Ice Detention Through U.s. Marshals Agreements

ICE DETENTION THROUGH U.S. MARSHALS

AGREEMENTS

ELLYN JAMESON*

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280

II. THE CONTRACTS ON PAPER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283

A. Methodology and Data. . . . . . . . . . . . . . . . . . . . . . . . . . 284

B. Key Takeaways ............................... 286

III. THE CONTRACTS IN PRACTICE ........................... 288

A. The Evolving Authority and Legal Structure for ICE Use of

IGAs ....................................... 289

B. The Negotiation Process. . . . . . . . . . . . . . . . . . . . . . . . . 295

1. A Historical Preoccupation with Price . . . . . . . . . . . . 295

2. Negotiation by Algorithm: The eIGA . . . . . . . . . . . . . 298

3. Disorganized Bureaucracy . . . . . . . . . . . . . . . . . . . . 299

C. The Day-to-Day Detention Process . . . . . . . . . . . . . . . . . 300

1. Inspections and Oversight..................... 301

2. Basic Ordering Agreements and Legal Ambiguity. . . 303

IV. NOT JUST CONTRACTS: THE ROLE OF LOCAL DEMOCRACY . . . . . . . . 308

A. Community Organizing Against ICE Detention . . . . . . . . . 309

* Ellyn Jameson, J.D. 2020, University of Pennsylvania Carey Law School, MS Social Policy 2020,

University of Pennsylvania School of Social Policy and Practice. I am tremendously thankful to many

individuals who helped make this Note possible by providing feedback, resources, and encouragement at

different stages of my research: Abel Rodriguez, Bridget Fahey, Beatrix Lu, Mark Fleming, Vanessa

Stine, and Heidi Altman. I owe an especially large debt of gratitude to Sara Rendell for her invaluable

insight and endless enthusiasm over the course of this project. I greatly appreciate the excellent work of

the editors of the Georgetown Immigration Law Journal on this Note, and as always none of this would

not have been possible without the support of my husband and family. All errors are my own. © 2021,

Ellyn Jameson.

279

B. The Power and Impact of Local Transparency .......... 312

V. CONCLUSION ...................................... 314

I. INTRODUCTION

The size and scope of immigration detention has been rapidly expanding

over the past few decades, largely fueled by the ever-increasing criminaliza-

tion of migration.

1

In the 2019 f‌iscal year, Immigration and Customs

Enforcement (ICE) detained as many as 50,000 people per day in over 200

facilities across the country.

2

Considered a civil penalty rather than a punish-

ment, immigration detention does not come with the protections of criminal

punishment like guaranteed legal defense

3

or a hearing before an Article III

judge.

4

Yet civil immigration detention, which takes place in local jails and

private prisons across the country, looks much like criminal incarceration.

5

Much criticism has been rightfully leveled at ICE for its abysmal standards of

care and inhumane, prof‌it-driven behaviors.

6

A related body of literature also

considers how the legal framework underlying this vast scale of detention

perpetuates those inhumane conditions.

7

This Note contributes to that

1. See Emily Ryo, Understanding Immigration Detention: Causes, Conditions, and Consequences,

15 ANN. REV. L. & SOC. SCI. 97, 98, 101-02 (2019) (discussing a more than f‌ivefold increase in immigra-

tion detention between 1994 and 2017 and the multiple causes for that expansion); AMADA ARMENTA,

PROTECT, SERVE, AND DEPORT: THE RISE OF POLICING AS IMMIGRATION ENFORCEMENT 5-6 (2017)

(describing the characterization of unauthorized immigrants as criminal and the “decidedly punitive turn”

of national immigration enforcement).

2. U.S. IMMIGRATION AND CUSTOMS ENF’T, U.S. CUSTOMS AND IMMIGRATION ENFORCEMENT FISCAL

YEAR 2019 ENFORCEMENT AND REMOVAL OPERATIONS REPORT 5-6 (2019), available at https://www.ice.

gov/sites/default/f‌iles/documents/Document/2019/eroReportFY2019.pdf; see also Immigration and Customs

Enforcement Detention, TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE (TRAC) IMMIGR., SYRACUSE UNIV.

(set interactive tool to “April 2019”), https://trac.syr.edu/phptools/immigration/detention/ (last accessed Oct. 31,

2020) [hereinafter “TRAC Detention Data”].

3. Careen Shannon, Immigration is Different: Why Congress Should Guarantee Access to Counsel in

All Immigration Matters, 17 UDC-DCSL L. REV. 165, 166 (2014).

4. Immigration judges are in fact Department of Justice attorneys without even the protections of other

administrative law judges, and the level of political pressure on immigration judges to carry out the administra-

tion’s aggressive deportation goals has been harshly criticized. SOUTHERN POVERTY LAW CENTER, THE

ATTORNEY GENERAL’S JUDGES: HOW THE U.S. IMMIGRATION COURTS BECAME A DEPORTATION TOOL 7 (2019),

https://www.splcenter.org/sites/default/f‌iles/com_policyreport_the_attorney_generals_judges_f‌inal.pdf.

5. Cesar Cuauhtemoc Garcia Hernandez, Abolishing Immigration Prisons, 97 B.U. L. REV. 245,

256-57 (2017); see generally Renee Lima Marin & Danielle C. Jefferies, It’s Just Like Prison: Is a Civil

(Nonpunitive) System of Immigration Detention Theoretically Possible?, 96 DENV. L. REV. 955, 963-965

(2019) (providing a f‌irsthand account of life in an immigration detention center and challenging the legal

f‌iction that conf‌inement can ever be civil).

