REPORT ON IMMIGRATION IN THE UNITED STATES:  DETENTION AND DUE PROCESS

B.        Conditions of immigrant detention

1.         The absence of a civil detention system

241.          Given the previous information, the IACHR is deeply troubled by the continual and widespread use of detention in immigration cases.

242.          As pointed out in various sections of this report, immigration detention must be the exception and dictated by very specific procedural considerations, such as ensuring the undocumented immigrant’s appearance for proceedings or, in certain limited cases, the need to protect public safety.  Detention is prescribed only when a case can be made for the fact that the particular circumstance of the undocumented immigrant brings these considerations into play and when less severe measures are not possible.

243.          For those cases in which detention is both strictly necessary and proportional, the Inter-American Commission insists that immigration detention is an eminently civil matter and the conditions of detention ought not to be punitive or prison-like.   However, the IACHR observes with concern that this principle is not observed in immigration detention in the United States.

244.          As Dr. Schriro observed, between FY2007 and FY2009 two thirds of the immigration detainees had no criminal histories.^[404]  Only a small percentage of the remaining third had been convicted of a felony or violent crime.^[405]  It is important to point out that many of the undocumented immigrants with criminal records that ICE detains have already served their sentences; therefore, had their legal status been different, they would have been set free.  The Inter-American Commission must emphasize that while they are in ICE custody, the undocumented immigrants are detained for violations of civil law, no matter what their criminal histories may be.

245.          ICE’s new administration has repeatedly acknowledged that most undocumented immigrants are not detained in a manner or in conditions suitable to their status as civil detainees.  As Dr. Schriro wrote in her report:

The majority of the population is characterized as low custody, or having a low propensity for violence.

With only a few exceptions, the facilities that ICE uses to detain aliens were built, and operate, as jails and prisons to confine pre-trial and sentenced felons.  ICE relies primarily on correctional incarceration standards… These standards impose more restrictions and carry more costs than are necessary to effectively manage the majority of the detained population. […]

Quite a few [of the facilities to which ICE detainees are assigned] do have windows. …  Movement is largely restricted and detainees spend the majority of time in their housing units.^[406]

246.          Although detention conditions at the three centers visited in Arizona and Texas differ significantly, they all employ disproportionately restrictive penal and punitive measures.  At each of the three centers, detained immigrants wear prison uniforms; all the units operate as incarceration facilities; on a daily basis, detainees are subjected to multiple head counts that require that they remain in their beds for as much as an hour at a time; the prison guards sometimes lock them in (confine them to their cells or force them to stay in their beds); and detainees are handcuffed and shackled whenever they are taken outside the center’s walls, even when they are taken to court.^[407]

247.          Under the right to humane treatment, many of these practices are unacceptable for any detainee, regardless of the criminal or civil nature of his or her detention. However, as it pertains to the present report, the IACHR observes that, in general, in every circumstance described here, the immigration detainees are treated as criminals.  Based on the interviews conducted, the Inter-American Commission cannot fail to mention the psychological impact that this “criminalization” has on those placed in the detention system.

248.          The IACHR acknowledges ICE’s stated commitment to develop a “truly civil detention system.”^[408]  The Inter-American Commission will now discuss its concerns regarding supervision and oversight of the detention centers and the main problems it has identified in the detention conditions.  It will then make its observations on some of the recent reforms introduced with the idea of changing those conditions.

2.        ICE mechanisms of supervision and accountability with regard to detention conditions

249.          Currently, there are 8 federally-owned detention facilities,^[409] 7 private contract facilities, 5 facilities operated by the Federal Bureau of Prisons, and nearly 350 state and local prisons (IGSA centers) where DHS contracts bed space.^[410]  Approximately 67% of immigrant detainees are housed in state and local prisons (IGSA facilities).^[411]  A September 2009 Migration Policy Institute (MPI) report found that of the 17 most populous immigrant detention facilities, which house 50% of the detained immigrant population, nearly 75% are managed and operated by private security firms.^[412]

250.          As the IACHR observed during its visits, and as the MPI report confirms, the DHS signs Inter-Governmental Services Agreements (IGSA) with local or county government entities, which in turn subcontract with private security firms to perform the detention services.^[413] The two major private prison contractors, Corrections Corporation of America (CCA) and GEO Group, Inc., had combined earnings of over $325 million thanks to their ICE contracts in 2008.^[414]

251.          ICE has established 41 new performance-based detention standards that govern the conditions under which adult noncitizens are to be detained.^[415]  However, these performance-based standards are not legally enforceable by detainees in court or any other administrative judicial process.^[416]  U.S. federal immigration regulations only state: “Under no circumstances shall an alien be detained in facilities not meeting the four mandatory criteria for usage.  These are: (1) 24-hour supervision, (2) conformance with safety and emergency codes, (3) food service, and (4) availability of emergency medical care.”^[417] It should be noted that for IGSA facilities portions of the performance-based standards do not expressly apply; rather, the standards establish a certain margin of flexibility where some sections are concerned.  The standards state that “IGSAs must conform to these procedures or adopt, adapt or establish alternatives, provided they meet or exceed the intent represented by these procedures.”^[418] 

252.          As for ICE’s efforts to ensure compliance with the detention standards, the IACHR observes that the current annual monitoring system is not adequately equipped to identify and reduce the violations of detention standards and human rights, particularly given the size the United States immigration system.  One of the Inter-American Commission’s concerns has to do with facilities that had a daily population of 10 or more persons in FY2009.  Of those, 39% did not have an annual ICE performance evaluation based on ICE detention standards during that period.^[419]  The evaluations done by ICE, the independent reviews,^[420] and the IACHR’s own review of the detention center monitoring reports available to the public^[421] show that the ICE monitoring practices are not up to identifying violations of detention standards; do not provide detailed descriptions of the violations so that they can be brought to the attention of the authorities; make no recommendations to find a solution; and that no follow-up is done to determine whether violations have decreased.

