It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.
—Nelson Mandela
This Note explores the United States’ history of detaining noncitizens awaiting immigration proceedings in detention facilities that are often managed in whole or in part by private for-profit prison companies. This Note primarily argues that facilities created through Intergovernmental Service Agreements (IGSAs) lack adequate regulation and oversight, both of which exacerbate abuse against people detained in facilities that were created through these agreements. To curtail the use of IGSAs, this Note proposes that Congress amend the Immigration and Nationality Act (INA), that the President issue an executive order limiting the use of IGSAs, and that Immigration and Customs Enforcement (ICE) phase out its use of detention centers and replace them with an expansive and accessible community-based case management system.
In March 2020, the entire world was changed as COVID-19 rapidly spread throughout the globe. Businesses, schools, and workplaces went remote, and most people only left their homes to buy necessities. It is hard to imagine life during the pandemic without masks, social distancing, hand washing, and cleaning supplies. But for thousands of people detained by Immigration and Customs Enforcement (ICE) in 2020, that was their reality.
Imagine, in the midst of the pandemic, having to share a room with ninety-eight people, where you must sleep in rows of bunk beds with little ability to distance yourself from others. The bathrooms are cleaned just twice a day, and the only items you have to wash your hands are a communal bar of soap and a towel. There are no medical-grade masks, only handmade masks made by other people in the detention center, and the staff are often sick and lack proper Personal Protective Equipment (PPE). On top of this, testing and medical care are not prioritized, with people suffering from respiratory diseases, going days without access to medical services. People in ICE detention face such conditions every day, but these problems are not unique to the pandemic.
In 2013, a study of 1,113 individuals recently deported from the United States found that thirty-seven percent of detainees who requested medical attention were denied medical care by ICE. One example of this insufficient medical care occurred in 2012, where a man in an ICE detention center died from a heart attack, the subsequent Office of Detention Oversight report demonstrated that the facility failed to provide medical care, the nurses were not trained on the use of the medical equipment, and employees waited an hour to call 911 after the emergency began. Unfortunately, these examples are not uncommon; just from the 2010s, dozens of complaints and allegations have been made against ICE detention facilities for their lack of medical care, legal access, and discriminatory treatment of LGBTQ+ detainees.
These ongoing reports of substandard care within detention centers are inherently tied to how these facilities are created—more specifically, the use of Intergovernmental Service Agreements (IGSA) by the Department of Homeland Security. This Note will explore the history of immigration detention through case law, legislative materials, and presidential eras from 1980 to the present. Additionally, it will outline the structure and function of IGSAs, how ICE uses IGSAs to create detention facilities, and the alternatives available to traditional detention. In Section III, this Note will discuss how IGSAs breed corruption and exacerbate the neglect of people in detention. Then, this Note will propose three solutions to reduce the human rights violations that have plagued people in ICE custody for decades. First, Congress should amend the Immigration and Nationality Act (INA) to reduce ICE’s reliance on IGSAs. Secondly, the President should ban ICE from contracting with private prison companies that manage detention centers by mirroring the 2021 Executive Order that barred the use of federal private prison contracts. Finally, ICE should depart from traditional detention and transition to an extensive community-based case management modeled after the 2016 Family Case Management System. ICE’s overuse of IGSAs has created a detention system that lacks oversight and produces neglect in immigration detention facilities that must be remedied.
As of January 28, 2024, 38,498 individuals who immigrated to the United States are in ICE custody in more than one hundred detention centers located in thirty-three states. This colossal system has evolved through global migration patterns and domestic political ideologies, which made the United States the director of the largest immigration detention system in the world. A historical analysis of the United States’ immigration system lays the foundation for how the country’s immigration detention system operates and documents the pattern of civil rights violations within immigration detention centers.
The laws governing the United States’ ability to detain noncitizens were shaped through case law and congressional action because such detention is not expressly stated in the Constitution. In 1952, Congress passed the Immigration and Nationality Act (INA) to capture the relevant laws governing the admission, detention, and removal proceedings of noncitizens residing or seek entrance into the United States. Prior to the enactment of the Immigration and Nationality Act in 1952, however, several Supreme Court decisions in the nineteenth century laid the foundation for the federal government’s sovereign right to deport and detain undocumented immigrants.
