**2. Introduction**

Immigration Detention is a patchwork of public and private correctional facilities overseen by ICE, a federal enforcement agency. In June 2021, ICE detained 16,460 adults in 121 facilities in 38 states, frequently alongside pretrial and sentenced inmates and U.S. Marshals Service prisoners, under conditions ICE established in five different sets of detention standards it uses and which are based on corrections case law. Detainees do not fare well in ICE's custody, particularly during the pandemic. In calendar year (CY) 2020, ICE processed 137,749 detainees, tested only 80,200 for COVID-19 (58%), and recorded 8622 positive cases (approximately 11%) at over 100 facilities nationwide, including eight detainees who died from the coronavirus while in ICE custody. Among those who tested positive for COVID-19, 7687 (89%) were exposed to the virus while in ICE custody. An additional 14,728 detainees (18%) had one or more conditions that placed them at high risk for severe illness due to COVID-19 of which, ICE released only 5801 high-risk individuals (39%) (GAO-21-414).

I believe ICE can do better. As a matter of law, it must. Immigration detainees are held pending *civil* proceedings in the immigration court. Their detention must not be punitive and their access to healthcare must meet the community standard. ICE has not met either of these requirements.

We are at a flex point. There is need to act, and there is opportunity to do so. One, the pandemic continues to threaten the public's health, particularly in areas of the country where vaccination rates remain low. ICE also reported low rates among detainees nationwide, regardless of the facilities' locations (Melugin 2021). This is not surprising given the state of its healthcare system. Two, the size of the detained population remains relatively low, but it has begun to rise again. Now is the time to eliminate as many beds as possible and change the nature of those that remain. Three, the new Administration is open to the idea of creating a civil, civil system of immigration enforcement.

This paper considers several of the ways in which ICE has misapplied corrections case law, policy and practices to the detriment of the detainees in its custody, particularly during the pandemic. It utilizes ICE data and documents on governmen<sup>t</sup> websites to consider ICE's approach to detention management, how it has impacted conditions of detention, and impeded its readiness and response to the pandemic. It is recommended that reliance on Immigration Detention is decreased, that it is decriminalized, and ICE is held accountable for its activities and outcomes. In short, this is a brief look in that mirror, at ICE, the aggregated impact of crimmigration law on a quasi-punitive system of immcarceration, and us.

### **3. COVID-19 and the CDC's Standard of Care for Correctional and Detention Facilities**

The U.S. Centers for Disease Control and Prevention (CDC) is the nation's health protection agency (CDC 2019). CDC Guidance is the community standard of healthcare for treating coronavirus, and the CDC Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (CDC Guidance) is the community standard for corrections and immigration detention (CDC 2020). Every detainee in ICE's custody has a right to receive this level of care.

On 11 March 2020, the World Health Organization declared the novel coronavirus (COVID-19) outbreak a global pandemic. On 23 March 2020, the CDC issued its initial CDC Guidance. The CDC has continued to tailor public health responses to coronavirus for incarcerated populations throughout the course of the pandemic.

Chief among its recommendations to prevent the spread of COVID-19 in incarceral settings, the CDC urged correctional and detention facilities to practice extreme social distancing, continual and correct use of personal protective equipment (PPE), and heightened sanitation and vigorous hygiene facility-wide, coupled with cohorting and screening for symptomatic individuals, testing of asymptomatic individuals, quarantine and contact tracing, and when it became available, vaccination. The CDC has never proposed however, that correctional and detention facilities release at-risk persons in their custody, deferring to the executive, legislative and judicial branches of city or county, state, and federal government to make those decisions. Some have been critical of its silence: Instead of centering on public health, it appeared to them that the CDC was preoccupied with the impact of such a recommendation on traditional enforcement priorities (Harvard Law Review 2021).

