Editor's Picks

ICE fights to keep conditions in detention facilities secret

Photographs released by court order cause the Department of Homeland Security to consider following the Department of Justice’s lead and end their use of private for profit prisons.

The Department of Justice (“DOJ”) recently announced they would no longer use private prisons as detention facilities.  While many celebrate this decision, others hope that the Department of Homeland Security (“DHS”) follows suit.  A few days after the DOJ’s announcement, Senator Bernie Sanders and Democratic Congressman Raul M. Grijalva of Arizona, issued a letter calling on the DHS Secretary Jeh Johnson to phase out contracts with for-profit prison companies by declining to renew them or reducing their scope.

U.S. Senior District Judge David C. Bury ordered the DHS to release hundreds of documents including many photographs that demonstrate the poor conditions of their temporary detention facilities.  The photographs provide a rarely seen view of the DHS’ holding facilities along the Southwest, showing the notorious holding areas regularly called hieleras, or “iceboxes,” by both agents and detainees.  The class action lawsuit, which prompted this court order, was filed by a group of civil and immigration rights groups, including the American Immigration Council (“AIC”), the National Immigration Law Center, and the American Civil Liberties Union (“ACLU”) of Arizona.

“Many were forced to sleep on hard benches or concrete floors in concrete cells.”

The lawsuit began when the AIC Council reviewed the statements of detainees and information from the agency obtained through Freedom of Information Act requests and found that in the first six months of 2013, more than 80 percent of the people in the DHS’ custody in the Tucson Sector were held more than 24 hours.  This contradicts the agency’s own policies, including a 2008 memo which said that a detainee should not be held for more than twelve hours and should be moved “promptly.”  However, in 2013 more than 58,000 people, including children and pregnant mothers were held two to three days, the AIC said.  Many were forced to sleep on hard benches or concrete floors in concrete cells.  The AIC argues that this violates the Fifth Amendment rights of those detained and also violates the Administrative Procedure Act, which guides how federal agencies may set up their own guidelines.

In September 2015, Judge Bury sternly criticized the DHS for failing to retain surveillance video from the Southern Arizona detention facilities.  Judge Bury warned government attorneys that there could be “an adverse presumption” in favor of the plaintiffs because the videos were destroyed, calling the loss of the video recordings, “at best, negligent and was certainly willful.”  The agency said that the videos were lost because the agency did not have the capacity to hold the digital video files and thus, surveillance video showing the three people involved in the lawsuit was not available.  According to the released documents, the DHS urged the judge to not release the photos and documents because they contained “personally identifiable information that is protected” or sensitive “records regarding law enforcement activities and operations.”  This strong resistance only highlights the DHS’ secretive nature in how they manage their facilities.

According to the lawsuit, the immigrants were “stripped of outer layers of clothing and forced to suffer in brutally cold temperatures.”  The lawsuit includes testimony recorded by the Women’s Refugee Commission.  Carmen was apprehended by Border Patrol crossing the river with her five month old daughter Lily.  She was placed into a cell with no dry clothes or blankets for her or the baby.  Carmen requested something to keep the baby warm since it was so cold in the cell and all she had was wet clothing. The agents refused.  By morning Lily was turning blue.

“. . . the drinking fountains and toilets in the holding cells are part of the same single unit.”

One of the photographs depicts how the drinking fountains and toilets in the holding cells are part of the same single unit.  Some plaintiffs allege that a cell holding 130 people only had two functioning toilets and waters fountains.  Mary Kenney, senior staff attorney for the AIC told Fusion, “Border Patrol’s treatment of men, women and children in its custody is simply inexcusable, and the lack of transparency shows their desire to avoid any public oversight or accountability.”  The lawsuit is not asking for monetary damages, but lawyers hope that publishing the pictures will help draw attention to the situation and lead to change.  “We are just looking for a change and improvement in the conditions so that they meet with basic constitutional standards,” Kenney told Fusion.  Kenney continued stating that, “The next round of images, which we hope will be released, will be of much greater interest to the media and the public.”

