Opinion | Immigration

Internal DHS and ICE immigration detention practices are broken

The views expressed by contributors are their own and not the view of The Hill

This month's damning report from the agency's own inspector general, which rebuked ICE's detention practices, including placing immigrants in solitary confinement, is an accountability decoy. In fact, the report only scratches the surface of their unlawful actions.

Our organization, Government Accountability Project, represents numerous whistleblowers within the DHS who have made multiple disclosures to the agency's inspector general.

These whistleblowers saw egregious violations of laws, rules and regulations in practices that substantially threaten immigrants' health and safety and reported those wrongdoings inside the system - to the people with the authority to investigate and address misconduct.

One whistleblower we represent, Ellen Gallagher, was a senior policy analyst at the Department's Office of Civil Rights and Civil Liberties (CRCL). After reading dozens of ICE segregation reports, she discovered that ICE regularly used solitary confinement practices against mentally ill and medically vulnerable detainees in violation of federal detention standards.

The abuses she discovered were graphic - detainees were denied proper medical care and attention; others were stripped bare and placed in "suicide smocks" in complete isolation, with some detainees choosing to not disclose suicidal ideation out of fear that they would be subjected to such treatment; and mentally-ill detainees were put in solitary confinement and de-scheduled from appearing before immigration judges despite having been determined to have a credible fear of returning to their home country. These abuses were systemic, not just one-time occurrences, with examples spanning from over 200 adult detention sites.

Gallagher first alerted her own colleagues of these abuses, since she understood the civil rights office's mandate included both reviewing individual cases of misconduct as well as recommending policy changes to protect the rights and interests of immigrants in detention. When they declined to investigate, Gallagher brought the evidence of the misuse of solitary confinement at ICE detention facilities to the inspector general.

The inspector general promised to investigate whether ICE facilities use segregation properly and follow applicable detention standards. However, in two reports prior to the one issued last week, the watchdog failed to release any meaningful, site-wide data or conclusions regarding the use and impact of segregation for civil detainees in immigration custody. Even in this most recent report, the Inspector General only spot-checked four detention centers, none of which were mentioned in Gallagher's whistleblowing disclosures. The report barely looked at mentally ill detainees. The recommendations suggested that the field offices that oversee the specific detention centers they investigated "ensure compliance" with existing federal detention standards, completely failing to address these same problems that exist across the entire ICE detention system.

Two other clients of ours, Drs. Scott Allen and Pamela McPherson, are medical and mental health subject matter experts working for the Department's Office of Civil Rights and Civil Liberties. They too tried to raise concerns about risks of harm to immigrants, especially children, to both CRCL and the Inspector General's investigative team. Their concerns have also fallen on deaf ears.

Their disclosures detailed systemic weakness at Family Residential Centers that would exponentiate with expanded detention implemented under the zero-tolerance immigration policy and create imminent harm to migrant children. Last summer, we sent these disclosures to the Inspector General via fax and email.

We followed up with the watchdog throughout the fall by peppering them with emails. But the doctors' disclosures went unanswered. As they wrote in the Washington Post last December, "We warned DHS that a migrant child could die in custody. Now one has."

One watchdog's non-response was echoed by the civil rights office, which, despite heightened outcry about harms posed by detention and the warnings of their own medical experts, has not conducted a single onsite investigation at family detention centers since September 2017. And perhaps even worse than non-action, DHS recently released a controversial new report in April 2019 that recommends confinement and detention of migrant children and overturning the Flores standards to allow for indefinite, prolonged detention.

This position is completely at odds with these whistleblowers' disclosures, as well as the overwhelming medical research and consensus that detention of children, even with families, poses harm and indefinite detention exponentiates that harm.

Meanwhile, the abuses reported by these whistleblowers continue unabated, with no oversight or accountability by the agency watchdogs charged with promoting legal compliance and protecting the health, welfare and rights of immigrants held in civil detention. Because of the futility of internal oversight mechanisms, Gallagher and Drs. Allen and McPherson felt duty-bound to go to Congress and the press to raise the alarm and prevent foreseeable, ongoing risk of harm.

Twenty-four immigrants have died in ICE custody during the Trump administration.

Something is broken when the internal accountability mechanisms in the executive branch refuse to listen to whistleblowers, yet still claim to have held their agency accountable.

Yes, the recent Inspector General's report did identify problems at four spot-checked sites exposed and recommend reforms for serious ICE abuses. But the striking contrast between the scope of the report and the scope of the problems we know have been raised by whistleblowers demonstrates that the OIG is not able, or willing, to meaningfully address ongoing and prevent future harms.

DHS's watchdog mechanisms are broken and have consistently failed to prevent egregious harm to the thousands of vulnerable immigrants in DHS care. The concerns exposed by whistleblowers and reported in the press must not only be acknowledged, but fully investigated and addressed without any further delay. Congress must assert its oversight authority and exercise its oversight duty, immediately. The consequences of Congress failing to act are literally life and death.

Dana Gold is the director of education and a senior counsel with the Government Accountability Project, where she currently represents multiple immigration whistleblowers. Irvin McCullough is a national security analyst with the Government Accountability Project, where he helps national security whistleblowers disclose wrongdoing free from retaliation. 

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