253.          A 2009 report by the National Immigration Law Center (NILC),^[422] which examined hundreds of reports monitoring detentions at facilities across the United States, prepared by ICE, the American Bar Association (ABA) and the Office of the United Nations High Commissioner for Refugees (UNHCR) between 2001 and 2005,^[423] found that the inspections were deficient on several counts.   The Inter-American Commission believes that the report is instructive in identifying the structural concerns posed by current detention oversight and supervision practices that ICE uses.^[424]

254.          The NILC report states that neither the review form nor the manual for the Detention Management Control Program (DMCP) provides specific criteria by which to evaluate a facility according to the detention standards, either in general or specifically.^[425]  As a result, the reviewer has a wide margin of discretion to evaluate whether a facility meets the requirements that each standard establishes and to determine whether it is in overall compliance.^[426]  Inevitably, this results in inconsistent evaluations that make the ICE review less credible.  A June 2008 report of the DHS Office of the Inspector General (OIG) expressed a similar concern with regard to ICE inspections, and stated that:  “In some monitoring reports, the reviewers deemed the facility’s performance on certain elements acceptable, despite identifying notable deficiencies.”^[427]  Similarly, a December 2006 report of the DHS OIG found, in its independent evaluation of five centers, a substandard performance with respect to compliance of a number of detention standards.  When ICE evaluated those centers, it found that their performance had been acceptable.^[428]

255.          The ICE inspection reports do not contain detailed information describing the violations of detention standards that occur in each facility.  The NILC report and the IACHR’s own review of the inspection reports indicates that reviewers rarely provided specific  information on any violation or any suggestions as to how a violation might be corrected.^[429]  Without this essential information, it is difficult for staff in a facility to be able to correct existing deficiencies.

256.          The Inter-American Commission is also troubled over the mechanisms to follow up on violations once they have been identified.  The ICE summary on inspections of centers in 2008 and 2009 shows that 26 detention centers that received negative evaluations in 2008 (and which housed an average daily population of at least 10 immigration detainees in FY2009) were not inspected in 2009.^[430]  The IACHR notes that when the deficiencies have been identified, ICE agents have not been very consistent when the time came to put together strategies in the detention centers to set in motion “plans of actions” to remedy the problems. In its July 2009 reply to a communication sent by a group of organizations that defend immigrants’ rights, ICE indicated that detention centers need only submit a “plan of action” to remedy the violations of detention standards if the detention center in question receives an overall deficient or at-risk rating.  The communication reads as follows:

The DSCU [Detention Standards Compliance Unit] reviews the final report of a contractor and assigns a rating.  Facilities that receive a deficient or at-risk rating must submit a plan of action identifying the corrective measures to be taken to address the non-complying conditions.^[431]

257.          The NILC reported, however, that in testimony given in a previous court proceeding, the former head of the DSCU, Mr. Walter LeRoy, stated that even centers given an overall rating of “acceptable” could be required to develop plans of action to correct any violation of detention standards identified.^[432] 

258.          The NILC report also cites a number of examples in which the ABA, the UNHCR or ICE has demonstrated a continuing violation of detention standards in a center that has already been identified as being in violation of standards in previous inspection reports.^[433]  At least one ICE inspection official is cited in the NILC report as saying that he never reviewed the previous inspection reports before conducting a new evaluation of a center.^[434] 

259.          Summarizing, the Inter-American Commission observes with concern that ICE has failed to develop an effective and rigorous culture of detention-standards compliance.  Recently, an official with the Office of Detention and Removal Operations (DRO) expressed concern at a Congressional hearing over the “unethical manner in which ICE internal investigations are conducted.”^[435] The DRO agent also said the following:

No checks and balances currently exist within ICE.  ICE investigates itself.  Because ICE investigates itself there is no transparency and there is no reform or improvement.

[…]

Oversight must be removed from ICE, otherwise ICE and senior leadership will continue to have complete control over the investigative process and the outcome.^[436]

260.          Furthermore, even if ICE’s own oversight and supervision mechanisms were adequate, they would have little chance of favorably affecting immigrant detention conditions.  The IACHR observes that the IGSA and CDF contracts, or their subcontracts with private security firms, are the only legally binding instruments that dictate detention conditions.^[437]  After reviewing the contracts with the IGSA, which were made public and are available at the ICE website,^[438] the Inter-American Commission observes with concern that there are no legal mechanisms, short of termination of the contract, whereby ICE can ensure compliance with detention standards.  As a result, only those detention centers that have committed the most egregious violations of those standards, to the point of requiring termination of the contract, might face any consequences.  The head of the Detention Standards Compliance Unit (DSCU) reported that as of 2009 only three contracts had been rescinded for failure to comply with detention standards.^[439]  The head of the DSCU also observed that ICE has no internal policies requiring the agency to terminate contracts with centers that were rated as either deficient or at-risk on one or more detention standards.^[440]

261.          The IACHR observes that of the 154 detention centers housing an average daily population of 10 immigration detainees in FY2009, ICE gave 40% of them an overall deficient rating on compliance with the standards for detention of immigrants in 2008, 2009 or both.^[441]  This information, combined with the documents obtained through Freedom of Information Act requests (FOIA),^[442] do not correlate with the date published during the first half of 2007, which indicated that only 13% of the centers evaluated during that period received a deficient rating.^[443]

262.          ICE’s inability to enforce the detention standards is further encumbered by state and local agencies’ practice of delegating responsibilities under the IGSA to private security firms and contractors.^[444]  In effect, ICE has several times evaluated the private subcontractors with which it has no contractual relationship at all, to check for their compliance with safety and security standards.  But in practical terms ICE has no tools to enforce compliance.   During its visit to the Willacy Detention Facility, the Inter-American Commission observed that the multi-level contractual relationship prevented timely implementation of improvements in detention conditions.^[445]

263.          State authorities must be able to exercise proper control over contracts with private firms so that effective mechanisms are at the ready to ensure compliance with detention conditions that befit the status of immigrants.  State officials must not lose sight of the fact that the work these private companies do is directly related to the human rights of persons who have been placed in the custody of the State.

