*2.2. Domestic Detention Standards*

Regardless of the type of detention facility, standards for operation apply. Immigrationdetainee-only facilities must abide by certain standards.

The Performance-Based National Detention Standards (PBNDS). This 455-page set of standards was created in 2011 in an "ongoing effort to tailor the conditions of immigration detention to its unique purpose ... [and] to improve medical and mental health services [and] increase access to legal services" (U.S. Immigration and Customs Enforcement 2011, p. I; Papst 2009). In the words of one scholar, "the PBNDS standards are relatively high and would make immigration detention centers habitable" (Kennedy 2020). The PBNDS cover seven main subjects, some of which provide basic human rights, such as a grievance system and medical screening (Noferi 2014, pp. 555–56), and they include a number of "expected outcomes", which are specific implementation targets for each aspect of the PBNDS. However, the PBNDS do not indicate whether, and to what extent, there are consequences for a failure to reach an expected outcome, nor are there any legal means for ICE to ensure that privately-run detention centers adhere to the standards (Sthanki 2013, p. 465).

Non-immigration-exclusive detention facilities (such as prisons) are expected to comply with the 2019 National Detention Standards for Non-Dedicated Facilities (NDSNDF). According to ICE, these are "facilities used by ICE ... with an Average Daily Population of less than 10" (U.S. Immigration and Customs Enforcement 2019). NDSNDF standard 4.3 notes that it is policy for "All detainees [to] have access to appropriate medical, dental, and mental health care, including emergency services" (U.S. Immigration and Customs Enforcement 2019, p. 112). The NDSNDF also calls for each facility to have "written plans" to address infectious and communicable diseases (U.S. Immigration and Customs Enforcement 2019, p. 114). Unlike the PBNDS, the NDSNDF does not include subject-specific expected outcomes.

Finally, family detention centers must abide by the Family Residential Standards 2020 (U.S. Immigration and Customs Enforcement 2020b). Like the PBNDS, these standards include expected outcomes and include provisions governing healthcare. For example, section 4.3 requires that residents "have access to a continuum of health care services including screening, prevention, health education, diagnoses, and treatment".

The way that ICE manages its detention facilities has long been criticized. For a start, the use of three sets of standards has been called confusing, making "it difficult for entities to hold facilities accountable" and collect accurate data concerning the healthcare of detainees (Bowen 2020, p. 299). More substantively, it has been highlighted that "'[n]o checks and balances currently exist within ICE. ICE investigates itself", and that detention center abuses are conducted "with impunity, and without recourse" (Sthanki 2013, pp. 448–49; United Nations Working Group on Arbitrary Detention 2010, para. 35).<sup>17</sup> Moreover, because the standards are not legally binding, they are effectively unenforceable (Sthanki 2013, p. 464; Global Detention Project 2010, p. 13). Though both the PBNDS and the NDSNDF include an internal grievance mechanism whereby detainees can file a complaint with a designated facility representative or committee, detainees rarely make recourse to this option, for fear of retribution by facility staff (Sthanki 2013, p. 466). Prior to the adoption of the PBNDS, Amnesty International commented that "conditions of detention in many facilities do not meet either international human rights standards or ICE guidelines" (Amnesty International 2009, p. 7). In 2017, the DHS Office of Inspector General conducted unannounced inspections of five immigration detention facilities to evaluate their compliance with ICE standards (U.S. Department of Homeland Security Office of Inspector General, "About Us" 2017).<sup>18</sup> It found a number of violations, including "unsafe and unhealthy detention conditions", but noted that ICE had begun to take "corrective action" in response to the report (U.S. Department of Homeland Security Office of Inspector General, "About Us" 2017, p. 1). Despite such action, violations continue. For example, A 2020 report by the House Committee on Homeland Security found that ICE facilities fail to meet basic standards of care for migrants (U.S. House of Representatives Committee on Homeland Security 2020). In particular, the report condemned ICE's failure to properly oversee detention facilities and to provide sufficient medical care, including for COVID-19 (U.S. House of Representatives Committee on Homeland Security 2020, pp. 7–10, 13–19).

Beyond this, there is no U.S. law that governs the way that detention centers are managed.<sup>19</sup> Thus, it is necessary to turn to international law for guidance.