In 1893, the Supreme Court decided Fong Yue Ting v. United States, which held that the United States’ ability to remove noncitizens stems from its rights as a sovereign nation. Specifically, the Court held that “the power to exclude . . . may be exercised entirely through executive officers; or Congress may call in the aid of the judiciary to ascertain any contested facts on which an alien’s right to be in the country has been made by Congress to depend.” This decision gave the federal government the explicit power to detain, remove, and organize the immigration system in the United States. The Court granted this power based on the idea that each sovereign country has the inherent right to accept or expel noncitizens from its borders. This case ultimately laid the foundation for the modern operation of detention facilities, removal proceedings, and issuance of visas.
Three years later, the Supreme Court’s decision in Wong Wing v. United States held that unlawful immigration to this country is not an “infamous crime” where offenders are subject to hard labor, imprisonment, and confiscation of property. Rather, while awaiting removal proceedings, a noncitizen can be temporarily detained because it is not “imprisonment in the legal sense.” This approach made immigration detention a civil, rather than criminal, matter and would be used as a tool to ensure compliance and attendance at removal proceedings. The decision in Wong Wing created the foundation upon which the federal government established detention facilities for noncitizens in removal proceedings.
The first immigration detention center in the United States was Ellis Island, which operated from 1892 until 1954 and processed “over 12 million immigrant steamship passengers” as the United States’ “premier federal immigration station.” The operation of Ellis Island created an increase in the foreign-born population, resulting in two new Quota Acts passed by Congress in 1921 and 1924, that placed a numerical limit on the amount of people allowed to immigrate from each nation. By 1933, Congress founded and tasked the Immigration and Nationality Services (INS) with the “prevention of illegal entries, deportation of criminal and subversive noncitizens, and cooperating closely with the Department of Justice’s United States Attorneys and Federal Bureau of Investigation (FBI) in prosecuting violations of immigration and nationality laws.” These developments at the federal level led to the enactment of the 1952 Immigration and Nationality Act (INA) that codified immigration laws in the United States.
The INA remains the primary source of immigration law and procedure in the United States, under which Congress outlined the regulations concerning detention, removal, and the adjudication of immigration matters. Relatedly, INA section 103(a) specifically grants the Attorney General and the Department of Homeland Security (DHS) the power to enter into Intergovernmental Service Agreements (IGSAs) to obtain medical care, housing, food, security on behalf of detainees by making agreements with state or local entities that can provide these resources. The INA’s delegation of this power to contract for supplies, facilities, and security services is how Immigration and Customs Enforcement (ICE) contracts for the majority of detention facilities across the country.
The 1980s changed immigration detention into the system we know today, especially with the election of President Ronald Reagan. In a speech before Congress at the 1981 Joint Hearing on the Administration’s Proposals on Immigration and Refugee Policy, Attorney General William French Smith explained the future of immigration reform under the Reagan administration. He stated that, due to the high numbers of undocumented people from Cuba and Haiti, the administration was requesting additional funding “for the construction of permanent facilities in which to house undocumented aliens temporarily until their eligibility for admission can be determined,” setting the tone for President Reagan’s forthcoming detention-focused immigration policies.
Two years after this speech in front of Congress, the Department of Justice (DOJ) awarded a contract to a recently founded private prison company called the Corrections Corporations of America (formerly CCA, but now known as CoreCivic) to run the nation’s immigration detention facilities. Under the contract, CoreCivic opened the first private immigration detention center in a hotel, which the DOJ quickly replaced with a new contract awarded to CoreCivic to build and manage the Houston Processing Center on behalf of Immigration and Naturalization Services (now known as Immigration and Customs Enforcement (ICE)).
This contract opened the floodgates for privately contracted detention facilities, and, in 1987, DOJ awarded the first federal contract for a detention center to GEO Group (GEO). Both GEO and CoreCivic emerged at the perfect time to fulfill the Reagan administration’s goal to detain and remove noncitizens.
While the first private prison companies began managing ICE detention facilities, Congress issued multiple reports on “criminal aliens” and a “swell of public concern over alien criminal activity developed,” priming the passing of legislation that focused on criminal convictions as a ground for detention and removal. An example of such legislation was the 1988 Anti-Drug Abuse Act, which created mandatory detention for any noncitizen who committed an aggravated felony. The Anti-Drug Abuse Act introduced the category of “aggravated felony” to the INA as a ground for deportability, a category that would be expanded in the future to reach more noncitizens. The INA defines “aggravated felony” by listing the twenty-one different types of crimes that fall under the category. These 1980 reforms to immigration forged relationships with private prison companies and subjected more noncitizens to mandatory detention.