264.          The IACHR further observes that under the IGSA contracts to house immigration detainees, ICE generally pays a fixed per diem rate for every day that the immigrant remains in detention.^[446]  The daily per diem paid by ICE is not in any way contingent upon the local government’s performance or the private subcontractor’s compliance with performance-based detention standards.^[447] The profits are the principal motive for local governments and private security firms to enter into contracts with ICE.^[448]  On the whole, any reform done to improve the degree of compliance with national detention standards will eat into the profit margin under those contracts.  Therefore, neither local governments nor private security companies have any incentive to perform above the minimum required to avoid termination of the contract with ICE.

265.          While the available information indicates that the contracted centers received an average per diem of $95 during FY2008,^[449] many detention centers received less than the per diem rate, particularly those centers that housed the highest numbers of immigration detainees.  According to ICE information, in FY2008, 20 centers with an average daily population of 200 or more detainees (accounting for approximately one third of the daily population in ICE detention during FY2008) received a per diem allowance of US$67.63.^[450]  The Etowah County jail in Alabama (an IGSA center), which had an average daily population of 352 detained immigrants during FY2008, received a per diem of US$35.12.^[451]  While the Inter-American Commission appreciates the fact that there are regional differences in cost of living, it is not clear how the detention centers under contract can provide adequate care and comply with national detention standards with such disparate per diems.

266.          Similarly, the IACHR is troubled by the information on private contractors that operate several immigration detention centers, but are said to be making a considerable profit under this contractual arrangement.^[452]  The information that the Inter-American Commission has compiled suggests that ICE’s private contractors might be making even higher profits to house immigration detainees.  For example, the CCA, the largest company in the private prison industry,^[453] reported that in calendar year 2008 it spent an average of US$33.25 a day to house each detainee.^[454]  However, the IACHR observes that in FY2008 ICE paid the CCA a per diem of US$64.47 and US$54.25 for two of the detention centers that CCA runs for ICE under the IGSAs –the Eloy Detention Center (Arizona) and Stewart Detention Center (Georgia).^[455]  The Inter-American Commission understands that some of the difference goes to pay state and local government agencies associated with these contracts.  Even so, research done by Boston Review suggests that the local and state governments received between US$1 and US$2 of the per diem paid under these IGSAs.^[456]

267.          The IACHR is also disturbed by reports that CCA and other firms operating immigration detention centers are saving even more money by hiring the detainees –who are unauthorized migrants- to do basic maintenance work at the detention centers, paying them US$1 a day.^[457] So, even factoring in the business costs that are not directly related to the housing of detainees, CCA is likely earning over 20% on these two subcontracts.  The Inter-American Commission observes that in many cases a considerable percentage of the per diem or daily rate is not being invested in the care and housing of detainees, with the result that the level of care is significantly lower than the per diem rates that ICE published initially indicated.  At the Eloy Detention Center, the immigrant detainee death rate is higher than at any other detention center.   ICE has established a direct link between some of these deaths and the routinely inadequate medical care that this detention center provides.  Even so, this detention center consistently receives acceptable ratings with regard to the standards of medical care for detainees.^[458] 

268.          Considering the challenges of contractually enforcing detention standards and of guaranteeing that the food and care of detainees are properly funded, the IACHR is very troubled by DHS’ refusal to make legally enforceable regulations on the conditions of immigration detention.^[459]

269.          As an example of all the above concerns about ICE supervision, the Inter-American Commission observes that in January 2010 it was revealed that ICE officials concealed evidence of mistreatment and neglect of a number of immigrants who died while in immigration detention.^[460]  The New York Times pointed out that in the case of one detainee’s suicide, the medical staff at the prison falsified the medication log to show that the detainee had received the proper medication.^[461]  However, the New York Times reports that the detainee was already dead at the time the medication was supposedly administered to him.^[462]  Regrettably, the IACHR has learned these are not the only cases of cover-ups of negligent medical care.^[463]  Furthermore, in the cases reported by the New York Times in January 2010, ICE’s internal investigations found that the medical staff of both institutions had committed serious violations of the medical standard for detention, among others; in both cases, however, ICE determined that no investigation or future action was necessary.^[464]

270.          Regarding ICE supervision and accountability, the United States informs in its observations to the draft version of this report that the agency has “appointed new leadership of the Office of Acquisitions, and instituted an Acquisitions Working Group which meets weekly to review contracting activity, develop new and consistent contracting templates, develop Statements of Work which reflect new detention reform principles and maximize collaboration with our Federal partners including the OFTD” and that the “collaboration includes using the new OFDT Electronic Intergovernmental Service Agreement (EIGSA) system which expedites Federal contracting”.

271.          The State also points out that ICE has followed through on its pledge to establish and train more than 40 new Federal Detention Site Monitors (DSMs) posted at each of its major detention facilities.   The State adds that these monitors “on a consistent daily, weekly and monthly basis, inspect to ensure that our contractors are meeting their obligations, respond to and report on problems, and collaborate with contracting officers regarding cost adjustments as appropriate”.  Further, the United States informs that DSMs are provided with in-depth training on “civil rights considerations that arise in detention”, including the following topics: Red Flags that Signal Victims of Human Trafficking; Effectively Managing a Culturally Diverse Detention Setting, Detainee Access to Counsel; Limited English Proficiency and Disability Considerations; Religious Practices; Women’s Issues in Detention; The Violence against Women Act; Asylum Seekers in Detention; Preventing and Responding to Sexual Abuse of Detainees, and Mental Health.

272.          As informed by the State, these monitors report weekly to ICE headquarters documenting the problems identified within the facilities and suggesting the corrective actions taken to solve them.  The DSMS reports are then analyzed by the agency’s new Detention Monitoring Council, which “engages ICE senior leadership to ensure remedial plans are implemented and to determine whether ICE should continue to use a particular facility”.
 

