Reports Spur Debate Over Immigrant Detention Conditions
By Muzaffar Chishti and Claire Bergeron
Migration Policy Institute
July 15, 2008
Immigration and Customs Enforcement (ICE) should improve its oversight of detention conditions even though it was not responsible for two detainees' deaths, according to a recent report from the Department of Homeland Security's Office of the Inspector General (DHS-OIG).
The report examined the cases of two detainees who died while in ICE custody, as well as ICE's overall detention standards.
Among the report's 11 recommendations for ICE were creating a policy (with OIG) requiring the prompt reporting of detainee deaths, developing an electronic health records system, implementing better screening procedures for infectious diseases, and taking care to separate criminal detainees from noncriminal detainees.
The report follows intense scrutiny of ICE's detention practices from the media, immigrant advocates, members of Congress, and a United Nations special rapporteur. The media reports cited various problems, including overcrowded detention facilities, the forced sedation of detainees, and the denial of emergency medical care.
Detention conditions have received more attention because ICE has increased the number of immigrants it detains. According to government data, ICE detained 311,213 people for immigration violations in 2007, more than three times the number detained in 2001. Currently, ICE estimates that it holds 33,000 detainees each day. Given the Bush administration's heightened emphasis on immigration enforcement, this upward trend seems likely to continue.
ICE's current set of detention standards dates back to 2000, when ICE's legacy agency, the Immigration and Naturalization Service (INS), created 36 detention standards to ensure the "safe, secure, and humane treatment" of detained immigrants. The standards cover visitation rules, grievance procedures, medical treatment protocols, and other areas.
Specifically, policies governing medical care state that all detainees should receive a medical screening upon arrival and a comprehensive medical screening within 14 days of admission. Also, detainees should be able to schedule appointments with outside medical providers when it is deemed necessary.
According to advocacy groups and recent media coverage, however, ICE often ignores these detention standards and does not work hard enough to ensure that detained immigrants have access to adequate health care.
In June 2007, the American Civil Liberties Union (ACLU) filed a class-action lawsuit on behalf of immigrant detainees held at the San Diego Correctional Facility, asserting that immigration officials violated the Fifth Amendment when they refused to provide medical care.
A new lawsuit filed by Families for Freedom and the National Immigration Project of the National Lawyers Guild demands that DHS issue a set of comprehensive and legally binding regulations governing detention. The suit argues that the current standards are neither legally enforceable nor universally applied.
In response to the media coverage, several members of Congress have held hearings or introduced legislation to improve ICE detainee medical care.
Representative Zoe Lofgren (D-CA) introduced the Detainee Basic Medical Care Act of 2008, which would require ICE to establish additional procedures governing the timely delivery of medical care to all detainees. The bill would also require ICE to report all detainee deaths to OIG and Congress within 48 hours.
Senator Robert Menendez (D-NJ) has introduced a companion bill in the Senate. Given its tight summer schedule, it is uncertain if Congress will pass the Detainee Basic Medical Care Act.
ICE officials maintain that immigrant detainees receive adequate medical care, and that all ICE detention facilities comply with the medical care standards established by the American Correctional Association.
ICE chief Julie Myers testified before Congress on June 4, 2008, that ICE has dramatically improved its medical-care policies over the past few years, and that the number of deaths in immigration custody has declined steadily since 2004. Myers also said ICE spent $100 million on detainee medical care in 2007, double the amount it spent five years ago.
The Government Accountability Office (GAO) has reported that while some ICE detention facilities do not comply with all aspects of the detainee medical care protocol, there does not seem to be a "persistent" or "pervasive" pattern of noncompliance across all ICE detention facilities.
In light of such reports, some members of Congress have questioned the need for new legislation. However, proponents of the Detainee Basic Medical Care Act maintain that new legislation is necessary because of the unprecedented number of immigrants ICE now detains.
Court Dismisses Extraordinary Rendition Lawsuit
- Read the DHS-OIG report.
- Read the Detainee Basic Medical Care Act.
- Read the National Immigration Project complaint.
- Read more about ICE detention standards in the May 2008 Policy Beat.
A federal court has dismissed a lawsuit from a dual Canadian and Syrian citizen who claims the United States violated his civil rights and subjected him to "extraordinary rendition" when the Immigration and Naturalization Service (INS) deported him to Syria in 2002.
Maher Arar arrived at John F. Kennedy International Airport in New York on September 26, 2002, in order to change planes and board a flight to Canada, his country of residence.
Because Arar's name appeared on a terrorist watch list, INS detained him in the United States for several days before deporting him to Jordan, where he was handed over to Syrian authorities. Arar claims that as a result of the deportation, Syrian authorities detained and tortured him for almost one year.
In his lawsuit, Arar argued that the United States violated the Torture Victim Prevention Act (TVPA), as well as his due-process rights under the Fifth Amendment of the US Constitution, when it detained him, denied his right to a deportation hearing and access to legal counsel, and deported him back to Syria.
In dismissing his due-process claim, the US Court of Appeals for the Second Circuit held that Arar was not entitled to these constitutional protections because he had not been technically "admitted" into the United States. The court also concluded that Arar had failed to state a claim against the defendants under TVPA, since the alleged torture occurred outside the United States and at the hands of non-US officials.
