrent, it is simply not true that Secretary Johnson said that the purpose of detention
was to deter other mothers from making the journey from Central America to the United States. Alas,
Commissioner Kladney repeated Ms. Lucas’s misstatement. He wrote that “[t]he official rationale for holding
families was to deter others from crossing the border” and “[t]his is a wrong-headed policy” and (like Lucas)
cited Secretary Johnson’s written statement before the Senate Committee on Appropriations on July 10, 2014
for this point. Kladney Statement at 2 & n.9. But what Secretary Johnson actually said was that the
Administration needed funds to support “an aggressive deterrence strategy focused on the removal and
repatriation of recent border crossers.” See Statement of DHS Secretary Jeh Johnson Before the United States
Senate Committee on Appropriations (July 10, 2014, available at
http://www.dhs.gov/news/2014/07/10/statement-secretary-homeland-security-jeh-johnson-senate-committeeappropriations. Note that strategy is not to detain, but to send back as quickly as possible. He said it over and
over in his testimony—that the Administration’s strategy was to deport illegal entrants as quickly as possible
in order to send a message to others that attempting to enter the United States is futile. At one point, Johnson
does indeed say that a temporary detention facility had just been opened near the border at Artesia, New
Mexico in order “to hold them until their expedited removal orders are effectuated.” But this statement is
completely consistent with standard doctrine: He was saying that detention was being used in order to ensure
that removal could be conducted quickly and efficiently. It is the expeditious removal itself that was intended
to be the deterrent.
None of this is to say that the federal government is forbidden to mention an obvious fact: If the federal
government were to cease detaining illegal entrant families, this would increase the likelihood that others
would decide to risk qualify for making the trip and that an adult might well be encouraged to bring a child
with her in order to special rules that discourage detention for families in particular. Indeed, failing to point
that out to a judge considering an order that would forbid the federal government from detaining families
would be inappropriate.

189
Dissenting Statement of Commissioner Heriot
quotes one of our witnesses, Mary Meg McCarthy, executive director of Heartland
Alliance’s National Immigrant Justice Center, as follows:
According to a study conducted by the Vera Institute of Justice, detained
immigrants who participated in an alternative to detention (ATD) program
had a 91 percent appearance rate at all required hearings and a 93 percent
appearance rate for asylum seekers. (Report at 53.) 39
Ms. McCarthy uses the Vera Institute study to bolster the position that the nation should cut
back dramatically on detention and instead rely on those who might otherwise have been
detained to appear voluntarily at their hearings. Her view has obviously been favorably
received by Homeland Security Secretary Jeh Johnson (and evidently by the Commission
and its staff too). Whether the new policies deemphasizing detention are grounded in good
sense depends largely on whether she is right about the risk of flight. Is the rate of
voluntary appearance (and ultimate compliance with order of removal) a problem? Will it
grow to be a problem if detention is de-emphasized?
There are many things wrong with Ms. McCarthy’s citation to the Vera Institute’s study
(and the Commission’s baffling decision just to quote her and not examine the actual
study). I will discuss only a few of the reasons that the compliance figures she cited are too
high—indeed much too high—when used to predict compliance when detention is deemphasized.
(1) The Vera Institute study was intended to examine and compare
compliance rates for several different categories of non-citizens. The
individuals being studied had all been either (a) initially released on
their own recognizance or (b) briefly detained then released to
supervision, parole and/or bond. This was not a random sample of
detainees. In terms of expected compliance, they were the cream of the
crop—the ones somebody has already determined to be good candidates
for non-detention methods. The immediate purpose of the study was to
determine whether intensive supervision increases the likelihood of
compliance relative to never-detained or released individuals who were
not intensively supervised. 40 It was not intended to help determine
whether the detention of other non-citizens with higher-risk profiles was
unnecessary or undesirable.
39

At least the staff-written part of the report mentions the issue. The statements of the Commissioners who
voted in favor of the report do not address it at all. Given the importance of the issue, their silence is difficult
to defend.
40

While 91% of the intensively supervised non-citizens attended all their hearings, only 71% of the
comparison group did. For the group designated “asylum seekers”, the corresponding numbers were 93% and
78%.

190

Commissioner Statements and Rebuttals
(2) The categories of non-citizen under study were (a) asylum seekers who
presented themselves to immigration authorities at an international
airport, primarily Kennedy International; (b) criminal aliens, most of
whom were lawful permanent residents, but who had been convicted of
a crime; 41 and (c) undocumented workers apprehended at work sites. All
three groups were drawn from the New York area; all three have greater
incentives to cooperate with immigration authorities than the typical
illegal entrant. Members of the first group stood a reasonable chance of
being granted asylum—higher than the typical asylum seeker who
enters the country surreptitiously outside of an approved port of entry—
and hence had reason to cooperate with authorities. The latter two
groups consisted of individuals had put down roots in a particular
community. The median age of the criminal alien group was 36, and
their median time in the United States was 14 years. More than half
were from the Caribbean. The typical undocumented worker was in his
late 20s and had been in the United States about 5 years. Many owned
or leased homes, and had children in school, bank accounts, cars and
other indicators of an ordinary American life. They differ substantially
from individuals who attempted to enter the country surreptitiously and
only upon apprehension claimed asylum.
(3) The study has little validity even as a measurement for the effectiveness
of intensive supervision relative to the control group. Those undergoing
the intensive supervision were volunteers, while the control groups
included individuals who declined the opportunity to participate.
Consequently, it is not clear that the gaps in hearing attendance between
the intensively supervised and the control groups were telling. The
participants in the intensive supervision programs were not just the
cream of the crop (relative to persons the immigration authorities chose
to detain instead), they were the crème de la crème (relative to persons
who were given the opportunity to forgo detention, but who were
unwilling to submit to intensive supervision).
(4) Attendance at hearings is not the same thing as compliance with an
order to leave the country. In addition to those who failed to attend their
hearings and were thus presumed not to have complied with the court’s
order of removal in absentia, the report makes clear that there were also
a significant number of persons undergoing intensive supervision who
attended all hearings, but did not in fact depart the country as required
by law. 42 This is consistent with a 2003 study done by DOJ’s Inspector
41

The criminal aliens in the study sample were all apprehended or detained before the beginning of
mandatory detention in 1998. Vera Institute at 33.
42

The Vera report did not have a lot of data on compliance. At the time it was completed, many of the cases it
had followed were on appeal, so it was not clear whether orders to remove or grants of voluntary departure
would ultimately be complied with or not. But ten intensively supervised individuals—one asylum seeker and
nine undocumented workers—who were granted voluntary departure had been given departure dates
sufficiently early for Vera to be able to track whether they had complied. Of the ten, Vera reported that seven
had departed as required, one departed late and only after a threat of re-detention had been communicated to
her relatives, and two did not depart at all. Vera at 60-61. The notion that the 91% of intensively supervised

191
Dissenting Statement of Commissioner Heriot
General, which found that while almost 94% of detainees with final
orders of removal were deported, only 11% of those not detained who
were issued final orders of removal actually left the country. 43
Lamenting the low rate at which orders of removal are actually obeyed
by those not detained, former immigration judge Mark H. Metcalf has
stated, “The man who … disobeys an order to leave the United States
does so knowing that the court that can order him removed cannot
enforce its judgment. 44
I believe there are statistics out there that, while still highly imperfect, would be more
useful than the Vera Institute’s. In March of this year, the EOIR issued its FY 2014
Statistics Yearbook. Appendix P of that document reports the rates of “in absentia” orders
in completed cases.
The figures are not happy ones for those who argue detention is unnecessary. According to
the figures in the FY 2014 Statistics Yearbook, 39% of initial case completion orders in
cases in which the alien was initially detained and then released on bond or on the alien’s
own recognizance were issued in absentia. 45 That means that 39% of “released aliens”
failed to show up for their final hearing before the trial-level immigration judge. The judge
thus issued an order of removal “in absentia,” which was almost certainly never carried out.
As the Inspector General’s 11% figure suggests, the federal government does not have the
resources necessary to ensure the deportation of those aliens who do show up for their
hearings, much less seek out and deport aliens subject to in absentia orders. Similarly, 31%
of initial case completion orders in cases in which the alien was never detained are issued in
absentia. 46
But, once again, even those statistics understate the problem. For one thing, they are
calculated as a percentage of all case completions before the trial-level immigration court
rather than all orders of removal. Only 72% of all orders issued in connection with initial
case completions are orders for removal. The category “all case completions” also includes

persons who appeared at their hearings will also comply with the ultimate outcome of their case is thus false.
It is also worth pointing out that Vera states that of the eight people who left the country as ordered, “five
were interviewed prior to departing and three were interviewed via telephone after they had returned to their
home countries.” Vera at 61, n. 53. If I am interpreting this correctly, there may even be some question as to
whether the five departed the country as ordered.
43

Office of the Inspector General, U.S. Department of Justice, The Immigration and Naturalization Service’s
Removal of Aliens Issued Final Orders, Rep. No. I-2003-004 (February 2003).
44

Mark H. Metcalf, Built to Fail: Deception and Disorder in America’s Immigration Courts 9 (October 2011).

This number has been increasing steadily over the last few years—22% (FY 2010), 28% (FY 2011), 30%
(FY 2012), and 33% (FY 2013). See Executive Office of Planning Analysis & Technology, Office for
Immigration Review, U.S. Department of Justice, FY 2014 Statistics Yearbook at P3 (March 2015).
46

Id. at p. 2.

192

Commissioner Statements and Rebuttals
cases in which asylum or other relief in the alien’s favor was ultimately granted. 47 An alien
with a strong case is much more likely to show up for his hearing than an alien with a weak
case. So the percentage of released aliens who are able to dodge an order of removal by the
simple expedient of not showing up for a final hearing is much higher than 39% (and much
higher than 31% for never-detained aliens). 48
Another angle of the same problem has been flagged by the Office of the Inspector General
for the Department of Justice. According to that office, “administrative events such as
changes of venue and transfers are reported as completions even though the immigration
courts have made no decisions on whether to remove aliens from the United States.” As a
result, according the Office of the Inspector General’s report, “a case may be ‘completed’
multiple times.” Indeed, out of the large sample (1785) of so-called closed cases looked at
by that office, about 27% turned out to be simple transfers and other non-final
administrative dispositions. 49 This will cause compilations like the FY 2014 Statistics
Yearbook to understate the rate of in absentia orders of removal. The more time that goes
by, the more likely it is that an alien will fail to appear for a hearing. If a single alien
appears at his first hearing, at which the immigration judge simply transfers his case, but
fails to appear at his second hearing at which a different immigration judge issues a
removal order in absentia, it will look from the statistics that he cooperated till his final
hearing 50% of the time. In fact, however, he cooperated till the end 0% of the time.
In addition, as with the Vera Institute, the FY 2014 Statistics Yearbook fails to take into
consideration that an order of removal by the immigration court is not the end of the story.
A significant number of aliens who attend their final hearing do not actually leave the
country. In Fiscal Year 2014, 15% of all removal decisions in initial case completions were
for “voluntary departure.” 50 Voluntary departures are sought after, in part because they give
the alien the opportunity to select his own date and method of departure. But voluntary
departure is easy to abuse. The alien can simply disappear prior to the date on which he was
47

For example, in Fiscal Year 2014, asylum was granted in 8,775 cases (6003 affirmative grants and 2772
defensive grants). Id. at K3-K4.
48

Since the figures for non-removal initial case completions are not broken down on the basis of alwaysdetained, never-detained and released, I cannot calculate how much higher. Assuming that non-removal initial
case completions are spread evenly (a generous assumption) and that those who win their cases attended their
hearings, the proportion of never-detained aliens whose removal order is issued in absentia would be about
43% and the percentage of released aliens whose removal order is issued in absentia would be about 53%. On
the other hand, perhaps some of those who failed to show up for their final hearing would have won their
cases, so that might drive the numbers down somewhat.
49

U.S. Department of Justice, Office of the Inspector General, Evaluation and Inspections Division,
Management of Immigration Cases and Appeals by the Executive Office for Immigration Review, I-2013-001
at i (October 2012). The problem might well disproportionately affect released aliens, since their moving out
of detention or around the country could be the cause of the transfer. It is hard to say what effect this would
have on the numbers other than that it could be substantial.
50

Id. at O1.

193
Dissenting Statement of Commissioner Heriot
required to leave before. In addition, about 10% of all initial case decisions of immigration
judges are appealed to the Board of Immigration Appeals. 51 Note that this figure seriously
undercounts the proportion of removal orders that are appealed. Grants of amnesty don’t
get appealed. Other kinds of final immigration court action, like transfer and in absentia,
are also unlikely to be appealed. Appeals are mostly from non-absentia removal orders. If
all 13,547 appeals were from non-absentia removal orders, then the rate of appeal would be
19%. Since only 30% of aliens whose cases are on appeal are detained, this provides
another opportunity for aliens to simply disappear into the nation’s cities, towns or rural
areas. If the observations of the Inspector General were correct, many take advantage of
this opportunity.
It is not clear what justification can be offered for the failure to cite the FY 2014 Statistics
Yearbook (or for failing to discuss its defects) in this report and for citing Ms. McCarthy’s
description of the Vera Institute report instead. It is also not clear why, given the decision to
quote Ms. McCarthy’s description of the Vera Institute study, this Report does not
scrutinize in the slightest its conclusions or the effort to apply those conclusions to the
issues in this report.
But the most puzzling aspect of this Report’s treatment of flight risk comes in the next
thing Ms. McCarthy told the Commission, which is also quoted in the body of the Report.
Immediately after her reference to the Vera Institute study, she stated:
Additionally, a more recent study suggests that a majority of migrant
children who were released from detention had a high appearance rate as
well. (Report at 55.)
Only a “majority” had a “high appearance rate”? That doesn’t sound all that helpful to the
case against detention. And exactly what study is being cited here? Wasn’t anyone on the
Commission staff curious before incorporating Ms. McCarthy’s statement into the report?
Did it really find that only “a majority” of migrant children have a “high appearance rate”?
If so, isn’t that an admission that de-emphasizing detention will be a disaster for
compliance? Virtually all detained persons—as in 100%--show up for their hearings.
I therefore requested the Commission staff to provide a citation to the study that Ms.
McCarthy was referring to. The best that could be done was to provide me with Ms.
McCarthy’s e-mail address. In response, Ms. McCarthy kindly pointed to Taking

Id. at V1. The total number of immigration judge decisions was 136,396 and the number of appeals was
13,547.

194

Commissioner Statements and Rebuttals
Attendance: New Data Finds Majority of Children Appear in Immigration Court by Mark
Noferi, a legal writing instructor at Brooklyn Law School. 52
But it turns out that this article does not demonstrate the point for which it was cited. It
found that “[c]hildren have been designated in absentia only 18.4% of the time” and that
therefore “in 82.6 percent of cases, the child has either appeared in court or insufficient
evidence exists for removal or relief, so far.” But this includes cases for which no final
hearing in the immigration court has been held (or indeed no hearing at all). What Noferi
really means is that in 82.6% of cases, the immigration court has not designated the child
in absentia yet. When it comes to “closed cases” at the immigration court level, the in
absentia rate for children rises to 31.2% even according to Noferi.
A 31.2% rate is not small. Imagine, for example, what the public’s response would be if
31.2% of individuals accused of a crime skipped bail and thus did not attend their trial. 53
Even 31.2% understates the problem. The 68.8 percent of children who presumably
attended their final hearing in immigration court includes (1) children whose case for
asylum or other relief in their favor was strong, such that it was very much in their interest
to attend; (2) children who planned to appeal an adverse decision and who therefore knew
they would likely have other opportunities to melt into the background before any final
order of deportation; and (3) children who were granted voluntary departure and hence
would have additional opportunities to disappear. If the issue is what proportion of the
children in the immigration court system who under our law should have been deported are
able to ultimately elude deportation, the number is much higher than 31.2%. 54

Mark Noferi, Taking Attendance: New Data Finds Majority of Children Appear in Immigration Court (July
18, 2014)(using government data from Syracuse University’s Transactional Records Access Clearinghouse
(TRAC) program).
53

There seems to be a general agreement that numbers like that would be unacceptable in the criminal
context. See, e.g., Skip Bail, You Go To Jail (Editorial), Phil. Inquirer (May 9, 2012). Approximately, onequarter of all released felony defendants fail to appear at trial. Eric Helland & Alexander Tabarrok, The
Fugitive: Evidence on Public Versus Private Law Enforcement from Bail Jumping, 47 J.L. & Econ. 93
(2004)(using figures from the State Court Processing Statistics program of the Bureau of Justice Statistics at
the U.S. Department of Justice). Some of these failures to appear are due to sickness or forgetfulness and are
quickly corrected, but many represent planned abscondments. Because this is completely unacceptable,
considerable resources are put into getting these defendants into court for their trials. Still, after one year,
some 30 percent of the felony defendants who initially fail to appear remain fugitives from the law. In
absolute numbers, some 200,000 felony defendants fail to appear every year, and of these, approximately
60,000 will remain fugitives for at least one year. It is hard to understand why anyone would not regard the
much higher rates of non-attendance in the immigration context as a problem that needs fixing.
54

The problem of counting transfers as completed cases flagged by the Office of the Inspector General for the
Department of Justice and discussed above corrupts Noferi’s data too. See text and note supra at n. 34. This
will cause figures like Noferi’s 31.2% to understate the rate of in absentia deportation. The more time that
goes by, the more likely that an alien will fail to appear.

195
Dissenting Statement of Commissioner Heriot
Perhaps most significantly, the data used by Mr. Noferi includes cases in which the children
were detained. For those children, attendance at hearings is virtually 100 percent. If those
cases were separated out from the cases of never-detained or released children, the in
absentia rate for the never detained or released children would climb higher.
Mr. Noferi nevertheless appears to take the position that his data trump an estimate by
EOIR Director Juan P. Osuna in his testimony before the Senate Committee on Homeland
Security and Government Affairs on July 9, 2014. Mr. Osuna cited a much larger figure--46
percent in absentia rates for unaccompanied children—in response to a question by Senator
Jon Tester. 55 He stated:
There has been a lot of talk about the in absentia rate. The numbers that have
been thrown about actually are not accurate. There are … there is … a
significant number of unaccompanied minors … juveniles that don’t end up
in immigration court. The current rate is 46%, in absentia rate. 56
I can’t tell where Mr. Osuna got the 46% figure, so it is difficult for me to critique it. But it
is worth noting that knowledgeable individuals have accused EOIR (though not Osuna
personally) of skewing figures for non-appearance to make them appear less troubling than
they really are, so it is important not to assume that the figure could not also climb higher. 57
In an interview on the PBS News Hour on July 8, 2014, Senator Jeff Flake stated that the
non-appearance rate for children is a whopping 90%. 58 Again, however, it is unclear how
that number was arrived at. 59 What can be said is that, in context, Flake was referring to
55

EOIR has been criticized for calculating its failure to appear rates in misleading ways. For example,
according to former immigration judge Mark H. Metcalf, EOIR sometimes includes detainees in its
calculation (or at least it was doing so when he wrote about the issue in 2011). See Mark H. Metcalf, Built to
Fail: Deception and Disorder in America’s Immigration Courts, Center on Immigration Studies 5 (October
2011). Detainees, of course, virtually always appear as required. Given the policy question at issue is whether
releasing detainees will increase failure to appear rates to unacceptable levels, it would be odd and perhaps
even disingenuous to include them in the calculation. I cannot tell from Osuna’s testimony whether that is the
case here or not. Neither can I tell whether it was the case that it affected the rate a little or a lot, since I do not
know how many (if any) of the children Osuna was referring to were detained. This is something the
Commission could have looked into over the course of the year during which this report was in preparation.
56

Senate Committee on Appropriations, “Emergency Funding for Unaccompanied Children,” available at
http://www.c-span.org/video/?320318-1/hearing-emergency-border-security-funding.
57

Mark H. Metcalf, Built to Fail: Deception and Disorder in America’s Immigration Courts, Center on
Immigration Studies (October 2011).
58

See Migrants Jam L.A. Courtroom for Deportation Hearing, npr.com (August 12, 2014)(When
undocumented children are picked up at the border and “told to appear later in court where their case will be
adjudicated … 90 percent do not then show up.”), http://www.npr.org/2014/08/12/339752981/migrants-jamla-courtroom-for-deportation-hearing.
59

Senator Flake’s numbers may ultimately be traceable to a Newsmax article. Tori Richards, Flood of Illegal
Immigrants Coming to a Neighborhood Near You, Newsmax.com (July 1, 2014)(“A senior Los Angeles

196

Commissioner Statements and Rebuttals
children picked up along the Mexican border—usually nationals of El Salvador,
Guatemala, Honduras or Mexico. This is hardly a cross-section of the cases that reach
immigration courts. Since the “no show” rate for released or never detained children who
walk across the Texas border from these countries may be higher than it is for immigrants
generally, his figure is not provably wrong.
But whether Senator Flake’s figure had a solid basis in the evidence when it was made it
has turned out to be consistent with figures that are starting to come to light in connection
with last summer’s influx of children. Investigative reporter Robert Arnold of Houston’s
KPRC-TV (an NBC affiliate) pressed EOIR for figures on appearance rates for
accompanied and unaccompanied minors who crossed over the Texas border during that
period. Here is what he reported about the data he received from EOIR:
•

•

•
•
•

Thousands of families from Central America caught crossing the border had to
be released on their own recognizance because there wasn't enough detention
space. All were ordered to appear before an immigration judge at a later date.
According to the EOIR, of the 30,467 families and unaccompanied children
caught crossing the border between July and October, only 22 percent have
received a final disposition as to whether they will be allowed to stay in the U.S.
or be deported.
Of the 15,614 families caught crossing the border, but not detained, 4,197 have
been ordered removed from the U.S. However, 96 percent of those removal
orders were done "in absentia."
The EOIR states an "in absentia" order is done when a person fails to show in
immigration court.
Out of the 1,428 families caught crossing the border and detained, 21 have been
ordered removed. Forty-three percent of these orders were done "in absentia."
Of the 13,425 unaccompanied children caught crossing the border between July
and October, 1,671 have been ordered removed from the U.S. Ninety-two
percent of these orders were done "in absentia." 60

It is possible that these astonishing numbers—96% and 92%--will come down from their
stratospheric levels as more cases are resolved. Perhaps immigration judges are trying to
get the no-shows off their dockets as quickly as possible. Nevertheless, it is important to
County Sheriff’s detective who routinely deals with illegal immigrants said a “massive number—80 to 90
percent—do not show up for deportation hearings”), http://www.newsmax.com/US/Illegal-immigrantsneighborhoods-US/2014/07/01/id/580341/. If so, it is merely a rough estimate from an individual with some
general experience, but no direct access to accurate records.
60

Robert Arnold, Thousands of Recent Texas Border Crossing Cases Still Undecided, Click2Houston.com
(December 19, 2014)(bolding added), http://www.click2houston.com/news/thousands-of-recent-texas-bordercrossing-cases-still-undecided/30324648.

