Two Congressional hearings yesterday highlighted the massive growth in ICE detention despite a dysfunctional and incompetent inspections system that fails to keep people safe.
Heidi Altman of the National Immigrant Justice Center told members of the House Immigration Subcommittee that ICE has detained almost 500,000 people in fiscal year 2019 with over 50,000 people in detention per day, a more than 50% increase since President Trump took office. In another hearing hours later in the House Homeland Security Subcommittee on Oversight, Management, and Accountability, the government watchdog for DHS — the DHS Office of the Inspector General (OIG) — described a dysfunctional inspections system that has been unable to catch and address the multiple problems the OIG has discovered in repeated inspections and reports.
At the same time, members of Congress were bewildered by what appears to be incompetence of the ICE-contracted company charged with “independent” audits of detention facilities. The result: inhumane detention conditions that put the lives, health and safety of people in detention at great risk.
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said:
Half a million people passed through ICE immigration detention in this fiscal year alone. Let that number sink in. And the Trump administration wants more. Not only is this number appallingly high in light of the fact that the purpose of ICE detention is equally served without detention in the vast majority of cases, and for much less cost to the taxpayer.
Morever, we learned through yesterday’s Congressional hearings that the system in place that is supposed to ensure the life, health and safety of people detained by ICE is dysfunctional, incompetent, and utterly incapable of ensuring the protection of those in ICE custody. It is time for Congress to rein in the growth of ICE detention and hold the agency accountable for ensuring the life and safety of those in their custody.”
David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said:
Under the Trump administration the ICE detention apparatus has expanded to a system that holds more than 50,000 children, women and men every night. For months attorneys, advocates and members of Congress have reported shocking violations in ICE detention facilities including physical and sexual abuse, substandard medical care, inappropriate transfers, fetid conditions and other appalling indignities contrary to basic notions of human decency. Yesterday’s Congressional hearings laid bare an appallingly dysfunctional inspections system that has been unable, indeed unwilling, to remedy the serious problems found by the OIG. It’s shocking to think that in 2019 the U.S. government holds children, women, and men in horrible conditions with little resources devoted to their well-being and safety. Members of Congress sat in disbelief as they listened to the testimony of a CEO of a highly paid ICE-contracted company charged with “independent” audits of detention facilities who, as one member of Congress observed, didn’t seem to know very much about her company’s business.
Massive growth in ICE detention since Trump took office despite multiple OIG reports of inhumane conditions
In her written testimony, Altman explained that in 1994, just 6,785 people were in immigration detention on a daily basis. That tripled by 2000 when 19,458 were detained. The system continued to grow steadily over the next decade to 34,376 by 2016 and dramatically spiked in size by over 50% since President Trump took office to over 50,000 people detained per day and more than 500,000 people in total in this fiscal year alone.
This massive growth in detention occurred despite a growing list of DHS OIG reports describing multiple instances of inhumane detention conditions. A June 2019 OIG report stated, “[W]e observed immediate risks or egregious violations of detention standards at facilities in Adelanto, CA, and Essex County, NJ, including nooses in detainee cells, overly restrictive segregation, inadequate medical care, unreported security incidents, and significant food safety issues.” A February 2019 OIG report of an unannounced visit to a Newark facility revealed, “[A] number of serious issues that violate U.S. Immigration and Customs Enforcement’s (ICE) 2011 Performance Based National Detention Standards and pose significant health and safety risks at the facility.” A September 2018 OIG report of the Adelanto ICE processing center revealed, “nooses in detainee cells, improper and overly restrictive segregation, untimely and inadequate detainee medical care.” These are just some of the many OIG reports issued over the last two and a half years that described extremely problematic conditions in ICE detention.
The Broken, Dysfunctional, and Incompetent Inspections System that Fails to Protect ICE Detainees
According to Altman,
There are no formal or enforceable regulations providing the minimal standards of care for those detained by ICE. Instead, ICE generally incorporates into its contracts with private prison companies and county jails one of three sets of standards the agency itself has developed, primarily based on correctional standards despite the civil nature of immigration proceedings.xxxii Only about 60% of detained immigrants are held in ICE jails that were last inspected under the most recently updated set of guidelines, known as the Performance Based National Detention Standards of 2011 (PBNDS 2011), and some immigration jails are not contractually governed by any standards at all.xxxiii Congressionally imposed reporting obligations require ICE to notify appropriators if it enters into new contracts or extends contracts without requiring PBNDS 2011 compliance, but ICE appears to see this process as a rubber stamp, providing Congress with cursory notifications that merely note that compliance with higher standards would be more costly.
To add to this lack of enforceable minimal standards of care, the DHS OIG describes a woefully inadequate inspections system to ensure the standards of care that do exist are followed. While ICE uses both an internal and external inspection system that should ideally result in robust inspections, the DHS OIG “concluded that neither type of inspection nor the onsite monitoring ensure consistent compliance with detention standards or promote comprehensive deficiency corrections.”
The OIG described its findings:
We found that the inspections performed by Nakamoto [external auditor] do not fully examine actual conditions or identify all compliance deficiencies, because the Nakamoto inspection scope is too broad and inspection practices are not consistently thorough. Also, although ICE provides Nakamoto with the scope for the inspections, detention review summary forms, and inspection checklists, it does not provide clear procedures for evaluating detention conditions. In contrast, ODO [internal] inspections are narrower in scope and use effective methods and processes to thoroughly inspect facilities and identify deficiencies, but the inspections are too infrequent to ensure the facilities implement all corrections.
Moreover, ICE does not adequately follow up on identified deficiencies and, at the time of our review, did not have a comprehensive process to verify that facilities had implemented all the corrective actions. Without holding facilities accountable for correcting deficiencies, the usefulness of both Nakamoto and ODO inspections was further diminished.
In addition, ICE ERO field offices, which are responsible for implementing corrective actions, do not provide consistent support for the DSMs who work onsite and monitor detention conditions in more than 50 facilities. Thus, while DSMs, who identify thousands of deficiencies though their work, have the expertise to propose corrective actions, they do not have the authority to implement them. The lack of consistent support for DSMs hinders implementation of needed changes.
Furthermore, the outside auditor — Nakamoto — used by ICE for many years was incapable of responding even to basic questions from members of Congress during the House Homeland Security Subcommittee on Oversight, Management, and Accountability hearing, prompting one member of Congress to tell the CEO of Nakamoto, “Doesn’t seem to me you know very much about this business.”
Failure to hold detention facilities accountable
In addition to a dysfunctional and incompetent inspections system, when ICE does find a detention facility in violation of a required standard, the DHS OIG found that “ICE frequently issued waivers to facilities with deficient conditions, effectively exempting them from having to comply with certain detention standards.” This is the result of the fact that, “ICE…has no formal policies and procedures to govern the waiver process, thereby allowing officials to grant waivers without clear authority, and failing to ensure key stakeholders have access to approved waivers.”
Moreover, the DHS OIG found, “ICE generally is not imposing financial penalties, even for serious deficiencies such as significant understaffing, failure to provide sufficient mental health observations, and inadequate monitoring of detainees with serious criminal histories.” The DHS OIG explained:
From October 2015 to June 2018, various inspections and DSMs found 14,003 deficiencies at the 106 contract facilities we focused on for our review. Deficiencies included those that jeopardize the safety and rights of detainees, such as failing to notify ICE about sexual assaults and failing to forward allegations regarding misconduct of facility staff to ICE ERO. Despite the quantity and seriousness of the deficiencies, ICE only imposed financial penalties twice.