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December 31, 2018

ABA expresses concerns about revisions proposed by ICE that would alter immigration detention standards

The ABA suggested changes Nov. 26 to draft revisions to national detention standards being considered by U.S. Immigration and Customs Enforcement (ICE), emphasizing that is essential that “all facilities housing immigration detainees are safe and protect detainees’ statutory and constitutional rights.”

In a comment letter submitted to ICE, ABA President Robert M. Carlson expressed the hope that ICE would renew a previous commitment to eventually implement Performance Based National Detention Standards (PBNDS) developed in 2011. He explained that the 2011 standards include expected outcomes and practices that provide significantly more detailed instructions to facilities and reflect changes addressing issues that have been raised by detainees and advocates over the years.

Noting that there have been delays in implementing the 2011 standards, Carlson wrote that, with development of draft revisions, it appears that ICE “has abandoned the goal of implementing the 2011 standards altogether for non-dedicated facilities.” These facilities, such as county jails, are those that are not dedicated to solely housing immigration detainees but receive federal payments to do so.

Carlson explained that the vast majority of the non-dedicated facilities are still using standards developed in 2000 but that the facilities that have transitioned to the 2011 standards would be taking a step backward if they adopt the proposed revisions.

“Moreover, one of the main purposes of moving toward implementation of the 2011 PBNDS at all facilities is to provide one set of standards, implemented and enforced consistently across the county. Continuing to maintain three sets of standards creates confusion for ICE and facility staff, as well as for detainees who are transferred between facilities that use different standards,” he wrote.

The ABA’s comments on the proposed revisions focus on the standards related to legal access, the disciplinary system, and Special Management Units.

Carlson emphasized the ABA’s longstanding involvement in the development of detention standards over the years and the creation of the ABA Detention Standards Implementation Initiative to recruit lawyers to participate on a pro bono basis to tour selected detention facilities and report conditions to the relevant ICE field office. The ABA also receives information from its pro bono projects in Texas and California and operates a telephone hotline for detainees.

He noted the serious deficiencies in detention conditions and the significant barriers detainees face in obtaining legal representation. These are key reasons, Carlson said, that the ABA opposes the detention of noncitizens except in extraordinary circumstances and instead supports the use of cost-effective, humane alternatives to detention that are the least restrictive necessary to ensure appearance in court.