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Administration to sever relationship with two detention centers—05-21-21
Immigration news, in context
This is the eightieth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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Note: We will be off next week, returning 06/04.
This week’s edition:
In The Big Picture, we look at DHS’ decision to terminate contracts with two detention providers.
In Under the Radar, we explore the UN High Commissioner for Refugees’ decision to denounce the continued use of the Title 42 policy.
In Next Destination, we discuss a lawsuit against the reduction of ICE detainers.
The Big Picture
The news: The Department of Homeland Security announced yesterday that it was moving to terminate its contacts to house ICE detainees at two detention centers—the Bristol County Detention Center in Massachusetts and the Irwin County Detention Center in Georgia—both under federal investigation and state probes for documented instances of abuse and civil rights violations against people in custody. DHS Secretary Ali Mayorkas said in a statement that it was a “first step” in an initiative to make “lasting improvements to our civil immigration detention system.”
Both centers already had a fair amount of public notoriety around them. Massachusetts Attorney General Maura Healey last year conducted a monthslong probe of Bristol County Sheriff Thomas Hodgson’s response to an altercation that May, in which staff at the facility liberally used pepper spray and flashbang grenades in response to detainee confusion over COVID-19 testing protocols. The sheriff himself was accused of assaulting a detainee who was trying to make a phone call to his attorney. The investigation ultimately concluded that Hodgson and his officers had used excessive and unnecessary force and were failing to protect the detainees, recommending that DHS end its contract with the sheriff. A federal judge had also recently ruled that ICE and Hodgson had disregarded the threat of the coronavirus to those in custody.
For newer readers who might be confused as to why a county sheriff had custody over federal ICE detainees in non-criminal detention, the fact is that county jails make up a large portion of the agency’s detention stock through contracts known as intra-governmental service agreements, or IGSAs. Under these IGSAs, local detention officials agree to essentially rent detention space to ICE for a per diem rate, putting ICE detainees—which, again, are supposed to be civil administrative detainees—quite literally in a criminal detention setting. Private detention centers have often received greater public attention, but the nationwide infrastructure is often dependent on these local entanglements, which are also more susceptible to local public pressure. Often, it’s local officials who’ve chosen to terminate them, but in this case it was the federal government.
The Irwin detention center is primarily infamous for having sent several women to a doctor who performed hysterectomies—the removal of the uterus and potentially other sex organs—without proper notice and consent. Ultimately, at least 57 women who’d been at some point held at Irwinclaimed that they’d either undergone or been pressured to undergo some sort of seemingly unnecessary procedure. That was a particularly horrifying detail of a complaint prepared by a watchdog group, but it included a number of other egregious instances of medical neglect, such as allegations that medical records were being altered or thrown away and COVID-19 was being allowed to run rampant.
Irwin is in a bit of a different situation in that it’s run by the private detention contractor LaSalle correction, but the federal government doesn’t contract directly with LaSalle. Instead, the U.S. Marshalls, who often share detention space with ICE, signed an agreement with the county, which then subcontracted with LaSalle to operate the facility for the federal government. This complicated pass-through system is less common but still in broad use around the country, and it helps everyone involved avoid oversight. These contracts will be harder to untangle than the one the federal government has with the Bristol County sheriff, but still eminently doable.
Advocates celebrated the decision to sever ties, though particularly for Bristol, the government was barely using them anyway. Bristol is reportedly currently only seven detainees, while Irwin has 114 out of its total capacity of almost 1,000. Despite a recent spike in the number of detainees in custody, detention numbers remain far below the high-water marks of the Trump administration, and a lot of detention space is sitting empty. This is liable to change as greater numbers of asylum seekers at the border are allowed to actually enter the country and present claims, owing both to Mexico’s increasing resistance to accepting expelled migrants and the administration’s middling efforts to exempt people from its draconian Title 42 restriction. Mayorkas has yet to really outline how exactly he plans to make those “lasting improvements” to the system, or say if more detention center closures are on the horizon.
How we got here
Immigrant detention, especially in its current form, is a relatively new phenomenon. The first privately owned immigrant detention center opened in 1983; it was owned by the Corrections Corporation of America, now known as CoreCivic, one of the largest private prison companies in the U.S. CoreCivic owns a network of prisons and ICE detention facilities across the country. The GEO Group, its largest competitor, owns dozens more. And LaSalle, a relative newcomer to the immigrant detention business, has rapidly expanded its footprint in recent years.
ICE had detention contracts or agreements for 233 facilities across the country as of fiscal 2019. As we noted above, some detention facilities are run by private contractors but owned by local or state governments.
The use of immigrant detention has steadily increased over the last three decades, and skyrocketed under the Trump administration. At one point in 2019, ICE held more than 55,000 people in its custody—an all-time high. (For a more detailed look at the rise of ICE detention, we suggest reading last week’s edition of the newsletter.) The boom in detention under Trump was partly due to ICE opening several new facilities in the rural south, often in former prisons or jails. Many of these new detention centers opened in Louisiana, which became a new hub for immigrant detention.
For the federal government, detaining immigrants in rural areas has several upsides. Rural detention facilities are believed to be cheaper to run than those in urban areas, though that isn’t always the case. Politicians in rural communities often frame ICE detention facilities as engines for economic growth, especially when the centers are run by private companies. When local governments subcontract with prison companies like LaSalle, the financial incentives can be even greater. The Irwin County government entered a contract with the U.S. Marshals; Irwin then hired LaSalle as a subcontractor, giving the company most of the money from its own contract with the federal government. But the county gets to keep a percentage of those funds, all for operating as a middleman between LaSalle and the government and assuming practically no responsibilities or liability.