In 1996, Congress passed two additional laws regarding immigration detention: the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), and the Antiterrorism and Effective Death Penalty Act (AEDPA). Both laws broadened the application of mandatory detention, making more noncitizens subject to ICE custody.
Before IIRIRA, the term “aggravated felony” only applied to “murder, any drug trafficking crime, . . . or any illicit trafficking in any firearms . . . .” However, IIRIRA expanded the type of crimes that were included in the term and shortened the time period, making crimes with a possible sentence of up to one year of incarceration an “aggravated felony.” This change increased the number of noncitizens who would automatically be subject to removal due to their commission of an “aggravated felony.”
The AEDPA expanded upon criminal grounds for deportation by expanding the definition of “crimes of moral turpitude” to include crimes that are punishable by up to a year incarceration—this change increased the number of people who could be detained if they have been convicted of these offenses. AEDPA also declared that immigrants convicted of nonviolent offenses can be deported before they have completed their sentence. Furthermore, AEDPA empowered state and local law enforcement, with permission from ICE, to arrest and detain undocumented individuals until they are taken into federal custody.
Taken together, both IIRIRA and AEDPA increased the number of people who could face mandatory detention, even if they committed non-violent offenses. Additionally, by empowering local police and governments, more undocumented people could be arrested and placed in detention simply because more people were on the ground looking for them.
An example of how the expansion of the criminal grounds of deportability also strengthened immigration enforcement is demonstrated in the Supreme Court case Demore v. Hyung Joon Kim. The defendant, Kim, was born in South Korea but was a legal permanent resident of the United States at the time of his arrest. Under the Immigration and Nationality Act, Kim was deportable and sentenced to mandatory detention because he was convicted of first-degree burglary and petty theft. The Court held that mandatory detention was warranted, finding that “Congress [is] justifiably concerned that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers.” This case demonstrates how the expansion of criminal grounds for removal and the use of detention grew parallel to each other, ultimately resulting in the largest civilly detained population. The government’s focus on criminal grounds for detention and removal would continue in the aftermath of 9/11 and the creation of the Department of Homeland Security.
In the wake of 9/11, Congress passed the Homeland Security Act that established the U.S. Department of Homeland Security (DHS) as a federal agency with a mission to prevent future terrorist acts by reducing the country’s vulnerability. All the components under the former Immigration and Naturalization Services (INS), such as detention and removal, would be transferred to DHS. This transfer of immigration programs to DHS resulted in the creation of three new branches within DHS, including U.S. Immigration and Customs Enforcement (ICE), which is tasked with enforcing immigration laws, detaining deportable immigrants, and removing noncitizens from the United States. With the transfer of immigration programs to DHS, Congress linked terrorism with immigrants and gave ICE the requisite authority to combat this new threat. The main strategies used by ICE would be the arrest and detention of noncitizens based on the criminal grounds of deportability.
In 2009, President George W. Bush introduced the Secure Communities Program, which focused on detaining and removing immigrants based on criminal history. The Secure Communities Program was a multi-agency and multi-state initiative aimed at finding more deportable noncitizens by using biometric technology. Specifically, Secure Communities would use shared records that included criminal history, immigration status, and fingerprint records to “enable ICE and their law enforcement partners to prioritize which individuals should be transferred to ICE custody to initiate removal processing.” ICE or other law enforcement agencies gathered this information at the time of arrest or booking; when a person is charged or convicted of a crime, their fingerprint will be checked against the FBI’s and DHS’s database to check for previous criminal activity or immigration infractions. However, over time, it seems Secure Communities mostly prioritized detaining and removing noncitizens who had committed misdemeanors. Specifically, eighty-two percent of noncitizens identified by Secured Communities were charged or convicted with a crime that carried a sentence of less than one year of incarceration.
The Bush administration’s implementation of the Secure Communities Program is one example of how immigrants were increasingly criminalized and detained. This program shared identification data, criminal histories, and immigration statuses across all levels of government, ensuring that ICE had more foot soldiers looking for deportable noncitizens, and provided additional infrastructure used to find people who would be subject to mandatory detention.