273.          In its response, the United States also adds: 

ICE agrees that transparency and oversight must guide our detention reform efforts.  Since its establishment in August of 2009, the ICE Office of Detention Oversight (ODO) serves as an independent office within the agency, conducting inspections and investigating allegations.  ICE has also conducted a comprehensive review of grievance procedures and designed a pilot project to ensure direct involvement of ICE officers in both formal and informal grievances.  ICE is also exploring the feasibility of posting all facility inspection reports and corrective plans of action on the Internet.

274.          The Inter-American Commission considers that the position of the State described above constitutes a constructive form of addressing the problems and meeting its international obligations to protect the human rights of allpersons under its jurisdiction.  The IACHR will continue to monitor the situation in its follow up to this report.

3.         Medical care of immigration detainees

275.          Concerning the detention conditions and medical care, the Inter-American Commission is troubled by the persistent complaints of improper medical care for immigration detainees.^[465]  The IACHR is alarmed by the growing list of immigrants who have died in detention, in many cases from health conditions that would have responded to proper, timely treatment.^[466]  The Inter-American Commission notes the investigative reporting done by the Washington Post in 2008 about the death of 30 immigration detainees under “questionable” circumstances and observes that the average age of the deceased detainees was just 36.^[467]

276.          There are two main causes of the chronically inadequate medical care of immigration detainees:  a medical system designed for treatment of short-term emergencies; and the fact that the clinics of the detention centers are not adequately staffed and constantly up against the problem of retaining sufficient qualified personnel, due in part to the remote location of a number of the detention centers.

277.          The IACHR observes that the medical and dental care of the detainees is regulated by the DIHS Medical Dental Detainee Covered Services Package.^[468]  The DIHS Medical Dental Detainee Covered Services Package clearly states that:

The DIHS Detainee Covered Services Package primarily provides health care services for emergency care. Emergency care is defined as "a condition that poses an imminent threat to life, limb, hearing or sight." Accidental or traumatic injuries incurred while in the custody of ICE or BP (Bureau of Prisons) and acute illnesses will be reviewed for appropriate care.

278.          While the name of the program seems to suggest that its coverage includes full medical and dental care, the Inter-American Commission notes that the document in fact contains 35 pages, most of which describe conditions that are not covered.^[469]  All the other medical conditions not included on the list and that do not constitute emergencies or dental issues, including pre-existing and chronic health conditions, are evaluated on a case-by-case basis for treatment.^[470]

279.          The IACHR also notes that the DIHS Medical Dental Detainee Covered Services Package can be inconsistent with the level of care described in the Immigration Detention Standard for Medical Care of 2000 and 2008.^[471]  The ICE/DRO Performance-based Detention Standard for Medical Care sets  the following “Purpose and Scope” and “Expected Outcomes” for medical care:

Purpose and scope.  THIS DETENTION STANDARD ENSURES THAT DETAINEES HAVE ACCESS TO EMERGENT, URGENT, OR NON-EMERGENTN MEDICAL, DENTAL AND MENTAL HEALTH CARE THAT ARE WITHIN THE SCOPE OF SERVICES PROVIDED BY THE DIHS, SO THAT THEIR HEALTH CARE NEEDS ARE MET IN A TIMELY AND EFFICIENT MANNER.

EXPECTED OUTCOMES.  The expected outcomes of this Detention Standard are:

1. Detainees will have access to a continuum of health and care services, including prevention, health education, diagnosis, and treatment.  …^[472]

280.          The Inter-American Commission is concerned that the DIHS’ focus of attention is on short-term, emergency care.  The DIHS found that in FY2008, approximately 34% of the detained immigrants had some chronic health problem such as hypertension, diabetes and tuberculosis (in some cases undiagnosed).^[473]  The DIHS also estimates that between 2% and 5% of the detained population suffers from some serious or persistent mental illness and that as many as 16% may have required mental health services.^[474]  The IACHR notes that while the majority of immigrants are detained for relatively short periods, many others spend months and even years in detention.^[475]  The Inter-American Commission is therefore deeply troubled by the fact that the DIHS medical and dental package does not cover the needs of the detained immigrant population that ICE has in its custody.^[476]

281.          For example, the IACHR interviewed one patient who had been diagnosed with diabetes.  She said that she had not received adequate, consistent treatment for her illness and that she almost lapsed into a diabetic coma as a result.  The Inter-American Commission has learned that this is not an isolated case among detainees who suffer from chronic medical conditions.  A June 2008 investigation done by the DHS OIG, which reviewed the medical histories of 20 detained immigrants who suffered from chronic medical conditions, found that only 11 of them were being treated.^[477]  Various reports by NGOs have corroborated these concerns about the lack of proper and consistent medical care for detainees with chronic health conditions like hypertension, diabetes and HIV/AIDS.^[478]

282.          Apart from the lack of medical care, the IACHR observes that dental care is also limited at a number of centers.  During the Inter-American Commission’s visits, it was learned that the Willacy Detention Facility and the Pinal County Prison did not have resident dentists.^[479] A number of detainees interviewed by the IACHR complained of serious dental problems that were not properly treated during their detention.  NGOs and detainees have said that the dental services provided are limited to extractions.^[480]  In effect, the Inter-American Commission observes that the Medical Dental Detainee Covered Services Package mainly covers treatments with anesthesia and/or extractions to relieve pain and suffering.^[481]

283.          Any service that cannot be initially delivered at the detention center’s clinic has to be pre-approved at DIHS headquarters in Washington, D.C.^[482]  The detention center’s medical staff is to file a Treatment Authorization Request (TAR) form, which is then checked by the DIHS’  Managed Care Coordinators (MCCs), a team of nurses, for approval under the Covered Services Package.^[483]

284.          The IACHR has received conflicting information about the TAR process and believes there is evidence that it does not function properly.^[484]  The Inter-American Commission hopes that the State will address these issues and make certain that persons with conditions that cannot be treated in the detention centers are able to receive proper and timely treatment.