6. See, e.g., Peter Markowitz, Abolish ICE .. . and Then What?, YALE L. J. FORUM 130, 135 (2019), https://

papers.ssrn.com/sol3/papers.cfm?abstract_id=3420771&download=yes (collecting sources for the proposition

that “ICE has amassed a well-earned reputation as a dishonest, racist, and rogue agency that regularly f‌louts legal

limits”); HEIDI ALTMAN & MARY SMALL, PRIVATE PROFIT, DETENTION WATCH NETWORK & NATIONAL

IMMIGRANT JUSTICE CTR., ICE LIES: PUBLIC DECEPTION 2-4 (2018), https://immigrantjustice.org/sites/default/

f‌iles/content-type/research-item/documents/2018-02/IceLies_DWN_NIJC_Feb2018.pdf.

7. See, e.g., Garcia Hernandez, supra note 5, at 246 (“[T]he practice of immigration imprisonment,

as designed and operated, has stripped migrants of their inherent dignity as humans and has instead com-

modif‌ied them into a source of revenue.”); Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime,

and Sovereign Power, 56 AM. U. L. REV. 367, 377 (2006) (describing how “membership theory . . . is at

work in the convergence of criminal and immigration law”); Robert Knowles & Geoffrey Heeren,

280 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 35:279

conversation by focusing on a narrow piece of the legal framework: ICE’s

use of preexisting intergovernmental agreements between local jails and the

U.S. Marshals Service (USMS) to house immigrant detainees.

ICE owns only a handful of detention centers itself; rather, most ICE

detention takes place in local jails and private prisons through a web of con-

tracts with cities, counties, states, other federal agencies, and private contrac-

tors. This “convoluted and obscure” contracting process has resulted in a

system characterized by an astonishing lack of transparency and uniformity.

8

Broadly speaking, there are four main types of ICE detention centers.

Service Processing Centers are the facilities that are owned by ICE,

although they often rely on private contractors for operation.

9

There are

currently only f‌ive of these centers,

10

and they house just over seven per-

cent of ICE’s total average daily population (ADP).

11

The second type of

detention centers are Contract Detention Facilities (CDFs), which are pri-

vate prisons that contract directly with ICE.

12

There are currently only

nine in operation across the country, but they house hundreds of detainees

each.

13

The third form of detention, which accounts for the largest pro-

portion of ICE detainees, occurs through Intergovernmental Service

Agreements (IGSAs), through which ICE contracts with state and local

governments—usually a county sheriff or a city jail—for bedspace at a

predetermined per diem rate. Local governments, therefore, have strong

incentives to both increase the number of ICE detainees and to cut costs

on their care.

14

Most of these facilities house ICE detainees alongside

their own criminal inmates, although a smaller number, known as

Dedicated IGSAs (DIGSAs), house only ICE detainees.

15

In the f‌irst part

of the 2020 f‌iscal year, two-thirds

16

of ICE’s ADP was housed in IGSAs,

Zealous Administration: The Deportation Bureaucracy, RUTGERS L. REV. (forthcoming 2020) (discussing

how the current extreme positions displayed by ICE are a product of a “bureaucratic culture of immigra-

tion enforcement”); Sara Rendell, Student in Anthropology, University of Pa., Contagious Containment:

Mapping Health Concerns from ICE Detention Practices, Presentation at University of Pa. (Mar. 23,

2020) (connecting the policies and systems in immigration detention centers to a systemic failure to pro-

vide adequate healthcare).

8. CLAUDIA VALENZUELA & TARA TIDWELL CULLEN, NAT’L IMMIGRANT JUST. CTR. (NIJC),

FREEDOM OF INFORMATION LITIGATION REVEALS SYSTEMIC LACK OF ACCOUNTABILITY IN IMMIGRATION

DETENTION CONTRACTING 6 (Aug. 13, 2015), available at https://immigrantjustice.org/sites/default/f‌iles/

content-type/research-item/documents/2017-03/NIJC%20Transparency%20and%20Human%20Rights%

20Project%20August%202015%20Report%20FINAL3.pdf.

9. Id. at 5.

10. ICE Detention Data, IMMIGR. AND CUSTOMS ENF’T, https://www.ice.gov/doclib/facilityInspections/

dedicatedNonDedicatedFacilityList.xlsx, (Feb. 3, 2020) [hereinafter ICE Data Feb. 2020].

11. In February 2020, SPCs accounted for 2,400, or 10.38%, of FY2020’s current ADP of 23,421. Id.

12. VALENZUELA & TIDWELL CULLEN, supra note 8, at 5.

13. Of ICE’s ADP for f‌iscal year 2020 of 23,421; in February 2020, 5,879 individuals (25%) were

housed in ten CDFs. ICE Data Feb. 2020, supra note 10. This does not include “USMS CDFs,” which

will be discussed later.

14. VALENZUELA & TIDWELL CULLEN, supra note 8, at 5-6.

15. Id.

16. The average daily population in February 2020 in either an IGSA, DIGSA, or dedicated family

detention center was 14,785, or 63.1% or the FY 2020 ADP. ICE Data Feb. 2020, supra note 10.

2020] ICE DETENTION THROUGH U.S. MARSHALS AGREEMENTS 281