197
Dissenting Statement of Commissioner Heriot
recognize that even if they come down substantially, they will still be high. Indeed, every
serious effort to gauge general non-appearance rates has yielded figures that are very
high—whether we are talking about Arnold’s rates of 96% for families with children and
92% for unaccompanied children, Osuna’s 46% rate for unaccompanied children, or the FY
2014 Statistics Yearbook rates of 39% for released aliens and 31% for never-detained
aliens. Moreover, the non-appearance rates are just the beginning of the story. Those who
are present for their final hearing do not necessarily obey removal orders. Indeed, what
little data we have suggest that very often they do not.
We will probably never have perfect information on these matters. And even if we did, the
data would not necessarily lead us into agreement on what our detention policy (or our
immigration policy generally) should be. 61 But better data (and a better understanding of
that data) would surely be helpful in sorting through these difficult issues. The Commission
has not added to our understanding in this area. Indeed, by simply quoting Ms. McCarthy’s
casual citation to two statistics, neither of which directly apply to the issue of how deemphasizing detention will affect the problem of non-appearance, the Report misleads.
The Report states, “The Commission believes that there is no evidence indicating that ICE
or CBP need to detain unaccompanied alien children on a wholesale basis and in the
absence of the risk factor analyses cited above.” Report at 55. The statement is nonsense.
The risk of flight is high among virtually all individuals who attempt to cross the border
surreptitiously. It is ties to the community like real estate ownership, a good job, children in
school, or even the fact that one has never lived anywhere else in one’s life that make an
individual low risk for flight. Illegal entrants, even those with relatively good prospects for
asylum, almost never have such ties. Insofar as they had such ties to a different community,
they have abandoned them. Alternatively, an individual with few ties to the community, but
a long record of good behavior, i.e. no record of criminal arrests or convictions along with
affirmative record of good citizenship through service to church, school, military, etc., may
be a good prospect. But ICE has no access to such records. They cannot separate the ethical
from the unethical among those in their care.
It is already the case that ICE attempts to separate the best risks from the worst ones. Given
the high rates of non-appearance, it is obvious that even now ICE is releasing large
numbers of individuals who do not show up for their hearings. Releasing those who are
thought to be higher risk will likely drive it still higher.
I note that Commissioner Achtenberg states, “The Commission has not heard adequate
explanations of the processes by which detainees’ eligibility for release on bond and those
by which the amounts of the bond are determined.” And she is right, though the reason that
61

I express no opinion on any ultimate policy issue related to this report.

198

Commissioner Statements and Rebuttals
she is right is that we were insufficiently diligent in trying to obtain that information. What
I don’t understand is how she and four other members of the Commission were able to vote
for a recommendation that “[t]he process by which bond amounts are set and the range of
the bond amounts are inconsistent and perhaps punitive.” Achtenberg Statement at 169.
How does one know if one doesn’t understand the processes?
D. Most of the Meager Independent Investigation Undertaken by the Commission Didn’t
Make it into the Report.

As I briefly discussed above, Commission members and staff actually did visit the
detention facilities at both Karnes and Port Isabel. But with a few trivial exceptions, these
trips didn’t get mentioned in the report. So allow me to share the material from my notes
and my recollections of our tour. In some cases, my notes and recollections have been
supplemented by the notes of Carissa Mulder, special assistant to my colleague Peter
Kirsanow, who accompanied me and the other Commissioners and staff members on the
tour. Bear in mind that I anticipated that the staff-written portion of the report would
discuss these trips in greater detail and that I would not have to write about Karnes or Port
Isabel myself at such length. Still, I believe that we obtained some information that is worth
memorializing.
1. Karnes County Residential Center
I was pleasantly surprised by Karnes. It is a 76,960 square foot facility with a capacity to
hold 532 persons, although on the day we visited, May 4, 2015, it had only 301 residents.
Owned and operated by GEO, it is located about 50 miles southeast of San Antonio and is
currently under contract with ICE to serve exclusively as an immigration detention facility
(in contrast to facilities like county jails, which occasionally serve as both immigration
detention facilities and jails).
Both employees of GEO and of ICE work at Karnes. Near the entry, there is a separate
office for each. GEO employees are at the facility around the clock. Approximately 25 to
30 ICE employees work on one or the other of two shifts. No one from ICE is present from
midnight to 6:00 a.m., but someone is always on call.
Karnes opened in February of 2012 as a men-only facility. But in August of 2014, it reopened as a family facility. “Family” in practice means mothers and their children. Karnes
does not house men, women without children, or unaccompanied children. By and large the
residents at Karnes were apprehended by the Border Patrol trying to cross the border from
Mexico. They are most likely to be citizens of El Salvador, Guatemala, Honduras or
Mexico.

199
Dissenting Statement of Commissioner Heriot
Our tour of Karnes was in part conducted by ICE Assistant Field Director Juanita Hester.
She rejected the use of the term “detainee” and requested that we use the term “resident” to
refer the women and children here.
Karnes is not a work of architectural splendor. Like many elementary schools, it is made of
(painted) cinderblock. But it is clean and bright and new. When we started our tour, there
was a man at work busily cleaning the glass doors in the interior. A large sign declaring that
the facility had gone 280 days without an accident hung on the wall.
The intake area has “Bienvenidos” written in large letters as well as pictures of SpongeBob
SquarePants, the sun, a cactus and a giraffe whose neck contains the markings of a ruler
(thus allowing children’s height to be measured). The staff there seemed pleasant.
When we visited the intake area, there was not a lot going on. But when a group comes in
from the Rio Grande Valley, it is said to be quite lively. Our guide told us they like to keep
the new groups down to 30 at most.
New arrivals are taken to a waiting room, where a “Know Your Rights” video in both
English and Spanish is on constant loop, just off the main intake area. The waiting room
was decorated with pictures of a rainbow, butterflies, clouds, fish and various other things
that children are thought to enjoy. It also contains two bathroom stalls, which were
equipped with plenty of toilet paper, feminine sanitary supplies, paper towels, hand soap
and a trashcan. The mirror was made of shiny metal rather than glass, presumably because
glass can be a hazard in institutional settings like this one.
Showers are available at this point. Each family is allowed privacy for its shower, which
can be organized as desired. They can shower together, or a mother can shower with any
very young children and then stand watch as any older children shower. Flip-flops, baby
bottles, diapers, baby shampoo, brushes, body lotion, and pacifiers are also available.
Anyone who arrives with large luggage or valuables can store them in a secure area.
Identification cards and materials are put on file to prevent them from being lost or stolen.
Four telephones line one of the walls in the intake area. Everyone is permitted to make a
certain number of calls. My notes do not make clear how many.
We were told that new arrivals get two separate orientations—one from GEO, which deals
with the facility, and one from ICE, which deals with the immigration process. Residents
also receive a handbook, though since some of the residents are illiterate, it does not always
do them any good. Particularly with the illiterate residents, the oral presentations are likely
to be more effective. Although some of the residents’ native language is indigenous

200

Commissioner Statements and Rebuttals
(K’iche’ was mentioned in particular), the vast majority of indigenous language speakers
understand Spanish anyway.
New arrivals also get a quick medical screening. A more complete screening is mandated to
come within 14 days, but at Karnes it is in fact done within 24 hours.
Among other things, every arrival age 2 or older gets a chest x-ray for tuberculosis during
the initial medical screening. If I understood correctly, the x-ray is immediately forwarded
to experts at the University of Maryland, who preliminarily analyze the results almost
instantly and always before the intake exam is over. Maryland occasionally returns a
preliminary positive reading in which case the patient is confined to a negative pressure
room until a final reading is provided. A negative pressure room is one in which the
ventilation system pumps the air in the room outdoors rather than letting it circulate within
the facility. Final results are always available within 4 to 12 hours. Karnes has never had a
positive final reading for tuberculosis.
In theory, a resident can refuse the tuberculosis test for herself or her children, but nobody
ever does. If someone did, the staff would simply observe them (as they observe persons
under age 2) for signs of tuberculosis. On the other hand, residents refuse immunizations
quite often—a very troubling sign. I should note that part of the reason that there were only
301 residents on the day the Commission visited and not 532 (the facility’s capacity) is that
there had been a chicken pox outbreak. For a six-week period, the Karnes facility accepted
no new residents (although it did release residents into the country during that period.)
There was in fact a little girl and her mother in the negative pressure room when I walked
by. I am not sure if they were there on account of a preliminary positive reading for
tuberculosis or for some other reason, but neither appeared to be ill. Both mother and
daughter were happy and smiling. They waved as we walked by. 62
The apparently well-equipped clinic has 28 nurses, both registered nurses (14), including
one full-time nurse practitioner, and licensed practical nurses (14). They are there not just
to conduct the intake screenings, but also to look after the health of the residents generally.
There is a full-time physician on the staff who reviews each resident’s medical intake chart,
and there is a psychologist on staff as well. A psychiatrist is available on an as-needed
basis. Among other things, the clinic has medical observation rooms, each with two beds, a
bath area, a television and one of the ubiquitous shiny steel mirrors. The clinic is open on a
walk-in basis twenty-four hours a day, seven days a week. The nearest hospital is four
miles away.
62

My colleague Commissioner Achtenberg writes that “Commissioners observed very young children
appearing lethargic and depressed.” Achtenberg Statement at 161. I did not see that. The children at the
meeting she describes struck me as well-behaved.

201
Dissenting Statement of Commissioner Heriot

A couple of children were in the clinic as I passed by. They seemed happy and greeted us
with “Buenos Dias.”
Everyone sees a dentist within 14 days of arriving. The facility has a dentist who comes on
site, but we were told that “important” dental work (which included major dental work and
pediatric dentistry) is done off site.
As I discussed in my introduction, one of the first things to strike me at the beginning of
our tour was the room that we passed by filled with rows and rows of clothing and shoes.
After visiting the intake area and the clinic, we came back to this room. Our guide told us
that new residents are given the opportunity to select six outfits for each of their children
and for themselves prior to their showers at intake. The clothing is new—something that
seemed to surprise some and possibly all the members of the Commission present
(including me). I observed tags on clothing from well-known makers of children’s clothing
like Carter’s and Fisher Price—all of it purchased by GEO. As for their old clothing, GEO
washes it while they are taking their intake shower and returns it to them.
Once a week, there is an opportunity for shoe exchange. Children’s feet grow fast. But if a
child loses a shoe or if the mothers need additional shoes or clothing at other times, the
opportunity is available. All in all, it is hard not to conclude that this is a nice place.
Everyday life at Karnes is conducted largely in rooms that open onto the large courtyards
with gazebo-like structures, a soccer field and picnic tables. 63 I believe there are two such
courtyards. With the exception of a number of small rose bushes and a smallish tree or two,
there was not a lot of landscaping in the courtyard we saw. But it was fresh and airy, and
the rose bushes and trees will grow.
While we were out there in one of the courtyards several women excitedly ran up to
Chairman Castro to tell him (in Spanish) about their concerns. My Spanish is a little rusty
(although the Chairman kindly helped me out by translating some of what was being said).
The gist of it seemed to be that they were tired of being detained at Karnes and that they
wanted out. Who can blame them? One woman said she had been there 11 months and seen
an immigration judge more than 20 times. If I understood her correctly, a judge or other
officer had concluded that she was not in credible fear for asylum purposes, but the
opposite conclusion had been drawn with regard to her son (presumably by a different
judge or officer). It is easy to see how this would be troubling, but since the subject of this
63

Commissioner Achtenberg is concerned that “children have limited access to outside play in a courtyard
fully surrounded and enclosed by buildings.” Achtenberg Statement at 162. My feeling was the other way.
Many American children must walk blocks to reach a park as large and spacious at the courtyards at Karnes.
These children have such a space right out their front door.

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Commissioner Statements and Rebuttals
report is conditions at detention facilities and not the immigration courts, I will refrain from
further commenting.
Meals are served in a dining room with tables for four and plastic chairs. School-aged
children eat first. Mothers and their younger children come next. We were told that at
dinner and on weekends, families eat as a group.
Efforts are made to adjust menus to the tastes of the residents. For example, we were told
that the facility used to serve pinto beans, but the menu planners learned that the residents
usually preferred black beans and therefore have tried to serve black beans when they can.
They also learned that most residents preferred corn tortillas to flour tortillas and that they
liked to eat bananas and plantains.
We observed children eating lunch. There was a salad bar. Lunch that day was shredded
chicken, peas and carrots, mashed potatoes with gravy, white beans, bread. Dessert was a
baked apple dish, like a Brown Betty. Butter (or was it margarine?) was available. It looked
and smelled good. I was hungry.
The Chairman engaged some of the children in Spanish (although one boy said he preferred
English and others appeared to speak it too). They look happy and pleased to be the
recipients of the Chairman’s attention. Some said they wanted pizza. “What are they saying
in Spanish?” I asked. “‘I want out of here,’” replied the Chairman good naturedly. I
understand the feeling. But the problem did not appear to be detention conditions as
opposed to detention itself.
GEO runs a school for the children, although we didn’t see much of those classes. There is
also an attractive library—nicer than the library at my elementary school—with lots of
books in both English and Spanish. The colorful carpet beneath one of the tables has a “We
are the World” theme with children of various nationalities holding hands surrounding a
map of the world. Nearby is a room with 11 computers that are available to get e-mail via
Yahoo and Gmail and to visit other web sites. Like computers in government offices, these
won’t allow users to log on to social media or other sites forbidden to government
employees. We were told that they are used by the children quite a bit, but not so much by
their mothers.
There is also a room with 10 computers dedicated to Lexis/Nexis and to Westlaw. When we
passed by, nobody was in there except an employee. We were told that the men used to use
it back when Karnes was a detention center for adult males. But it gets hardly any use now
that Karnes is a family facility.
The living quarters for the residents were Spartan, but clean and comfortable. The rooms I
visited were said to be typical and had 4 bunk beds as well as toys for the children. No

203
Dissenting Statement of Commissioner Heriot
children under 10 are permitted in the top bunks. The mattresses had blue leatherette
coverings. Two tables with four chairs each were in each room with a chessboard printed
on at least one of the tables. The bathroom area had a toilet, shower and sink. Our guide
explained that they try to combine groups by the age and sex of the children. Lights are
turned out at 10:00 p.m.
At that point, if I understood correctly, adults may go out to a gathering room, which is
equipped with a television, a couch, two refrigerators, a microwave oven, a sink, a pencil
sharpener, four telephones, a playpen, and toys, but the gazebo in the courtyard is off limits
(since conversations in that area might disturb the children).
The Karnes staff was kind enough to post a sign-up sheet a couple of days before our
arrival for residents who wanted to speak directly to us. Quite a few women signed up—
probably about 20. But their complaints tended not to be about Karnes, but about the
Border Patrol and the various locations they had been taken to prior to coming to Karnes.
One woman, for example, was tearful on account of the lack of clocks at the place she was
initially taken by the Border Patrol. Her son was running a fever when they were picked up
and had therefore been given medication by the doctor. The medication needed to be taken
on a certain schedule. She therefore needed to know what time it is. She said the guard at
that place was rude and uncooperative.
Among those who complained about circumstances at Karnes, the complaints tended to be
minor:
•

•

One woman from Mexico said that the Border Patrol had not treated her badly and
that she has been treated well at Karnes. She appreciated the Zumba fitness classes
and other adult education classes offered there, but she wished they would offer
classes in how to speak English. (We were told by facility staff members that
English and life skills classes that teach residents such things as “how to open a
checking account” are available, but seldom attract more than four or five students.)
Another woman from Honduras was concerned that her 18-month-old baby didn’t
like the food or the milk served at Karnes. She was therefore having to breastfeed
him. She stated, however, that she and her children are treated very well at Karnes,
and numerous women in the room nodded in agreement.
Several women were unhappy that they are not allowed to entrust their children to
other residents while they attend to other things.

The Chairman asked if they had access to telephones. They nodded yes. He also
specifically asked the women whether they had had been sexually harassed with at Karnes.
They all said no, and said they had been treated well.

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Commissioner Statements and Rebuttals
Their response to his question about sexual harassment was especially important given the
accusations that had been leveled by one of our briefing witnesses, MALDEF staff attorney
Marisa Bono. In her written testimony, she stated that “a least a few women detained at the
Karnes Facility alleged that sexual abuse was ongoing since the facility opened in August
of 2014, including:
•

•

“Karnes Facility guards and/or personnel removing female detainees from their cells
[sic: residents live in dormitory rooms at Karnes, not cells] late in the evening and
during early morning hours for the purpose of engaging in sexual acts in various
parts of the facility;
Karnes Facility guards and/or personnel calling detainees their “novias” or
“girlfriends,” and using their respective position and power over the highly
vulnerable detained women within the detention facility by requesting sexual favors
from female detainees in exchange for money, promises of assistance with their
pending immigration cases, and shelter when and if the women are released; and
Karnes Facility guards kissing, fondling, and/or groping female detainees in front of
other detainees, including children.” (Written Testimony of Marisa Bono at 2 [Jan.
30, 2015].)

According to Ms. Bono, MALDEF and other organizations sent a joint letter to the U.S.
Department of Homeland Security, ICE, the Karnes facility and GEO Group, Inc.
complaining of these incidents. They were later informed that the Office of the Inspector
General would be conducting an investigation. According to Bono, “Despite repeated
requests, Complainants have no additional information regarding the details of the
investigations.”
Even more significant than the answer to the Chairman’s informal question about sexual
harassment was the Inspector General’s report on his office’s investigation of the MALDEF
et al. letter. Released almost a month before Ms. Bono’s testimony, it found no
inappropriate conduct.
The Inspector General states that OIG agents had “interviewed 33 witnesses and spent 380
hours investigating the allegations.” Among other things, they found:
•

•

“Each of the female detainees identified by the complainant denied they had
ever engaged in any form of inappropriate activity, to include sexual acts, with
any Detention Officers. They also each denied having been escorted into a
laundry room, restroom, or other area to engage in any sexual activity or having
received any money, benefits, or preferential treatment in exchange for sex or
anything of value.
The female reportedly impregnated by a Detention Officer denied the allegation
and voluntarily submitted to a pregnancy test which was negative.

205
Dissenting Statement of Commissioner Heriot
•

•
•

•

Review of over 360 hours of time lapsed surveillance video footage of the
laundry room and day room areas failed to confirm that any of the detainees
were escorted to those areas after hours by Detention Officers.
Review of the Detention Facility’s commissary account records determined that
none of the deposits into these accounts were made by Detention Officers.
Each of the Detention Officers who could have been referenced by the
complainant denied the allegations. Specifically, each denied engaging in any
misconduct with any female detainee, including any apartment rentals, deposits
into commissary accounts, after-hours escorts, having sex or sexual relations
with female detainees, impregnating any female detainee, or providing
preferential treatment in exchange for sex.
The responsible Supervisory Detention Officer stated that he was unaware of
any inappropriate relationships between Detention Officers and detainees and
would have immediately reported such activity.
Interviews of managerial personnel at the facility disclosed that no female
detainees had reported any incidents concerning any form of misconduct against
any of the facility’s employees.”

The following conclusions were drawn by the OIG:
•
•

•

“We found no evidence to substantiate the allegations and were unable to
identify a victim or suspect in this matter.
Review of video footage revealed that two [expunged] Detention Officers were
engaged in a romantic relationship with each other and had engaged in
inappropriate physical contact in the laundry room while on duty. When
presented with this information, Federal and State prosecutors concluded that no
violation of Federal or State statute had occurred. Both employees [expunged]
after being interviewed.
A report of our investigative findings was provided to ICE and DHS Civil
Rights and Civil Liberties (CRCL) officials before a scheduled CRCL
inspection of the facility.
ICE complied with the Prison Rape Elimination Act reporting requirements.”
(Memorandum to DHS Secretary Jeh C. Johnson from DHS Inspector General
John Roth dated January 7, 2015: Investigative Summary—GEO Group
Incorporated Detention Facility, Karnes City, Texas at 2-3.)

There is a small courtroom at the Karnes facility. Lots of immigration hearings are held
here. It looks quite official, complete with a “bar” and counsel tables and seating for
observers. Our tour guide told us that about 75% claim to be in fear (and hence arguably
entitled to asylum) at the border. The other 25% don’t claim it until they reach Karnes. She
said the proportions used to be 50%/50%, but the coyotes have gotten more savvy and

206

Commissioner Statements and Rebuttals
advise the women to make their claim early. Those who fail to claim it are processed
quickly and sent back over the border.

2. Port Isabel
My notes on Port Isabel are somewhat less extensive.
On May 5, 2015, our little entourage visited the Port Isabel Service Processing Center,
which is located in the Laguna Atacosa National Wildlife Refuge in South Texas. It has a
view of Laguna Madre and of South Padre Island. Despite the view, the windy facility
looks far more like a prison than the Karnes facility. If you are looking for pictures of
SpongeBob SquarePants and rainbows, this is not the place to come.
Note that some of the residents at Port Isabel are here precisely because they have been
convicted of a crime. Unlike Karnes, the residents here were not all or nearly all picked up
trying to cross the border illegally. Legal immigrants with green cards may be deported if
they are found to have committed a crime (and are sometimes picked up while trying to reenter the country legally after visits abroad). Some of those at Port Isabel fall into that
category.
We began our visit with a meeting with Francisco Venegas, Facility Assistant Field Office
Director, Pedro Olivarez, who is head of detention, and Michael Watkins. I did not catch
Mr. Watkins’ title, but he apparently used to be the top officer at Port Isabel and has since
been promoted to a regional position. During our tour, several individuals, including one or
two detainees, greeted him warmly as someone they had not seen in a while.
We learned that upon arrival at Port Isabel, residents are issued jumpsuits in either blue,
orange or red. About 10 to 15% of the residents wear red, which signifies that they have
been convicted of a very serious crime, like rape or murder. Orange, which is somewhat
less common, means the wearer has been convicted of a less serious crime that nevertheless
demonstrates moral turpitude, like theft. About 75% of the residents wear blue jumpsuits,
which suggests that they either have never been convicted of a crime in the United States or
that, if they have, it is a minor one like possession of marijuana or simple assault.
The color of one’s jumpsuit is, of course, not a perfect indicator of one’s criminal record or
lack thereof. Individuals who are apprehended crossing the border illegally for the first time
have often not had the opportunity to acquire a criminal record in the United States, but
may have one elsewhere. (For example, one of the detainees discussed infra at ___ said he
decided to flee to the United States after he was arrested for drunk driving and had his
picture shown on television, which resulted in a renewal of extortion efforts by a local
gang.) But color-coding is a useful way for ICE personnel (as well as detainees) to judge
the dangerousness of the individuals with whom they have to deal.

