On Challenging Conditions of Confinement in Ice Detention Rights and Remedies for Those Behind the Walls

• Publication year: 2019

Olivia Kohrs and Danielle C. Jefferis^*

Abstract: The federal government is incarcerating unprecedented numbers of people in the custody of its civil immigration-enforcement agencies. U.S. Immigration and Customs Enforcement (ICE) alone confines more than 52,000 people each day in more than 600 facilities across the country. The conditions inside these prisons and jails range from inadequate to inhumane. As the immigration court backlog balloons, removal proceedings drag on for months and years; but enforcement continues to prioritize and rely on detention, causing people to face increasingly unhealthy and dangerous conditions of confinement. In many ways, immigration practice now intersects with detention more than it ever has. This article draws upon the expertise of prisoners' rights advocates to offer ways in which immigration attorneys may spot issues and turn to litigation to challenge the conditions their clients face in ICE detention.

"I cannot take the pain any longer."

—"Judith," confined at the Aurora ICE Detention Center¹

Introduction

The federal government is incarcerating unprecedented numbers of people in the custody of its civil immigration-enforcement agencies. U.S. Immigration and Customs Enforcement (ICE) alone confines more than 52,000 people each day in more than 600 facilities across the country, including private prisons and county jails.² The conditions inside these prisons and jails range from inadequate to inhumane.³ As the immigration court backlog balloons, removal proceedings drag on for months and years; but enforcement continues to prioritize and rely on detention, causing people to face increasingly unhealthy and dangerous conditions of confinement.

Perhaps now more than ever, immigration practice and removal defense intersect with detention. Prisoners' rights lawyers and immigration attorneys have much to learn from each other. The conditions in many ICE detention facilities rival those of prisons and jails incarcerating people serving criminal law sentences.⁴ And while the U.S. Constitution may be largely silent on core immigration matters, the cornerstone document does protect everyone—citizen and noncitizen alike—from "cruel and unusual punishment,"⁵ providing some measure of accountability on entities and officials exercising the authority to confine people. Similarly, Congress has enacted statutory measures that provide additional protections for incarcerated people.⁶

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For decades, advocates have turned to litigation to challenge conditions in prisons and jails. They have used litigation to try to hold government officials accountable, shed light on the conditions in which officials are incarcerating people, and obtain relief for those who have suffered harm on account of unconstitutional conditions. To be sure, litigation is often a woefully incomplete tool to improve conditions in prisons and jails and obtain redress for injustices people have suffered in confinement. But it is a means to pursue accountability and a more just system for people who the government determines must be locked away. Similar tools may be used to challenge conditions in ICE detention.⁷ This article offers a framework within which advocates may consider doing so.

This article has three parts. The first part provides a brief background of the current state of ICE detention, from its scope to recent reports of the conditions in which thousands of people are detained. The second part discusses the primary rights—both constitutional and statutory—imprisoned people in the United States retain, as well as the remedies they may obtain after proving a violation of one or more of those rights. The third part discusses a few more considerations that should be taken into account when assessing conditions-of-confinement claims and pursuing litigation in federal court.

This article is by no means a comprehensive primer on prison and/or immigration detention conditions doctrine, both of which are complex, complicated areas of law. Advocates are encouraged to fully research all of the claims raised here as those doctrines have been interpreted in their jurisdiction, as well as the applicable rules in their local practice areas, and to consult with others if necessary. Likewise, the Prisoners' Self-Help Litigation Manual, authored by John Boston and Daniel E. Manville, is an invaluable resource and one from which this article has drawn case law support.