Despite the change in political ideology, the focus on detention and removal continued, and the immigration policy under the Obama administration resulted in the removal of the most people in any president’s history. During Obama’s presidency, over 300,000 people per year, or about 3.3% of the undocumented immigrant population in the United States, were removed from the United States. This unprecedented level of deportation was likely achieved through the expansion of Secure Communities and the targeting of certain types of deportable immigrants.
Specifically, the administration worked with ICE to create a three-tier priority list of the type of noncitizens that ICE and Customs and Border Protection (CBP) should target using Secure Communities data. Priority One targeted any noncitizen that “pose[s] a danger to national security or a risk to public safety”—this ranged from people with ties to terrorism to those who had outstanding warrants. Priority Two aimed at “catching and releasing” people who recently crossed the border without inspection. Priority Three focused on noncitizens who were “fugitives,” such as people who re-entered after removal, committed visa fraud, or even those without a criminal record.
More specifically, Priority One was broken down further by ranking the types of criminal histories that ICE should prioritize: Level One was aggravated felonies, Level Two was a conviction of one felony or three misdemeanors, and Level Three covered crimes punishable by less than one year. This systematic approach to arresting, deporting, and removing undocumented people streamlined ICE’s focus and allowed it to remove larger numbers of noncitizens, despite resource restrictions.
Another commitment to immigration detention occurred in 2016, when the DOJ released a memorandum that declared the phasing out of privately contracted federal prisons. However, privately contracted immigration detention centers were not mentioned in this memorandum, leaving this avenue for federal contracts open for private prison companies such as CoreCivic and GEO Group.
Overall, the Obama administration used the previous administration’s method of tracking down as many noncitizens as possible which resulted in the deportation of a historic number of people. The expansion and focus on the criminal grounds of deportability streamlined the approach to removal and would continue during President Trump’s administration.
Donald Trump ran a presidential campaign that promised to secure the borders and get tougher on immigration. In January 2017, Trump mandated Department of Homeland Security Secretary John Kelly to release guidance urging ICE to prioritize arresting, detaining, and removing certain noncitizens. Together with a subsequent supporting DHS memorandum, this executive order prioritized deportation of people who “committed acts which constitute a chargeable criminal offense.” Essentially, this executive order and memorandum made it possible for people who were not even charged with a criminal offense to be targeted and detained by ICE. This order subjected people who, in the previous year, were not a target for immigration enforcement into prime targets for detention and removal.
In 2018, President Trump implemented a “zero tolerance policy” against any noncitizen who entered the United States without a valid visa or immigration status, or who were not vetted by DHS officials. The Attorney General, due to an increase in people crossing the Southwest border, directed prosecutors to pursue cases against noncitizens who entered the United States without proper authorization or inspection by DHS. This policy resulted in the separation of thousands of children from their families, because more adults were being charged and detained for illegal entry.
As a result of this family separation, minor children were subjected to inadequate care while in DHS custody. Specifically, in 2019, the Associated Press interviewed children in DHS custody in El Paso, Texas, and found that guards were suggesting that older children care for the toddlers that were also in the government’s custody. In 2021, the Department of Justice Office of Inspector General reported that the DOJ’s “single-minded focus on increasing prosecution came at the expense of careful and appropriate consideration of the impact that prosecution of family unit adults and family separation would have on children . . . .” It is clear that the zero tolerance policy ultimately led to insufficient planning and care for minor children separated from the adults with whom they traveled.
The Trump administration consistently placed prosecution, detention, and removal above the civil rights and civil liberties of undocumented adults and minor children. This led to a large number of people being held in ICE custody, where fifty to sixty percent of detainees did not even have a criminal record.
The Biden administration inherited President Trump’s “zero tolerance” policy, but sought to put an end to many of the Trump administration’s immigration practices. This campaign promise to roll back the policies of the Trump administration is somewhat reflected in the 2023 Budget for the Department of Homeland Security, with cuts made to ICE’s detention budget. However, the 2023 budget funnels more money into CBP, which allows for the hiring of more agents and more surveillance to apprehend people at the border. The mixed budget does not provide a definite commitment to campaign promises, but, as the Biden administration progresses, only time will reveal if President Biden maintains his commitment to create a “fair and just system.”
