Statement of the National Immigrant Justice Center

Hearing of the House Committee on the Judiciary

Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law

Hearing on Detention and Removal: Immigration Detainee Medical Care

October 4, 2007

The National Immigrant Justice Center promotes the human rights of non-citizens through legal services, advocacy, and strategic impact litigation.  Based in Chicago, Illinois, the National Immigrant Justice Center offers free or low-cost legal representation to approximately 8,000 immigrants, refugees, asylum seekers, unaccompanied immigrant children and victims of human trafficking each year, including hundreds of immigrants detained in jails under contract with U.S. Immigration and Customs Enforcement (ICE). 

The National Immigrant Justice Center is a leading national voice for immigration reform, advocating for access to legal counsel and due process protections for all non-citizens.  In addition to legal representation, National Immigrant Justice Center attorneys, pro bono attorneys, and accredited representatives regularly visit the ICE-contracted jails to offer "Know Your Rights" legal orientation presentations to detained immigrants, and individual consultation to determine whether individuals are eligible for legal remedies.  

The National Immigrant Justice Center is nationally recognized for its quality legal services and impact litigation, working with the largest pro bono network in the nation.  This network includes 700 pro bono attorneys, who handle individual cases and strategic litigation in the federal courts. 

The National Immigrant Justice Center is grateful for the opportunity to submit this statement for the hearing record.  Our years of experience serving the detained immigrant population prompt us to make the following points and recommendations for reform.

Revelations of Deaths in Immigration Detention Reflect Systemic Problems with the Provision of Health Care

In June 2007, the New York Times reported the shocking news that 62 immigrants died in civil detention between 2004 and 2006.[1]  The number surprised legal aid advocates, who were well aware of gross failures to provide medical attention in certain cases as well as systemic weakness in the provision of basic care.  Nonetheless, most dedicated legal aid providers were unaware that the number of deaths was so high. 

The Times article demonstrated the lack of transparency and accountability in the immigration detention system.  Many of the 27,500 immigrants held in federal custody each day are in county jails and/or in rural areas, far from family and legal aid providers, who might help these non-citizens obtain medical care as well as legal representation.  Under such circumstances, it is tragic but not impossible for deaths to go unnoticed.  ICE declined to share details on the 62 cases with the New York Times; non-governmental organizations are pressing for the release of this data.

A.  The DHS Office of Inspector General Finds Poor Treatment of Immigrants in Federal Custody

The Times article came on the heels of a January 16, 2007, report by the Office of Inspector General (OIG) of the Department of Homeland Security (DHS) on the treatment of immigrants held in detention by ICE.  Reviewing five detention facilities around the nation, OIG investigators documented systemic failures to respond to detainees' requests for medical treatment and denial of information regarding legal services. 

The report echoed problems that detainees in the Chicago area and in other parts of the country routinely report to attorneys at the National Immigrant Justice Center (NIJC).  The most common complaints are a lack of adequate medical care, limited access to legal information, non-functioning telephones, and poor access to legal representation. 

NIJC provided data to OIG investigators in 2004 and 2005 as they undertook the study.  In addition, NIJC filed a series of Freedom of Information Act (FOIA) requests regarding DHS compliance with minimum detention standards, following evidence of widespread non-compliance in the Midwest and nationally.  NIJC is currently litigating the FOIA case in federal court. 

The National Detention Standards were developed in 2000 by the then-Immigration and Naturalization Service and the American Bar Association to ensure the "safe, secure, and humane treatment of individuals" detained by federal immigration enforcement, now conducted by ICE.  Each of the facilities investigated by the OIG was noncompliant with the detention standards in one way or another.  For example, detainees were not screened for health conditions, and four of the five investigated facilities failed to respond to detainee requests for medical treatment.[2]  At two of the facilities investigated by the OIG, detention officials told investigators that they were not aware that there are specific ICE standards for detainees and that they had no knowledge of ICE's policies and procedures pertaining to ICE detainees.[3]  These correctional officers were trained to treat criminal inmates the same as immigrant detainees under civil confinement.[4]

In addition to the problems outlined by the OIG, detainees in the Midwest face additional obstacles in accessing adequate health care because they are often isolated and dispersed in small county jails.  One woman who was detained at McHenry County Jail in Woodstock, IL, following a worksite raid in Indiana in March 2007 told Chicago Public Radio that she was without her medications for Lupus, a chronic autoimmune disease, for the eight days she was in custody. 

The National Immigrant Justice Center has encountered other detainees with untreated medical conditions, including women who have been separated from newborn babies and denied appropriate post-natal care.  In another case, a woman asylum seeker detained in McHenry County Jail in 2005 died in custody after repeatedly requesting mental health treatment for herself because she was at risk of suicide.  A wrongful death case is currently pending in the federal courts.

In addition to its findings related to health care, the OIG found that in some facilities, detainees do not have regular access to working phones, which restrict their ability to contact attorneys.  Non-citizens in remote jails who have no access to lawyers face virtually insurmountable obstacles to pursuing the legal relief for which they may be eligible.  Likewise, without legal representation, these individuals will almost certainly struggle to obtain needed medical care that is denied by the government.  In fact, it is often lawyers who raise the issue of health and medical care for their clients.  Unrepresented immigrants may never have a forceful voice advocating for their care.