### **4. Civil Detention v. Criminal Incarceration**

### *4.1. The Applicable Legal Standard for Immigration Detainees*

Convicted prisoners are protected by the Eighth Amendment to the U.S. Constitution, and application to the states by the Fourteenth Amendment, which prohibits the infliction of cruel and unusual punishments on those persons. To establish a violation of the Eighth Amendment, a prisoner must show both a deprivation of a basic human need (Helling v. McKinney 1993) and deliberate indifference (Wilson v. Seiter 1991). In the context of medical or mental health care, she must demonstrate "deliberate indifference to serious medical needs (Estelle v. Gamble 1976).

Pretrial prisoners are protected by the Due Process Clauses of the Fifth and Fourteenth Amendments against any conditions that constitute "punishment (Bell v. Wolfish 1979)". They are afforded at least as much protection as are sentenced inmates regarding medical care (City of Revere v. Massachusetts General Hospital 1983). Deliberate indifference of correctional officials to the serious medical needs of a pretrial prisoner is a violation of her due process.

Immigration detainees are civil detainees held pursuant to civil immigration laws. Their protections are also derived from the Fifth Amendment, shielding persons in the custody of the United States from conditions that amount to punishment (Wong Wing v. United States 1896). ICE may detain non-citizens during the removal process (Fong Yue Ting v. United States 1893) but, because immigration detention is not punishment, its detention must not be excessive in relation to ICE's noncriminal purposes (Zadvydas v. Davis 2001). To do so is improperly punitive, thus unconstitutional (United States v. Solano 1987). Immigration detainees must be afforded the same (Edwards v. Johnson 2000) or superior (Jones v. Blanas 2004, Youngberg v. Romeo 1982) level of protection as are pre-trial prisoners.

### *4.2. Crimmigration Law and the Quasi-Punitive System of Immaceration*

Our blurring of criminal enforcement and immigration control has given rise to a system of crimmigration law. Similarly, our treatment of civilly detained people in immigration proceedings as if they are criminally charged, using criminal incarceration for the purpose of immigration detention, serves to validate public perception and fortify public acceptance of excessive immigration practices, giving way to the quasi-punitive system of immcarceration, with which we grapple today: a random collection of correctional practices with many of its punitive characteristics, unsubstantiated beliefs about deterrence, and none of its due process protections. Preventive justice is neither preventive nor just (Cole 2014). Many detainees seek asylum. Others seek reunification with family members who preceded them. In most cases, migrants are certain that they have no choice but to immigrate, the conditions in the counties of their origin are so detrimental that they are compelled to make the harrowing trip to our borders and surrender themselves thus initiate the process of lawful entry. Their fear for survival has also become ours. Xenophobia informs our policies and procedures and over time, immigration detention has become a deprivation as severe as removal itself (Kalhan 2010).

Immigration enforcement also lacks the criminal justice system's checks and balances, measured practices upon which the disenfranchised depend. Whereas there is considerable discretion distributed across decision-makers in the criminal justice system from the arresting officer, prosecuting attorney, bail bondsman, pre-trial services, and arraignment and trial courts at the front-end to pre-release services, victim advocates, and parole board at the back-end, detain or release decision-making is concentrated primarily within DHS, and controlled largely by Customs and Border Patrol (CBP) and ICE; the focus of their activities along the northern and southern borders, and the interior, respectively. CBP and ICE also regulate the conditions of confinement in CBP patrol stations and ICE detention facilities and operate their respective holding and detention facilities. As CBP and ICE, both immigration enforcement agencies, prefer removal to relief, and detention is an expedited means to that end, one that only they control, they exercise control with impunity. Only the

U.S. Citizenship and Immigration Services (USCIS) within DHS, its charge to adjudicate non-citizens requests for immigration benefits, or the Executive Office for Immigration Review (EOIR) within the U.S. Department of Justice (DOJ), the nation's immigration court system, can change the outcome of immigration cases. Given the disparity in the size, staffing, and status of each of these agencies, it does not happen as often as it should.