207
Dissenting Statement of Commissioner Heriot

If there are significant problems at Port Isabel, we failed to uncover them. Port Isabel is an
ICE owned and operated facility (although some of its guards are employed by contractors,
rather than ICE itself). It has a capacity of 1500, organized into five divisions with four
“pods” each. Each pod has 75 beds. Port Isabel houses adult men and adult women, but
there are many more men, so only one pod is used for women. The day that we visited, the
facility had about 900 male residents and about 50 female. I did not see any of the female
detainees during the tour.
Mr. Watkins stated that Port Isabel’s strategy for making the detainees’ stays as pleasant
and problem-free as possible is to ensure that they have plenty of opportunities to engage in
athletics and that he believed the results of this strategy have been very positive. Port Isabel
has three recreational specialists on staff who organized recreational activities for the
detainees.
Transgender “female” residents (i.e. residents who were born male and continue to present
physically as male but who identify as female) are asked if they feel comfortable being held
among the general male population or if they prefer to be in the “special management” unit.
The option of residing in the female unit is not available to them. The special management
unit contains eight, double-bunked cells and is thus not solitary confinement. Special
management unit residents can move about the unit and engage in recreational activities.
There are both male and female guards at Port Isabel. Female guards are always in charge
of female detainees. However, there are occasions when there are not enough female guards
to cover the lunch schedule, so male guards are briefly brought in to deal with female
detainees. To guard against the possibility of sexual abuse (or any other kind of
misconduct), 24/7 cameras are placed throughout the facility.
Watkins conceded that Port Isabel had had claims of sexual assault, including a recent one
that is still under investigation. He later told us that the facility always seeks to prosecute
individuals accused of sexual assault. Every officer prosecuted for sexual assault during his
five years at Port Isabel went to prison.
The intake area at Port Isabel is decidedly unattractive. New arrivals, who typically arrive
during the graveyard shift from 11 p.m. to 7 a.m., are put into holding rooms with peeling
paint, concrete floors and seating, and toilets. Privacy in using the toilet is limited in that
the wall around the toilet goes up only about three feet. The lateness of the hour is probably
a function of the fact that most individuals attempting to cross the border illegally attempt
to do so under cover of night.

208

Commissioner Statements and Rebuttals
In 2014, Port Isabel processed 72,000 individuals. Those numbers bring home the fact that
most people don’t spend much time here. Since the facility’s capacity is only 1500, it is
clear that most individuals must be processed through very quickly.
Intake is in some ways similar to intake at the Karnes facility. Detainees get a preliminary
medical screening here too, which includes a chest x-ray that is read by experts at the
University of Maryland for tuberculosis. During the screening, detainees are also asked
about medications and already-existing medical conditions. Their blood pressure is taken
and a few other routine things are checked out.
The graveyard shift typically has 2 to 3 registered nurses and 1 to 2 licensed practical
nurses to conduct the intake screenings. Altogether, the facility’s clinic, which is run by the
Public Health Service, has 37 registered nurses, 19 licensed practical nurses and 6 “midlevel providers” (meaning nurse practitioners or physician’s assistants) split over three
shifts. There is also a PHS physician on temporary duty here and a psychiatrist available via
video hookup. There are two open positions for physicians on the clinic staff; they are
working to fill them.
The clinic also has a pharmacy and a dental clinic with a dentist and dental assistant. All
detainees get a screening to check for issues. If a medical or dental problem is detected that
can’t be handled on site, it is referred out to an appropriate provider in the local community.
Urgent problems are handled urgently. Non-urgent problems can take a week or two. A
detainee who remains at Port Isabel for a long period of time will also get regular cleanings.
Chicken pox is a seasonal problem here. For that and other contagious diseases, the facility
has a large number of so-called “negative pressure” rooms in which the air is pumped
outdoors and not allowed to circulate in the building with other detainees.
As at Karnes, we were afforded the opportunity to meet with detainees at Port Isabel. The
participants were an interesting group—somewhere between 15 and 20 attended. On the
whole, they looked older than the women who participated in the meeting at Karnes. Their
stories varied in interesting ways. Curiously, nobody complained about conditions at Port
Isabel. Nobody even appeared to be feeling particularly sorry for himself. It would have
been hard not to like them.
Here is a quick summary of the individuals who spoke up during the meeting:
(1) The first detainee to discuss his situation spoke up even before all the members
of our entourage were in the room. In response to the Chairman’s question about
conditions, he responded (in Spanish) that if they let him out on Sundays, he
wouldn’t mind staying indefinitely. While a Mexican national, he had been here
since a young age (11) and was a legal permanent resident. Nine years ago,

209
Dissenting Statement of Commissioner Heriot
however, at the age of 27, he was convicted of possession of marijuana. He also let
his green card expire. When he attempted to board a flight with a family member,
the expiration of his green card was discovered, along with the fact of his marijuana
conviction. This landed him at Port Isabel. He wore a blue jumpsuit.
(2) Another 25-year-old detainee also had a green card and had been living in the
United States since age 8. While crossing the border at Brownsville, the border
agent asked for his green card and somehow discovered that he had been charged at
some point with possession of marijuana and with assault. This man’s English was
fluent, and it may well have been his primary language. Like the first man, he wore
a blue jumpsuit, despite the fact that he had been charged with a violent crime
(assault). It was unclear to me whether he was talking about charges or convictions
on his record.
(3) The third detainee to share his story, whom we nick-named “James Bond,” had
me going for a while, but ultimately it got the point where my colleagues and I had
to conclude that he was mentally ill. He started out telling us that someone had
surreptitiously written on his asylum paperwork that he was an assassin for the U.S.
Government. The story became increasingly complex with multiple deportations,
kidnappings, attempted murders, torture by Los Zetas, and speeding sports cars.
Other detainees looked somewhat embarrassed and amused as if they’d heard this
story before. If James Bond was telling the truth, there should be an action movie or
two out of it. But since it had nothing to do with the subject of this report—
conditions in detention centers—I believe his story was better left to others to sort
out.
(4) Only one of the men in the room had an orange jumpsuit. Commissioner
Kladney made it a point to ask him his story. He replied in English that he had been
in this country since he was a little boy in 1991, but, while legal, he had never
thought to naturalize. He had a good job as a paralegal and is married to a U.S.
citizen with whom he has a child. In addition, he has custody of a child with his first
wife; the child is currently being cared for by his mother. At some point in the past,
he signed a check that was not his own, thus committing a crime of moral turpitude.
He had an explanation for his crime, but I did not quite follow it. In any event, he
recently went to Mexico for medical treatment that could be obtained more cheaply
there than here. When he attempted to return, his check fraud arrest came up. He
was asked about his treatment at Port Isabel and replied that if you treat people the
way you want to be treated, everyone will treat you well here. He was particularly
pleased with the opportunities to engage in sports activities at Port Isabel and noted
that they have religious services here as well.

210

Commissioner Statements and Rebuttals
(5) A recent arrival from El Salvador said he had owned an air-conditioning
business back home. But a gang of thugs had been forcing him to pay them $400 a
month, apparently for the privilege of doing business free from their interference.
When he failed to pay them consistently, they stabbed him as a warning.
Fortunately, he was able to borrow enough money to keep them at bay for the rest
of the year. Only when they came back for more at the beginning of the new year
did he decide he needed to escape to America. He was grateful to the Mexican
people who gave him work during the three months it took him to reach the United
States border. When he arrived he was treated well by the Border Patrol.
The Chairman asked those present whether the Border Patrol had put them in cold rooms.
Several of those present agreed that the rooms had been cold, but they did not seem to think
this was a significant problem. Earlier, one of the ICE staff members had suggested to us
that the problem might be that many Central Americans aren’t used to air conditioning.
What Americans (and Texans in particular) regard as a comfortable temperature might
seem cold to them.
All in all, it is impossible to miss the fact that Karnes is a more comfortable facility than
Port Isabel. The latter really does look like a prison. On the other hand, the men there
complained about the speed at which their cases were being resolved, not about the
conditions at the facility. Those complaints are outside the scope of this report.
E. The Commission Needs to Undertake More Modest Projects and to Adhere to Its
Procedures Designed to Ensure the Commissioners Have Time to Correct Errors in
Reports and to Submit Statements. It Also Needs to Avoid Hyperbole in its Reports.
Our staff is small. Perhaps if we had undertaken a more modest task—like investigating
food service at immigration detention centers or the accommodation of religious exercise—
we would have accomplished more. The Commission’s tendency is simply to pick a broad
topic and unleash the staff to go forth and study. We fail to take the responsibility to
sharpen the focus on a clear and contested issue of fact that is susceptible to proof or
disproof. We fail to take the responsibility for research design. The results are ordinarily,
perhaps invariably, disappointing.
The fact that I have not critiqued every aspect of this report should not be taken as
agreement with those aspects I failed to discuss. 64 It is simply a matter of lack of time
64

For example, in the section on medical standards, the report states:
In 2013, the University of Arizona conducted a study by interviewing 1,113 recent deportees: 37
percent of the respondents reported that ICE was denying them medical attention while in ICE
custody.

211
Dissenting Statement of Commissioner Heriot
before the deadline for Commissioner’s statement, which was shortened from the usual 30
days from date on which the Commission adopts the final draft of the report.
I am apparently not the only Commissioner to be disadvantaged by the shortened length of
time for statements. In Commissioner Yaki’s Statement, he states that “[t]he murder rates in
Guatemala and El Salvador are more than 800 times that of the United States, while
Honduras has more than 1,900 times more murder per 100,000 people than in the United
States.” Yaki Statement at 254, n. 5. 65 A usual rule of thumb is that if a statistic seems
utterly incredible, it usually is literally not credible. The intentional homicide rate in the
United States is about 5 per 100,000. If the rate in Honduras were 1900 times that, it would
be about 9500 per 100,000, or just shy of 10% per year. That would make spending a year
in Honduras massively more likely to result in death than fighting in the Battle of Bulge.
The actual figures are more like 8 times greater for Guatemala and El Salvador and 18
times for Honduras. 66 Decimal points matter.
A few things do deserve mention despite the short time period in which Commissioner are
permitted to write statements. One is a proposed finding that suggested detention facilities
were engaged in conduct that is analogous to torture. The proposed finding would have
read:
Furthermore, while [the] Commission does not find that DHS is torturing
detained immigrants, the Commission finds that certain DHS-owned
This is simply wrong. The University of Arizona report stated that “37% of those that requested medical
attention from authorities did not receive it.” (page 26, emphasis added). It is unclear how many requested
medical attention. The University of Arizona report stated that “23% indicated they needed medical
attention,” but it is unclear whether this means that 23% actually asked for medical attention or only that 23%
later told the researchers that they needed medical attention. If it is the former, it would mean that only 8.5%
of the respondents requested and failed to receive medical care. If it is the latter, the relevant number could
dip even lower.
Moreover, the 1,113 individuals interviewed were apparently subjected to “expedited removal.” They crossed
the border illegally, were apprehended and failed to make an adequate claim to the right of asylum. They were
therefore dropped back on the other side of the border in short order. Their stay in the United States was better
measured in hours than weeks. They either never saw the inside of a detention facility like Karnes or Port
Isabel or saw it only for a very short period.
The Border Patrol is not in a position to offer medical care out in the field except in the case of emergencies.
It is entirely possible (indeed likely) that some of those who did not receive medical attention were not facing
emergencies and were returned to the other side of the border within hours, where they were free to seek
medical care at their leisure.
65

These erroneous figures were directly taken from Center for American Progress, The Facts on Immigration
Today 19 (October 23, 2014). This is not the kind of error the Center for American Progress should be
making. The figures should have been spotted as implausible before the document was published.

The World Bank, “Intentional homicides (per 100,000 people), available at
http://data.worldbank.org/indicator/VC.IHR.PSRC.P5.

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Commissioner Statements and Rebuttals
facilities and CDFs are subjecting detained immigrants to extreme living
conditions. The Torture Victim Protection Act of 1991 (TVPA) defines
“torture” as:
[A]ny act, directed against an individual in the offender’s custody or
physical control, by which severe pain or suffering (other than pain or
suffering arising only from or inherent in, or incidental to, lawful sanctions),
whether physical or mental, is intentionally inflicted on that individual for
such purposes as obtaining from that individual or a third person information
or a confession, punishing that individual for an act that individual or a third
person has committed[,] or is suspected of having committed, intimidating
or coercing that individual or a third person, or for any reason based on
discrimination of any kind.
The evidence contained in this entire report suggests that some DHS owned facilities and
CDFs may be subjecting detainees to significant physical and emotional pain. Chapters 3,
4, and 5 of this report details evidence suggesting that immigration detention facility
officials punish detained immigrants punish detained immigrants for crossing the U.S.
Border without proper documentation. For example, detainees are held in unjustifiably
cold 67 and overly crowded detention cells, only given one meal during processing, forced to
drink unclean and possibly toxic waters 68 … and sometimes beaten and sexually abused by
guards and detention officials. 69 In addition to physical pain, some DHS-facilities and
CDFs subject detainees to mental pain and suffering.
Torture and the Torture Victim Protection Act of 1991 should never have been mentioned
in connection with this report. It only hurts the Commission’s and the report’s credibility.

It may well have been cold. But that doesn’t make it cause for citing the Torture Victim Protection Act of
1991 even as an analogy. Commission members who think otherwise need to get a hold of themselves. As I
learned when married to a Texan, cranking up the air conditioning is as much a part of Texas culture as
barbecue, the Alamo, and Tex-Mex cuisine. An illegal entrant apprehended crossing into this country,
especially after walking long distances in scorching heat, might well feel cold when brought inside. Indeed,
when it was brought up to them, the detainees at Port Isabel acknowledged that the building where they were
taken by the Border Patrol was cold. But, unlike the Commission members, they took it in stride. It is worth
remembering that some of the asylum seekers among them probably know what torture or being subjected “to
extreme living conditions” really means. See supra 210. All that said, given this evidence, the Border Patrol
should dial down the air-conditioning.
68

American water sometimes tastes funny to visitors from other nations. That is in part because of the level of
chlorination used to protect against disease, and in part because of the presence of other minerals that affect
taste. The taste of water varies from geographical location to location, and most people like the taste of the
water of the place where they grew up. Detainees are likely no exception.
69

For a discussion of some of the allegations of sexual misconduct made by witnesses at our briefing that
were found to be unfounded by federal investigations, see supra at n. 2-3 and at Section D.1 at 204. The
Commission’s report recounts the allegations, but fails to cite the reports of the investigations.

213
Dissenting Statement of Commissioner Heriot
This is a serious subject that deserves serious study, not over-the-top rhetoric. Fortunately,
cooler heads prevailed on this one, and the proposed finding was rejected.
But the torture language has popped up again in Chairman Castro’s Statement. Indeed, he
uses stronger language than the earlier proposal. His discussion of the subject begins,
“While the Commission did not find that DHS is torturing immigrants, I believe that certain
DHS-owned facilities and CDFs are subjecting detained immigrants to torture-like
conditions.” Castro Draft Statement at 149. He later states, “I dare anyone reading this
Report to be subjected to the conduct to which these detained immigrants are subjected to
and not feel that you were being tortured as a result.” (Id. at 152.)
If you wonder why Democrats and Republicans in Washington can’t come together to get
things done, over-the-top rhetoric like this is certainly a part of the reason. Most of the
detainees had no complaints whatsoever. Those that did have complaints were balanced in
the way they made their complaints. It’s too bad members of the U.S. Commission on Civil
Rights can’t be as level-headed.
The other thing that deserves mention is healthcare. I have no doubt there have been some
cases of egregiously bad medical service at detention centers over the last decade or so.
With 400,000 detentions per year, one has to expect that. There are cases of egregiously
bad medical service everywhere that the numbers are that large. But I believe that both the
staff-written portion of the report and Commissioner Statements that spend significant time
discussing healthcare are unfair. Among other things, they never made an effort to get all
sides of the cases they refer to.
When we first were able to review a draft of the staff-written portions of the report, in early
July, Commissioner Peter Kirsanow and I began our independent research by reaching out
to ICE about the case of Victor/Victoria Arellano. Below I have quoted in full the portion
of the letter we received from the Deputy Director of ICE concerning Ms. Arellano’s death
from HIV/AIDS while in ICE custody:
“As background, Ms. Arellano was a transgender female citizen of
Mexico who was originally removed from the United States in 2002, and
removed two additional times in 2003. In April 2007, Ms. Arellano was
convicted of driving under the influence of crystal methamphetamine
and driving without a license, and received a sentence of 36 months’
probation, 45 days’ imprisonment, and a fine. Ms. Arellano died while in
ICE custody in July 2007.
Upon arrival in ICE detention, Ms. Arellano confirmed a diagnosis of
HIV but indicated that she was stable and had not previously taken any
anti-HIV medications, although she indicated that she knew that her

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Commissioner Statements and Rebuttals
disease was serious. In addition, she indicated an allergy to several HIVrelated medications, including dapsone. While she initially refused
suggested treatment by the medical staff, she subsequently accepted
treatment after lab results confirmed the seriousness of her conditioin
[sic] and additional counseling was provided by ICE facility medical
staff.
As Ms. Arellano’s health deteriorated, she was closely monitored at the
detention facility, and was sent to a local hospital emergency department
twice for evaluation and/or treatment. During the first visit, ICE facility
medical staff questioned the hospital about the possible need for
admission, but the hospital staff indicated that they were aware of Ms.
Arellano’s lab results and had consulted with the infectious disease
specialist before returning her to the detention facility. Ms. Arellano
refused her HIV medications several times at the detention facility over
the next two days, and she was admitted to the hospital again, three days
after her initial visit. Her condition continued to deteriorate while in the
hospital, in spite of aggressive treatment.
Evaluation and treatment of all transgender detainees involve a multidisciplinary team to
include medical, mental health, pharmacy, nursing, and administrative staff. All detainees
in ICE custody who identify as transgender are immediately referred to mental health for an
evaluation to determine a diagnosis of gender dysphoria and/or other mental health
conditions. Transgender detainees also receive a complete physical exam within two
businesses [sic] days of intake, to include a screening of blood borne pathogens and
sexually transmitted infections. If treatment for gender dysphoria is clinically indicated,
medical providers will provide hormone therapy, and the detainee will be counseled
regarding the risks/benefits as well as reasonable expectations of hormone treatment.
Frequency of mental health appointments will also follow as deemed clinically appropriate
by the mental health provider.
Per ICE detention standards medical personnel provide all detainees diagnosed with
HIV/AIDS medical care consistent with national recommendations and guidelines. Medical
and pharmacy personnel ensure timely and confidential access to medications. Upon
release, detainees currently receiving highly active antiretroviral therapy and other drugs
shall receive up to a 30-day supply of their medication as medically appropriate.
In January 2013, an automated Risk Classification Assessment (RCA) Tool was
implemented nationwide to aid ICE officers in assessing whether apprehended individuals
have any known special considerations due to, among other special vulnerabilities, their
gender identity or sexual orientation. An ICE supervisor must approve a determination to

215
Dissenting Statement of Commissioner Heriot
detain any alien who is not subject to mandatory detention or to override an RCA
recommendation to release an alien based on such factors as public safety and flight risk.
Additionally, in June 2015, ICE issued a memorandum titled “Further Guidance Regarding
the Care of Transgender Detainees (Transgender Care Memorandum).” This memorandum
is intended to complement existing ICE detention standards, ICE policy and DHS
regulations, and is another step in furthering our progress of caring for transgender
individuals.” 70
The Report makes it sound like the failure to treat Ms. Arellano with drugs was a case of
gross neglect. The letter, however, if true (and I have no reason to doubt it), shows the
problem was more complicated. Ms. Arellano claimed to be allergic to the relevant
HIV/AIDS drugs and initially refused treatment.
The Report also lists more five specific cases for which it did no real investigation. While I
have made efforts to learn about the circumstances surrounding these cases, those efforts
did not pan out in the limited time I had to do the research. Nevertheless, there are a few
comments I can make just based on the information contained in the Report itself.
One of cases was alleged by witness Maria Hinojosa to have occurred several years ago at
Willacy, back when it was indeed an immigration detention facility. She reported that in
connection with a story she put together for PBS’s Frontline in 2010-2011, she sought out
individuals who had been held at Willacy and found “Andre,” who suffers from bipolar
disorder. He told her that he had been overmedicated at Willacy and hence slept for 36
hours, during which time he fell from his top bunk and hit his head on the floor, resulting in
a broken eye socket bone and a ruptured testicle.
It is unclear from Ms. Hinojosa’s testimony when this case occurred or whether she had
verified “Andre’s” statement to her in any way. But even if she did, it is worth pointing out
that getting the right level of medication for a bipolar patient is not an easy thing. It is
largely a matter of trial and error until you get it right. One popular web site has this to say
on the matter:
It can take a while to find the right bipolar medication and dose. Everyone
responds to medication differently, so you may have to try several bipolar
disorder drugs before you find the one that works for you. Be patient, but
don’t settle for a bipolar medication that makes you feel lousy, either. Once
you've discovered the right bipolar disorder drug or drug cocktail, it may
still take time to determine the optimal dose. In the case of mood stabilizing
70

Letter to Gail Heriot & Peter Kirsanow from ICE Deputy Director Daniel H. Ragsdale.

216

Commissioner Statements and Rebuttals
medications such as lithium, the difference between a beneficial dose and a
toxic one is small. 71
To use this case to prove wrongdoing on the part of the medical personnel at Willacy is
stretching things.
This was not the only example of the five that seemed a bit strained. The report refers to a
man who died of cancer a few days after being admitted to the hospital. According to the
report, the man was displaying signs of illness for three weeks prior to his death while at
the Adelanto Detention Facility in California. But if he was suffering from cancer, it is
highly doubtful that a quicker diagnosis would have saved him. Another accusation—this
one against the Northwest Detention Center in Tacoma, Washington—was that a detainee
suffered a severe nosebleed and did not receive attention for 24 hours. While the detainee
claimed that he “almost drowned” in his own blood, this sounds very dubious. The
nosebleed apparently took place during a hunger strike that the particular detainee helped
organize to protest deportations and other unspecified grievances.
That leaves two accusations that seem more troubling—one at Karnes and one at the
Denver Contract Detention Facility. The Denver case involved a 46-year-old detainee who
suffered a heart attack and died. At first glance, one might think that an individual having a
heart attack might be lucky to be at a detention center at the time, since medical personnel
are right at hand 24 hours a day, seven days a week, but in this case it did not turn out that
way. We have been informed that there was a routine investigation by the ICE Office of
Detention Oversight (as I believe there is whenever a detainee dies). It “‘concluded that the
detention facility had “failed to provide [the detainee] access to emergent, urgent, or nonemergent medical care.”’” Note the triple quotes. I am quoting the report, which in turn is
quoting ACLU Staff Attorney Carl Takei, who in turn was quoting the ODO report, which
the Commission didn’t actually see. Note that the quoted passage is curiously general: The
detention failed to provide access to “emergent, urgent or non-emergent” care. Exactly
what was the problem? Why didn’t the Commission get the actual report? The second quote
in the report on this topic reads, “The ODO investigation expert ‘concluded that the staff’s
unfamiliarity with the relevant protocol, failure to administer appropriate cardiac
medication, and delays in transporting the patient to a higher level care facility all may have
been contributing factors to his death.’” But this is a quote from Mr. Takei, an advocate
who is just doing his job if he puts things in an unflattering way for the detention facility; it
does not come from the ODO report. What’s wrong with this picture?
The second troubling case involved a seven-year-old Salvadoran girl whose mother told the
Border Patrol upon arrival in the United States that her daughter needed immediate
71

Available at http://www.helpguide.org/articles/bipolar-disorder/bipolar-medication-guide.htm.

