By William Fisher
In the treatment of thousands of immigrants held in government detention, the actions of the Obama administration are falling far short of its promises of transparency and accountability.
That is the view of David M. Shapiro, Staff Counsel with the National Prison Project of the American Civil Liberties Union (ACLU). He spoke with Truthout on the heels of a New York Times exposé of the secrecy surrounding the deaths of 107 immigrants while in detention.
The Times article by Nina Bernstein, which was published last week, alleged that officials of the Immigration and Customs Enforcement agency (ICE), fearful of media scrutiny, conspired to conceal the deaths of a number of detained immigrants.
Bernstein wrote that “…it is now clear, the deaths had already generated thousands of pages of government documents, including scathing investigative reports that were kept under wraps, and a trail of confidential memos and BlackBerry messages that show officials working to stymie outside inquiry.”
The documents were obtained by The Times and the ACLU under the Freedom of Information Act. They relate to most of the 107 deaths in detention counted by ICE October 2003, when the agency was created within the Department of Homeland Security. The documents also revealed ten deaths in detention that had never been disclosed by the government.
Attorney Shapiro told Truthout that two issues play a major role in creating an environment in which death and deprivation in detention become inevitable. The first issue is the absence of any enforceable standards for the maze of 400 federal, municipal, county and private jails used by ICE to house immigrants. The second issue is a medical care regimen that allows the government such wide discretion that it can deny urgent care, including biopsies for suspected cancers and treatment of heart conditions.
The Obama administration has declined to produce system-wide enforceable standards for the prisons its uses to house immigrants. Shapiro declined to speculate on the administration’s rationale, but others have said that it is based on the wide differences between the various types of facilities used by the government. It has also failed to produce a medical care program that is binding on ICE personnel and its contractors. A number of the reported deaths in detention have been caused by ICE’s failure to provide timely medical interventions in emergency situations. Some observers believe that the rationale for deciding against providing “long term” medical care – for example, biopsies – is that ICE detention is largely short-term.
Yet ICE and its DHS parent department have acknowledged that many immigrants are held in custody for years. ICE has also admitted many of the deficiencies in its detention system and have vowed to initiate reforms. But Shapiro contends that the most recent documents obtained by the ACLU show that ICE’s culture of secrecy has not changed.
Bernstein’s New York Times article says that the documents show how officials — some still in key positions — used their role as overseers to “cover up evidence of mistreatment, deflect scrutiny by the news media or prepare exculpatory public statements after gathering facts that pointed to substandard care or abuse.”
The article details a litany of abuses. For example:
“As one man lay dying of head injuries suffered in a New Jersey immigration jail in 2007, for example, a spokesman for the federal agency told The Times that he could learn nothing about the case from government authorities. In fact, the records show, the spokesman had alerted those officials to the reporter’s inquiry, and they conferred at length about sending the man back to Africa to avoid embarrassing publicity.”
“In another case that year, investigators from the agency’s Office of
Professional Responsibility concluded that unbearable, untreated pain had been a significant factor in the suicide of a 22-year-old detainee at the Bergen County Jail in New Jersey, and that the medical unit was so poorly run that other detainees were at risk.”
“The investigation found that jail medical personnel had falsified a medication log to show that the detainee, a Salvadoran named Nery Romero, had been given Motrin. The fake entry was easy to detect: When the drug was supposedly administered, Mr. Romero was already dead.”
“Yet those findings were never disclosed to the public or to Mr. Romero’s
relatives on Long Island, who had accused the jail of abruptly depriving him of his prescription painkiller for a broken leg. And an agency supervisor wrote that because other jails were ‘finicky’ about accepting detainees with known medical problems like Mr. Romero’s, such people would continue to be placed at the Bergen jail as ‘a last resort’.”
The Times article describes a number of telephone conference calls among ICE officials in which they discussed one of the deaths and how to avoid public and media attention. It says, “Among the participants in the conferences was Nina Dozoretz, a longtime manager in the agency’s Division of Immigration Health Services who had won an award for cutting detainee health care costs. Later she was vice president of the Nakamoto Group, a company hired by the Bush administration to monitor detention. The Obama administration recently rehired her to lead its overhaul of detainee health care.”
Detainees include immigrants who have applied for asylum in the U.S. and others awaiting hearings before being deported. The number of people detained has soared to more than 400,000 a year.
As of today, there are no legally enforceable rules governing immigration detention, despite an order by a federal judge to create such rules. The Obama administration refused the judge’s order, which followed a petition filed in court by former detainees. Instead, ICE chose to follow an inspection system instituted during the administration of George W. Bush. That system relies in part on private contractors. Judge Denny Chin ruled that the agency’s failure to respond to the plaintiffs’ petition for two and a half years was unreasonable.
DHS contended that rule-making would be ”laborious, time-consuming and less flexible” than the review process now in place. It said its current inspection system would “provide adequately for both quality control and accountability.”