Isolated detention centers also have another more sinister benefit: their distance from big cities means immigrants detained there are far from legal advocates who can sound the alarm about potential abuses. Irwin, for example, is located in Ocilla, Georgia, a city of less than 4,000 people located more than 180 miles south of Atlanta. The opaque contracting structure also makes it harder to oversee. Even though ICE facilities are supposed to adhere to Performance-Based National Detention Standards, abuses in detention are by no means uncommon. It took a coalitions of detainees, advocates, and whistleblowing employees to shed light on the hysterectomies and other instances of medical neglect happening at Irwin.
The Biden administration’s decision to end its contracts with Irwin and Bristol comes at a time where other local governments are choosing to end or reevaluate their contracts with ICE. Essex County, New Jersey recently succumbed to public pressure and vowed to “depopulate” the Essex County Jail of immigrant detainees, though its ICE contract will remain intact. Essex currently makes $117 per day per ICE detainee, and the contract has been lucrative for the county thus far. Meanwhile in Massachusetts, the Franklin County Sheriff’s Office announced it would be ending its ICE contract because it was no longer financially viable.
There are plenty more ICE detention centers out there with clear and documented patterns of egregious malpractice, abuse, and neglect; some private, some public, some both (like Irwin). The administration wouldn’t have to dig too deeply to find several that are just as bad as the two it’s cutting loose, and it would be a relatively straightforward way to please immigration activists who have been very vocal about the sluggish pace of immigration reform, without having to really change any policy.
There’s also an oversight enforcement question here. As we mentioned above, ICE does already technically ascribe to a number of standards for its detention facilities, but it has hardly viewed this as absolute requirements. Even successive inspections of the same sites have often found deficiencies in the exact same areas, without much consequence to the detention operators. If what the administration wants is a more humane detention system, then it would have to figure out a way to both beef up its ability to conduct inspections and create a real system of consequences for deficiencies. It already has a significant built-in stick: money. Both localities and private detention firms are paid by the government to hold detainees. Most contracts already allow the government to withhold funds for non-performance including failure to uphold standards, but it could certainly get more proactive in using that as a cudgel.
Closing detention centers could also affect future policy. The existence of a large detention stock is an incentive to fill it (if you’re a hammer, etc, etc). By decreasing its ability to lock people up, the administration can remove the temptation to actually start locking more people up as border restrictions ease or if and when it finally terminates the Title 42 order.
The flip side of this coin is that it’s likely to grow the stock of so-called e-carceration, i.e. the use of technologies that allow the government to monitor the habits and locations of people who would otherwise be in custody. The TRAC project at Syracuse University shows that almost 100,000 people are currently surveilled in such a fashion, over half of them with a GPS tracker or app-based monitoring on their phone. This is often presented as a more human option, and that’s hard to argue with given that the alternative is incarceration, but is nonetheless concerning from a variety of civil liberties and privacy standpoints.
Under the Radar
UN High Commissioner for Refugees urges Biden to end Title 42
The head of the United Nations’ refugee agency called on the Biden administration to “swiftly lift the public health-related asylum restrictions that remain in effect at the border.”
The near-total closure of the border to unauthorized immigrants, including asylum seekers, began under the Trump administration in the spring of 2020. Title 42 is ostensibly a public health measure—the statute gives the executive branch “the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places” if “there is serious danger of the introduction of such disease into the United States.” When Title 42 was first implemented, there were far more coronavirus cases in the United States than there were in Mexico and Central America combined, and it was laughable to suggest that processing asylum seekers at the border was more dangerous to Americans than refusing to implement stay-at-home orders or shut down businesses.
A year later, Title 42 is still in place—and its effects have been disastrous. Under Title 42, immigration officers at the border can “expel” migrants rather than allowing them into the country. Expulsions aren’t like deportations, where there’s a legal record and a possibility for due process, no matter how flawed. They’re practically immediate. In some cases, migrants have been expelled back to Mexico even if they’re not from there; in others, they’ve been put on flights back to their country of origin, even though U.S. officials have acknowledged that doing so could mean sending people back to mortal danger.
The Biden administration recently said it would consider letting migrants who are “especially” vulnerable bypass Title 42 expulsions so they could pursue asylum claims in the U.S. In a statement, the UNHCR said this half-measure isn’t good enough. “A system which allows a small number of asylum seekers to be admitted daily, however, carries with it a number of risks, and is not an adequate response,” it reads.
Stephen Miller’s reactionary legal nonprofit joins lawsuit against Biden administration’s supposed “abolition” of ICE
In April, Louisiana and Texas filed a lawsuit against the federal government, claiming the Biden administration had refused to issue detainer requests for immigrants who could be subject to deportation. (ICE detainers are essentially holds on people in criminal custody. When someone is booked into a jail or held in a prison, ICE can request that authorities hold them for an additional 48 hours until immigration authorities can pick them up.) America First Legal, a legal nonprofit founded by former Trump official Stephen Miller, has now joined the lawsuit and is offering “legal support, consultation, and strategy” to Louisiana. In a statement, Miller—who was the architect of some of the Trump administration’s most harmful policies—claimed the Biden administration had issued “anti-ICE memos” that led to “thousands of criminal aliens … being freed into u.S. communities each and every month.”
Over the last four years, the federal courts were advocates’ main arena of pushback against Trump’s immigration policies. Advocates filed lawsuits against family separation, the Migrant Protection Protocols, the third-country transit ban, the administration’s metering policy at the border, and its attempt to end DACA, to name a few—and they were largely successful. But Trump also stacked the federal judiciary during his time in office, appointing more than 200 judges in his sole term. It’s clear that restrictionists like Miller see the courts as their path to success; if federal judges in “liberal” circuits overturned some of Trump’s most extreme policies, perhaps other judges can help keep said policies in place, or at the very least stymie the Biden administration’s feeble attempts at immigration reform.