In many cases, detention is also mandatory as a matter of law. Mandatory Detention refers to provisions of the Immigration and Nationality Act (INA), § 236(c) and § 235(b), which state non-citizens with certain criminal convictions are not entitled to a bond hearing, they must be detained by ICE, and shall remain detained while removal proceedings are pending against them. As indicated in Table 1, on 14 June 2021, there were 16,460 people in ICE's custody of which, 11,570 (70%) were mandatorily detained although 9510 (58%) had no criminal convictions.<sup>1</sup> ICE refers to this group as "No ICE Threat Level (ICE 2021a). These changes to the INA were made in the 1990s, the same period of time in which Truth-in-Sentencing, Three Strikes, and Juvenile Justice "reforms" were enacted, many of those provisions since reversed. I think it would be worthwhile to reconsider the validity of the assumptions that brought about these amendments as well as beginning with a review of the 28% of detainees who had no convictions and were mandatorily detained nonetheless.<sup>2</sup>

**Table 1.** Average Daily Threat Level (ICE 2021b).


It is clear that ICE has taken other measures to keep people detained. One notable example is ICE's revision of its Custody Classification detention standard. As developed by the Immigration and Naturalization Services (INS), it was an objective process, an assessment based on facts—whereby an opinion, even informed opinion (based on profiling, familiarity, personal experience, etc.) is different from fact, therefore irrelevant for detainee classification (ICE 2002b)—to a subjective process where "discernable" facts—such as nothing more than a tattoo to establish gang membership—as are acceptable (ICE 2019b). ICE also repeatedly adjusted its risk assessment instrument's algorithm, continually modifying it to raise the custody scores of as many detainees as possible to avoid releasing them (Koulish 2016). When that still did not eliminate as many detainees as ICE believed should remain in custody, ICE revised its already limited range of recommendations in 2018, striking all but one outcome regardless of the detainees' risk score: Detain (Rosenberg and Levinson 2018).

In FFY2019, pre-pandemic (ICE 2019d), ICE's average daily detained population (ADP) reached 50,165 detainees. In FFY2020, mid-pandemic (ICE 2020a), after enforcement activities had been scaled back considerably, the ADP dropped to 19,068 detainees (<62%). ICE's ADP began to rebound and by June 2021, rose to 26,222 detainees (>28%) by mid-June in FFY2021 (ICE 2021a), with the expectation its ADP would continue to increase unless there was a marked change in enforcement policy.

In fact, the pandemic brought about a significant shift in both federal policy and state and local practice. A change in federal public health policy altered CBP's apprehensions of migrants. Another in the courts and correctional systems impacted ICE's arrests. Together, they account for most of the precipitous drop in "book-ins," the combined annual totals of CBP apprehensions and ICE arrests, from 510,854 migrants in FFY 2019 to 182,869 in FFY2020 (<36%) (U.S. ICE 2021).

At the federal level of government, the prior Administration utilized sections 362 and 365 of the Public Health Service Act, 42 U.S.C. §§ 265 and 268, to suspend "the introduction of persons into the United States" beginning in March 2020, purportedly to prevent the introduction of COVID-19 into the country. Named the Migrant Protection Protocols (MPP) but better known as the "Remain in Mexico Policy," its impact was immediate. Pursuant to MPP, most migrants along the southwest border, many of whom sought asylym, must remain in Mexico, currently a year or more, until such time as they are called to appear in immigration court. In August 2021, over 70,000 people seeking asylum were waiting for a date to be heard (Morrissey 2021). Immediately upon taking office in January 2021, the current Administration reversed the MMP. The states of Texas and Missouri sued, seeking its reinstatement, and they prevailed in the federal district court. The Administration petitioned the U.S. Supreme Court to gran<sup>t</sup> a stay, and in August 2021, the Court denied its application (Biden et al. v. Texas et al. 2021) thereby keeping in place MMP for now.

At the state and local levels of government, both the courts were clearing their confined criminal dockets and correctional systems were reducing their jail and prison populations, especially of medical vulnerable individuals, through various release mechanisms. With fewer inmates remanded to correctional facilities, there were also fewer individuals to turn over to ICE and a number of them both pre-trial or pre-plea and sentenced were medically vulnerable. Transferring at-risk individuals, especially those who had neither plead nor proven guilty, from one authority to another was contra-indicated by the Court and the CDC. Nevertheless, ICE continued to take them into their custody upon their release from the criminal justice system although many of them would be released to its ATD program.