According to Paromita Shah, associate director of the National Immigration Project of the National Lawyers Guild, one of the plaintiffs, the government’s decision “disregards the plight of the hundreds of thousands of immigration detainees.” She claims that the absence of enforceable rules is the major cause of problems of mistreatment and medical neglect. “The department has demonstrated a disturbing commitment to policies that have cost dozens of lives,” she said.
ICE inherited its lack of transparency and accountability from its past, when it was called the Immigration and Naturalization Service (INS). For decades, INS was a dreaded word among immigrants. Its detention system then was essentially the one it operates today, though on a smaller scale. It was generally thought of as America’s most secretive prison system.
ICE has committed many of the same kinds of mistakes that contributed to INS’s poor reputation. Many of these mistakes have involved erroneous deportations. For example:
Duarnis Perez, a native of the Dominican Republic, became a U.S. citizen at 15 when his mother was naturalized. But he didn't know that meant he was also a citizen. He thought he was an illegal immigrant, and so did the authorities. He was deported and subsequently arrested trying to sneak back into the U.S. from Canada. Perez spent almost five years in prison for unlawful reentry. But when he was released in 2004, an ICE official reviewed his file and told him he had been a citizen all along.
The Perez case became one of a growing chamber of horrors coming under increasing scrutiny by Congress, the Courts, and civil liberties advocates.
ICE officials downplay the problem. "ICE does not detain United States citizens," said spokesman Richard Rocha, adding that agents thoroughly investigate people's claims of citizenship. "ICE only processes an individual for removal when all available facts indicate that the person is an alien," he said.
Another case involved Majed Chehade, a 64-year old German citizen whose wife, three children, and grandson are U.S. citizens. Chehade owns a home in Massachusetts and is the export director of a German manufacturing company. He was on his way to visit his daughter in December, 2006, when he was detained at Las Vegas Airport. He was taken to a local jail, where he was subjected to strip and visual cavity searches, denied access to medical care and his prescription medications, and told that if he wanted to return to the U.S., he would have to spy on behalf of the government.
In that case, a federal judge rejected the government's request to have the case dismissed, finding that strip searches of immigrants arriving in the country, including those housed at local detention facilities, are constitutional only if supported by reasonable suspicion. The court further held that the immigration agents' actions could be considered "extreme and outrageous conduct" and allowed an inquiry into the legality of the government's attempt to conscript a foreign national to spy to move forward.
Civil liberties organizations say these are not aberrations or isolated cases. They contend that they show a clear pattern of bureaucratic inefficiency, a lack of respect for the law, and the absence of clear guidelines for immigration officers.
A Washington Post investigation concluded that the system was “a hidden world of flawed medical judgments, faulty administrative practices, neglectful guards, ill-trained technicians, sloppy record-keeping, lost medical files and dangerous staff shortages.”
Last February, Department of Homeland Security (DHS) Secretary Janet Napolitano appointed Dora Schriro as a Special Advisor on Immigration and Customs Enforcement (ICE) and Detention and Removal. The new position was created to focus exclusively on the significant growth in immigration detention over the last five years, and to focus on the arrest priorities at ICE.
In an April letter to Human Rights First, a legal advocacy group, Schriro said she was “dedicating these first months to the close examination of issues impacting detention and removal including arrest priorities, detention decisions and practices, and the utilization of alternatives to detention.”
But rights groups say little was heard from her following her letter, and she later resigned to accept a post with the New York City police department.
The ACLU has filed a public records request asking the Obama administration to make public changes it is making to a federal immigration enforcement program that allows local police to arrest and process illegal immigrants.
And Amnesty International (AI) has recommended that “Detention should only be used in extraordinary circumstances, be justified in each individual case and be subject to judicial review.” Nevertheless, AI says that in the U.S., immigrants can be detained for months or years without a judicial warrant.
The detention and deportation issue is further complicated by immigration judges, many of who were political appointees during the George W. Bush administration and who have little or no experience in immigration law.
Most immigrants who appeal their cases to the Board of Immigration Appeals can not afford lawyers, though reliable data concludes that legal representation significantly increases their chances of winning, especially in cases where the immigrant is seeking asylum in the U.S.
Addressing that issue, Attorney General Eric Holder has recently reversed a Bush-era order that said immigrants facing deportation do not have an automatic right to an effective lawyer. He said the government would appoint lawyers for immigrants contesting their deportation.
Contrary to widespread public misunderstanding, immigration offenses are civil, not criminal, matters.
ICE practices are currently attracting some attention in Congress. Congresswoman Lucille Roybal-Allard, a California Democrat – and the first woman of Mexican ancestry to be elected to the U.S. Congress -- has introduced legislation to help to ensure that detainees, especially unaccompanied children, are treated humanely, receive access to legal representation and obtain needed medical care.”