Kenney’s wish came true this past month, when more photographs were released.  Still images from surveillance videos at stations in Southeastern Arizona, offer a glimpse inside the cells.  Some photographs show migrants lying shoulder to shoulder on bare concrete floors while neighboring cells are empty, sleeping pads stacked against walls. In one image, a man drinks from a jug, apparently the only source of water for all the detainees in his cell.  In another, men sleep against a toilet stall.  The screenshots also show a mother changing a baby’s diaper on top of a thin thermal blanket set against the concrete.  The blankets are migrants’ sole protection against the cold temperatures in the “hieleras.”  The short term cells have concrete benches, but not beds; sinks and toilets, but no showers.  They were “not designed for sleeping” and detainees “should not be held for more than 12 hours,” according to a Border Patrol manual referred to in the lawsuit.  However, as stated, most of the people were held for much longer periods.

“These photographs and documents, along with the DOJ’s decision on private prisons, have put pressure on the DHS to make a decision.”

These photographs and documents, along with the DOJ’s decision on private prisons, have put pressure on the DHS to make a decision.  Carl Takei of the ACLU’s National Prison Project condemned the DHS for ignoring criticism of its for profit contractors and continuing to renew contracts with private companies.  “Now that the Justice Department has firmly declared its own private prison experiment to be a failure, any attempt by ICE to defend its continued relationships with these companies will ring hollow,” Takei said.  Private prison companies have been shifting their strategy for some time toward ICE facilities, according to Christopher Petrella, a lecturer at Bates College and member of Grassroots Leadership, an advocacy group that studies private prisons.  “They’ve been lobbying the Department of Homeland Security, in particular, very heavily,” Petrella told Business Insider.  “ICE is the growth sector, and I loath to use that language because we’re talking about human beings here.  But from ICE and GEO’s perspective, that’s the discourse that they use.”

At the end of August 2016, the DHS Secretary Jeh Johnson asked an independent advisory council to review the agency’s system of private immigration detention centers and submit their report by November 30, 2016.  Though the members of the subcommittee have not been announced, it appears it will likely be a job reserved for insiders.  The subcommittee will apparently be selected from the forty members of the Homeland Security Advisory Council (“HSAC”), which includes members of companies that have contracts with the federal government.  Immigrant rights advocates, needless to say, have serious concerns about the impartiality of the new HSAC committee, and warn against the potential for a conflict of interests.

“. . . immigration authorities have been much slower to consider methods other than jails. . . the use of private detention is not necessary.”

ICE, a component of the DHS, holds more than 60 percent of its 400,000 annual detainees at private facilities.  Nine of the ten largest detention centers are private, operated either by the Corrections Corp. of America or the GEO Group.  In 2014, both companies were also awarded contracts to house mother and child asylum seekers.  If the federal government eliminates or reduces the use of private facilities, it would have to undertake a major transition, either by building its own immigration facilities, placing more detainees in state and local facilities, or reducing the number of immigrants being held.   Greg Chen, director of advocacy for the American Immigration Lawyers Association, said that the government has for years overused immigration detention, neglecting cheaper alternatives like ankle monitors for those awaiting legal cases.  “The fact is, DOJ has long been reexamining the use of incarceration, and this has been developing for years, and immigration authorities have been much slower to consider methods other than jails,” Chen said. “The use of private detention is not necessary.”

As previously cited by another CLO article, Fyodor Dostoyevsky stated, “The degree of civilization in a society can be judged by entering its prisons.”  If the U.S. is willing to force these fellow human beings to endure such appalling conditions and severe treatment, how civilized can this society really claim to be?

Josue Jimenez, Managing Editor Emeritus
About Josue Jimenez, Managing Editor Emeritus (18 Articles)
Josue Jimenez is a 2017 graduate of Campbell Law School and served as the Managing Editor for the Campbell Law Observer during the 2016-2017 academic year. He is a Los Angeles, California native, but has lived in Charlotte, NC, since November, 2003. In 2013, Josue graduated from the University of North Carolina at Chapel Hill with degrees in Global Studies (Concentration in Politics, region Latin America) and Religious Studies (Focus on Early Christianity). From August, 2013- July, 2014, Josue worked as a legal assistant at an immigration law firm in Grand Rapids, MI. During the summer of 2015, he interned at Fayad Law, PC, where he worked on immigration and criminal defense cases. In the summer of 2016, Josue interned at the Charlotte Immigration Court where he prepared draft decisions for Immigration Judges on immigration matters including cancellation of removal and asylum applications. As well as, consulted with Immigration Judges and Judicial Law Clerks regarding pending decisions. Josue is currently the Vice-President of the Student Bar Association.
Contact: Email