285.          The serious and chronic shortage of qualified medical personnel at the immigration detention centers, which has been documented, is unacceptable.  The IACHR has received various statistics about the shortage of medical personnel, all of which show alarming outcomes:  according to the May 2008 investigative reporting done by the Washington Post, during the first half of 2008 DIHS reported that between 20% and 30% of the posts for medical personnel in the immigration detention system were vacant.^[485]  According to the October 2007 report by the DHS OIG, CDF and SPC centers had an elevated vacancy rate as high as 36% for medical personnel.^[486]  According to the congressional testimony given by the ACLU, three major immigration detention centers in Texas (the Willacy Detention Center, Port Isabel SPC and the South Texas Detention Complex), which had an average daily population of 3,686 detainees, had a personnel shortage in excess of 40%, which included the posts of clinical director, physicians and management positions.^[487]

286.          During the Inter-American Commission’s visit to the Willacy Detention Center, the medical director reported that 12 of the 29 medical posts were vacant, that she was the only physician on staff and that she worked a four-day week, on 10-hour shifts.  This detention center was housing 1,358 detainees on the day of the IACHR’s visit.  Similarly, the Pinal County Prison, which housed 544 immigrants on the day of the Inter-American Commission’s visit, reported that it had only one resident physician on its staff.  The IACHR has also received information to the effect that the pharmaceutical services at the detention centers are understaffed.  The medical director at the Willacy Center commented that the center’s remote location made it difficult to keep a qualified team on board.^[488]  The Inter-American Commission is deeply concerned by the fact that scarcity of medical personnel is such a frequent problem at the centers where  ICE houses the majority of the detained immigrants and that the detention centers are located in such remote areas.^[489]

287.          Many detainees and former detainees that the IACHR was able to interview complained because on several occasions they had to wait for days, and even as much as a week before receiving medical treatment.   A December 2006 report by the DHS OIG found that at three centers inspected, 41% of the non-emergency medical requests were not addressed promptly.^[490] The Washington Post reported that in January 2008, the South Texas Detention Complex had a backlog of 2,097 medical appointments.^[491]

288.          The Inter-American Commission is troubled by the fact that ICE continues to expand its immigration detention system despite the fact that it does not appear to have sufficient medical personnel to meet the needs of the new incoming detained immigrants.  For example, the IACHR learned that when ICE opened the Jena Detention Center (Louisiana) in 2007, with a current capacity of 1,162 detained immigrants, ^[492] it did not have a medical director, a staff doctor, a psychiatrist or dental specialist.^[493]  The Inter-American Commission must stress the point that if the State acts in such a way as to increase its immigration population in detention, it ought to comply with its obligation to meet their basic medical needs.  This is the State’s obligation under Article XXV of the American Declaration, the Inter-American Principles on Detention and under other international standards and principles mentioned in section III of this report.

289.          Apart from these concerns, the IACHR also observes that recruitment and retention of outside health professionals to treat the persons whom ICE detains is also problematic.   A December 2009 study by ICE OIG identified three factors contributing to this problem.  The first is the fact that a number of detention centers are located in rural areas, which limits the number of qualified medical personnel.  The second is the fact that outside health professionals are often concerned that their other patients might feel uncomfortable by the ICE requirement that immigration detainees be kept handcuffed or shackled when taken to their outside medical appointments.  Finally, the outside health professionals have had difficulty filing claims with the DIHS for prompt payment.^[494]

4.         Mental health care of detained immigrants

290.          While the condition of basic medical care is very alarming, the Inter-American Commission has learned that the mental health care of immigration detainees is even worse.  As previously noted the DIHS estimates that anywhere from 2% to 5% of the detained immigration population suffers from serious and persistent mental illness and that as many as 16% of the population may have required mental health services.^[495]  However, in May 2007, the head of DIHS’ Mental Health Unit stated that the ratio of mental health specialists to mentally ill immigrant detainees is 1 to 1,142.^[496]  To put the magnitude of the problem into perspective, the IACHR has learned that the percentage of staff to treat detainees with mental health problems in the Federal Bureau of Prisons and in the prisons for patients with mental illnesses is 1 to 400 and 1 to 10, respectively.^[497]  In response to the Washington Post’s investigative reporting, ICE acknowledged the severe shortage of mental health personnel to treat immigrant detainees and promised that by October 2008 it would have its ratio up to something like that in the Federal Bureau of Prisons.^[498] The Inter-American Commission has received no information about whether the ICE achieved that promised goal.

291.          The IACHR has learned that the constant scarcity of mental health medical personnel is worst in a number of the largest immigration detention centers:

§                     Northwest Detention Center (FY2008, Average Daily Population 967) – one full-time psychologist.^[499]

§                     South Texas Detention Complex (FY2008, Average Daily Population 1,470) – 0 resident psychiatrist or psychologist^[500]

§                     Willacy Detention Center (FY2008, Average Daily Population 1,430) – 2 psychologists and 1 psychiatrist part time.