217
Dissenting Statement of Commissioner Heriot
treatment for a malignant brain tumor. Again, I wish the Commission had sought out the
facts on this one rather than relying entirely on the work of journalists and advocates. They
have their job, but we have our job too.
As told by Grassroots Leadership and the media, the story is that the girl—Nayely
Beltran—had been receiving treatment for her condition for three years in El Salvador.72
During that period, she had received both chemotherapy and surgery, and shunt had been
planted in her brain. But more work was needed. “Nayely’s MRI results have been
analyzed by three U.S.-trained doctors who recommend immediate care so that her
condition does not become life-threatening,” wrote Grassroots Leadership on their
website. 73 According to Dr. Simon Carlson, a Austin, Texas neuro-radiologist, “This is a
case which can become life threatening in very short order, which can take a turn for the
worse with little to no forewarning, with devastating outcomes.”
According to media accounts, it took a month for mother and daughter to be released from
Karnes and that was only after a public outcry. Why did it take so long? Was this a serious
failure of management at Karnes? Or is this a side to this story we don’t know about? All
the Commission knows is what we read in the papers: “U.S. Immigration and Customs
Enforcement would not comment on the case.” 74 Put differently, we know that we don’t
know ICE’s side of the story. We could have asked, and ICE would have been obligated to
respond under our statute, which requires federal agencies to cooperate with us. 75 We
didn’t try.
F. Post Script: The Commission May Not Have Jurisdiction Over This Issue.
Our statute gives us jurisdiction to study “discrimination or denials of equal protection of
the laws under the Constitution of the United States because of color, race, religion, sex,
age, disability, or national origin, or in the administration of justice.” It does not give us
jurisdiction to study anything else. 76

See, e.g., Joy Diaz, After Crossing Four Borders, Migrant Family Faces Two More Critical Battles,
KUT.org (September 15, 2014)(“for the last three years she has been in and out of hospitals”).

Seven Year Old With Brain Tumor Being Denied Life Saving Treatment in Detention, Grassroots
Leadership (August 31, 2014).

Lydia Warren, Seven-Year-Old Salvadoran Girl with Brain Tumor is Released from Immigrant Detention
Center So That She Can Get Treatment After Uproar, Daily Mail (September 4, 2014).
75

42 U.S.C. 1975b(e) (“All Federal agencies shall cooperate fully with the Commission to the end that it may
effectively carry out its functions and duties.”)

The Commission is also required to investigate allegations in writing under oath or affirmation relating to
deprivations as result of any pattern or practice of fraud of the right of United States citizens to vote or have
their votes counted (apparently without regard to any relationship to color, race, religion, sex, age disability or
national origin. 42 U.S.C. § 1975(3)(a)(1)(B). But that is not this case.

218

Commissioner Statements and Rebuttals
At one point in the report, it appears to rely on the notion that this report has a jurisdictional
hook in “national origin” discrimination. But that argument has been easily dismissed. It
was foreclosed by cases like Espinoza v. Farah Manufacturing, 414 U.S. 86 (1973)(holding
that a prohibition on national origin discrimination does not extend to discrimination on the
basis of citizenship). 77 The Border Patrol does not discriminate on the basis of one’s
ethnicity; it discriminates against those who are neither citizens of the United States nor
authorized visitors or residents.
The report therefore seems to place alternative reliance on the argument that our
jurisdiction over “discrimination or denials of equal protection of the laws under the
Constitution of the United States“ extends broadly to anything “in the administration of
justice.” Since the immigration detention system is part of the “administration of justice,” it
doesn’t matter that no discrimination or denial of equal protection occurred “because of
color, race, religion, sex, age, disability or national origin.”
There is support for the argument that the statute gives us jurisdiction to study
“discrimination and denials of equal protection” that occur “in the administration of justice”
regardless of whether they occur because of color, race, religion, sex, age, disability, or
national origin. First of all, the phrase “or in the administration of justice” is placed after
the phrase “because of color, race, religion, sex, age, disability, or national origin.” Second,
Senator Hubert H. Humphrey specifically said on the floor of Congress that the
Commission’s jurisdiction extended to “denials of equal protection because of race, color,
religion or national origin, and denials of equal protection in the administration of justice,
whether or not related to race, color, religion, or national origin.” The statement was made
after the passage of the 1957, but before some of the re-promulgations of our statute.
I have my doubts about Senator Humphrey’s interpretation. Why would Congress authorize
such broad jurisdiction in connection with ill-defined terms like the administration of
justice? But even assuming Senator Humphrey’s interpretation of the text is correct, I am
not sure it authorizes this report. The Commission uncovered no evidence of discrimination
or denials of equal protection on any ground. The report argues that detention is a denial of
due process under the Fifth Amendment and also invokes at times the First and Eighth
Amendments. But at no time is the complaint that some person is being discriminated
against relative to some other person.
No one claims that it is inappropriate to treat undocumented immigrants or legal
immigrants who violate the criminal law differently from others. There are obviously
rational reasons to make such distinctions. The complaint isn’t that these detainees are
77

See also Morton v. Mancari, 417 U.S. 535 (1974)(holding that discrimination in favor of tribal members in
hiring by the Department of the Interior is not race or national origin discrimination, but rather discrimination
on the basis of membership in a quasi-sovereign tribal entity).

219
Dissenting Statement of Commissioner Heriot
being treated badly relative to some otherwise similarly situated person, the complaint is
that nobody (or at least nobody who hasn’t been convicted of a crime) should be treated that
way.

220

Commissioner Statements and Rebuttals

Dissenting Statement of Commissioner Peter Kirsanow
The Commission Lacks Jurisdiction Over Immigration Detention Facilities
When the Commission voted to examine the state of civil rights in immigration detention
facilities as our 2015 enforcement report topic, Commissioner Heriot and I both expressed
our concern that this topic was not within the Commission’s jurisdiction. 1 I realize that the
Commission issued a report on immigration over thirty years ago, but this topic was not
really within our jurisdiction then or now. 2 The final report settled upon national origin
discrimination as our jurisdictional hook, with a bootstrap to a statement by then-Senator
Hubert Humphrey. This is a stretch. Of course people of non-American national origin will
be disproportionately likely to be affected by immigration policy. People of American
national origin will not be detained in immigration detention facilities, except in unusual
situations where they encounter immigration authorities but lack documentation of their
citizenship. In 1980 and today, the report is merely a vehicle for the Commission to express
its view on immigration policy, which differs sharply from that of the majority of the
public, many of the states, and many members of the legislative branch.
The majority tries a neat trick to find discrimination that will provide a jurisdictional hook.
People in immigration detention facilities are by definition almost all of non-American
national origin. Most of the people who cross the border illegally are from Latin America,
and therefore most of the illegal border crossers who are in immigration detention facilities
are Latino. Presto, the majority says, we have discrimination on the basis of ethnicity!
Because the overwhelming majority of people who break the law in this way are from Latin
American countries, somehow there is racial discrimination going on and the Commission
has jurisdiction. This makes no sense. Just because people of a particular ethnic group or
national origin are more likely than others to break a particular law does not mean there is a
civil rights component. Would the Commission claim that it has jurisdiction to examine the
treatment of people convicted of insider trading if those people are disproportionately
white? Such a suggestion is ludicrous. It also would never happen, because the entire
immigration debate, at this Commission and in public discourse, has fallen captive to
special pleading.
When the Commission voted to adopt this statutory enforcement report topic, it was
ostensibly limited to examining whether immigration detention facilities comply with
certain federal guidelines.

U.S. COMMISSION ON CIVIL RIGHTS, July 25, 2014 Business Meeting Transcript, at 25-30, available at
http://www.usccr.gov/calendar/trnscrpt/CommissionBusinessMeetingTranscript_July-25-2014.pdf.
2

U.S. COMMISSION ON CIVIL RIGHTS, THE TARNISHED GOLDEN DOOR: CIVIL RIGHTS ISSUES IN IMMIGRATION
(1980), available at http://files.eric.ed.gov/fulltext/ED198197.pdf.

Dissenting Statement of Commissioner Kirsanow
The focus of the briefing would be on denials of equal protection in the
administration of justice as to immigrant detainees and unaccompanied
minors in detention facilities. Specifically, this briefing will focus on DHS
ICE’s responsibilities and duties to these immigrants under federal legal
standards of care in detention facilities with a special emphasis on the
Performance Based National Detention Standards (PBNDS) and the Prison
Rape Elimination Act (PREA). 3
The concept paper that the Commission voted to adopt is a model of modesty and restraint
compared to the final report. The final report is of a piece with the Administration’s efforts
to gut the enforcement of the immigration laws. The report discusses President Obama’s
initiatives to suspend the deportation of millions of illegal immigrants and grant them work
authorizations, which it characterizes as “attempting to fix the U.S. immigration system.” 4
This is hardly a neutral description of the President’s actions. One could just as easily point
out that the President’s efforts to fix the U.S. immigration system along his preferred lines
have further eroded the rule of law and dealt a serious blow to our government’s separation
of powers. Indeed, as of this writing, at least two federal courts have found the President’s
actions in this regard suspect. 5
Illegal Aliens’ Involvement in Crime
The report then perambulates along to the public debate regarding illegal aliens and crime,
where it clumsily and ineffectually tries to smear those who are concerned about illegal
aliens’ involvement in crime. 6 Here the report stumbles. 7 This section of the report is
3

Chairman Martin Castro, The State of Civil Rights at Immigration Detention Facilities, June 2014 at (on file
with the Commission).
4

Report at 5.

Tex. v. U.S., 2015 WL 648579 (S.D. Tex. 2015); Tex. v. U.S., 787 F.3d 733 (5th Cir. 2015).

Report at 15-16.

Report at 15-16.
Some political groups advance the rhetoric that undocumented immigrants are mostly criminals.
However, statistical research indicates that their allegations are unfounded. According to the PEW
Research Center data set, there were 11.2 million undocumented immigrants living in the United States
in 2013. Of those 11.2 million immigrants, only 88,000 were convicted criminals. Therefore, the
criminal percentage rate for undocumented immigrants is roughly 0.7 percent. When admitting
immigrants to ICE detention facilities, ERO uses a classification system that separates detainees by
threat risk and assigns special vulnerability classifications. According to a 2014 Government
Accountability Office (GAO) report, “[f]rom fiscal years 2010 through 2013, about 44 percent of ICE
detainees were . . . low custody, 41 percent were of a medium custody level, and 15 percent were of a
high custody level. Furthermore, a recent study by the American Immigration Council entitled, “The
Criminalization of Immigration in the United States” concludes that immigrants are less likely to
commit crimes than native born Americans, and higher immigration rates equate with lower crime rates.
[citations omitted]

221

222

Commissioner Statements and Rebuttals
willfully misleading. It misuses the statistics it cites, and although this was pointed out in
comments on the draft report, it is still in the final report. I address the American
Immigration Council report later in this statement.
The report cites a Center for Immigration Studies report about criminal aliens released by
ICE in 2013 and a 2014 GAO report. Here are the problems with the report’s “analysis” of
these two sources:
1.

4.
5.

The report states that the CIS report said that there were 88,000 illegal aliens who
were convicted criminals. In fact, the CIS report specifically says that in 2013 ICE
released 36,007 convicted criminal aliens. These criminal aliens had 87,818
convictions between them. Somehow, even though this was noted in comments on
the draft report, it still was included in the final report.
The CIS report only looked at criminal aliens who were released by ICE in 2013. It
does not include the number of criminal aliens who were not released by ICE. Nor
does it include the number of criminal aliens released by ICE in other years, which
is necessary if one is to calculate the prevalence of criminal aliens among the illegal
alien population, given that the illegal alien population is cumulative.
The report does not count criminal aliens who are incarcerated in state and local
jails and prisons, only those who were released by ICE. The number of aliens
incarcerated in state and local jails and prisons is discussed below.
The report does not consider the criminal records aliens may have accrued in their
home countries.
The report quotes a GAO study that discusses the classification of detainees, but it
does not explain how ICE determines the classifications. 8 After examining ICE’s

ICE’s custody classification system states that the low custody level “May include detainees with minor
criminal histories and non-violent felony charges and convictions.” PBNDS 2011 (AS MODIFIED BY
FEBRUARY 2013 ERRATA), at 75, available at http://www.ice.gov/doclib/detentionstandards/2011/classification_system.pdf. If you examine ICE’s Custody Classification, you see that “low
custody” are detainees with 0-2 points, medium-low custody are detainees with 3-5 points, medium-high
custody are detainees with 6-11 points, and high custody are detainees with 12+ points. Id. at 80. ICE officers
fill out the sheet by examining “the most serious charge/conviction that led to the [ICE] encounter.” Id. at 82.
Points are assigned based on the seriousness of the offense. Then the officers examine the detainee’s criminal
history, if any, and points are assigned based on the seriousness of the offenses and how much time has
elapsed. Id. at 82-83.
It is worth discussing ICE’s “Severity of Offense” classification system. The “low” category includes driving
under the influence, leaving the scene of an accident, battery, possession of marijuana, worthless checks, and
carrying a concealed weapon (other than firearm). Id. at 87. These offenses result in 0-2 points, depending on
how much time has elapsed since the offense occurred. Id. at 79. The “moderate” category includes armed
trespass, burglary, carrying a concealed firearm, grand theft, and “manslaughter.” Id. at 87. These offenses
result in 1-4 points, depending on how much time has elapsed. Id. at 79. The “high” category includes
aggravated battery, aggravated child abuse, extortion, and armed robbery. Id. at 86. These offenses result in 56 points. Id. at 79. The “highest” category includes murder, kidnapping, and sexual battery (with violence
upon a minor). Id. at 86. These offenses result in 5-7 points. Id. at 79.

Dissenting Statement of Commissioner Kirsanow
custody classification system, it is almost certain that at least 56 percent of ICE
detainees have been involved in criminal activity.
The report does not consider the number of criminal aliens incarcerated in state and local
jails and prisons. According to GAO, in FY 2009 295,959 SCAAP criminal aliens, 9 of
whom approximately 227,600 are illegal aliens, 10 were incarcerated in state jails and
prisons. This is a 40 percent and 25 percent increase, respectively, in criminal alien
incarcerations in state jails and prisons since FY 2003. 11

Detainees can also be assigned points for being members of “security threat groups” such as gangs, and if
they have a record of institutional disciplinary infractions. Id. at 83. Using the classification system, this
means that at least 56 percent of the inmates either have committed sufficient offenses to wind up with at least
three points, have a pattern of institutional disciplinary problems, or belong to gangs or other criminal
organizations. It is likely that some of the remaining 44 percent classified as “low” also have arrests and
convictions for some offense, as the checklist contemplates that some offense has brought them into contact
with ICE in the first place. In short, contra the report, it is almost certain that at least 56 percent of ICE
detainees have been involved in criminal activity.
9

The State Criminal Alien Assistance Program (SCAAP) partially reimburses states and localities for the cost
of incarcerating certain criminal aliens. It does not reimburse states and localities for the cost of incarcerating
criminal aliens who are in the country legally. There are two types of criminal aliens for which SCAAP will
reimburse the incarcerating authority: SCAAP illegal aliens, whom DHS has definitively determined are in
the country illegally; and SCAAP unknown aliens, for whom DHS is unable to find a record, but who are
probably in the country illegally. See generally GAO, CRIMINAL ALIEN STATISTICS: INFORMATION ON
INCARCERATIONS, ARRESTS, AND COSTS, at 1-6 (March 2011), available at
http://www.gao.gov/assets/320/316959.pdf.
10

In FY 2009, there were 295,959 SCAAP criminal aliens incarcerated in state and local jails and prisons. Of
SCAAP criminal aliens incarcerated in state prisons, “about 63,000 were SCAAP illegal aliens and about
28,000 were SCAAP unknown aliens. We did not include about 1,300 inmates of unknown country of birth.”
GAO, CRIMINAL ALIEN STATISTICS: INFORMATION ON INCARCERATIONS, ARRESTS, AND COSTS, at 13 (March
2011), available at http://www.gao.gov/assets/320/316959.pdf. a Of SCAAP criminal aliens incarcerated in
local jails, “about 60,000 were SCAAP illegal aliens and about 144,000 were SCAAP unknown aliens. We
did not include about 1,000 inmates of unknown country of birth.” Id. at 14.
DOJ uses a reimbursement metric based on how many SCAAP unknown aliens are believed to be illegal
aliens. “DOJ is to reimburse states for 65 percent, cities for 60 percent, and counties for 80 percent of
correctional salary costs associated with unknown aliens. According to DOJ officials, this methodology was
developed based on analysis that the former Immigration and Naturalization Service (INS) conducted in 2000
where it analyzed the records of aliens submitted for SCAAP reimbursement in 1997 whose immigration
status was at that time unknown. Based upon this analysis, INS determined that 65 percent of those unknown
aliens submitted for reimbursement by states did not have legal status, 60 percent submitted for
reimbursement by cities did not have legal status, and 80 percent submitted for reimbursement by counties did
not have legal status.” Id. at 47.
Using DOJ’s metrics, it therefore appears that approximately 81,200 SCAAP criminal aliens incarcerated in
state prisons, out of a possible 91,000 examined by GAO, were in the country illegally. Using those same
metrics, approximately 146,400 to 175,200 SCAAP criminal aliens incarcerated in local jails, out of a
possible 204,000 examined by GAO, were in the country illegally. (The range is because “local jails” are not
differentiated into city and county jails, but DOJ believes that the percentage of illegal aliens within the
SCAAP unknown alien group varies between the two.)
11

Id. at 10.

223

224

Commissioner Statements and Rebuttals
The crimes for which the SCAAP illegal aliens were incarcerated are not predominantly
minor crimes. GAO examined five states that had large SCAAP illegal alien populations in
2008 – Arizona, California, Florida, New York, and Texas. Arizona was the only state
where traffic offenses were a substantial percentage of SCAAP illegal alien convictions.
Setting aside traffic offenses, 41 percent of the SCAAP illegal alien convictions in Arizona
were for drug offenses and assault. 12 In California, “about 50 percent of California’s
primary convictions related to SCAAP illegal aliens were for drugs, assault, and sex
offenses.” 13 Texas had a similar breakdown of SCAAP illegal alien offenses. 14 In Florida,
“about 50 percent of all Florida state convictions of SCAAP illegal alien inmates were for
drugs, sex offenses, burglary, and robbery”. 15 And, shockingly, in New York, 27 percent of
SCAAP illegal alien primary convictions were for homicide – more than the 23 percent
convicted for drug-related offenses. 16
There were 5,000 SCAAP illegal aliens incarcerated in New York in 2008. This means that
there were approximately 1,350 SCAAP illegal aliens imprisoned for homicide in New
York. There were approximately 2,430 SCAAP illegal aliens imprisoned for homicide in
California, 900 in Texas, 480 in Florida, and 240 in Arizona, for a total of 5,400 in those
five states.
By way of comparison, in 2009 there were 3,484 total inmates incarcerated in Arizona state
prisons for homicide and related offenses (first degree murder, second degree murder,
murder (old code), manslaughter, and negligent homicide). 17 Removing the estimated 240
illegal aliens from that total leaves us with 3,244 citizens and legal residents imprisoned for
homicide-related offenses out of a total population of approximately 6.3 million residents.18
The Pew Research Center estimates that approximately 350,000 illegal immigrants lived in
Arizona in 2009. 19 That leaves approximately 6 million citizens and legal residents in
Arizona. This yields a rate of 68.57 illegal aliens imprisoned for homicide offenses per
100,000 illegal aliens in Arizona, and 54.06 citizens and legal residents imprisoned for
homicide offenses per 100,000 citizens and legal residents in Arizona.
12

Id. at 28.

Id. at 29.

Id. at 33.

Id. at 30.

Id. at 32.

DARYL R. FISHER, PRISONERS IN ARIZONA: A PROFILE OF THE INMATE POPULATION, ARIZONA
PROSECUTING ATTORNEYS ADVISORY COUNCIL, available at 15-16 (March 2010),
http://apaac.az.gov/images/stories/prisoners_in_arizona-033010.pdf.
18
19

U.S. CENSUS BUREAU, Arizona QuickFacts, http://quickfacts.census.gov/qfd/states/04000.html.

Jeffrey S. Passel and D’Vera Cohen, Unauthorized Immigrant Totals Rise in 7 States, Fall in 14, PEW
RESEARCH CENTER (Nov. 18, 2014), http://www.pewhispanic.org/2014/11/18/unauthorized-immigrant-totalsrise-in-7-states-fall-in-14/.

Dissenting Statement of Commissioner Kirsanow

In California, there were 28,030 inmates incarcerated for homicide and related offenses
(first degree murder, second degree murder, manslaughter, and vehicular manslaughter) in
December 2009. 20 Using GAO’s 2008 estimate, there were approximately 2430 illegal
aliens imprisoned in California for homicide and related offenses. The total population of
California was approximately 37 million 21 , and the illegal alien population was
approximately 2.5 million. 22 Applying the same analysis as above, this yields an estimated
rate of 97.2 illegal aliens imprisoned for homicide and related offenses per 100,000 illegal
aliens, and 74.1 citizens and legal residents imprisoned for homicide and related offenses
per 100,000 citizens and legal residents.
Florida incarcerated 12,684 inmates for murder and manslaughter offenses in 2008-2009.23
Approximately 480 were illegal aliens. The total population of Florida was approximately
18.8 million 24 and the illegal alien population was approximately 875,000. 25 This yields an
estimated rate of 54.85 illegal aliens imprisoned for murder and manslaughter per 100,000
illegal aliens, and 67.8 legal residents imprisoned for murder and manslaughter per 100,000
legal residents.
At the beginning of 2010, there were 10,254 prisoners incarcerated in New York for murder
and manslaughter offenses (murder, first-degree manslaughter, second-degree
manslaughter, other homicide). 26 Approximately 1,350 were illegal aliens. The total
population of New York was approximately 19.3 million27, and the illegal alien population

DEPARTMENT OF CORRECTIONS AND REHABILITATION, OFFENDER INFORMATION SERVICES BRANCH,
ESTIMATES AND STATISTICAL ANALYSIS SECTION, DATA ANALYSIS UNIT, CALIFORNIA PRISONERS AND
PAROLEES 2009: SUMMARY STATISTICS ON ADULT FELON PRISONERS AND PAROLEES, CIVIL NARCOTIC
ADDICTS AND OUTPATIENTS AND OTHER POPULATIONS, at 16 (2010),
http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Branch/Annual/CalPris/CALPRI
Sd2009.pdf.
21

U.S. CENSUS BUREAU, California Quick Facts, http://quickfacts.census.gov/qfd/states/06000.html.

FLORIDA DEPARTMENT OF CORRECTIONS, 2008-2009 AGENCY STATISTICS, INMATE POPULATION, GENERAL
CHARACTERISTICS OF POPULATION, http://www.dc.state.fl.us/pub/annual/0809/stats/ip_general.html.
24

U.S. CENSUS BUREAU, Florida QuickFacts, http://quickfacts.census.gov/qfd/states/12000.html.

STATE OF NEW YORK DEPARTMENT OF CORRECTIONAL SERVICES: UNDER CUSTODY REPORT, PROFILE OF
INMATE POPULATION UNDER CUSTODY ON JANUARY 1, 2010, at 12,
http://www.doccs.ny.gov/Research/Reports/2010/UnderCustody_Report_2010.pdf.
27

U.S. CENSUS BUREAU, New York Quick Facts, http://quickfacts.census.gov/qfd/states/36000.html.