With the focus on detention and removal throughout various administrations, an increasing number of noncitizens have met grounds for removal, subjecting them to mandatory detention. This increased number of people in removal proceedings and ICE custody facilitated the need to contract with private prison companies, like CoreCivic, to meet the increasing need for housing, security, and medical care of detainees. However, awarding contracts directly to private prison corporations placed burdens on ICE that made the construction of detention facilities inefficient, which led ICE to rely on intergovernmental service agreements (IGSAs). This reliance on IGSAs is problematic because these agreements do not conform with procurement norms and lack sufficient oversight. The deviation from normal contract regulations and oversight has led to physical attacks, racist harassment, and inadequate medical care by employees against noncitizens in ICE facilities.
IGSAs are agreements between ICE and state or local governments to obtain detention space and services. The INA grants ICE the right “to make payments from funds appropriated for the administration and enforcement of the laws relating to immigration, naturalization, and alien registration for necessary clothing, medical care, requisite guard hire; and the housing, care, and security of persons detained by the Service . . . .” These agreements do not fall under the three main procurement categories because they are not grants, cooperative agreements, or procurement contracts, and therefore need not comply with the Federal Acquisition Regulations (FAR).
IGSAs are the main mechanism that ICE utilizes to obtain housing, food, and other life-sustaining resources for noncitizens in detention. IGSAs can either be “dedicated,” which means the facility only holds ICE detainees, or they can be “non-dedicated,” which can mean the facility holds a mix of detainees and other incarcerated people. GAO found that, by fiscal year 2019, fifty-seven percent of detention centers were created through IGSAs between ICE and local governments to procure space and services needed to operate these facilities.
The second most common way ICE obtains services to detain noncitizens is through an agreement where ICE “rides” on United States Marshals Service Contracts. These contracts allow ICE to join existing U.S. Marshal contracts and obtain beds in state, local, or private facilities. Through the “rider program,” ICE does not have to make new terms or rates because the services that it is requesting are added to the existing agreement, making this an efficient way to obtain detention services.
The fewest number of detention facilities have space and services supplied through contracts that ICE awards to private prison companies. These contracts are subject to the FAR and ICE can modify these facilities to comply with detention standards. However, these contracts can be costly and take time to acquire, which can hinder ICE’s ability to meet detention needs if there is a surge in noncitizens coming to the United States.
Overall, ICE most frequently uses IGSAs to service immigration detention facilities because it can enter into these agreements quickly and more efficiently due to the lack of competition requirements, need for documentation, and exemption from complying with government contracting regulations. However, this prioritization of efficiency has led to corruption, neglect of full and open procurement, and continued human rights abuses inside detention facilities.
IGSAs do not follow a competitive bidding process, nor do they require providers to submit past performance reviews, which is a deviation from federal procurement regulations and can increase the likelihood of substandard conditions because preliminary vetting procedures are weak.
An additional deviation from federal procurement standards is that ICE does not require that entities submit past information about its history with incarcerating or detaining people. Instead, ICE officials reported that they conduct “internet searches” on the facility and check for “alarming incidents that have happened in the past.” If such an incident has occurred, GAO found that ICE ensures that the facility will have heightened security measures, such as increasing the number of guards, to prevent similar incidents from occurring in the future.
This process of picking and vetting a facility to award an IGSA completely deviates from the regulations set out in the FAR that govern ICE’s contracts with private detention companies. For example, in contracts with private prison companies, ICE asks each bidder to provide information about their past performance and compares this information against each other to select the most competitive contractor. The non-competitive nature of IGSAs plus the lack of thorough background checks on each facility makes the process of acquiring IGSAs extremely fast and efficient. However, by existing outside the purview of the FAR, ICE does not have to meet full and open procurement standards, which can lead to money—rather than quality and safety—driving IGSAs in the United States.
Another issue is that IGSAs can be incredibly profitable to smaller communities that make these agreements with ICE, creating profit incentives rather than quality incentives. In 2021, the U.S. Government Accountability Office (GAO) interviewed a sheriff who works at a facility created through an IGSA and explained the financial incentives behind IGSAs. During the interview, the sheriff explained that the IGSA was beneficial because “ICE pays more per detainee . . . about $60 dollars a day for ICE detainees compared to about $25 dollars a day per state inmate.” This interview demonstrates the monetary incentive for local prisons and jails to enter into IGSAs, and this incentive is compounded further when these small entities subcontract for services with private prison companies.