Background

The U.S. civil immigration detention apparatus is by far the largest system of formally nonpunitive confinement in the United States and is the fastest-growing component of the country's system of mass incarceration.⁸ On any given day in 2017, nearly 40,000 people were confined in ICE detention, a figure that had grown exponentially over the preceding two decades.⁹ By February 2019, ICE's daily detention population exceeded 48,000.¹⁰ As of the middle of 2019, that number exceeds 52,000—far exceeding the detention space Congress appropriated for the executive branch.¹¹ Annually, the federal government incarcerates more than 400,000 people under its authority to detain, a figure that has also grown consistently and substantially in recent years.¹² Much as the U.S. criminal law system boasts the largest population of people convicted of crimes and sentenced to a period of incarceration, the United States has the largest putatively civil immigration detention system in the world.¹³

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Conditions in ICE detention are poor at best.¹⁴ In recent years, ICE detainees have succumbed to limb amputations, serious illnesses and infections, and death. Indeed, ICE has acknowledged at least 185 deaths in its immigration prisons between October 2003 and July 2018.¹⁵ At least 24 people have died in the entity's custody since 2017.¹⁶ The American Immigration Lawyers Association and the American Immigration Council have lodged multiple complaints regarding ICE's failure to provide adequate medical and mental health care in its contract facilities, including one in Aurora, Colorado, operated by the GEO Group, Inc.¹⁷ In the Aurora complaint, the groups note reports of solitary confinement being used in response to detainees' suicide attempts, untreated physical ailments, and a man's severely deteriorating mobility during his 11 months in detention—so serious that he walked into detention but has since been confined to a wheelchair and needs assistance with daily tasks such as bathing.¹⁸ These poor conditions reach every aspect of life in detention, including sleep deprivation from lights that are kept on 24 hours a day, being forced to wear dirty uniforms that result in infections, or being fed food that is rotten.¹⁹

Rights and Remedies in ICE Detention

This section raises several of the fundamental rights people in ICE detention retain, derived from both the U.S. Constitution and federal statutes. It is not a comprehensive list, but it accounts for most of the deficiencies recently reported in ICE facilities. This section also offers an introductory discussion of the remedies that may be available to people who can show one or more of those rights were violated while detained in ICE custody.

Rights

Adequate Medical Care

Perhaps the primary concern reported from ICE detention centers across the country is the deficient medical and mental health care provided to detainees. In spite of the state of health care in these facilities, people in ICE detention have a constitutional right to adequate medical, dental, and mental health care.²⁰ Those detaining individuals in civil detention facilities, like ICE facilities, cannot refuse to provide adequate medical care to an individual while simultaneously restricting that individual's liberty to such a degree that they are precluded from seeking independent medical care.²¹

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The Eighth Amendment protects incarcerated prisoners convicted of crimes from cruel and unusual punishment. In a medical care context, the Eighth Amendment protects prisoners from prison officials' "deliberate indifference to serious medical needs."²² As the Supreme Court explained in Estelle v. Gamble,

[A prisoner] must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical torture or lingering death, the evils of most concern to the drafters of the Amendment.²³

People detained in ICE facilities are civil detainees, not prisoners convicted of crimes. Civil detainees derive their constitutional protection not from the Eighth Amendment, but from the Fifth Amendment.²⁴ The Due Process Clause of the Fifth Amendment states that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law."²⁵ This clause "prohibits the imposition of punishment upon any person in the custody of the United States without due process of law."²⁶ Accordingly, the Fifth Amendment protects civil detainees from conditions that amount to punishment—like the denial of medical care.²⁷ The exact scope of this right to adequate medical care of people detained in ICE facilities, as compared to those confined in other civil or pretrial facilities, has not been frequently litigated.²⁸ Many federal courts have applied the "deliberate indifference" standard to these claims.²⁹ This standard requires an ICE official to "know[] of and disregard[] an excessive risk to [detainee] health or safety."³⁰ There is an argument that the deliberate indifference standard is too high, and civil detainees should instead be afforded the same level of protection as pretrial detainees. A full discussion of this issue is beyond the scope of this article, but advocates should be aware that arguing for a lower standard may be advisable.³¹

Adequate medical, mental health, and dental care should include, at minimum, adequate health screenings, access to grievance systems that allow people to quickly and effectively raise their medical...