292.          Even more disturbing is the fact that ICE does not have specially designed facilities to address the mental health needs of detained immigrants.  Due to the absence of an environment appropriate for treatment, the Inter-American Commission has learned that various immigrant detainees with mental illnesses spend a significant portion of their time in solitary confinement (“administrative segregation”) and are allowed out of their cells for an hour every day.^[501]  The condition of many of these detainees deteriorates in solitary confinement, which also delays their immigration proceedings due to competency concerns.^[502] As will be analyzed in the section titled “Discipline”, which appears below, during its visits to the detention centers in Texas and Arizona the IACHR was alarmed to receive information about the use of solitary confinement for mentally ill detainees.  The Inter-American Commission must emphasize that solitary confinement takes a terrible mental and physical toll on the person, and would remind the State that solitary confinement must be used as a measure of last resort, for very limited periods of time and subject to judicial review.^[503]

293.          Apart from the detainees suffering from serious and persistent mental illnesses, the IACHR would also draw the State’s attention to the psychological and mental impact that detention has on asylum seekers and other victims of persecution, including victims of domestic violence.  Given this situation, the State has an obligation to address the serious effects that deprivation of liberty can have on certain vulnerable groups.^[504]

294.          In response to the concerns of the Inter-American Commission regarding this issue, the United States responds that “ICE has made clear that providing individuals in ICE custody with sound health care and access to appropriate medical services is a guiding principle of our reform”.  Accordingly, when the reforms were announced the agency “pledged to hire a medical expert to provide an independent review of medical complaints and denials of requests for medical services” and in January 2010, the ICE Division of Immigration Health Services (DIHS) “assigned regional clinical directors to provide ongoing case management of complex medical cases and to expeditiously review denials of requests for medical services”.  The State adds that ICE also committed to devising and implementing a medical classification system to support immigration detainees with unique medical or mental health needs, and that a new Medical Classification Instrument was developed in close collaboration with members of its non-governmental organization (NGO) Medical Advisory Group.  ICE indicates that the new Medical Classification Instrument “is expected to inform agency decisions regarding appropriate housing for detainees with medical or mental health needs” and that to date it has completed a draft survey instrument that will soon be sent to field sites for review and comment.  The response of the United States also informs that ICE hopes to initiate field testing of the survey tool soon and that it anticipates that the classification system will be implemented system-wide by mid-2011.

295.          The State adds:

ICE has also made substantial progress on our coordination efforts with DHS CRCL to systemize and expedite the medical complaints review process.  CRCL has been an active participant in ICE working groups focused on revisions to the PBNDS on Medical Care and related standards, the development of the medical classification system, and the risk assessment tool.  ICE consults regularly with CRCL on a range of issues related to medical and mental health care.

As an example of this collaboration, ICE and CRCL jointly hosted a mental health care forum in September 2010, in which we brought together NGO partners, mental health experts, and representatives of numerous government agencies to discuss important mental health issues related to immigration detention.  Regarding specific medical complaints, complaints and inquiries to CRCL about significant medical issues are raised directly to ICE leadership to ensure these matters are promptly reviewed.  Recently, CRCL and ICE developed new processes to promote collaboration in mortality reviews.  Finally, CRCL will have a role in training programs for medical personnel and other key personnel.

ICE has developed robust training programs for medical staff regarding the potentially complex medical and mental health issues of detained immigrants.  For example, senior ICE clinical directors participated in the National Commission on Correctional Health Care (NCCHC) medical directors’ boot camp and the NCCHC mental health conference in July 2010 in preparation for further development of training programs for medical staff to occur over the course of the coming year.  Also, as part of the drafting process for the 2010 PBNDS, all medical care standards were reviewed and updated in consultation with our NGO Advisory Groups.  During this process, we placed particular focus on mental health issues and the development of new Women’s Medical Care Standard to address the unique medical needs of the female detainee population.

ICE agrees that access to mental health care is a critical element in providing humane conditions of confinement.  The ICE Mental Health Program provides direct patient care for acute and chronic conditions, training of Public Health Services and ICE staff on mental health issues, and other mental health related matters as requested by ICE.  The ICE Mental Health Program provides, among other services: mental health screenings and evaluations; consultation services; referrals for psychiatric evaluations, psychotropic medications, and inpatient psychiatric treatment; forensic psychiatric evaluation; mental health treatment at designated facilities, development of continuity of care plans, identification of substance abuse difficulties, and stabilization of individuals identified as victims of sexual assault.

The goal of this program is to have multi-disciplinary mental health teams composed of  psychiatrists, psychologists, and/or social workers to provide mental health services to ICE detainees across the nation, either directly or through our expanding telehealth system. The Mental Health Services program works closely with counterparts in other mental health facilities and providers in the community.  The DIHS Mental Health Services program oversees the clinical aspects of the mental health treatment in IGSAs and shelters that house detainees.  This program also supports other needs requested by ICE such as emergency mental health consultations, facilitating mental health services, responding to Freedom of Information Act requests, and coordination with courts and community based agencies.

The ICE Mental Health Program has a nationwide tracking system that closely monitors severely mentally ill detainees and ensures that all their special needs are met.  We have a Children and Families Residential Program in Berks, Pennsylvania, as well as a residential program exclusively for female detainees in Taylor, Texas.  Both residential centers are equipped with specialized staff to provide treatment programs specifically focused on delivering services to these targeted populations.

296.          The Inter-American Commission thanks the State for the information, which reveals a series of specific initiatives to guarantee the right to mental health of persons in immigration detention.  These actions are especially important, since persons with mental disabilities in detention are an especially vulnerable group, and as indicated in the relevant section of this report, the Inter-American Principles and Best Practices of Persons Deprived of Liberty spell out specific requirements on involuntary seclusion and solitary confinement in these cases.

5.         Food services

297.          During its visits to the Pinal County Prison (“Pinal”) and the Willacy Detention Center (“Willacy”) the Inter-American Commission received numerous complaints about the quality and quantity of food and water.   A number of detainees had reported losing a considerable amount of weight while in detention.  The immigration detainees complained that they had only 20 minutes to finish their food.  The lunch on the day of the IACHR’s visit to Pinal consisted of a piece of bologna, two pieces of white bread, steamed vegetables and milk.  The Inter-American Commission interviewed one of the detainees at Pinal and was told that for the two months prior to the visit, they had consistently been served moldy bread. In the pods visited at Pinal, the IACHR observed that there were no drinking fountains or other sources of water except for the sinks in the bathrooms.