The OIG described one example in which the jail facility "took at least 16 business days to grant a detainee's request to call an attorney as opposed to the 24-hour time limit required by the [detention] standard."[5]  In the experience of the National Immigrant Justice Center, which represents detained immigrants held in Illinois and Wisconsin, certain jails' phones work sporadically at best, impeding the ability of detainees to contact counsel. 

B.  U.S. Commission for International Religious Freedom Finds Asylum Seekers are Particularly Vulnerable in Detention

Asylum seekers, torture survivors, victims of domestic violence and trafficking are particularly vulnerable to harm in immigration detention, whether through the denial of mental health treatment or the failure of jailers to identify their unique medical and mental health needs.  Shortly after the OIG report was released in January 2007, a bipartisan panel criticized the Department of Homeland Security (DHS) for detaining asylum seekers in penal conditions. 

The bipartisan U.S. Commission on International Religious Freedom (USCIRF) issued an initial report in 2005 calling on DHS to modify its policies.  DHS never formally responded to the recommendations.  The Commission's "report card," released on February 7, 2007, excoriated DHS for its failure to ensure that asylum seekers are protected and given an opportunity to seek refuge in the United States.  Like the OIG, the USCIRF also chastised DHS for denying these individuals the opportunity to find legal advocates.  The USCIRF also found that asylum seekers are typically treated as criminals while they are detained.

Detention weighs heavily on asylum seekers who are detained, especially if they fled police or government persecution in their countries of origin.  Shahid Haque, a Chicago attorney at the law firm of Jenner & Block provided pro bono representation to a detained Togolese asylum seeker in collaboration with the National Immigrant Justice Center. "Several months of detention wore on my client's health," Haque said. "He had trouble sleeping, and this affected his ability to recall the level of detail required for his asylum hearing." In addition to the detention standards' requirement that detainees be provided medical treatment, domestic and international law provide protections for asylum seekers. DHS routinely violates these safeguards.

Even those who are responsible for detaining non-citizens under ICE contracts have complained about the failure of the agency to meet basic health standards.  "The Department of Homeland Security has made it difficult, if not impossible, to meet the constitutional requirements of providing adequate health care to inmates that have a serious need for that care," stated Thomas Hogan, the warden of a York County, PA, detention center in an affidavit last year.[6]

Recommendations: 

Important legislation designed to protect the rights and ensure the health and safety of immigrants in detention is pending in the 110th Congress in both the House of Representatives and the Senate.  The Secure and Safe Detention and Asylum Act was included in the STRIVE Act (H.R.1645) last winter.  It was adopted by unanimous consent in slightly different form as an amendment to the Senate comprehensive immigration reform bill (S.1348), which was sidelined by a filibuster in June 2007. 

This legislation, championed by Representatives Gutierrez and Flake and Senator Lieberman, makes a number of positive changes to the immigration detention system including implementation the ICE Detention Standards and improved provision of medical care.  The bill also creates an oversight body to monitor implementation and bring greater accountability to the detention system.  This oversight office would conduct frequent and unannounced inspections of all detention facilities. 

The Secure and Safe Detention and Asylum Act also improves access to counsel for detained immigrants, which is critical to guaranteeing that the rights of detainees are respected and that these individuals are afforded proper medical treatment.  Specifically, the Act expands legal orientation programs (LOPs) for detained immigrants to ensure that immigrants understand their rights and the availability of relief, if any.  Now available in only a small number of locations, LOPs would be offered nationwide under the Act, providing non-citizens held in remote areas access to information on their rights and the possibility of securing legal representation.  The Act also calls for detention facilities to be located near sources of free or low-cost legal services. 

Finally, Congress must press ICE to exercise its discretion to release immigrants who are not a threat to the community or a flight risk on their own recognizance or on bond.  To detain individuals who are not a danger to the community is an unnecessary expense to taxpayers.  Detention costs, on average, $65 to $85 per day per detainee.[7]  Alternatives to detention cost as little as $8 per day.[8]  When detention is necessary, alternatives that have been proven reliable and cost effective should be fully utilized.  Congress should increase funding for these alternative programs rather than continue to increase the number of detention beds for immigrants.  The Act calls for increased use of detention alternatives, such as the successful pilot Intensive Supervision Appearance Program, or programs run by faith-based or other non-governmental groups.

Conclusion

We are a nation of immigrants.  Americans have always welcomed immigrants, who in turn have made significant contributions to our society.  American values and traditions provide for the just treatment of individuals, not the detention and deportation of hard-working and otherwise law abiding individuals.  These values certainly do not support the deprivation of health care to those who are in need and who, because they are incarcerated, have no opportunity to obtain treatment on their own.

# # # #

[1] Nina Bernstein, "New Scrutiny as Immigrants Die in Custody," New York Times, June 26, 2007. 

[2] Report of the DHS Office of Inspector General, "Treatment of Immigration Detainees Housed at Immigration and Customs Enforcement Facilities," OIG-07-01, December 2006, at 1.

[3] Id. at 31.

[4] Id.

[5] Id. at 24.

[6] Id.

[7] "Different sources estimate that it costs ICE an average of $65-$80 a day to detain one person although in some facilities the costs have been as high as $225 a day.  Despite the fact that effective alternative programs have an estimated cost of only $8 per day per person, they have long been under-funded by Congress.  For example, $90 million was recently approved to increase ICE's detention capacity, while only $10 million was approved for detention alternatives."  Fact sheet by Detention Watch Network, available at http://detentionwatchnetwork.org/sites/detentionwatchnetwork.org/files/Detention

%20overview-Final.doc.

[8] Id.