225

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Commissioner Statements and Rebuttals
was approximately 800,000. 28 This yields an estimated rate of 168.75 illegal aliens
incarcerated for murder and related offenses per 100,000 illegal aliens, and 48.12 legal
residents incarcerated for murder and related offenses per 100,000 legal residents.
In Texas in 2008-2009, 16,178 people were incarcerated for homicide. 29Approximately 900
of them were illegal aliens. The total population of Texas was roughly 25 million30, and the
illegal alien population was roughly 1.65 million. 31 This yields a rate of 54.54 illegal aliens
incarcerated for homicide per 100,000 illegal aliens, and 65.43 legal residents incarcerated
for homicide per 100,000 legal residents.
Taking the data only from these five states, and assuming that each person incarcerated for a
homicide-related offense is responsible for only one death, yields 5,400 people killed by
illegal aliens. By way of comparison, the total combat death toll for the wars in Iraq and
Afghanistan was 5,313. 32
GAO also requested information from DOJ regarding the citizenship status of the 399
people who at the time had been convicted of crimes in the course of a federal terrorismrelated investigation. 33 17 percent were in the country illegally at the time they were
charged.
A recent study issued by the American Immigration Council argues that immigrants (by
which they mean both legal and illegal immigrants) are less likely to engage in crime than
are their native-born demographic counterparts. 34 The study also muddles statistics to
suggest that criminal aliens are primarily incarcerated for immigration violations. This is
true in federal prison, but not in state prisons and jails. The pertinent paragraph is excerpted
below so it can be explained in detail.
28

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, STATISTICAL REPORT FISCAL YEAR 2009, at 9,
https://www.tdcj.state.tx.us/documents/Statistical_Report_FY2009.pdf.
30

U.S. CENSUS BUREAU, Texas QuickFacts, http://quickfacts.census.gov/qfd/states/48000.html.

PEW RESEARCH CENTER, Unauthorized Immigrants in the U.S., 2012 (Nov. 18, 2014), (showing no
significant change in Texas since 2009), http://www.pewhispanic.org/interactives/unauthorized-immigrants2012/map/population-change/.
32

See DEPARTMENT OF DEFENSE, Defense Casualty Analysis System, Conflict Casualties,
https://www.dmdc.osd.mil/dcas/pages/casualties.xhtml.
33

GAO, CRIMINAL ALIEN STATISTICS: INFORMATION ON INCARCERATIONS, ARRESTS, AND COSTS, at 24-25
(March 2011), available at http://www.gao.gov/assets/320/316959.pdf..
34

Walter A. Ewing, Daniel MartÍnez, and Rubén G. Rumbaut, The Criminalization of Immigration in the
United States, AMERICAN IMMIGRATION COUNCIL (July 8, 2015), http://www.immigrationpolicy.org/specialreports/criminalization-immigration-united-states.

Dissenting Statement of Commissioner Kirsanow

Although there is no reliable source of data on immigrants incarcerated in
state prisons and local jails, the U.S. Government Accountability Office
(GAO) sought to overcome this limitation in a 2011 study. Not only did the
study examine immigrants in federal prison during the Fiscal Year (FY)
2005-2010 period, but also non-federal immigrant prisoners for whom state
and local governments had sought reimbursement of some incarceration
costs through the U.S. Department of Justice’s State Criminal Alien
Assistance Program (SCAAP) during the FY 2003-2009 period. The GAO
found that, among immigrant prisoners in its sample, 65 percent had been
arrested at least once for (though not necessarily convicted of) an
immigration violation, 48 percent for a drug offense, and 39 percent for
traffic violations – all of which are generally non-violent acts. In
comparison, 8 percent had been arrested at least once for homicide and 9
percent for robbery. The GAO also analyzed data from the U.S. Sentencing
Commission and found that, in FY 2009, the “federal primary conviction”
for 68 percent of offenders who were immigrants was an immigrationrelated violation – not a violent offense or any sort of crime which could be
construed as a threat to public safety. 35
There are several problems with these assertions, which I will address in turn.
1.

By juxtaposing SCAAP with immigration violations, the article implies that many
SCAAP prisoners incarcerated in state and local jails and prisons are incarcerated
because of immigration violations. This is misleading, as SCAAP prisoners are
incarcerated for violations of state law, not federal law, and immigration offenses
are primarily violations of federal law. As discussed above, GAO analyzed the
offenses for which SCAAP prisoners were incarcerated in the five states that
incarcerated 70 percent of SCAAP prisoners. 36 Immigration was not one of the
primary offenses in any of the states that GAO examined 37 , and in only one
(Arizona) was immigration even one of the offenses included in the “other”
category. The number of illegal immigrants incarcerated for state immigration
violations is vanishingly small. And perhaps AIC considers drug offenses and traffic
violations (which, if you are incarcerated, almost certainly are DUIs) to be minor
offenses that do not pose a threat to public safety, but clearly the American public
disagrees or incarceration would not be the penalty for those crimes.

Id. at 8-9.

GAO, CRIMINAL ALIEN STATISTICS: INFORMATION ON INCARCERATIONS, ARRESTS, AND COSTS, at 3 (March
2011), available at http://www.gao.gov/assets/320/316959.pdf.

Id. at 28-34.

227

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Commissioner Statements and Rebuttals
2.

The AIC study suggests that criminal aliens are underrepresented in jails and
prisons. However, the GAO report stated that in 2009, DHS estimated there were
10.8 million illegal aliens in the United States. In 2010, the U.S. population was
308.7 million. 38 This means that illegal aliens constituted approximately 3.5 percent
of the U.S. population in 2009. And yet, “In fiscal year 2009, SCAAP criminal
aliens accounted for about 6 percent of the total number of days spent by all inmates
in these 810 local jails compared to about 5 percent in fiscal year 2003.” 39

The AIC report argues that illegal immigrants are less likely to engage in criminal behavior
than are native-born Americans because poorly educated 18-39 year old Salvadorans,
Guatemalans, and Mexicans are less likely to be incarcerated than poorly educated 18-39
year old Americans. Unfortunately, the authors of the study do not identify the tables from
the American Community Survey that they used to reach their conclusions, so it is difficult
to analyze their work. 40 Although their conclusions may be true, it still raises a question:
Why should Americans draw comfort from the fact that illegal immigrants commit crimes
at a lower rate than the American subgroup most likely to be engaged in criminality? One
would hope that if one is letting people into one’s country, those new arrivals would as a
group be as law-abiding as the most law-abiding native-born American group.
The AIC report also draws upon a study that analyzed the Pathways to Desistance Project 41
and found that 14-17 year-old first-generation immigrants who were convicted of a serious
offense desisted from crime more quickly than did the other participants in the study. 42
There are a couple things to keep in mind when reviewing this study. The first is that the
study only examined adolescents who had been convicted of serious crimes, so we are
already dealing with a troublesome group of people. 43 The second is that second-generation
immigrants (those with at least one foreign-born parent) are as likely as their native-born
counterparts to persist in crime (this study uses “native-born” as a term of art to refer to
children born to two parents who were also born in the United States). 44 This is important
38

PAUL MACKUN AND STEVEN WILSON, POPULATION DISTRIBUTION AND CHANGE: 2000-2010, U.S. CENSUS
BUREAU (2011), http://www.census.gov/prod/cen2010/briefs/c2010br-01.pdf.
39

GAO, CRIMINAL ALIEN STATISTICS: INFORMATION ON INCARCERATIONS, ARRESTS, AND COSTS, at 11
(March 2011), available at http://www.gao.gov/assets/320/316959.pdf.

Ewing, et al., supra note 34, at 7-8, n. 38.

Carol A. Schubert, et al., Operational Lessons from the Pathways to Desistance Project, Jan. 1, 2004, HHS
Public Access Author Manuscript, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2813466/.

Ewing, et al., supra note 34, at 9; Bianca E. Bersani, Thomas A. Loughran, and Alex R. Piquero,
Comparing Patterns and Predictors of Immigrant Offending Among a Sample of Adjudicated Youth, JOURNAL
OF YOUTH AND ADOLESCENCE 43, no. 11, 1914 (November 2014).
43
44

Bersani, et al., supra note 42, at 1919.

Id. at 1927 (“second generation immigrants offending patterns map more closely on to those observed for
their native born peers once again establishing that, even among a sample of at-risk youth, second generation
immigrants offend similarly to their native born counterparts”).

Dissenting Statement of Commissioner Kirsanow
when considering the link between immigration and crime, because even if first-generation
immigrants are more likely to desist from crime, they will eventually have children. And at
least according to this study, those children will be about as likely to persist in crime as
their native-born counterparts.
There is one additional wrinkle here, which is that the study does not address that secondgeneration immigrants’ behavior assimilates to that of their native-born peers in this study,
which means that their behavior is mimicking that of groups already disproportionately
involved in serious crime. The study’s participants were approximately one-third of the
juveniles adjudicated for the specified charges in Philadelphia County and Maricopa
County, Arizona during a two-year period. 45 Although the study did not seek to achieve any
particular racial balance, white participants were somewhat overrepresented relative to their
presence among those who had cases adjudicated, and blacks were somewhat
underrepresented. 46 Otherwise, the study’s racial and ethnic composition generally reflects
the racial and ethnic composition of juveniles who were found guilty of serious crimes
during this period. The differences in reoffending among the different racial and ethnic
groups studied are not that great, but the differences in representation among different
ethnic groups in the study are stark. In Maricopa County in 2000, 58.7 percent of the
population was non-Hispanic white. 47 29.6 percent of the population was Hispanic. 48 In
Philadelphia County in 2000, 42.5 percent of the population was non-Hispanic white and
8.5 percent of the population was Hispanic. 49 Yet in the underlying study, 21 percent of the
juveniles adjudicated guilty were white and 28 percent were Hispanic 50, which indicates
that whites were dramatically less likely to be adjudicated guilty of a serious offense than
their presence in the population would suggest, and Hispanics were more likely to be
adjudicated guilty of a serious offense than their presence in the population would suggest.
45

Id. at 1920.

Schubert, et al., supra note 41:
Finally, although our enrollment criteria did not include any restrictions on race, we did enroll
proportionately more White offenders (test of proportions z = 3.27, p < .005) and fewer African
Americans (test of proportions z = 3.09, p < .005). We know that this discrepancy was not related to
differential rates of participant refusal across racial groups because African Americans were not
significantly more likely to refuse. It is instead most likely that the imposition of a cap on the proportion
of the sample adjudicated on drug charges probably affected this race proportionality because there is
likely to be an association between adjudications for drug charges and race, especially among African
Americans in Philadelphia. Indeed, African Americans were significantly more likely (p = .001) to be in
the drug cap group than were other racial groups.

U.S. CENSUS BUREAU, American FactFinder, Profile of General Demographic Characteristics: 2000,
Maricopa County, Arizona, http://factfinder.census.gov/faces/nav/jsf/pages/index.xhtml.
48

Id.

U.S. CENSUS BUREAU, American FactFinder, Profile of General Demographic Characteristics: 2000,
Philadelphia County, Pennsylvania, http://factfinder.census.gov/faces/nav/jsf/pages/index.xhtml.
50

Schubert, et al., supra note 41, at Table 1.

229

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Commissioner Statements and Rebuttals
Even if you examine the percentages of whites and Hispanics petitioned but not
adjudicated, whites are underrepresented and Hispanics are overrepresented when you
consider the average of the population of the two counties, which slightly favors Hispanics
as Philadelphia is weighted a bit more heavily than Phoenix. In short, insofar as the
American Immigration Council or others claim that immigrants are less likely to be
involved in serious crime than the native-born, that claim only holds, at best, for the first
generation. And as for the second generation, who in this study are mostly Hispanic, 51, it
seems likely that they assimilate into Hispanics’ disproportionate involvement in crime
(though admittedly not as disproportionate as blacks), and not to the lower-than-expected
involvement of whites. In short, the rosy picture painted by the American Immigration
Council does not withstand scrutiny.
Determining whether illegal aliens are more or less likely to be involved in crime than are
native-born Americans and legal immigrants is interesting and important, but it is not the
crux of the matter. Any crime committed by an illegal alien is a crime committed by
someone who should not be in this country. If they were not in this country, whatever
crimes they might commit would have been committed elsewhere. This of course does not
diminish the evil or seriousness of crime committed in other countries, but it does go to the
heart of why Americans object particularly strongly to crimes committed by illegal
immigrants. Any government’s primary responsibility is to its citizens, and by refusing to
enforce the immigration laws, the government is prioritizing the interests of illegal
immigrants over the protection of citizens.
One high-profile example of this is the murder of Kathryn (Kate) Steinle in San
Francisco. Steinle, a 32-year old woman visiting San Francisco with her father, was killed,
allegedly by illegal alien Juan Francisco Lopez-Sanchez, who has been charged with
murder. 52 (Lopez-Sanchez claims the shooting was an accident.) 53 Lopez-Sanchez had been
deported from the United States five times and served almost four years in federal prison.
When Lopez-Sanchez was released from federal prison, he was discharged into the custody
of San Francisco police. ICE requested that the police notify them if Lopez-Sanchez was
about to be released so ICE could deport him again. The police refused to notify ICE
because San Francisco is a so-called “sanctuary city” that refuses to cooperate with federal
agencies’ attempts to deport illegal aliens. Ten weeks later, Kate Steinle was dead.

Bersani, et al., supra note 42, at 1920 (“the vast majority of immigrant youth in these data are of Latino
ancestry”).
52

Jaxon Van Derbeken, Carla Marinucci, and Evan Sernoffsky, Pier-slaying defendant came to S.F. at
sheriff’s request, S.F. CHRONICLE, July 8, 2015, http://www.sfgate.com/news/article/Lee-slams-Mirkarimifor-not-talking-to-6373929.php.
53

Vivian Ho, Defendant pleads not guilty in Pier 14 killing, S.F. CHRONICLE, July 7, 2015,
http://www.sfgate.com/news/article/Accused-S-F-pier-shooter-pleads-not-guilty-6371391.php.

Dissenting Statement of Commissioner Kirsanow
This is the real reason why the claim by some “sophisticates” that Americans are rubes
for being concerned about illegal aliens and crime does not get more traction with the
American people. There are actual, identifiable individuals who have been killed by illegal
aliens who would probably be alive if their killers had been deported. 54 We’re stuck with
our fellow American citizens whether we like them or not and whether they are criminals or
not. Legal immigrants have the right to be here unless they violate the law. But illegal
aliens should not be here in the first place, and if, for example, Lopez-Sanchez had been
deported, Kate Steinle would be alive. If ICE had not released illegal alien and convicted
felon Apolinar Altamirano on bond, twenty-one-year old Grant Ronnebeck would not have
been killed on the job. 55 Even if illegal aliens as a group commit crimes at a lower rate than
native-born Americans or legal immigrants, any crimes they commit are still crimes that
would not have been committed if they were not in the United States.
PBNDS and PREA
Twenty-five pages in, the report finally gets around to addressing compliance with PBNDS
and PREA, which were the ostensible bases for the report in the first place.
Here I must add a note regarding the PBNDS. There are three standards to which
immigration detention facilities are held, depending upon whether they are operated by ICE
or a private contractor, and the standards included in the private contractor’s contract.
These are the National Detention Standards (NDS), which were promulgated in 2000, the
PBNDS 2008, and the PBNDS 2011. All decent people – and most Americans are decent
people – want detainees to be treated humanely. But it seems silly to be obsessed about
whether facilities are held to the NDS, the PBNDS 2008, or the PBNDS 2011. American
prisons and detention facilities in 2000 did not resemble something out of the medieval
period. It is also highly likely that if American prisons and detention facilities adhered to
whatever the prevailing standard was in 1980, conditions would still be much better than in
the prisons of the home countries of the detainees. It is silly to be obsessed regarding
whether a facility adheres to the 2000, 2008, or 2011 standard. It is also an indication of
how humane our detention system is that it had new, updated standards a mere three years
after promulgating the 2008 PBNDS, and also is an indication of how hard the majority
must strain to portray the detention facilities as some sort of gulag.
In a system that handles tens of thousands of detainees every year, it is likely that some
detainees do not receive medical care as quickly as they ought. Such failures are an
opportunity for ICE to correct its procedures. Yet it is telling that although Commissioners
54

EJ Montini, Deport criminal immigrants to save guys like Grant, THE ARIZONA REPUBLIC, July 1, 2015,
http://www.azcentral.com/story/ejmontini/2015/07/01/rep-matt-salmon-grant-ronnebeck-clerk-criminalimmigrants-deport-grants-law-immigration-and-customs-enforcement/29558379/.
55

Id.

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Commissioner Statements and Rebuttals
and staff visited two detention facilities and spoke with detainees there, the report does not
state that those detainees had any complaints about their medical care. Instead, it relies on a
few incidents included in witness testimony and on news stories. 56
Even the witness testimony strains to find instances of abuse. Grassroots Leadership’s
statement portrays detention facilities as rife with sexual abuse, but mostly relies on vague,
unsupported statements claiming widespread instances of sexual abuse. It recounts four
instances (although two of those instances involved several incidents of sexual abuse)
where sexual abuse or inappropriate sexual behavior is alleged with some specificity. One
of the four instances was consensual. The specified incidents occurred over seven years,
and the statement otherwise offers that there are “allegations” at some facilities. 57 It relies
on MALDEF regarding claims of widespread sexual abuse at Karnes and cites to an AlJazeera America article that relies almost entirely on a complaint filed by MALDEF. 58
MALDEF’s written statement has little more to offer, stating that “at least a few women
detained at the Karnes Facility alleged that sexual abuse was ongoing since the facility
opened in August of 2014”. 59 MALDEF suggests the GEO Group, Inc. and the Warden of
Karnes lied when they testified to the Karnes County Community Court in December 2014
that an investigation had concluded that no sexual abuse took place. 60 MALDEF also
claimed that PREA was not being enforced at Karnes. 61
Everything that MALDEF alleged in regard to Karnes was investigated and disproved even
before the Commission’s hearing. Contra MALDEF’s insinuations, the GEO Group and the
Warden were correct when they told the Karnes County Community Court that no sexual
abuse had occurred. The DHS OIG ended its investigation on November 24, 2014 and
concluded that there was no evidence of sexual abuse. DHS’s Office of Inspector General
(OIG) issued a memorandum explaining their findings on January 7, 2015. The
memorandum explained that OIG had investigated the allegations, which in fact were made
by one woman who was only reporting rumors and had no direct knowledge. 62 OIG “found

Report at 29-39.

Bob Libal, Written Statement of Grassroots Leadership before the U.S. Commission on Civil Rights, at 6-8.

Id. at 7.

Marisa Bono, MALDEF, “PREA and Complaints of Sexual Abuse at ICE Karnes Facility,” U.S.
Commission on Civil Rights, at 2-4.
60

Id.at 4.

Id. at 4.

Memorandum to Jeh C. Johnson, Secretary, Department of Homeland Security, from John Roth, Inspector
General, Investigative Summary – GEO Group Incorporated Detention Facility, Karnes City, Texas, Jan. 7,
2015, https://www.oig.dhs.gov/assets/Mga/OIG_mga-010715.pdf.

Dissenting Statement of Commissioner Kirsanow
no evidence to substantiate the allegations and were unable to identify a victim or suspect
in this matter.”
Each of the female detainees identified by the complainant denied they had
ever engaged in any form of inappropriate activity, to include sexual acts,
with any Detention Officers. They also each denied having been escorted
into a laundry room, restroom, or other area to engage in any sexual activity
or having received any money, benefits, or preferential treatment in
exchange for sex or anything of value. 63
OIG’s investigation also revealed that a detainee whom the lone complainant alleged had
possibly been impregnated by a detention officer was not in fact pregnant. 64 No money
deposited into detainees’ commissary accounts had been put there by detention officers,
disproving the allegation that detention officers were using commissary accounts to pay
detainees for sex. 65 Furthermore, “Review of over 360 hours of time lapsed surveillance
video footage of the laundry room and day room areas failed to confirm that any of the
detainees were escorted to those areas after hours by Detention Officers.” 66 OIG also found
that “ICE complied with the Prison Rape Elimination Act reporting requirements.” 67
Likewise, Maria Hinojosa’s testimony would lead one to believe that sexual assault is
rampant throughout the immigration detention system. Hinojosa noted that after a report
about immigration detention facilities aired on PBS, GAO conducted an investigation and
“found that ICE received more than 200 allegations of sexual abuse between 2009 and
2013.” 68 Obviously, everyone wishes that there were zero allegations of sexual abuse. Yet
it should be noted that those allegations of sexual abuse are out of 1.2 million admissions.69
GAO reports that this number does not include all the allegations. Even if you assume that
40 percent of the allegations were not reported 70 , this yields 358 allegations of sexual
assault and abuse out of more than 1.2 million admissions, which is roughly 29.8
allegations of sexual assault per 100,000 admissions. In contrast, in 2012 there were 86,453
arrests for forcible rape and other sex offenses out of a national population of over 316
63

Id. at 2.

Id. at 1, 2.

Id. at 2, 3.

Id. at 2-3.

Id. at 4.

Hinojosa Statement at 8.

GAO, ADDITIONAL ACTIONS COULD STRENGTHEN DHS EFFORTS TO ADDRESS SEXUAL ABUSE, at 1 (Nov.
2013), http://www.gao.gov/assets/660/659145.pdf.
70

Id. at 1 (“GAO was unable to locate an additional 28 allegations detainees reported to the 10 facilities GAO
visited – or 40 percent of 70 total allegations at these 10 facilities – because ICE field office officials did not
report them to ICE headquarters.”).

233

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Commissioner Statements and Rebuttals
million 71 , which works out to roughly 27.3 arrests for rape and other sex offenses per
100,000 people. Certainly DHS should continue to work to prevent sexual assault and
abuse and punish it when it occurs, but there is no evidence of an epidemic of sexual abuse
in immigration detention facilities.
Furthermore, 123 of the 215 claims of sexual abuse or assault that GAO examined were
allegedly perpetrated by another detainee. 72 86 of the alleged incidents were committed by
a detention officer. When GAO investigated these 215 allegations, only 7 percent were
substantiated. 73 38 percent were found to be unfounded (that is, false), and in 55 percent of
cases there was insufficient evidence to substantiate the claim. 74 Also, “Nearly all of the
detainees (51 of 53) we interviewed at the 9 facilities we visited housing detainees stated
that they felt safe at the detention facility in which they were residing, which they attributed
to factors such as respectful treatment and professionalism by guards and a peaceful culture
among detainees.” 75 The data and the interviews of detainees contained in the GAO report
contrasts starkly with the picture painted by immigrants-rights advocates at the
Commission hearing, some of whom portrayed immigration detention facilities as swept by
an epidemic of detention facility guards sexually abusing detainees.
There Is No Evidence UAC Are Regularly Mistreated
The report repeats anecdotes provided by panelists that claim UAC are being mistreated. 76
Like much of the report, it repeats these anecdotes and implies that these incidents are both
cruel and commonplace. The Commission itself did not visit any facilities where UAC are
71

FBI, UNIFIED CRIME REPORTS, Table 29, Estimated Number of Arrests (2012), https://www.fbi.gov/aboutus/cjis/ucr/crime-in-the-u.s/2012/crime-in-the-u.s.-2012/tables/29tabledatadecpdf.
72

GAO, ADDITIONAL ACTIONS COULD STRENGTHEN DHS EFFORTS TO ADDRESS SEXUAL ABUSE, at 14-15
(Nov. 2013), http://www.gao.gov/assets/660/659145.pdf.
Our analysis of ICE JICMS data showed 215 allegations of sexual abuse and assault in ICE detention
facilities from October 2009 through March 2013, during which time ICE data indicate that its detention
facilities had more than 1.2 million admissions. JICMS data describe the circumstances around the alleged
incidents reported to OPR, and our analysis of these data showed that more sexual abuse and assault
allegations were made against other detainees than against facility staff, and allegations against staff were
most often related to actions taken while staff were conducting job duties. Specifically, our analysis showed
that of the 215 allegations, 123 were allegations against fellow detainees or inmates, 86 were allegations
against staff members, and 6 did not specify the perpetrator. In general, allegations that named fellow
detainees as the perpetrator tended to be allegations of inappropriate touching or penetration or attempted
penetration. Allegations that named staff members as the perpetrator tended to be allegations of harassment or
allegations that a staff member had sexually abused the victim during the course of job duties – for example,
by touching a detainee inappropriately during a pat-down search.
73

Id. at 16.