These private companies agree to pay the state or local IGSA-holder fees, and ICE does not keep track of the amount of money given to IGSA-holders by private companies. This monetary incentive is especially evident in facilities where ICE pays for a minimum amount of beds to be available per day, often resulting in these facilities receiving payment even if beds remain unoccupied. By analyzing the influx of money that IGSAs bring to small communities plus the efficiency the program affords to ICE, it seems that the use of IGSAs over other acquisition methods are because of governmental ease, at both the federal and local level, instead of ensuring quality detention of noncitizens. This trend of governmental ease continues through ICE’s oversight over IGSAs, where the main officials tasked with ensuring compliance with detention standards are hindered by ICE supervisors.
The deficiency of independent oversight in facilities that were created through IGSAs is likely an additional reason for continued allegations of human rights violations in ICE facilities. IGSAs are prepared and awarded by contracting officers, who are responsible for appointing a Contracting Officer’s Representative (COR) for each facility that has an agreement or contract with ICE. CORs are the “eyes and ears of the contracting officer” and are responsible for ensuring compliance and reporting violations of private companies and IGSA facilities. Duties of CORs include overseeing the adherence to a quality assurance surveillance plan, which lists the ICE detention standards and consequences of any violations. Additionally, CORs can issue “discrepancy reports” for violations and recommend financial penalties to the contracting officer if the facility violates standards set out in the quality assurance surveillance plan. In this capacity, the contracting officer gives power to the COR to report any performance violations made by the facility, which the contracting officer can then relay to ICE.
However, CORs are limited by ICE’s Enforcement and Removal Office’s field offices, meaning there are twenty-four separate supervisors overall, with one supervisor in each field office. This supervisory scheme limits the independence that CORs should have in their oversight role. Specifically, in multiple different facilities, field office managers and CORs have complained that “CORs’ ability to conduct oversight depends on the level of support provided by field office managers[,]” which means that an indifferent field office manager can negatively impact a COR’s oversight capacity.
Some examples of these issues include lack of time and resources for CORs to complete their oversight duties, like resources to conduct in-person detention center visits. Additionally, CORs alleged that field office managers—who have no ICE-designated role in discrepancy reports—often make the final call on when any violation is written in a discrepancy report. This significantly restricts the CORs’ discretion and ability to create discrepancy reports about an IGSA’s failure to meet standards. Another issue is that CORs are being circumvented by field office managers, whether it be field office managers making requests that are outside the scope of the agreement or reassigning duties to ICE employees who are not subject to oversight.
These three curtailments on CORs’ discretionary oversight power deprive noncitizen detainees in IGSA facilities of an independent oversight body to look after their interests, such as ensuring standards are maintained and violations are reported. It is likely that this lack of oversight is a factor in the numerous allegations of inhumane conditions in IGSA facilities, such as Baker County Detention Center in Florida where there are “one hundred and fifty-three complaints of unsanitary conditions” and “two hundred and forty-eight complaints of denial of medical care.”
Overall, the lack of FAR regulations, independent oversight, and profit-driven motivations underlying IGSA facilities is incredibly alarming. It is not surprising that ICE prefers to acquire detention space through IGSAs. By existing outside regular government procurement regulations and being incredibly lucrative for state and local communities, IGSAs are more efficient and mutually beneficial than private detention centers. Even with the glaring limitations of independent oversight in each facility, ICE seems to favor the use of IGSAs over the health and safety of the people who live in these facilities.
A direct example of ICE’s continued prioritization of IGSAs, despite evidence that these agreements are deficient in many ways, is DHS’s response to a 2021 GAO report. GAO recommended that DHS revise the CORs’ supervisory scheme and make their oversight more independent; however, DHS declined to concur with the recommendation. Even when faced with a recommendation and a report that bolsters the GAO’s concern, DHS and ICE continue to deny these oversight problems in order to ensure the existence of IGSAs. However, these problems with IGSAs can be redressed if DHS shifts from a reliance on detention to an alternative method of ensuring noncitizens comply with deportation proceedings, such as implementing a case-management system.
The Immigration and Nationality Act (INA) gives the federal government the power to enter into IGSAs, including to “enter into a cooperative agreement with any state, territory, or political subdivision . . . to establish acceptable conditions of confinement and detention services in any State or unit of local government.” Congress should amend INA section 103(a) to restrict ICE’s power to enter into IGSAs because the deficient oversight and regulation of these facilities leads to human rights abuses in detention centers.