298.          The reports the Inter-American Commission received about the food service at Willacy were equally disturbing.  All the detainees interviewed in a pod complained of not receiving sufficient food.  A former nurse told the IACHR that while she worked at Willacy, prisoners were frequently given antacids to calm the hunger pains.  The Inter-American Commission also observed that each pod of cells, which represented 50 detainees, received 5 gallons of potable water (approximately 1.5 glasses of water per detainee), which was replaced every day.  There was also a water source in each cell, but the water did not taste good.

299.          By contrast to Pinal and Wallacy, the IACHR observed that the food at the Florence SPC (the ICE property that the delegation visited) seemed to be of a better quality.  Also, detainees were allowed to leave their dormitories to eat in the cafeteria.

300.          The Inter-American Commission observes that the meals provided by the facility are the only dietary alternative for the immigrant detainees. While snack food is available from small vendors at a number of the detention centers, many immigrant detainees have no money to be able to buy food to supplement the facility’s diet.  One former detainee whom the IACHR interviewed said that indigent detainees sometimes sell their food to other detainees in exchange for money to purchase telephone cards or other small items from the commissary at the facility.

301.          Although the Inter-American Commission has been unable to get a complete picture of the food service at ICE detention centers, it is concerned about the significant deficiencies in the quantity and quality of the meals that detainees receive at the various facilities.^[505]  The IACHR reminds the State that once the immigrants are detained it is the State’s obligation to make certain that all detainees receive adequate food.

302.          The response of the United States with respect to food services is the following:

ICE notes Commission concerns regarding allegations of insufficient food, water, and the use of antacids to calm hunger pains.  Please be assured that these are not tolerated practices and detention services managers have been tasked to review facilities to ensure they are all in compliance with stated ICE food service policies.  The Commission should be aware that food services in ICE detention centers ensure that detainees are provided a nutritionally balanced diet that is prepared and presented in a sanitary and hygienic food service operation.  The Commission can be assured that all nutritionally balanced diets are reviewed at least quarterly by food service personnel and at least annually by a qualified nutritionist or dietitian.  Food service at immigration detention centers also offers special diets and ceremonial meals for detainees whose religious beliefs require adherence to religious dietary laws.

303.          The Inter-American Commission welcomes the information supplied by the State with respect to the causes of concern identified in this report.  The IACHR is especially encouraged by the commitment expressed by the State to ensure appropriate food services, including special cultural or religious needs.

6.         Living conditions

304.          All the adult detention centers that the Inter-American Commission visited operate as prisons (with varying levels of security).  For the IACHR, the living conditions at the Pinal and Willacy detention centers are particularly disturbing.

305.          According to the information received, in 2006 Pinal County added a wing to the existing prison, in anticipation of concluding an IGSA with ICE to house immigration detainees.  Despite this stated purpose, the Pinal wing that houses immigration detainees functions as a high-security prison.  The cellblocks where the immigration detainees are housed consist of two floors with adjacent cells sharing a rear wall (and to which detainees are reportedly confined from 8:30 p.m. to 7:00 a.m.) and an open area out front with tables and white benches bolted to the floor.  The Inter-American Commission observed that the cells had no windows or good ventilation.  Except for one hour for recreation and the chance to go to the legal library for an hour, detainees never leave the cellblock.  It was apparent to the IACHR delegation that the immigrant detainees spend too much time with nothing to do.  Finally, the bathrooms in the cells had a mildew buildup and detainees reported that the toilets and sinks often do not work.

306.          The living conditions at Willacy are a source of particular concern, especially because of the limited space.  The Willacy Detention Center consists of 10 semi-permanent and totally-enclosed Kevlar sprung housing structures that house the male detainees, and a permanent structure on the back side of the detention center where the female detainees are quartered.  Each sprung housing structure contains four “pods” and each pod houses 50 detainees in a kind of dormitory.  Each pod measures approximately 3500 square feet; in others words, a pod is about three quarters of the size of a regulation basketball court.^[506]  The Inter-American Commission observes that the pods in the Florence SPC (which are also dormitory-style) and at the Willacy center were similar in size.  However, at the Florence SPC, ICE housed 36 detainees in that space, rather than the 50 housed at Willacy.  The IACHR also observed that every pod had a window and that the seating area was inadequate for the number of detainees.  Many male detainees protested about the low temperature in the pods.  A nurse who worked at Willacy said that a number of detainees were treated for respiratory infections because the pods were kept at such a low temperature.  The Inter-American Commission also learned that Willacy has had several outbreaks of infectious illnesses.  During the IACHR’s visit, 6 pods were in quarantine, which meant that the detainees stayed there for 7 days.  The living conditions of female detainees at Willacy were better than those of the male detainees, but the dormitories of the female detainees did not have windows.

307.          By contrast to Pinal and Willacy, living conditions at the Florence SPC center are considerably better.  The area for the dormitories was less crowded and detainees had a separate room with ample sunlight, vending machines, televisions with private headphones and activities to occupy their time.  Although conditions are still too restrictive for civil detainees, the Inter-American Commission did notice the differences in the IGSA centers and the ICE-owned center, which  supports the observations made with respect to the deficiencies of the oversight mechanisms.
 