Id. at 16-17.

Report at 56-67.

Dissenting Statement of Commissioner Kirsanow
held, so this section of the report amounts to nothing more than speculation, conjecture, and
suggestion that these rumors be investigated. Fortunately, someone did. GAO conducted an
exhaustive study of the treatment of UAC and just released the report. 77
GAO found that CBP and ICE are adhering to seven of the eight required elements of
care. 78 It is worth noting that several of the CBP and ICE standards of care are more
stringent than those required by the Flores Agreement. 79 The remaining element concerns
the separation of UACs from unrelated adults and segregation by gender. CBP and ICE
reported that due to the overwhelming number of UAC, they did not have the space to fully
implement this element. 80 Instead, they “determined that female and young male UAC were
safer in hold rooms with families than in open areas with no barriers between UAC and
adult males.” 81
Furthermore, Border Patrol officers were, as individuals, going above and beyond the CBP
and ICE requirements.
At the NPC [Nogales Placement Center] we observed Border Patrol agents
and OFO officers helping U.S. government public health volunteers provide
basic care to UAC, including helping children as young as 2 and 3 years old
eat and bathe. At the time of our visit, Border Patrol officials in Arizona
were supplementing food supplied by a FEMA contractor with food
purchased separately using Border Patrol funding. We also observed
toiletries, toys, and other supplies that Border Patrol agents and OFO
officers told us had been purchased with personal funds. In addition, we
observed Border Patrol agents and OFO officers playing games with UAC. 82
GAO does note that investigations by two branches of DHS found isolated problems
regarding food and sanitation during the height of the UAC crisis. 83 Obviously such
problems should be addressed. However, such problems are to be expected when
government facilities are overwhelmed by an over 100 percent increase in population. It is
not an indication of any sort of systematic cruelty. The majority should take this as a lesson.
They seem to support the influx of UAC at the border and do not want them immediately
77

GAO, UNACCOMPANIED ALIEN CHILDREN: ACTIONS NEEDED TO ENSURE CHILDREN RECEIVE REQUIRED
CARE IN DHS CUSTODY (July 2015), http://www.gao.gov/assets/680/671393.pdf.
78

Id. at 38-41.

Id. at 38.

Id. at 41.

Id. at 42.

235

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Commissioner Statements and Rebuttals
deported. If that is what they want, they should not be so surprised when the systems are
overwhelmed.
Congress Should Amend the TVPRA to Provide for Expedited Removal of All
Unaccompanied Alien Children
The report notes that under the 2008 reauthorization of the TVPRA, only unaccompanied
alien children from Canada and Mexico are subject to expedited removal. 84 Perhaps at the
time the TVPRA was passed, almost all UACs were from Canada and Mexico. Whatever
the reason for this quirk in the statute, the TVPRA should be amended so all UACs who
have not been subject to severe forms of trafficking and do not have a credible asylum
claim are immediately repatriated. 85 This would also act as a counterweight to rumors in
Latin America that the United States is dispensing “permisos” to illegal aliens. Swift
repatriation of alien children will do more to discourage others from coming to the United
States than articles in newspapers can hope to accomplish. 86
Detaining Illegal Immigrants and Other Deportable Aliens Does Not Violate the
Constitution
One of the odder aspects of the report is that its foundational premise seems to be that
people who cross the border illegally, who overstay their visas, or who commit a deportable
offense are entitled to be in the United States, and that efforts to deport them are
illegitimate. This is backwards. If a person comes to the United States illegally, even if they
have a legitimate asylum claim, the nation’s decision to grant them asylum is its alone. The
person is not a citizen and has no right to be in the United States. 87 This is even truer in
regard to the majority of illegal immigrants, who come to the United States for economic
opportunities or to escape a lawless home country. One can sympathize with their
motivations (indeed, members of my own family escaped tyranny), but the fact remains that
84

Report at 51-52.

Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. 110-457, Sec. 235 (2008).

Jeh C. Johnson, An Open Letter to the Parents of Children Crossing Our Southwest Border, DEPARTMENT
June 23, 2014, http://www.dhs.gov/news/2014/06/23/open-letter-parents-childrencrossing-our-southwest-border.
OF HOMELAND SECURITY,
87

Landon v. Plasencia, 459 U.S. 21, 32 (1982)(“This Court has long held that an alien seeking initial
admission to the United States requests a privilege and has no constitutional rights concerning his application,
for the power to admit or exclude aliens is a sovereign prerogative.”); see also Sale v. Haitian Centers
Council, Inc., 509 U.S. 155, 187-88 (1993)(“It is perfectly clear that 8 U.S.C. § 1182(f) … grants the
President ample power to establish a naval blockade that would simply deny illegal Haitian migrants the
ability to disembark on our shores. Whether the President’s chosen method of preventing the ‘attempted mass
migration’ of thousands of Haitians – to use the Dutch delegate’s phrase – poses a greater risk of harm to
Haitians who might otherwise face a long and dangerous return voyage is irrelevant to the scope of his
authority to take action that neither the Convention nor the statute clearly prohibits.”); Kleindienst v. Mandel,
408 U.S. 753, 762 (“It is clear that Mandel personally, as an unadmitted and nonresident alien, had no
constitutional right of entry to this country as a nonimmigrant or otherwise.”).

Dissenting Statement of Commissioner Kirsanow
they have no right to be here. They are detained because they broke the law. So it is not
unjust that they are detained, nor is it a violation of due process.
The courts have routinely upheld the government’s ability to detain and exclude
immigrants. “Courts have long recognized the power to expel or exclude aliens as a
fundamental sovereign attribute largely immune from judicial control.” 88 A person who is
stopped at the border has not been legally admitted to the United States, even if he is
detained at Ellis Island for years or released on immigration parole pending deportation. 89
The report claims that detaining illegal immigrants and deportable aliens may violate the
Fifth Amendment because the detention facilities resemble penal facilities. This is a
misreading of the relevant precedent. In Wong Wing v. U.S., the question was not whether
the government had the authority to confine a deportable alien until he could be deported.
That was accepted. The question was whether the government had, in sentencing a
deportable alien to a term of hard labor prior to his removal without giving him a trial,
violated the Fifth and Sixth Amendments by imposing an infamous punishment. 90 The
Court determined that imprisonment with hard labor was indeed an infamous punishment,
and therefore a deportable alien could not be sentenced to such a punishment unless he was
given a trial. However, the government retained the authority to imprison aliens in order to
deport them.

We think it clear that detention or temporary confinement, as part of the
means necessary to give effect to the provisions for the exclusion or
expulsion of aliens, would be valid. Proceedings to exclude or expel would
be vain if those accused could not be held in custody pending the inquiry
into their true character, and while arrangements were being made for their
deportation. 91
The report cites Youngberg v. Romeo, in which the Court upheld a state mental institution’s
right to physically restrain an inmate as necessary for his safety and that of others, and
suggests that it is stale case law. 92 Yet the case it cites to support this proposition is a lone
case from the Ninth Circuit, Jones v. Blanas, 93 which has itself interpreted its decision as
88

Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206, 210 (1953); see also Landon v. Plasencia, 459 U.S. 21, 34
(1983)(“Further, it must weigh heavily in the balance that controls over matters of immigration is a sovereign
prerogative, largely within the control of the executive and legislature.”).
89

See Kaplan v. Tod, 267 U.S. 228 (1925); Zadvydas v. Davis, 533 U.S. 678, 693-94 (2001).

Wong Wing v. U.S., 163 U.S. 228, 233-34 (1896).

Id. at 235.

Youngberg v. Romeo, 457 U.S. 307, 317-18 (1982).

Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004).

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Commissioner Statements and Rebuttals
consistent with Youngberg 94 and Wolfish v. Bell (discussed below). More importantly,
Jones has been cited by only two other federal appellate courts – once by the Third Circuit
in support of the proposition that the “mailbox rule” applies to civil detainees 95, and once
by the Federal Circuit to establish the level of review the Ninth Circuit applies to district
court grants of summary judgment because of statutes of limitation. 96
The issue in Youngberg v. Romeo was whether Romeo’s rights were violated by being
subjected to physical restraints. 97 Romeo and the state agreed that he would never be able
to be released from the state mental hospital. 98 Physical restraints do not seem to be a dayto-day feature of detention for most detainees, based on the very few mentions of handcuffs
and shackles in the report. It appears that such physical restraints are usually used when
apprehending and transporting aliens. That is hardly cruel or punitive. In fact, in most
cases, not using physical restraints when transporting teenage and adult aliens would be
foolish. Furthermore, the Court determined that the use of restraints was a question to
which deference was owed to the judgment of professionals charged with caring for
Romeo. 99 Romeo had an interest in freedom from restraint, but the state had a duty to care
for him and an interest in an organized society. These interests must be balanced. This case
provides no support for the report’s contention that detainees are being subjected to
punitive detention in violation of the Fifth and Fourteenth Amendments.
The report also cites Bell v. Wolfish: “a [civil] detainee may not be punished prior to an
adjudication of guilt in accordance with due process of law.” 100 The insertion of “civil” in
brackets is odd, as Bell concerned pretrial criminal detainees. It is also odd because
although everyone in immigration detention has presumably committed some immigration
offense, in many cases the immigration offense is not the only offense they have
committed. For example, 8 U.S.C. § 1226(c) allows the Attorney General to take criminal
aliens into custody. In other words, an alien may have been in the United States lawfully,
but may then have committed a crime that makes him deportable. 101 So although the
immigration offense itself may be a merely civil offense (although some immigration
94

Clouthier v. County of Contra Costa, 591 F.3d 1232, 1243 (9th Cir. 2010) (“In Jones, we held that an
individual detained awaiting civil commitment proceedings was, at a minimum, entitled to the rights of a
civilly committed mentally retarded person in Youngberg and a pretrial detainee in Bell.”)
95

Council v. Nash, 400 Fed. App’x 681 (3rd Cir. 2010).

D-Beam v. Roller Derby Skate Corp., 316 Fed. App’x 966 (Fed. Cir. 2008).

Youngberg v. Romeo, 457 U.S. 307, 317-18 (1982).

Id. at 317.

Id. at 321-25.

100
101

Report at 96, citing Bell v. Wolfish, 441 U.S. 520 (1979).

8 U.S.C. § 1226(c)(B); 8 U.S.C. § 1227(a)(2) (providing that aliens are deportable upon conviction for,
among other things, crimes of moral turpitude, multiple criminal convictions, aggravated felonies, high speed
flight, failure to register as a sex offender, and drug offenses).

Dissenting Statement of Commissioner Kirsanow
offenses are criminal), the alien himself may qualify as a criminal alien. The report is
disingenuous in portraying all immigration detainees as harmless, hapless folks who have
merely committed a civil violation. Many have committed crimes, and that is why they are
being deported. Many of them are dangerous, and cannot safely be detained in a country
club. (Although admittedly the Administration is doing its best to ensure criminal aliens
remain in the country.) 102
Despite this odd choice, Wolfish does not support the proposition that immigrant detainees
are being punished. The Court writes:
Not every disability imposed during pretrial detention amounts to
“punishment” in the constitutional sense, however. Once the Government
has exercised its conceded authority to detain a person pending trial, it
obviously is entitled to employ devices that are calculated to effectuate this
detention. Traditionally, this has meant confinement in a facility which, no
matter how modern or how antiquated, results in restricting the movement of
the detainee in a manner in which he would not be restricted if he simply
were free to walk the streets pending trial. Whether it be called a jail, a
prison, or a custodial center, the purpose of the facility is to detain. Loss of
freedom of choice and privacy are inherent incidents of confinement in such
a facility. And the fact that such detention interferes with the detainee’s
understandable desire to live as comfortably as possible and with as little
restraint as possible during confinement does not convert the conditions or
restrictions of detention into “punishment.”
...

102

Kate Scanlon, Ted Cruz Questions ICE Official Over Illegal Immigration: ‘There Is a Reason the
American People Are Upset,’ THE DAILY SIGNAL, July 22, 2015, http://dailysignal.com/2015/07/22/ted-cruzquestions-ice-official-over-illegal-immigration-there-is-a-reason-the-american-people-are-upset/.
Cruz asked Saldaña how many “criminal illegal aliens” the Obama administration released in 2013.
Saldaña responded with the 2014 figure: “a little over 30,000.”
Cruz pointed out her error.
“When I asked you how many criminals ICE released in 2013, you were off by a factor of three,” Cruz said.
“You said 30,000. The correct answer is 104,000.”
Saldaña said that the number “went down from 2013.”
“But you’re omitting the 68,000 criminal illegal aliens that ICE did not begin deportation proceedings against
at all. You’ve got to add both of those together. It’s over 100,000,” Cruz responded.
“Yes, sir,” Saldaña said. “That’s absolutely right.”
Cruz said that of the 104,000 immigrants in the country illegally who were released into the public in 2013,
193 had been convicted of homicide, 426 had been convicted of sexual assault and more than 16,000 had been
convicted of driving under the influence of alcohol.

239

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Commissioner Statements and Rebuttals
[W]e do not accept respondents’ argument that the Government’s interest in
ensuring a detainee’s presence at trial is the only objective that may justify
restraints and conditions once the decision is lawfully made to confine a
person. “If the government could confine or otherwise infringe the liberty of
detainees only to the extent necessary to ensure their presence at trial, house
arrest would in the end be the only constitutionally justified form of
detention.” The Government also has legitimate interests that stem from its
need to manage the facility in which the individual is detained. These
legitimate operational concerns may require administrative measures that
that go beyond those that are, strictly speaking, necessary to ensure that the
detainee shows up at trial. For example, the Government must be able to
take steps to maintain security and order at the institution and make certain
no weapons or drugs reach detainees. Restrictions that are reasonably related
to the institution’s interest in maintaining jail security do not, without more,
constitute unconstitutional punishment, even if they are discomforting and
are restrictions that the detainee would not have experienced had he been
released while awaiting trial. 103 [citations omitted]
The courts have analogized immigrant detainees to the pretrial detainees in Wolfish.
Immigration detainees also are awaiting an adjudication of their status. 104 The government
has the right to detain them and an interest in ensuring that they do not simply vanish into
the interior of the country, as so many do. 105 The Supreme Court has repeatedly upheld the

103

Bell v. Wolfish, 441 U.S. 520, 537, 539-40 (1979).

104

Turkmen v. Hasty, 789 F.3d 218, 237-38, 256-46, 275-78, 282 (2nd Cir. 2015); Dahlan v. DHS, 215 Fed.
App’x 97, 100 (2007).

105

Demore v. Kim, 538 U.S. 510, 519-20 (2003).
Congress also had before it evidence that one of the major causes of the INS’ failure to remove deportable
criminal aliens was the agency’s failure to detain those aliens during their deportation proceedings. The
Attorney General at that time had broad discretion to conduct individualized bond hearings and to release
criminal aliens from custody during those removal proceedings when those aliens were determined not to
present an excessive flight risk or threat to society. Despite this discretion to conduct bond hearings,
however, in practice the INS faced severe limitations on funding and detention space, which
considerations affected its release determinations.
Once released, more than 20% of deportable criminal aliens failed to appear for their removal hearings.
The dissent disputes that statistic, but goes on to praise a subsequent study by the Vera Institute of Justice
that more than confirms it. As the dissent explains, the Vera study found that “77% of those [deportable
criminal aliens] released on bond” showed up for their removal proceedings. This finding – that one out of
four criminal aliens released on bond absconded prior to the completion of his removal proceedings – is
even more striking than the one-in-five flight rate reflected in the evidence before Congress when it
adopted § 1226(c). The Vera Institute study strongly supports Congress’s concern that, even with
individualized screening, releasing deportable criminals on bond would lead to an unacceptable rate of
flight. [citations omitted]

Dissenting Statement of Commissioner Kirsanow
government’s right to detain immigrants. 106 And the government has the right to create
detention facilities that will effectuate that purpose. Furthermore, although the Fifth
Amendment applies to aliens, “this Court has firmly and repeatedly endorsed the
proposition that Congress may make rules as to aliens that would be unacceptable if applied
to citizens.” 107
The report’s attempt to portray confinement in immigration detention facilities as a
constitutional violation turns upon the fact that the facilities are often similar to prisons.108
They have barbed-wire fences, dormitories, open showers, locked doors, and the detainees
wear prison-like jumpsuits. Raising objections about barbed-wire fences and locked doors
is bizarre when the detainees are being detained in the first place because they did not
respect boundaries, both legal and physical. There is little reason to think that a person who
already climbed a fence to cross into the United States illegally would respect another fence
around an immigration detention facility, or would not walk through an unlocked door. As
Justice Rehnquist wrote, “Whether it be called a jail, a prison, or a custodial center, the
purpose of the facility is to detain.” There is no constitutional violation.
Detention is Necessary Because Alternatives to Detention Do Not Work
It is difficult to know what the majority would propose as an effective alternative to
detention facilities, except that effectiveness is not on the majority’s list of priorities. The
report cheerfully reports that DHS Secretary Jeh Johnson has announced a new plan to
release more detained illegal immigrants on bond, and promised that the “bond amount
would be ‘realistic’ and take into account a detained immigrant’s ability to pay the bond,
‘while also encompassing risk of flight and public safety.’” 109
There is little reason to think that this initiative will be effective. In February 2015, DHS’s
Office of the Inspector General released a report on the effectiveness of Alternatives to
Detention. The Inspector General examined the Intensive Supervision Appearance
Program, which as the name suggests is more intensive than a mere bond. 110 The Inspector
General notes, “ERO [Enforcement and Removal Operations] tracks more than 1.8 million
aliens in immigration removal proceedings, but ICE’s budget only funds 34,000 detention
106

Id. at 523 (“this Court has recognized detention during deportation proceedings as a constitutionally valid
aspect of the deportation process. . . . deportation proceedings ‘would be vain if those accused could not be
held in custody pending the inquiry into their true character.’”).
107

Id. at 522.

108

Report at 93-108.

109

Report at 17.

110

DEPARTMENT OF HOMELAND SECURITY OFFICE OF THE INSPECTOR GENERAL, U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT’S ALTERNATIVES TO DETENTION (REVISED), Feb. 4, 2015,
https://www.oig.dhs.gov/assets/Mgmt/2015/OIG_15-22_Feb15.pdf.

241

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Commissioner Statements and Rebuttals
beds.” 111 The program examined by the Inspector General is presently known as ISAP II,
and is an attempt to monitor some of these aliens who are not detained. The program
utilizes electronic monitoring and electronic monitoring plus caseworker monitoring, and
according to the report “uses ISAP II in conjunction with the less restrictive release
conditions associated with payment of a bond, or having to report periodically to an ERO
field office.” 112 The electronic monitoring is either telephonic or uses a GPS-enabled ankle
bracelets. 113 On the surface, this is not slapdash monitoring. Yet it has a very mixed track
record. In 2010, the first year examined by the Inspector General, over 10 percent of ISAP
II participants absconded and over 6.5 percent were arrested by another law enforcement
agency. 114 ERO claimed that those percentages declined every year; however, the Inspector
General found that it was impossible to accurately measure whether participants eventually
absconded or were arrested, because ERO dropped participants from the monitoring
program before their cases were ultimately resolved, but did not correspondingly change
the metrics for measuring the program’s effectiveness. 115 Furthermore, “ERO does not have
sufficient resources to redetain participants who willfully violate ISAP II’s terms of
supervision, such as those who tamper with GPS monitors or miss appointments.” 116An
alternative to detention is unlikely to be effective if participants know that bad behavior is
unlikely to result in detention.
The problem with relying on bonds as a mechanism for people showing up for immigration
hearings is that however much the bond is for, it is almost certainly worth less to them than
staying in the United States. Remember, these are people who - as we have been told many,
many times - undertook a dangerous journey of hundreds of miles to make it to the United
States, and who then crossed into the United States illegally. What is a five thousand dollar
bond compared with that? Nothing. If over 16 percent of people in the more intensive ISAP
II program either abscond or are arrested (it is possible that some people fall into both
categories, of course), what is the success rate of the bond program alone?
Happily, the government has data on the success of the bond program as well. In May
2015, the Executive Office for Immigration Review released its 2014 Statistics Yearbook.
In FY 2010, 22 percent of formerly detained aliens released on bail or their own
recognizance did not appear for their immigration hearings. 117 In FY 2014, 39 percent of
111

Id. at 3.

112

Id. at 2-3.

113

Id. at 3.

114

Id. at 6.

115

Id. at 7-8.

116

Id. at 8.

117

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, FY 2014 STATISTICS YEARBOOK, at P3 (May 2015),
http://www.justice.gov/eoir/pages/attachments/2015/03/16/fy14syb.pdf.

Dissenting Statement of Commissioner Kirsanow
those aliens did not appear for their immigration hearings. EOIR notes that this is “[an
increase of] 153 percent, while the number of immigration judge decisions for those aliens
increased by 41 percent.” 118 Undoubtedly some of my colleagues will claim that this is the
government’s fault. However, if you are released on bond, it is your responsibility to keep
ICE apprised of your current address and to show up for your immigration hearing. If you
want to live in the United States, the least you can do is show up for your immigration
hearing and take responsibility for knowing when and where that will take place.
Furthermore, neither GPS monitoring nor bonds prevent aliens from committing crimes. In
July, Keane Dean, an illegal alien whom ICE was seeking to deport, was arrested for
sexually assaulting a 14-year-old girl he had met at a grocery store. 119 He had previously
served time for indecent exposure and lewd conduct in public. The first conviction occurred
in 2008, but apparently the government decided to give Dean another chance. Dean had
been in detention, but was freed after posting a $10,000 bond and being required to wear a
GPS monitor. Yet that did not deter him from sexually assaulting a young girl.
If we care about enforcing the immigration laws, we should not be reducing our use of
detention. As mentioned above, ICE does not even have sufficient beds to redetain people
who willfully violate the ISAP II program. Almost 40 percent of people released on bond or
on their own recognizance – and if bond is sufficiently low, it is virtually indistinguishable
from being released on your own recognizance – do not appear for their immigration
hearings. And bonds and GPS monitoring do not prevent people from committing crimes
against innocent people. Detention does.
Immigration Policy is Primarily Within the Purview of the Legislative Branch
Much of the problem with our immigration system today is that Congress, as the legislative
branch, is primarily responsible for setting immigration policy, but President Obama is
engaged in a constitutional power grab that threatens to gut the separation of powers. The
majority, of course, safe in the assumption that any future conservative president would not
engage in such a power grab (probably a safe bet, but events can take unforeseen turns)
support the President in his unconstitutional efforts.
The Supreme Court stated, “Courts have long recognized the power to expel or exclude
aliens as a fundamental sovereign attribute largely immune from judicial control. . . . In the
exercise of these powers, Congress expressly authorized the President to place additional
118
119

Id.