In spite of the court's decision, the Senate Foreign Affairs and Judiciary committees have shown continued interest in probing the circumstances surrounding Arar's case.
Last month, the Department of Homeland Security Office of the Inspector General (DHS-OIG) decided to reopen its investigation into Arar's case after the DHS-OIG received new information regarding the US government's involvement in Arar's deportation.
Policy Beat in Brief:
- Read the Second Circuit Court's decision in Arar v. Ashcroft.
Opposition to Airline Biometric Collection. In response to growing concern over DHS regulations requiring airlines to collect digital fingerprints from all foreign visitors exiting the United States, the House Appropriations subcommittee approved a measure that will require DHS to first test the program. In April, DHS issued the fingerprint and digital photograph regulations, which airlines and commercial cruise ships are scheduled to implement in August 2009. Airline industry leaders, foreign embassy officials, and several members of Congress objected to the rules, citing their high cost for the travel industry. The airline industry estimates the regulations would cost airlines $12 billion over the next 10 years. Congress has required that DHS begin collecting foreign visitors' exit biometrics by July 2009.
Criminal Prosecution of Immigration Violations. Federal prosecutors brought criminal charges against a record 9,350 immigrants in March 2008, 73 percent more than in March 2007, according to a report by the Transactional Records Access Clearinghouse. The report attributes the surge to DHS initiatives targeting immigrants caught entering the United States without inspection along the Southwest border. The new border tactics mirror recent worksite enforcement initiatives in which increasing numbers of immigrants have been charged with criminal violations of immigration law. In the past, the federal government primarily brought civil charges against unauthorized immigrants detained at the border or at worksites.
- Read the House Appropriations measure.
- Read the DHS rules on exit biometrics collection.
- Read more about exit biometric collection in the May 2008 Policy Beat.
National Guard at the Border. About 6,000 National Guard members will leave their Southwest-border posts July 15 as a two-year program to build border fences and monitor roads and cameras, among other duties, ends. Operation Jump Start was supposed to provide temporary assistance to the Border Patrol while it expanded its ranks. Since the operation's launch in June 2006, the Border Patrol has added over 5,000 agents. Border-state governors, however, have expressed concerns over pulling the National Guard from the border despite the Border Patrol's expansion. These concerns include the recent spike in crime and violence along the Mexican side of the border, as well as the inexperience of new Border Patrol agents.
State and Local Policy Beat in Brief:
- Read the Transactional Records Access Clearinghouse Report.
- Read more about criminal charges for immigration violations in the June 2008 Policy Beat.
Missouri Immigration Enforcement Law. Missouri officials will be required to check the immigration status of all welfare applicants and of those charged with a criminal offense thanks to a new law that Governor Matt Blunt signed July 7. The law also requires all public employers in Missouri to use the federal E-Verify database to determine whether new employees are authorized to work, and it directs the Missouri State Highway Patrol to sign a cooperative agreement with ICE.
South Carolina Enforcement Bill. All South Carolina employers will have to check the work authorization of new employees and unauthorized immigrants will not be allowed to obtain public benefits, own a firearm, or attend a public college under the terms of a new law. The South Carolina Illegal Immigration Reform Act (H.4400) requires employers to either use the federal E-Verify database or verify that their new employees qualify for a South Carolina state driver’s license. Governor Mark Sanford signed the bill in June.
- Read the text of the Missouri law.
- Read more about immigration laws in Missouri in the April 2008 Policy Beat.
- Visit the MPI Data Hub for the latest stats on immigrants in Missouri.
Bill Failure in Rhode Island. The Rhode Island state legislature did not pass an immigration enforcement bill despite introducing several such bills following a March 2008 executive order requiring state agencies and contractors to enroll in the federal E-Verify program. The executive order also directed the Rhode Island State Police to sign a cooperative agreement with ICE. Proposed bills included one to prevent unauthorized immigrants from obtaining public benefits or workers compensation, and one that would have denied state-funded prenatal care to pregnant women suspected of being unauthorized immigrants. In voting against these bills, Rhode Island lawmakers cited concerns over interfering in the enforcement of federal immigration law.
New Jersey RICO Act Lawsuit. The anti-immigration Immigration Reform Law Institute has filed a lawsuit against a New Jersey company that rented apartments to unauthorized immigrants, charging it violated the Racketeer Influenced and Corrupt Organizations (RICO) Act, a law normally used to prosecute organized-crime participants, drug smugglers, and human traffickers. Maribel Del Rio-Mocci v. Connolly alleges that Connolly Properties encouraged and induced unauthorized immigrants to reside in the United States, harbored them from official detection, and encouraged them to use false identity documents when leasing their apartments. Although this is one of the first lawsuits to charge a landlord with violating the RICO Act, immigration-law experts anticipate the strategy will be replicated in other parts of the country.
- Read the text of the South Carolina Illegal Immigration Reform Act.
- Visit the MPI Data Hub for the latest stats on immigrants in South Carolina.
- Read the complaint of Del Rio-Mocci v. Connolly.
- Visit the MPI Data Hub for the latest stats on immigrants in New Jersey.
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