ICE Fails to Provide Basic Oversight of Solitary Confinement and Unlawfully Destroys Records

by Emily Creighton

U.S. Immigration and Customs Enforcement (ICE) has been known to improperly subject individuals in its custody to solitary confinement and has destroyed solitary confinement records in violation of a records retention schedule and an agreement to preserve records in a lawsuit.

On October 13, the U.S. Department of Homeland Security (DHS) Office of Inspector General issued a report detailing ICE’s abuse of solitary confinement in immigration detention and incompetence regarding how it maintains records documenting the treatment of individuals subject to solitary confinement.

The report found:

  • ICE could not demonstrate it considered alternatives to segregation for 72% of individuals placed in solitary confinement.
  • ICE did not record 13% of instances when individuals were placed in solitary confinement.
  • ICE did not ensure detention facilities complied with the National Archives and Records Administration’s (NARA) retention schedules. As a result of ICE’s failure to properly retain records, 24 of 265 detention files were improperly destroyed.

The information gathered to support the report’s findings are appalling. In over 1200 complaints shared through the DHS OIG hotline between FY 2015 and FY 2019, individuals stated, among other concerns: they did not know why they were placed in solitary confinement; were denied medical attention, food, and showers; and were threatened with solitary confinement. In one instance, an individual was placed in solitary confinement as retaliation for filing a complaint about ICE officer abuse.

In unannounced visits, OIG inspectors found detained individuals improperly held in solitary confinement for long periods of time without documentation or review under the detention standards. ICE placed some people in solitary confinement “prematurely or inappropriately,” with limited to no time outside of their cells. In one inspection, it was discovered individuals were held for 22 to 23 hours a day; two individuals had been in solitary confinement for over 300 days.

In addition, the report noted that solitary confinement generally increased over the past few years. Prior to 2013, ICE did not even have an official system for recording and tracking detainees placed in solitary confinement. But official numbers state that between 2015 and 2019, 13,784 individuals were placed in administrative or disciplinary solitary confinement.

The report was straightforward in its condemnation of ICE’s failure to adhere to its own detention standards and the resulting lack of transparency and necessary oversight.

It described in detail how ICE did not comply with solitary confinement reporting requirements, which include assessing whether alternatives to solitary confinement exist. In a statistical sample, the OIG found “no evidence” that ICE had considered alternatives to solitary confinement in 342 out of 474 instances (72%).

In the same statistical sample, over half of the people ICE placed in solitary confinement had “special vulnerabilities,” including identifying as LGBTI, were on a hunger strike, suicidal, or having a mental illness, such as schizophrenia or bipolar disorder. And many of these instances were not properly reported in violation of the detention standards.

The report also found that ICE facilities did not comply with record retention requirements and violated a litigation hold where it agreed not to destroy records, including detainee segregation reports, after a lawsuit challenging a records retention schedule for detention-related records was brought.

Under the retention schedule, ICE was required to “retain detention files for 6 years after a detainee’s transfer or release from a facility and segregation reports for 7 years from the end of the fiscal year in which the detainee was released from segregation.”

The report provided the following example: “If a detainee was released from segregation in October 2014 (the beginning of our scope) and released from the facility the same month, a detainee’s segregation orders, which are in the detention file, could not be destroyed until September 2022.”

Despite this clear mandate, the report found that ICE could not provide 32 of the 265 detention files from the statistical sample and admitted to destroying 24 of those files. According to the OIG, 16 detention files subject to the litigation hold were destroyed in November 2020, eight months after ICE agreed to the hold. The OIG’s office was not able to uncover when the other files were destroyed.

The OIG’s report confirms ICE’s callous failure to preserve even basic data about solitary confinement—an extremely controversial practice that has been widely condemned. It is no surprise that because ICE does not conduct internal oversight to ensure facilities track and report solitary confinement and relies on self-reporting mechanisms that are not used uniformly, it is has failed to comply with its own detention standards.

It is a positive step that ICE has concurred with the recommendations contained in this report – including agreeing to develop better guidance and tracking mechanisms for collecting solitary confinement data and compliance with records retention schedules. There is no doubt, however, that these steps would not have been taken if ICE’s failures were not uncovered by the OIG’s targeted investigations.

Also, the steps ICE outlines are not enough. ICE states that it will comply with OIG’s recommendations by August 2022. What oversight will happen in the many intervening months to ensure data is collected and records are not destroyed?

The lawsuit brought in March 2020 to preserve records related to solitary confinement stemmed from a similar mistrust of ICE’s ability to monitor its own detention policies and practices and ICE’s overt attempts to destroy its own detention records. As groups who filed an amicus brief in that case noted, ICE’s abuse and mistreatment of individuals in its custody underscores the need for greater transparency and oversight and longer retention schedules for key documents such as solitary confinement records.

This post originally appeared on Immigration Impact Reprinted with permission.


About The Author

Emily Creighton is the Directing Attorney for Transparency at the American Immigration Council. She oversees the development of the Council's transparency-related litigation, amicus briefs, practice advisories and advocacy, including maintaining an active docket of Freedom of Information Act (FOIA) cases. She seeks to uncover agency records that will advance litigation, advocacy and research efforts to combat abuses at the border and unlawful enforcement tactics, promote fair and just removal processes, and shed light on unlawful adjudications of immigration benefits. She also seeks to strengthen collaboration among organizations involved in open government work in the immigration space. Prior to her new role at the Council, she served as the Senior Advisor on Humanitarian Programs at the CIS Ombudsman's Office from 2016 to 2017. Previous to that, she was a Senior Staff Attorney with the Council. As a staff attorney, she engaged in impact litigation, representing amicus curiae in immigration cases in federal court and before the Board of Immigration Appeals, and authored numerous practice advisories. Emily holds a J.D. from American University Washington College of Law and a B.A. from Boston College.


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