Man Arrested for Sexually Assaulting 14-Year-Old Girl is Undocumented Immigrant, Associated Press,
July 21, 2015, http://abc7.com/news/man-arrested-for-sexually-assaulting-14-year-old-girl-is-undocumentedimmigrant/871046/; Cindy Chang, Sex offender accused of assaulting teen was in the country illegally,
officials say; L.A. TIMES, July 21, 2015, http://www.latimes.com/local/crime/la-me-sex-offenderimmigration-20150721-story.html.

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Commissioner Statements and Rebuttals
restrictions on aliens entering or leaving the United States during periods of international
tension and strife.” 120 The Court recognized that immigration policy is within the purview
of the political branches, not the judicial branch. Furthermore, the President had the power
to exclude Mezei because Congress had authorized him to do so. Would the President have
had the power to exclude Mezei in the absence of explicit congressional authority? Perhaps.
Would the President have the authority to admit Mezei if there were legislation specifically
providing that aliens like Mezei be excluded? No. Yet that is the situation in which we find
ourselves today.
The Court recognizes that it is Congress that makes the immigration laws. In Kleindienst v.
Mandel, the Court recited a lengthy history of American statutes governing immigration
since 1875. “The Act of March 3, 1875 barred convicts and prostitutes. Seven years later
Congress passed the first general immigration statute. Other legislation followed.” 121
[citations omitted] The Court continues in this vein for several paragraphs, finally
concluding, “We thus have almost continuous attention on the part of Congress since 1875
to the problems of immigration and of excludability of certain defined classes of aliens.”122
The President and the Executive Branch are nowhere mentioned in this history. The Court
continues:
The Court without exception has sustained Congress’ ‘plenary power to
make rules for the admission of aliens and to exclude those who possess
those characteristics which Congress has forbidden.’ ‘(O)ver no conceivable
subject is the legislative power of Congress more complete than it is over’
the admission of aliens.” 123 [citations omitted]
The Court then quotes at length from Justice Frankfurter’s opinion in Galvan v. Press 124:
As to the extent of the power of Congress under review, there is not merely a
page of history, . . . but a whole volume. Policies pertaining to the entry of
aliens and their right to remain here are peculiarly concerned with the
political conduct of government. In the enforcement of these policies, the
Executive Branch of government must respect the procedural safeguards of
due process. . . . But that the formulation of these policies is entrusted
exclusively to Congress has become about as firmly embedded in the

120

Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206, 210 (1953).

121

Kleindienst v. Mandel, 408 U.S. 753, 761 (1972).

122

Id.

123

Id. at 766.

124

Galvan v. Press, 347 U.S. 522 (1954).

Dissenting Statement of Commissioner Kirsanow
legislative and judicial issues of our body politic as any aspect of our
government. 125
Congress is the legislative branch. As the name suggests, and as the Supreme Court has
assumed, it legislates – even in the area of immigration. The President has only the power
to veto legislation passed by Congress. And even that power is limited, as Hamilton wrote
in Federalist 69:
The president of the United States is to have power to return a bill, which
shall have passed the two branches of the legislature, for re-consideration;
and the bill so returned, is not to become a law, unless, upon that reconsideration, it be approved by two-thirds of both houses. The king of
Great Britain, on his part, has an absolute negative upon the acts of the two
houses of parliament. . . . The qualified negative of the president, differs
widely from this absolute negative of the British sovereign . . . . 126
Congress has declined to pass an immigration bill. In our system of government, that
should settle the matter as far as the President’s ability to change the law is concerned. Yet
through executive orders, memorandums from government agencies, and proposed
rulemakings the President has unilaterally rewritten the immigration laws. He is legislating.
Yet the Executive Branch is not the Legislative Branch, and as seen above, the President
was intended to have only a qualified power even to veto legislation.
Parts of the Report are Deliberately Dishonest
The most dishonest aspect of this report is the inclusion of false information. The most
egregious example is Figure 9 on page 100. The photo is captioned “Nogales Border Patrol
Station – Children’s Housing Unit.” Yet the picture is not actually of the Nogales Border
Patrol Station. The link in the footnote is to a blog post with the charming title, “Kids
Detained in AZ Provides Window Into Totally F*cked US Immigration System,” which
might have been a clue that this is not the most reliable source imaginable. Regardless, one
scrolls down to find the picture, and sees that the photo is credited to “Colorlines,” with a
link. The link takes you to a blog post entitled “Dispatch from Detention: A Rare Look
Inside Our ‘Humane’ Immigration Jails.” 127 This time, the photo has a credit to Paul J.
Richards and Getty Images, but does not indicate where the picture Here was taken. The
blog post was written in 2012 and focuses entirely on adult detention facilities in Florida
and Texas. Using the image to conduct a Google Image search turns up the photo in a 2009
125

Kleindienst v. Mandel, 408 U.S. 753, 766-67 (1972).

126

THE FEDERALIST NO. 69 (Alexander Hamilton).

127

Seth Freed Wessler, Dispatch from Detention: A Rare Look Inside Our ‘Humane’ Immigration Jails,
COLORLINES, Jan. 4, 2012, http://www.colorlines.com/articles/dispatch-detention-rare-look-inside-ourhumane-immigration-jails.

245

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Commissioner Statements and Rebuttals
Human Rights Watch report, which indicates that it is a 2007 photo of women in the
Willacy detention facility in Texas. 128 Is this photo caption accurate? Who knows, but
unfortunately in this instance I have more faith in Human Rights Watch than our report.
What makes the inclusion of this photo so egregious is that the photo’s dubious
provenance was pointed out to staff during the review period of the draft report. Yet instead
of attempting to determine whether the photo actually depicts children in Nogales, they left
the photo and the citation unchanged. But it is a lie. Those are not children, that is not
Nogales, and this photo is probably eight years old.
Likewise, the next photo, Figure 10, is supposedly of a high-security penitentiary in
Coleman, Florida. 129 However, the article that is cited does not indicate that this photo is of
the prison in Coleman. The text of the article casts doubt on the likelihood that this is
Coleman, as the first two paragraphs state that a corrections officer “hesitated before
opening the cell of an apparently drunken inmate” and that when he did, “the prisoner’s
sober cellmate attacked”. 130 That strongly suggests that the prisoners were in two-person
cells, not the dormitory-type housing depicted in the photograph. That would make sense,
because Coleman is a high-security facility, and it seems unlikely that a high-security
facility would house large numbers of inmates in an open plan setting. Furthermore, our old
friend the Google Image search pulls up an article from The Atlantic that captions the photo
thus: “Inmates walk around a gymnasium where they are housed due to overcrowding at the
California Institution for Men state prison in Chino, California in June 2011.” 131 Is The
Atlantic’s caption correct? Again, I do not know, but I have more faith in The Atlantic than
in our report, especially because doubts about this photo were also expressed during the
draft review period, and yet it remains unchanged in the final report.
This Report Boils Down to Two Things: Gutting the Immigration System, and the
Immigration Lawyers’ Full Employment Act
This report illustrates how ill-suited the Commission is to setting immigration policy.
The report masquerades as a civil rights document, but in truth it is an attempt to skew
immigration policy in the majority’s preferred direction. Open-borders advocates, whether
in the Administration, the Commission, other agencies, or the courts, use the Lilliputians’
128

US: Immigration Detention Neglects Health, HUMAN RIGHTS WATCH, March 17, 2009,
https://www.hrw.org/news/2009/03/17/us-immigration-detention-neglects-health.
129

Report at 103.

130

Andrew Lapin, Inmate assaults on federal prison officers underscore staffing, budget shortfalls,
GOVERNMENT EXECUTIVE, Jan. 11, 2012, http://www.govexec.com/defense/2012/01/inmate-assaults-onfederal-prison-officers-underscore-staffing-budget-shortfalls/35816/.
131

Matt Ford, Californians Vote to Weaken Mass Incarceration, THE ATLANTIC, Nov. 5, 2014,
http://www.theatlantic.com/politics/archive/2014/11/california-prop-47-mass-incarceration/382372/.

Dissenting Statement of Commissioner Kirsanow
tactic to override public sentiment in regard to immigration. If they can tie the public down
by using a thousand seemingly small strings – unilaterally deferring action for millions of
people here, requiring that states fund the education of illegal immigrant children there,
finding a heretofore unknown limit on detention there, and, most importantly, accusing the
unwashed masses of xenophobia and racism – eventually there will be almost no way to
enforce immigration laws or to set immigration policy.
Open borders advocates use this tactic because they know they cannot win legislatively
– yet. The House of Representatives, which most directly represents the people, has
repeatedly refused to pass the “comprehensive immigration reform” so dear to the hearts of
successive presidents of both parties. Gallup polls have consistently shown for decades that
the American people have little appetite for increased levels of immigration. 132 Large
majorities of white, black, and Hispanic Americans all consistently report that they want
immigration to either remain at its current level or to decrease. Yet we keep experiencing
high levels of illegal immigration due to the government’s refusal to enforce the
immigration laws, and increased levels of legal immigration are offered every time a
“comprehensive immigration reform” bill is proposed.
The majority’s Recommendation 13 urges that taxpayers pay for attorneys for illegal
immigrants. Exactly why a nation that is 18 trillion dollars in debt should pay for attorneys
for people who broke its immigration laws is unclear, particularly given that most of those
heavily burdened taxpayers want recent border crossers packed off to their countries of
origin posthaste. Taxpayer funding for immigration attorneys would, however, be a boon to
the immigration bar and to open borders advocates. This report is primarily motivated by
the interests of those two groups and the need to provide political cover to the
Administration’s lawlessness, so perhaps that is the only explanation needed for a
recommendation that would extend plundering of taxpayers and gutting of immigration
enforcement into a new realm.
Conclusion
There are two difficulties inherent in writing about this issue. The first is that one often
knows illegal immigrants, and many are decent people with whom one sympathizes and
whom one has no desire to offend. The second is that people are eager to pillory you as
cruel and callous, unsympathetic to the plights of unfortunate people. Yet one can be
sympathetic and still acknowledge that the United States cannot admit even every deserving
refugee. Whatever the suffering experienced by women and children coming from Latin
America, it is virtually certain that it pales in comparison to that endured by Christian and
Yazidi women and children in Syria and Iraq. Yet we cannot offer sanctuary even to all, or
very many, of the latter, deserving as they are. The world is a large and populous place, and
132

Gallup, Immigration, http://www.gallup.com/poll/1660/immigration.aspx.

247

248

Commissioner Statements and Rebuttals
it is a cruel place. As a nation, we have made a determination that we will grant asylum to
people who are victims of certain state policies, but we cannot grant asylum to every victim
of what are, alas, the tragic cruelties of individuals.
Like mold on food left in the refrigerator for too long, the report has spread into an
attack on the enforcement of the country’s immigration laws, and perhaps on their very
existence. Much of the report is at least intellectually dishonest, other parts simply
dishonest. This report is outside the Commission’s jurisdiction and therefore most of this
report is illegitimate. I dissent.

Statement of Commissioner Kladney

Statement of Commissioner David Kladney
With the Concurrence of Vice Commissioner Patricia Timmons-Goodson
& Commissioner Michael Yaki
There are three kinds of facilities immigrants can find themselves detained in: border patrol
facilities, family detention facilities, and adult facilities. The Commission’s investigation
found serious problems with all three. We also found that across the board, immigrants who
are detained have difficulty accessing legal representation.
Border Patrol
In Border Patrol facilities, reports of mistreatment are remarkably consistent. Detainees
report being placed in extremely cold rooms, given spoiled and inadequate food, and
inadequate clothing and blankets. They also report overcrowding. They say that guards treat
them with disrespect. We heard identical complaints about border patrol from both
panelists at our briefing and detainees who spoke to Commissioners. 1 These conditions are
extreme and must be changed.
Border patrol agents are responsible for referring immigrants to the asylum process if they
express fear of returning to their home country. Our briefing and other sources revealed that
this screening is not always done carefully. 2 Recently arrived immigrants might have little
knowledge of their legal rights. At this time, it is not clear that border patrol is equipped to
meaningfully inform immigrants of their rights. Instead, they give a questionnaire that is
designed to determine whether an immigrant has a credible fear of return to their home
country. The Commission requested a copy of this questionnaire, but one was not
provided. 3 If an immigrant expresses no fear in response to the questionnaire, that person is
immediately removed. 4 The ability of border patrol to conduct questioning well and for
immigrants to understand what is at stake is crucial. We have therefore recommended that
Legal Orientation Programs be expanded into border patrol facilities.
Having legal representation for immigrants available on site would be an even better
solution. The presence of outside groups could also help monitor conditions at border patrol
facilities.
1

Testimony of Maria Hinojosa, USCCR January 30, 2015 Briefing Transcript (hereinafter Briefing
Transcript), p. 107; Testimony of Carl Takei, Briefing Transcript, p. 234.
2

U.S. Asylum Seekers May Face Barriers from Border Patrol, Frontline, PBS, November 13, 2014, available
at http://www.pbs.org/wgbh/pages/frontline/immigration-2/u-s-asylum-seekers-may-face-barriers-fromborder-patrol/.
3

Testimony of Franklin Jones, Briefing Transcript, p. 43.

Ibid.

249

250

Commissioner Statements and Rebuttals

Family Detention
The Commission visited Karnes County Residential Center, a family detention facility.
Although the facility is clean and has some provisions for children, it is clear that it is a
very restrictive environment. Two or three families are housed in each room. The rooms are
the size of a motel room with bunk beds along the walls and a sink at the end. A restroom
with a shower is attached to each room. There is little privacy for adults, teenagers or
children.
Women reported to the Commissioners that they have been held in this facility for months.
A staff member told me the average stay at the Karnes facility was 4 months. The mothers
said the children know they are being confined against their will. They are sad they cannot
leave. One mother said her son would make friends with other children detainees and watch
them leave the facility. His depression deepened as he saw friend after friend leave him
behind. The women reported a lack of government-provided childcare and an unreasonable
government prohibition restricting the detainees from watching each other’s children. This
means that women must bring their children to meetings with their lawyers (if they have
one), meetings with immigration officers and medical appointments for themselves or any
other minor children. In these situations, women face the choice of relaying physical,
mental and/or sexually traumatizing events in front of their children, or being less candid at
the risk of jeopardizing their claim. 5 The government should not force them to make such a
choice when a regulation allowing other detainees to watch the children during these times
is an easy fix.
We also heard that when women went on a hunger strike to protest conditions, they were
put in solitary confinement. This is an unacceptable and mean-spirted response that could
lead to mental issues.
A federal District Court Judge has assessed the conditions in family detention and
determined they do not comply with the government’s obligations to immigrant children. 6 I
wholeheartedly agree with Honorable Judge Dolly Gee’s assessment. (See Judge Gee’s
Decision on the Order to Show Cause, attached). The Commission has recommended that
DHS take steps to release families from detention as quickly as possible, making sure the
families have a safe place to reside and support while they await their immigration
hearings. This change would be a return to the policy DHS had in place only a year ago. 7
5

See Locking up Family Values, Again, Lutheran Immigration & Refugee Service and Women’s Refugee
Commission, October 2014, p. 12, available at http://lirs.org/wpcontent/uploads/2014/11/LIRSWRC_LockingUpFamilyValuesAgain_Report_141114.pdf.
6

Jenny L. Flores, et al. v. Jeh Johnson, et al., CV 85-4544 DMG, Order of June 24, 2015 (C.D. Cal.).

Testimony of Marisa Bono, Briefing Transcript, p. 159-160.

Statement of Commissioner Kladney

Families are being detained without individualized assessments of whether there is a valid
reason to detain them. These reasons range from them being a flight risk, health risk or
safety risk to the community. These families are overwhelmingly seeking asylum. 8 The
official rationale for holding families was to deter others from crossing the border. 9 This is
a wrong-headed policy. We heard reports that bond amounts are arbitrarily set by the
Immigration Judge without clear guidelines. 10 We also heard that women with children are
often detained while people without children are released, sometimes called the “mommy
penalty.” 11 Detention should not be arbitrary. Holding one person when there is no reason
to, solely in an attempt to deter someone else is retaliatory and punitive. It is not the least
bit American.
Finally, many of the asylum seekers have family in the United States who are willing to
sign and be responsible for their support while they await their immigration hearing. They
are also able to obtain a work permit after their asylum application has been pending for six
months. 12 Detention is not the only option.
Adult Detention
We also visited an adult detention facility, Port Isabel Detention Center. This center was
indistinguishable from a minimum/medium security prison. The men there wore prison
uniforms. They were housed in dormitory-like rooms, as are used in minimum security
prisons. There is a sally port to access different areas of the facility, as in a prison. We
spoke with some of the detainees. Some told us they are in removal proceedings because
they committed a felony, although some of these crimes were non-violent (for example,
writing a bad check). A secure facility may be necessary when holding people who have
committed or are accused of committing crimes. However, there is no indication that every
8

Testimony of Karen Lucas, Briefing Transcript, p. 166. Ms. Lucas stated that 80% of the women detained at
one family detention facility expressed fear of returning to their home countries.

See Statement by Secretary of Homeland Security Jeh Johnson Before the Senate Committee on
Appropriations, July 10, 2014, available at http://www.dhs.gov/news/2014/07/10/statement-secretaryhomeland-security-jeh-johnson-senate-committee-appropriations. DHS has since stated that it will not use
general deterrence as a rationale for custody determinations. See Statement By Secretary Jeh C. Johnson On
Family Residential Centers, June 24, 2015, available at http://www.dhs.gov/news/2015/06/24/statementsecretary-jeh-c-johnson-family-residential-centers. Nevertheless, it has also argued in court that it must
continue the use of family detention or risk a renewed surge in immigrants crossing the border. See Jason
Buch, Government: Judge’s ruling will make us separate immigrant families, San Antonio Express News,
August 7, 2015, available at http://www.expressnews.com/news/local/article/Government-Judge-s-rulingwill-make-us-6431099.php.
10

Written Statement of Karen Lucas, p. 9 available at
http://www.usccr.gov/OIG/Karen_Lucas_AILA_StatementforUSCommissiononCivilRights_FINALVERSIO
N.pdf.
11

Testimony of Bob Libal, Briefing Transcript, p. 222.

8 C.F.R. § 208.7.

251

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Commissioner Statements and Rebuttals
immigrant detainee needs to be held in a minimum/medium security facility. When we
visited, there was no apparent distinction between people who have been convicted and/or
charged with crimes, those who have failed to appear for an immigration hearing, and those
who merely have a pending immigration hearing.
Immigration detention is civil in nature and is not intended to punish. Immigrants are held
to ensure their appearance at a hearing or for removal. Holding someone in a medium
security prison is punishment, and, unless an individual assessment requires that level of
security, it should not happen. I strongly support the Commission’s recommendation that
ICE use the least restrictive means possible to achieve its objective of ensuring
appearances, unless a higher level is justified because of the detainee’s criminal status. The
American Bar Association has recommended standards that should move detention centers
towards a civil, rather than punitive, model. 13 We have recommended that these standards
be adopted.
Access to Counsel
We also heard that access to counsel is incredibly difficult for immigrant detainees at all
types of facilities. Although there is no right to government-provided counsel for
immigration matters, which are not criminal, immigrants do have a right to counsel at their
own expense. 14 Even unaccompanied children in immigration proceedings are not provided
with counsel by the government. 15 It should be noted tens of thousands of unaccompanied
children have entered the United States seeking asylum in the past 2 years. 16
Those with counsel are far more likely to ultimately be successful in their immigration
hearings. 17 It is also true that immigration cases have serious consequences on the
detainees’ lives. If an asylum claim is decided incorrectly, a person who does have a
credible fear of persecution will be sent directly into an environment they rightly fear. In
many ways, immigration cases are more serious than criminal cases and access to counsel
should be a priority. I support the Commission’s recommendation that counsel should be
provided at no cost to indigent detainees from the time of their initial detainment until they
13

ABA Civil Immigration Detention Standards, American Bar Association, 2012, available at
http://www.americanbar.org/content/dam/aba/administrative/immigration/abaimmdetstds.authcheckdam.pdf.

See USCCR, Statutory Enforcement Report: The State of Civil Rights at Immigration Detention Facilities,
2015, pp.. 106-109.
15

Testimony of Karen Grisez, Briefing Transcript, p. 137-138.

See Southwest Border Unaccompanied Alien Children, U.S. Customs and Border Protection,
http://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children.
17

As cited in our report, detained immigrants with counsel are six times as likely to be successful in removal
proceedings. USCCR, Statutory Enforcement Report: The State of Civil Rights at Immigration Detention
Facilities, 2015, p. 108-109 (citing Charles Roth and Raia Stoicheva, Order in the Court: Commonsense
Solutions to Improve Efficiency and Fairness in Immigration Court, NIJC, October 2014.).

Statement of Commissioner Kladney
are released from the facility. At a minimum, unaccompanied children should be appointed
counsel. The assistance of counsel is particularly important at the early stage of the asylum
process, where crucial decisions are made in a short time frame. 18
In the absence of government-provided counsel, pro bono attorneys should be welcomed at
all detention facilities. Although people in immigration proceedings have a right to counsel
at their own expense, for detained immigrants actually getting counsel is a huge hurdle. 19
Facilities tend to be in remote locations. Telephone services may not be accessible. If they
are accessible, payment is required, which makes using the phone cost-prohibitive for some
detainees. 20 There are even reports that detention staff have denied access to counsel when
attorneys have made the journey to the facility. 21 There is no good reason for this.
Technology could help this situation. Private videoconferencing and/or Voice over IP with
attorneys should be provided to detainees free of charge. It is an easy cost effective fix for
the government. Detention should not cut off immigrants’ ability to meaningfully prepare a
claim.
Costs
Last year alone, the government spent $ 1,993,770,000 dollars on detention of
immigrants. 22 Detention is driven by Congress’s requirement to maintain 34,000
beds/day, 23 mostly by private contractors. Our resources are skewed towards detaining
people, leaving other immigration priorities underfunded. We were told at Karnes that
hearings are being scheduled for 2019 and 2020. Releasing asylum seekers, who have every
incentive to engage with the process to gain legal status, would allow them to provide for
themselves while they await hearings. 24 Throughout the immigration system, it would be a
more responsible use of our tax dollars to detain only when it is necessary, in the least
restrictive environment. It would also be more in line with American values.
18

Testimony of Franklin Jones, Briefing Transcript, p. 43.

