WASHINGTON ― Human rights advocates spent years fighting for even small improvements to the system that detains men, women and children waiting to be either deported or released back into the U.S. Now they fear the progress they have made could disappear under President Donald Trump, who has promised harsher treatment of undocumented immigrants.
“This administration is prepared to make conditions at immigrant detention even worse than they already are, which, given that for some people they’re already fatal, is terrifying,” said Mary Small, policy director of the advocacy group Detention Watch Network.
Trump’s Department of Homeland Security is considering looser regulations for new contracts with jails to hold immigrants in deportation proceedings, The New York Times reported earlier this month. That agreement would allow jails to treat immigrants detained for civil offenses the same way they treat people charged with crimes.
The department also plans to eliminate an office at Immigration and Customs Enforcement that focuses on improving the detention system and to ramp up detention and deportation efforts.
Trump’s boosters consider these to be good things ― earlier this month, hosts on “Fox & Friends” gleefully remarked that the “party’s over” at immigrant detention centers, grumbling about detainees being given clean sheets and outdoor recreation time.
In reality, immigrant detention centers ― some of which are inside jails facilities or former prisons ― are bleak places. Inmates report being denied medical care, held in solitary confinement, given inedible food and other mistreatment. This is all on top of the struggle of being locked up, often far from family and legal help.
There’s always a tension between ‘Do we get rid of the cage or do we make a better cage?’ Ruthie Epstein, formerly of Human Rights First
The facilities are supposed to be for civil detention, not criminal detention like a prison ― being in the country without authorization is not in itself a crime. Advocates are concerned that the Trump administration’s discussion of new contracts for jails to detain immigrants is more proof that officials will disregard standards meant to make immigrant detention less punitive.
Chris Daley, an attorney with Just Detention International, said his group is “very afraid” those standards aren’t going to be enforced and that “we’re just going to lose any sense that folks are not there under criminal charges.”
None of these issues were resolved under former President Barack Obama, who oversaw record deportations during his first term and vastly expanded the use of family immigrant detention. But advocates also achieved some gains during his time in office, including increased oversight; policies that limited solitary confinement and transferring detainees; and a new Office of Detention Policy and Planning to oversee reforms.
In 2009, Obama’s first year in office, ICE made detention expert Dora Schriro the first director of the Office of Detention Policy and Planning and tasked her with overhauling the immigrant detention system. She laid out recommendations for improvements on oversight and conditions, and ICE officials met with nongovernmental organizations regularly to discuss detention matters. Most of the advocates wanted to reduce immigrant detention rather than simply reform it, said Ruthie Epstein, who at the time worked on detention policy with the advocacy group Human Rights First.
“There’s always a tension between ‘Do we get rid of the cage or do we make a better cage?’” said Epstein, who now works for the New York Civil Liberties Union. “In the detention reform movement and prison reform movement there’s always that tension. I now see in retrospect even more clearly that the administration officials that we were communicating with were doing their best to figure out how to make the cage better.”
ICE made small but significant changes during the Obama administration. In 2009, it issued a new policy on reporting detainee deaths. In 2010, it created an online detainee locator system so immigrants’ families and legal help could find out where they were. In 2011, the agency released an extensive new set of standards for immigrant detention, including improved medical services, more recreation and increased language assistance. In 2012, it issued a directive on transferring detainees meant to counter reports of abusive transfers that shifted people away from their legal help. In 2013, after reports that immigrants were being held in solitary confinement for weeks at a time, ICE issued a new directive on use of segregated housing. In 2014, as part of the Prison Rape Elimination Act, ICE finalized standards for preventing sexual abuse in detention.
Rolling back any of these improvements could have disastrous consequences, advocates say.
“If ICE is no longer tracking the use of solitary confinement or no longer requiring that people who are in mental health crisis are checked on every 15 minutes, that can kill,” said Carl Takei, an attorney with the American Civil Liberties Union’s National Prison Project.
It would be difficult for ICE to dismiss the standards set forth in the Prison Rape Elimination Act because they are regulations. But weakening other standards would hurt PREA’s effectiveness, Daley said.
“You can’t have effective sexual abuse prevention programs if you have folks who don’t have access to appropriate materials in the right language; who can’t communicate concerns they have about threats or violence; who are just held in solitary confinement as a matter of course or who otherwise are just being treated in a demeaning way that compromises their dignity,” he said.
ICE hasn’t made any major changes yet, other than eliminating its Office of Detention Policy and Planning. The office’s staff and mission will be absorbed into other parts of the agency, according to ICE spokeswoman Sarah Rodriguez.
Officials are “examining a variety of detention models to determine which models would best meet anticipated detention needs” as part of one of Trump’s executive orders on immigration, Rodriguez said. “As new options are explored, ICE’s commitment to maintaining excellent facilities and providing first class medical care to those in our custody remains unchanged.”
The new contracts could be evaluated based on a checklist from the U.S. Marshals Service, The New York Times reported last week. That checklist is “ridiculous in its lack of detail,” Takei said. The contracts wouldn't specify what policies jails holding immigrants must maintain for medical health, suicide prevention or solitary confinement, other than that they need to have some sort of policy, according to the Times.
Advocates are bracing for the worst.
“We’ve seen important but very incremental change, so to see change that’s taken so long to come about ― and that still had gaps but that was at least a step toward greater accountability and toward better conditions in these facilities ― to see that now be threatened to be reversed is troubling,” said Katharina Obser, senior program officer at the Women’s Refugee Commission.
They will be watching closely for human rights violations, from detainees being denied due process to poor conditions and even increased deaths in detention.
“These policies are a recipe for a human rights catastrophe in immigrant detention,” Takei said, “and we are prepared to sue as soon as that human rights catastrophe comes to pass.”