It made a measurable difference. In FY 2019, ICE monitored 83,186 adult ATD participants (ICE 2019d); in FY2020, 85,415 adults (>3%) (ICE 2020a); and in FY2021 TD, 103,933 adults (>18%) (ICE 2021a).

Notwithstanding the appreciable decrease in book-ins through the course of the pandemic, COVID-19 more than doubled the time that migrants remain in its custody and under its supervision. Pre-pandemic, delays in the immigration court's detained and non-detained dockets were considerable. Coronavirus compounded both backlogs. The average length of stay (ALOS) in detention rose from 34 days in FY2019 (ICE 2019d), to 63 days in FY2020 (>54%) (ICE 2020a), to 60 days in FY2021 TD (<5%) (2021a). The average length of time in an ATD program (ALIP), was far worse, rising from 352 days in FY2019, (ICE 2019d) to 816 days in FY2020 (>57%) (ICE 2020a), to 788 days in FY2021 TD (<4%) (ICE 2021a).

### **5. The Immcarceration of Immigration Detention**

The shift in immigration policy from "Catch and Release" to "Catch and Remove" in 2005, left ICE scrambling for additional beds to detain the burgeoning non-criminal population. At the ready were thousands of public and private prison beds that had been built the decade before to accommodate the growth in the inmate population brought about by state and federal sentencing initiatives in the 1990s.

ICE acquired many of these beds and did so without the benefit of population forecasting, multi-year capital construction plans, a scope of work with clear selection criteria and agency-specific operating assumptions, or competitive bidding, all of which are widely recognized managemen<sup>t</sup> tools. Instead, it did what was expedient to meet its mandate: it go<sup>t</sup> those beds by various means to deter and detain. In 2009, when I conducted the nationwide review of immigration detention at the direction of DHS Secretary Napolitano (Schriro 2009), ICE had secured space in over 300 jails and prisons to house as many as 31,000 adults daily, facilities still staffed by correctional personnel, and operating as correctional facilities with all its policies and procedures—counts, controlled movement, searches, shakedowns, and the like—intact. To this, ICE only added the requirement that all facilities housing an average of ten or more detainees would also comply with its detention standards.

### *ACA Adult Local Detention Correctional Standards v. ICE Immigration Detention Standards*

In September 2000, the Immigration and Naturalization Services (INS), consisting of USCIS, CBP and ICE, each of which would become stand-alone agencies within DHS in 2002, promulgated the first detention standards for facilities housing immigration detainees. The INS selected the American Correctional Association (ACA) standards for adult local detention facilities (ALDF), based upon corrections case law for pretrial and locally sentenced prisoners,<sup>3</sup> as the prototype for its 2000 National Detention Standards (NDS) (ACA 2004, 2016). The INS intended detention standards to establish consistent conditions of confinement, program operations, and managemen<sup>t</sup> expectations within its detention system. Although that was INS' intent, the 2000 NDS made allowances for non-dedicated facilities, merely encouraging them to consider those procedures useful as guidelines, (ICE 2002a). When ICE was formed in 2002, the agency continued to operate immigration detention utilizing the 2000 NDS.

In 2004, the ACA transitioned to performance-based detention standards, and in 2008 ICE published the first of several sets of performance-based National Detention Standards (PBNDS), replicating those of the ACA. As had the ACA, ICE incorporated expected outcomes for each standard and expected practices required to achieve them so as "to improve safety, security, and conditions of confinement for detainees (ICE 2008a)".

In 2011, ICE revised the 2008 performance-based detention standards, incorporating changes made following the release of the 2009 Schriro Report (Schriro 2009) and to address outstanding recommendations. ICE said of the 2011 PBNDS standards, "It represents an important step in detention reform (ICE 2011a)".

