ICE Cannot Be Trusted to Care for Immigrant Children
Today the United States Department of Homeland Security (“DHS”), United States Immigration and Customs Enforcement (“ICE”), et al., proposed new rules regarding “Apprehension, Processing, Care and Custody of Alien Minors . . . .” If finalized, the proposed rules would work to terminate a decades-old settlement agreement that the Government entered into in Flores v. Reno — a class action lawsuit brought against the Government in 1985 by immigrant children, challenging the constitutionality of the Government’s polices, practices, and regulations regarding the detention and release of immigrant children. Among other things, the Flores settlement agreement requires that, to the extent that ICE chooses to detain immigrant children, ICE must use facilities that meet certain standards, including state standards for the housing and care of dependent children (i.e., “licensed facilities”).
Under the proposed rules, ICE’s would no longer be constrained by state licensing requirements. Instead, the proposed rules would allow for ICE to create a self-licensing scheme whereby ICE could self-certify its own detention facilities as being consistent with minimum standards for keeping children safe. To preserve the appearance of neutrality, it is proposed that the new scheme would be subject to audit by a neutral third party.
How should we feel about this?
Even were we to assume that ICE would create and operate its self-licensing scheme with the best interests of the children in mind, there is ample reason to be skeptical that ICE is the right agency for the job. For example, on June 26, 2018, DHS’s own Office of Inspector General released a scathing report, “ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements.” Relevant here, the report concludes: “Although ICE’s inspections, follow-up processes, and onsite monitoring of facilities help correct some deficiencies, they do not ensure adequate oversight or systemic improvements in detention conditions, with some deficiencies remaining undressed for years.” Report at 2.
Surely ICE’s failure here, e.g., to “adequately follow up on identified deficiencies or consistently hold facilities accountable for correcting them . . . ,” id. at 2, should, at the very least, give one pause about whether it makes sense to entrust ICE with the safekeeping of immigrant children. But, perhaps, one might reasonably believe that with the addition of neutral third party audits, ICE will be held accountable in a way it hasn’t previously been and things will be different this time around.
The evidence suggests otherwise.
According to the June 2018 report, for the last eleven years, ICE has contracted with a company called Nakamoto to annually or biennially inspect its detention facilities. Things have not gone well. The report notes, “ICE does not provide clear guidance on procedures,” and “Nakamoto inspectors are not always that thorough.” Id. at 9-10. Indeed, the report concludes that Nakamoto’s performance does not meet required standards, noting:
Several ICE employees in the field and managers at ICE ERO headquarters commented that Nakamoto inspectors ‘breeze by the standards’ and do not ‘have enough time to see if the facility is actually implementing the policies. They also described Nakamoto inspections as being ‘very, very, very difficult to fail.’ One ICE ERO official suggested these inspections are ‘useless.’
Id. at 12–13. Moreover, the report found, “In some instances, Nakamoto’s reports misrepresented the level of assurance or the work performed in evaluating the actual conditions of the facility and the information in the reports was inconsistent with what we observed during inspections.” Id. at 14.
Not good.
While clearly within the general knowledge of ICE, the agency “does not exercise enough quality control over these contracted inspections to evaluate or improve Nakamoto’s performance.” Report at 14. Instead, “Inspections are scheduled in advance and announced to the facilities, which, according to ICE field staff, allows facility management to temporarily modify practices to ‘pass’ an inspection.” Id. at 15.
Yikes.
But let’s assume for a second that there is a small group of people within ICE that actually care about the conditions of confinement by which immigrants in ICE custody are detained, and that these folks would be responsible for implementing the proposed rule. Should we expect things to be different? I wouldn’t bet on it. Indeed, such a thing already exists: the ICE Detention Monitoring Program.
When ICE determines that there is a “perceived risk” that a certain detention facility will not comply with ICE detention standards, it can and does assign Detention Service Managers to open up shop at the facility in question, take immediate corrective measures where possible, and report back to leadership with respect to deficiencies that require greater intervention. “How’s that going,” you ask? So did the Office of Inspector General, and the answer is ‘not well.’
According to the Office of Inspector General, “DSMs at a few facilities portrayed local ERO management as ‘disengaged’ or ‘reluctantly responsive’ in detention issues.” Id. at 19–20. Overall, DSMs “described the relationship between DSMs and ERO field management as ‘not very productive.’” Id. And, apparently, there is no love lost on either side, with ICE field office personnel expressing their consideration that DSMs are “a nuisance.” Id. at 20.
And even where, despite all efforts to sweep things under the rug, a deficiency beats the odds and its existence comes to light, the Office of Inspector General “identified examples in which the repeated use of waivers allowed facilities to exempt themselves from standards that ICE deems critically important . . . .” Report at 18. In some instances the waivers are based on “local policies or conditions,” which the Office of Inspector General described as nothing more than “essentially . . . an intent to continue to not complying with standards.” Id. For example:
A detention standard requires the facility to allow detainees to help other detainees voluntarily and free-of-charge prepare legal documents. In addressing a deficiency in this area, the facility responded that it did not permit such assistance, stating, “It is the policy of the facility not to allow inmates/detainees to assist others with their legal issues . . . The facility chooses not to change its policy regarding the issues noted.
Id. at 17. And the list goes on. And ICE does not care. So, suffice to say, I am skeptical about whether ICE is the right agency to implement the substantive terms of the Flores settlement agreement through self-certification and self-audits. All evidence would suggest that entrusting ICE with this job would result in disaster.
Recently, we submitted a FOIA request related to the report described above. Feel free to keep an eye on its progress and access a copy of the OIG report here.