Testimony of Karen Grisez, Briefing Transcript, p. 110.

We received reports that telephone charges can range from $1.25 to retrieve a voicemail at one facility to
$9.20 for a ten minute phone call at a different facility. See Written Statement of Karen Lucas, p. 12 available
at
http://www.usccr.gov/OIG/Karen_Lucas_AILA_StatementforUSCommissiononCivilRights_FINALVERSIO
N.pdf; Written Statement of Carl Takei, p. 9, available at
http://www.usccr.gov/OIG/Carl_Takei_Immigration_Detention_ACLUWrittenStatement_FINAL.pdf.

See American Immigration Council and Penn State Law, Behind Closed Doors: An Overview of DHS
Restrictions on Access to Counsel, Penn State Law, available at
https://pennstatelaw.psu.edu/_file/Immigrants/LAC_Right_to_Counsel.pdf.
22

Congressional Budget Justification FY 2015, Department of Homeland Security, available at
http://www.dhs.gov/sites/default/files/publications/DHS-Congressional-Budget-Justification-FY2015.pdf.

23
24

Consolidated Appropriations Act, 2014, PL 113-76, Page 128 STAT. 251, January 17, 2014.

Applicants for asylum are can be granted permission to work in the United States after their application has
been pending for six months. 8 C.F.R. § 208.7.

253

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Commissioner Statements and Rebuttals

Detention of immigrants is necessary in some cases. Arbitrary detention is not. Allowing
conditions that cut off immigrants’ access to their lawyers, conditions of overcrowding,
inadequate food, cold temperatures in living quarters, and detaining people without regard
to their required security status are useless, punitive and not necessary.
America is the land of promise. Our immigration system should reflect our values.

Statement of Commissioner Yaki

Statement of Commissioner Michael Yaki
With the Concurrence of Vice Chair Patricia Timmons-Goodson
The public, politicians and pundits fail to understand that national and international laws
seek to protect individuals fleeing violence and repression in their countries. The right to
asylum is just that – a right. While there can and should be processes in place to ensure that
the right is being exercised correctly and in good faith, a request for asylum is nevertheless
a consequence of horrific conditions being experienced by persons who would rather
choose to face an unknown fate against a known and life-threatening danger.
That being said, to treat people with a credible and colorable claim of asylum as if they
were criminals is simply difficult to understand. 1 The record shows many detainees are
housed in conditions that lack adequate security, 2 both on a temporary and long-term
basis. 3 They are not given the right to counsel, or even access to counsel. 4 Too often federal
1

As a panelist at the Commission’s briefing, Marissa Bono, an attorney with MALDEF, stated, “Our values
are expressed in the way that we treat our most vulnerable. And we do have laws in place to deal with
populations who fear the threat of persecution in their home countries. And the Government is trying to
circumvent those laws with an expedited deportation process and a no-bond policy for these families.”
USCCR Briefing Transcript, p. 193 (Jan. 30, 2015).
2

At our briefing, we learned of people crossing the desert to flee to safety, and then being placed in frigid
cells, clutching each other to stay warm in their T-shirts and shorts. Briefing Transcript, p. 240. Both the
transcript from our briefing and the main report here offer numerous examples of inhumane conditions and
instances of physical assault, including sexual assault.
Research shows that immigrant detainees held in private prisons have faced particularly harrowing conditions.
As was briefly touched on in this report, in February 2015, a significant riot broke out at the Willacy County
Correctional Facility in Texas – a riot which many did not find surprising, based on the conditions there.
According to an article on the riot, it was indicant of conditions at numerous private detention centers, as it
was “the latest in a string of recent uprisings at lucrative federally contracted private prison facilities known
as Criminal Alien Requirement prisons (CARs), which mainly hold immigrants convicted of unauthorized
entry or reentry into the United States.” Alex Mierjeski, Texas Private Prison Left “Uninhabitable” After
Immigrant Detainees Riot Over Poor Conditions (Feb. 23, 2015), https://news.vice.com/article/texas-privateprison-left-uninhabitable-after-immigrant-detainees-riot-over-poor-conditions. “’It should be of no surprise to
anyone that this happened at Willacy,’ Bob Libel, executive director of the nonprofit Grassroots Leadership,
told VICE News. ‘This is a facility that for years has been plagued by physical and sexual abuse and neglect,
and it’s really a place where immigrants are incarcerated and warehoused by a private prison corporation
that’s making hundreds of millions of dollars off of their incarceration, and clearly investing very little of it
for the people that are detained there.” Id.
ACLU attorney Carl Takei said that the uprising was “a predictable consequence of the BOP turning a blind
eye to abuse and mistreatment at these private prisons.” Id. This is of grave concern, given the high numbers
of detainees held in private prisons across the country. Karen T. Grisez of the ABA stated that “ICE annually
detains over 400,000 foreign nationals throughout the United States at a cost of approximately $2 billion per
year. Of the more than 33,000 daily detention beds available to ICE, over half are rented from private prisons
and state and local jails.” Karen T. Grisez, ABA, Written Statement to the U.S. Commission on Civil Rights,
p. 2 (Jan. 30, 2015).
3

Also at our briefing, we heard of people being held for weeks in facilities that were meant for no more than
72-hour detention. Briefing Transcript, p. 240.

255

256

Commissioner Statements and Rebuttals
or contract employees lack basic understandings of the cultural and political conditions of
the countries from which the potential asylum seekers are fleeing. The lack of cultural and
political relevancy is an impediment to understanding what could be otherwise legitimate
claims by individuals who do not understand the proof requirements under our laws. To
then deport many of them under “expedited” procedures without giving them the benefit of
due process, not to mention the benefit of humanitarian and charitable considerations, is not
only illegal, it flies in the face of the concept of asylum.
Politicians and pundits need to understand that demonizing refugees from Central America
is not only legally misplaced, but morally suspect. The press has a responsibility to separate
out protests against illegal immigration from the long-cherished ideal of asylum. Both
should be exercising leadership by educating the public that the well-known dissident
fleeing our sworn enemy is little different, legally, than a family fleeing death squads in the
villages of Central America. 5
For nearly 400 years we have mythologized the voyage of the Mayflower, its tiny hold
crammed with families seeking a new land to practice their religion after years of
persecution. The truth, however, is slightly different. While it is true that in England they
fled religious persecution, they had found sanctuary in Holland for a number of years. They
came to the New World in search of a “better and easier” living. 6
Would the Pilgrims in 2014 find it so easy to stake their claim in the United States of
today? Would an asylum officer understand their religion, the history of their homeland?
Would the officer argue that it was economic, and not religious reasons that compelled
them to brave a dangerous voyage across a vast ocean in search of a new home?

In their response to the Order to Show Cause in the ongoing Flores Settlement enforcement matter,
Plaintiffs noted that “[t]he very location of the detention facilities obviously undermines access to counsel and
make[s] long-term pro-bono services to these detained families unsustainable.” Jenny L. Flores, et al. v. Jeh
Johnson, et al., CV 85-4544 DMG (AGRx), Plaintiffs’ Response to Order to Show Cause, 22 (Aug. 13,
2015).
5

A recent study shows that “Honduras is the murder capital of the world, and Guatemala – fourth in
homicides – and El Salvador – fifth in homicides – are not far behind. The murder rates in Guatemala and El
Salvador are more than 800 times that of the United States, while Honduras has more than 1,900 times more
murders per 100,000 people than the United States. As the U.S. Department of Homeland Security has
illustrated, the cities in these three countries with the highest incidences of violence are also the cities sending
the greatest number of children to the United States.” Center for American Progress, The Facts on
Immigration Today (Oct. 23, 2014),
https://www.americanprogress.org/issues/immigration/report/2014/10/23/59040/the-facts-on-immigrationtoday-3.
6

Robert Tracy McKenzie, Five Myths About the Pilgrims, WASH. POST. (Nov. 22, 2013),
https://www.washingtonpost.com/opinions/five-myths-about-the-pilgrims/2013/11/22/9f93e822-52c1-11e39e2c-e1d01116fd98_story.html.

Statement of Commissioner Yaki
The answer, of course, is uncertain. Finding the answer is not easy. That answer, today,
requires access to counsel, cultural and linguistic competency, and an understanding of the
political conditions existing in foreign countries. But if we are to be true to our historic
legacy, to be true to the spirit of freedom from repression and tyranny upon which our
country was founded, we cannot pick and choose when we decide to provide the resources
necessary to arrive at a reasoned, justifiable decision to grant asylum or not. We cannot
pick and choose for political expediency whether our government invokes expedited
acceptance or deportation. In that light, it is difficult to defend and explain the
Administration’s actions as revealed in this report. 7 We are a country of, by, and for people
from different lands. We are one America, and we are many Americas. The Administration
would do well to honor our heritage in treating these refugees with dignity, respect, and
humanity.

To illustrate the disturbing nature of the Administration’s actions, and the continued failure to address the
treatment of people in family detention centers and to properly and promptly release both children and their
mothers, I have attached a separate statement and analysis, Attachment A, which examines the background
and recent developments in the Flores case. See The Flores Settlement Agreement, Case No. CV 85-45444544-RJK(Px) and Jenny L. Flores, et al. v. Jeh Johnson, et al., CV 85-4544 DMG (AGRx), 9 (C.D. Cal.
2015).

257

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Commissioner Statements and Rebuttals
Attachment A
To the Statement of Commissioner Michael Yaki
Key concerns and developments related to family detention continue to evolve. The
Commission’s main report summarizes the 1997 Flores Settlement Agreement, which
established guidelines for the treatment of children in immigrant detention. I would like to
offer further information on the recent District Court decision regarding enforcement of the
Settlement Agreement and the Administration’s troubling response to that decision.
Background
The Flores Settlement Agreement came in 1997, after more than a decade of litigation
involving U.S. detention policies related to a vast wave of unaccompanied children from
Central America in the 1980s. 8 The agreement established national standards regarding the
treatment of children in immigration detention, including standards for their detention and
release. An excellent summary of the Settlement Agreement by the Women’s Refugee
Commission and the Lutheran Immigration and Refugee Service briefly sets out the
requirements of the settlement as follows:
(1) Juveniles be released from custody without unnecessary delay, and in
order of preference to the following: a parent, legal guardian, adult relative,
individual specifically designated by the parent, a child welfare licensed
program, or, alternatively when family reunification is not possible, an adult
seeking custody deemed appropriate by the responsible government agency.
(2) Where they cannot be released because of significant public safety or
flight risk concerns, juveniles must be held in the least restrictive setting
appropriate to age and special needs, generally, in a non-secure facility
licensed by a child welfare entity and separated from unrelated adults and
delinquent offenders. 9
The summary continues,
Although it was the Immigration and Naturalization Service (INS) who
consented to the agreement, Flores also binds “their agents, employees,
contractors, and/or successors in office.” Therefore, it applies to all those in
Department of Homeland Security (DHS) custody—including short-term
Customs and Border Protection (CBP) custody and long-term Immigration

8
9

The Flores Settlement Agreement, Case. No. CV 85-4544-RJK(Px).

Women’s Refugee Commission and Lutheran Immigration and Refugee Service, Family Detention & the
Flores Settlement Agreement, p. 1 (Aug. 12, 2015), https://womensrefugeecommission.org/programs/migrantrights/research-and-resources/1224-flores-july-2015 (emphasis in original).

Statement of Commissioner Yaki
and Customs Enforcement (ICE) family detention facilities—and those
transferred to Office of Refugee Resettlement (ORR) custody. 10
They also note, importantly, that Flores requires a preference for release to a family
member except:
(1) Where the detention of a child is necessary to ensure his or her
appearance in immigration court; or
(2) Where the continued detention of the child is required to ensure his or
her safety or the safety of others. 11
In their summary of the Settlement Agreement, they conclude,
Children currently held in family detention centers have not been
individually and meaningfully assessed to determine whether any
exceptions apply to them, meaning their detention is out of compliance with
Flores requirements. In general, most children and their parents detained in
family detention have existing community ties and nearly all have claims for
protection, meaning they have strong incentives to appear in court. 12
Recent Developments
In February 2015, a motion to enforce Flores was filed, citing failure to properly release
children to parents, failure to properly place children in non-secure, licensed facilities while
in custody, and the need to comply with minimum standards regarding the children’s
treatment and conditions.
In a July 24, 2015 decision, U.S. District Judge Dolly M. Gee evaluated the motion by
Jenny L. Flores et al. to enforce the longstanding Flores Settlement Agreement. Ultimately,
Judge Gee granted Plaintiffs’ motion to enforce, finding that 1) Defendants Jeh Johnson
and the U.S. Department of Homeland Security’s “blanket no-release policy with respect to
minors accompanied by their mothers is a material breach of the [Flores Settlement]
Agreement” 13 ; 2) as part of its analysis of the no-release policy, that the Defendants’
policy argument in favor of detaining children – contending that “release of accompanied
children and their parents gives families a strong incentive to undertake the dangerous
journey to this country” 14 – was not persuasive (“even assuming the dubious proposition
that the Court can consider a policy agreement to alter the terms of the Parties’ Agreement,
10

Id. at 1-2 (emphasis in original; internal citations omitted).

Id. at 2 (emphasis in original).

Id.

Jenny L. Flores, et al. v. Jeh Johnson, et al., CV 85-4544 DMG (AGRx), 9 (C.D. Cal. 2015) (hereinafter
Flores).
14

Id. at 10.

259

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Commissioner Statements and Rebuttals
the Court is not persuaded by the evidence presented in support of Defendants’ policy
argument.”) 15 ; 3) Defendants “materially breached the Agreement’s requirement that
children who are not released be housed in non-secure, licensed facilities” 16; and 4) that
“[i]n light of the voluminous evidence … of the egregious conditions of the holding cells
… Defendants have materially breached the Agreement’s term that Defendants provide
‘safe and sanitary’ holding cells for class members while they are in temporary custody.” 17
This was a very significant decision 18 , requiring the Defendants to show cause why a
number of remedies should not be implemented within 90 days. These remedies included
that 1) “Defendants, upon taking an accompanied class member into custody, shall make
and record prompt and continuous efforts toward family reunification and the release of the
minor pursuant to [the original Settlement Agreement] 19; 2) Defendants must comply with
the Agreement “by releasing class members without unnecessary delay in first order of
preference to a parent” 20 ; 3) “Accompanied class members shall not be detained by
Defendants in unlicensed or secure facilities that do not meet the requirements [of the
Settlement Agreement)” 21; 4) “[A] class member’s accompanying parent shall be released
with the class member in a non-discriminatory manner … unless after an individualized
custody determination the parent is determined to pose a significant flight risk, or a threat to
others or the national security, and the flight risk or threat cannot be mitigated by an
appropriate bond or conditions of release” 22; and 5) “Defendants shall propose standards
and procedures for monitoring compliance with such standards, for detaining class
members in facilities that are safe and sanitary, consistent with concern for the particular
vulnerability of minors … including access to adequate drinking water and food, toilets and
sinks, medical assistance if the minor is in need of emergency services, temperature control,
ventilation, adequate supervision to protect minors from others, and contact with family
members who were arrested with the minor.” 23
15

Id. at 11.

Id. at 16.

Id. at 18.

The New York Times called the opinion “a significant legal blow to detention policies ordered by Homeland
Security Secretary Jeh Johnson in response to an influx of children and parents, mostly from Central America,
across the border in South Texas last summer. In her 25-page ruling, Judge Gee gave a withering critique of
the administration’s positions, declaring them ‘unpersuasive’ and ‘dubious’ and saying officials had ignored
‘unambiguous’ terms of the settlement.” Julia Preston, Judge Orders Release of Immigrant Children Detained
by U.S., N.Y. TIMES, July 25, 2015, http://www.nytimes.com/2015/07/26/us/detained-immigrant-childrenjudge-dolly-gee-ruling.html?_r=0.
19

Flores at 24.

Id.

Id. at 24-25.

Id. at 25.

Id.

Statement of Commissioner Yaki

This Order addresses many of the pressing issues raised at the Commission’s briefing and
in this report, and I am particularly disturbed that the Administration is seeking
reconsideration of the order.
Defendants’ Response to the Order to Show Cause
Defendants responded to the Order on August 6, 2015. Among the arguments they make,
throughout their response, Defendants refer to announcements they have made since the
briefing of the Flores matter as to reformed policies and procedures. They state that “the
policies that the Court construed as imposing ‘blanket’ detention of female-headed families
have been eliminated, and the length of detention of female-headed families has been
shortened dramatically.” 24 They further state that:
Pursuant to recently-announced policies and procedures, Defendants are
effectively transitioning the facilities into processing centers at which DHS
can: efficiently process families’ conduct health screenings and provide
immunizations; preliminarily assess whether family members are eligible to
apply for relief or protection to remain in the United States; facilitate access
to counsel and legal orientation programs; and release those found eligible to
apply for relief or protection within an average of approximately 20 days
under reasonable conditions designed to achieve their appearance in
immigration proceedings. 25
They argue, essentially, that “[t]he Court’s Order almost exclusively analyzed and
addressed detention policies and practices that no longer exist.” 26
Plaintiffs’ Response to the Order to Show Cause
Plaintiffs, in responding to the Order to Show Cause on August 13, 2015, note that, in
reality, the two press releases referred to by Defendants “have changed very little for
mothers and children illegally incarcerated by DHS. Lengthy and unsafe detention of class
member children continues unabated” 27 and that “the challenged conduct has in no
significant way been ‘voluntarily ceased.’” 28 One specific issue Plaintiffs raise is that,
while Defendants indicated that they have a new policy “’designed to ensure that the
24

Flores, Defendants’ Response to the Order to Show Cause Why the Remedies Set Forth in the Court’s July
24, 2015 Order Should Not Be Implemented, 1 (Aug. 6, 2015). The Defendants feel that, because the changes
they list occurred after the April 2015 hearing in this matter, the Court should reconsider its Order.
25

Id. at 1-2.

Id. at 8.

Flores, Plaintiffs’ Response to Order to Show Cause, 6-7 (Aug. 13, 2015).

Id. at 8.

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Commissioner Statements and Rebuttals
majority of [of class members]’ in unlicensed lock-down detention centers ‘will only suffer
illegal detention during the ‘time needed for essential processing (to reach an anticipated
average of approximately 20 days …)’ … [n]othing in the Settlement states or implies that
only a ‘majority’ ... of class members are protected by the Settlement’s terms.” 29
Another important point Plaintiffs make is that, while Defendants argue that they need
considerable time to provide children and their accompanying mothers with various forms
of health care, “there is overwhelming evidence that medical care provided detained class
member children is hopelessly inadequate and they are far more likely to become ill, [lose]
weight, or be infected with a communicable disease while detained than if they were
promptly released.” 30 Similarly, they argue that prolonged detention is not needed “to
facilitate access to counsel and legal orientation programs” 31 and that, “[i]n fact, “ICE
routinely interferes with the families’ ability to access counsel.” 32
Finally, another key point in the Plaintiffs’ Response is that “[r]ather than signaling a
willingness to end their breach of the Settlement, Defendants have indicated to their private
prison-for-profit groups a readiness to increase the detention of mothers and their
children.” 33 They continue:
Just about one week ago, the GEO Group that Defendants pay to operate the
Karnes detention facility announced on a second quarter 2015 Earnings
Conference Call that by “December 1, [2015], we expect to compete a $36
million 626 bed expansion to the Karnes, Texas, Residential Center … The
new facility capacity will be 1,158 beds and will result in a new fixed
monthly payment estimated to take place on December 1 of this year.” 34
What is to Come
The Court is expected to issue its Final Order soon. Should the improvements announced in
DHS’s statements regarding improved conditions and reduced detention periods not exist in
reality, and should reduced detention periods only be taking effect for as few as 51% of
class members rather than for all class members, I hope that the Final Order will largely
mirror the remedies set out in the July 24, 2015 Order, and that the Administration will
choose not to appeal the Final Order, but rather will move to quickly comply, honoring the
29

Id. at 9-10 (emphasis in original; internal citations omitted).

Id. at 19-20.

Id. at 21.

Id.

Id. at 24-25 (emphasis in original).

Id. at 25 (emphasis in original; internal citations omitted).

Statement of Commissioner Yaki
civil rights and basic human rights of people entering this country – with many doing so to
protect their loved ones from horrible conditions and harrowing violence. 35

Many policy makers and immigration experts agree. Following the July 24, 2015 Order, 178 House
Democrats, including Democratic Leader Nancy Pelosi, signed a letter to DHS Secretary Jeh Johnson,
writing, “The detained population is largely comprised of refugees fleeing violence and persecution, many of
whom have serious medical and mental health needs that have been inadequately addressed in custody,” and
that “It is long past time to end family detention. In light of this recent federal court ruling, we urge you to
take all necessary and appropriate steps to bring the Department’s practices in line with the settlement
agreement and the court ruling.” Letter from Hon. Zoe Lofgren, Hon. Lucille Roybal-Allard, and Hon, Luis
V. Gutiérrez et al., U.S. House of Representatives, to Secretary Jeh Johnson, Dept. of Homeland Security
(July 31, 2015). Following DOJ’s response to the Order, Representative Zoe Lofgren posted a statement from
herself and Representatives Roybal-Allard and Gutiérrez saying, “It’s disappointing that the Administration
continues to push to jail women and children seeking asylum. The overwhelming evidence shows that
detention facilities are harmful to the health and well-being of children, and the facts show that these asylum
seekers will show up for their immigration hearings if they are placed in alternatives to jail.” Available at
https://lofgren.house.gov/news/documentsingle.aspx?DocumentID=397978. Among organizations, the
American Immigration Lawyers Association and the American Immigration Council announced that they
were “outraged by the U.S. Department of Justice (DOJ) response to U.S. District Judge Dolly Gee’s ruling
on the mass incarceration pf children and mothers seeking asylum in the U.S. … Despite the government’s
claims that things have changed, the fact remains that incarcerating asylum seekers is contrary to our laws and
values, and detaining children is reprehensible. Instead of arguing about which traumatic facets of detention
they are improving, they need to end it once and for all.” American Immigration Council, DOJ’s Shameful
Attempt to Pretty up Family Detention Comes up Woefully Short (Aug. 7, 2015),
http://www.americanimmigrationcouncil.org/newsroom/release/dojs-shameful-attempt-pretty-familydetention-comes-woefully-short.
Also following the Administration’s response to the Order, the Women’s Refugee Commission and the
Lutheran Immigration and Refugee Service concluded their analysis of the Flores Settlement Agreement by
stating that “[r]ather than fighting compliance and appealing the decision, the government should take the
following steps … Children should not be detained, and should be released to a parent or other legal guardian
… If they must be detained, children can be held only in licensed facilities …Whether a child (and his or her
accompanying parent) poses a flight or security risk requires an individualized determination … Where
needed, the government should use the least restrictive alternatives to detention (ATD) possible … DHS
should implement short-term custody standards.” Women’s Refugee Commission and Lutheran Immigration
and Refugee Service, Family Detention & the Flores Settlement Agreement, p. 4 (Aug. 12, 2015),
https://womensrefugeecommission.org/programs/migrant-rights/research-and-resources/1224-flores-july2015.

263

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