7.         Telephone access

308.          The IACHR observes that given the high number of immigrant detainees in centers located in rural areas, it is essential that reliable, low-cost telephone access be available so that they are able to contact their attorneys, consulates, family members and friends.  Under ICE detention standards, detainees are supposed to be able to make free calls to free legal service providers, national consulates and the no-charge telephone line to file grievances with the DHS OIG.^[507] The detention centers have an obligation to keep a current list with the numbers of the consulates and free legal service providers.  Finally, detainees are to have reasonable and equitable access to reasonably priced telephone services.^[508]

309.          However, ICE’s history when it comes to providing free, low-cost telephone service to immigrant detainees has been deplorable.  In January 2004, DHS signed a “no cost” contract with Public Communications Services, Inc. (“PCS”).^[509] Under the “no cost” contract, PCS agreed to provide free telephone service to enable immigrant detainees to call their attorneys, consulates and the OIG grievance line, in exchange for exclusive rights to sell debit telephone cards to the detainees and charge for collect calls.^[510]  Under the contract, PCS was required to deliver reports on call volume and maintenance, but not on PCS’ earnings from the detainees’ calls.^[511]  Furthermore, the PCS contract does not contain any penalties for inadequate connectivity, excessive charges or other problems,^[512] despite the fact that with this system the company has no incentive to provide quality service.  The May 2008 report of the DHS OIG revealed that a number of detention centers have signed collateral agreements with PCS, without informing ICE.  These are commission-and revenue-sharing agreements under which PCS pays the operators a percentage of the debit cards sold at their facilities.^[513] The GAO’s 2007 report found that some centers received high commissions ranging from 20% to 60%.^[514]

310.          The Inter-American Commission notes that the DHS OIG and the GAO investigations spoke in alarming terms about the low completed call rate^[515] on the pro bono telephone system, and that NGOs and detainees have reported very high rates charged for telephone calls.

311.          As for the effects that the poor connectivity problem can have on detainees’ contacts with legal aid services, the IACHR notes with concern that a DHS OIG investigation in December 2006 of one IGSA center in New Jersey found that the telephone line could not make a connection with 50 of the 63 consulates (79%) that were dialed, and could not establish a connection with any of the 12 legal aid services that were called.^[516]  Similarly, a July 2007 report by the GAO found systemic problems with the telephone connection to the pro bono legal services at 16 of the 17 facilities that used the PCS services.^[517]  Likewise, at 12 of the 17 facilities access to the OIG grievance line was limited or blocked.^[518]  The ICE contracting officer assigned responsibility for the PCS contract said that oversight of the PCS’ performance was limited.^[519]

312.          During its visits, the Inter-American Commission tried to make calls in the Pinal and Willacy detention centers to reach pro bono legal services and consulates.  In Pinal, the IACHR and a number of representatives from the center tried for 30 minutes to use the free telephone service and never managed to complete a call.  The Inter-American Commission noted that the telephone service only allows one to choose between a collect call and using a telephone card, without any clear instructions as to how to make a free call.^[520]  At Willacy, the IACHR had similar problems using the free telephone service.^[521]

313.          Under a May 2009 contract with Talton Communications, ICE has made some improvements.  However, the Inter-American Commission is still concerned because the problems with the telephone service for the detainees seem to persist,^[522] especially as regards ICE’s supervisory role and the lack of personnel qualified to exercise that supervision.

314.          A January 2010 report of the DHS OIG found that the ICE Contracting Officer’s Technical Representative (COTR) assigned to oversee the telephone contracts had not reviewed the financial-related data.^[523]  That Contracting Officer’s Technical Representative commented that

it is in the service provider's best financial interest, in order to profit from the contract, to ensure that phones are working and that detainees are making as many collect and debit card calls as possible. For these reasons, the COTR said that the contract is "self-policing" and therefore the current level of oversight being provided is sufficient.^[524]

315.          The IACHR concurs with the DHS OIG’s finding that it is in the contractor’s best interest that detainees should make as many paid calls as possible, which is precisely why ICE should monitor the telephone service to make certain that the free system functions properly and that the charges for paid services are correct and reasonable.^[525] The IACHR’s concern is that the report in question finds that none of the ICE officers responsible for the contracts had sufficient expertise to conduct the type of analysis that would ensure that Talton abides by the terms of the contract.^[526]

316.          The Inter-American Commission underscores the fact that ICE’s August 2009 contract with Talton Communications to provide telephone service to the majority of the detention facilities that ICE uses, is the sole enforceable instrument governing the delivery of telephone service to immigrant detainees, rather than the detention standard on “Telephone Access.”^[527]

317.          Finally, the IACHR also has certain concerns regarding a number of the restriction authorities that ICE demanded for its current telephone contract.  The Inter-American Commission notes that ICE uses a system that automatically cuts off the calls when the receiving end tries to initiate a 3-way or conference call.^[528]  While under certain circumstances this might be a reasonable restriction, the IACHR notes that various legal services providers serve as facilitators to put detainees in contact with private attorneys that can offer them free legal counsel, but they have not been included on the ICE list of pro bono defenders.  Consequently, when a detainee calls the legal services provider, the latter must create a 3-way call with the attorney on the specific case.  The Inter-American Commission notes that ICE should be able to allow 3-way calls based on a case-by-case check of the telephone number.  It therefore urges ICE to allow such a mechanism for all telephone numbers in the pro-bono services system.  The IACHR also notes that the contract limits each detainee’s telephone access to 10 pre-approved numbers.^[529]  The Inter-American Commission is worried about this restriction on the detainees’ liberty, which blocks certain calls for no good or verifiable reason.

318.          Regarding the general issue of telephone communications in immigration detention facilities, the State informs:

ICE already provides detainees with free calls to pro-bono legal service providers, consular officials, and DHS Office of the Inspector General.  In addition to these services, the 2010 PBNDS includes a revised Standard on Telephone Access to ensure that detainees will have reasonable and equitable access to reasonably priced telephone services.  The Standard will also ensure that detainees with hearing or speech disabilities have appropriate accommodations to allow for accessible telephone services.  At a minimum, there must also be one operable telephone for every 25 detainees, although the optimal level in the Standards provides for one telephone for every ten detainees.  Telephones are to be tested daily and placed in strategic locations throughout the facility to afford privacy and minimal distraction for conversations to take place.

One of the new provisions in the PBNDS 2010 encourages facilities to seek out and use emerging telecommunications, voiceover, and Internet protocol technologies to reduce telephone costs.  ICE prioritizes reasonably priced telephone services for detainees to maintain contact with family members, friends, and legal representation.

319.          The Inter-American Commission values these measures and all other reform initiatives to improve communication services in immigration detention, since the respective restrictions should not be equivalent to those imposed on criminal detainees.