In 2016, ICE revised the 2011 detention standards "to ensure consistency with federal legal and regulatory requirements as well as prior ICE policies and policy statements," incorporating provisions of the Prisoner Rape Elimination Act (PREA) and Section 504 of the Rehabilitation Act prohibiting discrimination on the basis of disability, as well as changes to the operation of Special Management Units, expansion of language services, and other ICE and ERO Directives, Memoranda and Policy Statements (ICE 2016a).

In 2019, ICE issued National Detention Standards (NDS) for Non-Dedicated Facilities. Non-dedicated facilities house one or more other populations typically, inmates, often from more than one jurisdiction, occasionally military prisoners, and increasingly U.S. Marshals Service (USMS) prisoners, federal inmates in the temporary custody of the USMS during transport and for criminal court appearances, in addition to detainees, and usually outnumbering them. ICE intended the 2019 NDS would provide the necessary guidance for approximately 45 facilities it had acquired by means of intergovernmental service agreements (IGSA) and had been operating already under the 2000 NDS, approximately 35 USMS facilities that ICE used and inspected against the 2000 NDS, plus approximately 60 facilities (both IGSA and USMS) which did not reach the threshold for ICE annual inspections—generally, those with an average daily population (ADP) of less than 10 detainees (ICE 2019a).

The NDS 2019 represented ICE's most significant departure from any of the preceding detention standards, and in my opinion, has created the most inconsistent conditions under which detainees are held today. In addition to the deference in treatment that INS had introduced in 2000, ICE eliminated 11 of 44 standards, a measure it minimized as merely a "consolidation", but in its place, ICE granted all those providers considerably more latitude in the operation of their facilities, particularly regarding healthcare, the clear consequence of which is even greater disparity in conditions of detention and far fewer protections for detainees in non-dedicated facilities than for those in dedicated facilities. ICE is not concerned, "These are facilities across the country where ICE's state and local law enforcement partners successfully manage their own [criminal] populations under federal, state, and local regulations (ICE 2019a)". Even if this were true, which I do not believe to be the case, applying correctional practices and then superimposing local healthcare policy on many of the facilities that are a part of a national system of immigration detention fails to protect civilly held people who are entitled to more as a matter of law.

As described by ICE, it appeared that the agency intended the 2011 (rev. 2016) PBNDS would replace the 2008 and 2011 Performance-Based National Detention Standards and that the 2019 NDS would replace the 2000 National Detention Standards; however, as indicated in Table 2 that has not been the case. Instead, ICE renamed the 2000 NDS, the 2000 NDS for Non-Dedicated Facilities and continues to use it although other than the change in its name, it has not been revised since its 2000 release. Similarly, the 2008 PBNDS and 2011 PBNDS are still in use, as they were originally released. In mid-June 2021, there were 38 dedicated and 84 non-dedicated adult detention facilities in use. Not all dedicated facilities were assigned performance-based detention standards, 36 were and 2 were not. Not all non-dedicated facilities were assigned national detention standards, 63 were and 21 were not.


**Table 2.** Adult Detention Facilities by Type and Assigned Detention Standards (ICE 2021b).

ICE occupied 122 facilities on 14 June 2021, of which 38 were dedicated and 84 were non-dedicated or shared use.

> It is not unusual for an organization or professional association to promulgate more than one set of standards, when each set is tailored to a specific population to meet their unique needs. ICE understands this. ICE issued detention standards specifically for Family Residential Facilities in 2007 for that reason, and updated it in 2020, replacing one with other (ICE FRS 2020).

> However, unlike the ACA and other professional organizations that replace older standards with newer ones when revised, ICE has kept the old and added each new set, assigning each facility one version or another. Now, ICE has five different sets, and all of them are still in use. More than confusing, it is unconscionable to detain the same population under appreciably different conditions, more so in order to qualify more facilities to house detainees, which is what ICE has done. Today, ICE assigns adult detainees to facilities operating under *five* different sets of expectations—2000 NDS, 2008 PBNDS, 2011 PBNDS, 2011 PBNDS (rev. 2016), *and* 2019 NDS—to maximize its bed capacity.