The language in the INA is broad and gives the Attorney General and Secretary of Homeland Security discretion by including the word “necessary” before each action, such as “necessary guard hire” and “necessary construction, physical renovation, acquisition of equipment.” This word grants ICE the power to dictate the terms of IGSAs based on its own knowledge and judgment. Given this broad language and the lack of regulations and oversight over IGSAs, Congress should amend this section of the INA to limit ICE’s over-reliance on IGSAs to redress the inadequate oversight that breeds substandard detention facilities.
Congress’s amendment to the INA could include limitations on when an IGSA can be acquired. For example, one such limitation would only permit the use of an IGSA if an influx or surge of migration into the United States demands more housing for undocumented people awaiting removal proceedings. Similarly, Congress could limit the number of IGSAs that ICE can enter into in a given fiscal year. At the farthest end of the spectrum, with enough support, Congress can totally ban the use of IGSAs by ICE.
Congress’s amendment to the INA would force DHS to implement these changes in their procurement for detention space and services, which is beneficial since DHS has already resisted administrative recommendation concerning IGSA facilities. This is an important advantage of a congressional amendment and would positively affect noncitizens who are subject to detention because, at the very least, regulation would be imposed on ICE’s use of IGSAs.
Realistically, the likelihood of an outright elimination of IGSAs is very low, as ICE is far too reliant on this acquisition method. However, ICE routinely uses other methods of obtaining detention space and services. Despite this challenge to the congressional amendment, the general goal of this action would be to place federal limitations on IGSAs, whether it be minor or foundational changes to the current system, so that detention facilities can be properly vetted and ensure that the entities comply with detention standards.
First, if Congress imposes limitations on when ICE can create IGSAs, it is probable that ICE will award more contracts to private prison companies, such as CoreCivic and GEO. Without the freedom to establish an unlimited amount of IGSA facilities, which in fiscal year 2019 held over fifty percent of the total daily population of detained noncitizens, ICE will need to change its acquisition method. This may lead to an increase in ICE contracting with private companies to create detention centers or to the creation of more service processing centers (facilities primarily operated by ICE) that typically require the use of private prison companies. However, despite the allegations of abuse stemming from private detention centers, these facilities are subject to more regulations than IGSA facilities because they are regulated by the FAR. Moreover, the longer timelines, increased competition, and past performance information deter hasty decisions and weed out under qualified contractors. However, these factors might also incentivize ICE to become creative and move towards alternatives that do not involve large detention facilities.
The second potential challenge is that legislative action, especially about a hot button issue such as immigration, can take a very long time given the lack of bipartisan consensus concerning broad immigration reform. Although a congressional amendment would be a long process, it would provide some much-needed regulation over IGSAs that could potentially decrease the number of civil rights abuses in detention centers.
Alternatively, the President could issue an executive order limiting the use of IGSAs or ban contracts between DHS and for-profit prison companies, as the lengthy process of amending the INA could increase the waiting period for necessary immigration reform. A starting point could be looking at President Biden’s Executive Order 14006, which ended the DOJ’s authority to award new contracts to private, for-profit prison companies.
On January 26, 2021, President Biden issued this executive order to “reduce profit-based incentives to incarcerate by phasing out the Federal Government’s reliance on privately operated criminal detention facilities.” This goal of providing humane correctional facilities only applies to private contracts awarded by the DOJ, which sustained ICE’s authority to privately contract with detention facilities. The executive order also sought to ensure that prisons are “prioritizing rehabilitation and redemption,” which the federal government has a duty to provide through “safe working and living conditions.” The President should issue a new executive order, aimed at reducing the reliance on IGSAs and the presence of private prison companies in detention facilities to address a multitude of issues. The President could simply limit the use of IGSAs by placing numerical caps or only requiring them during immigration surges. Another option would be to mirror Executive Order 14006 more closely and phase out contracts between ICE and private prison corporations.
An executive order modeled after Executive Order 14006 could be incredibly efficient, by prioritizing the same policy goals of humanity and safety for immigrants in detention over profits, and the human rights abuses in these facilities would likely decrease because the focus would be on quality not wealth maximization. President Biden has already admitted that contracting with private prison companies puts profit-incentives above humane living conditions in correctional settings; using the same logic, the same problem likely exists in ICE detention facilities. Mirroring Executive Order 14006 could implement the ideals expressed by President Biden in both this executive order and his campaign pledge to ensure ICE and Customs and Border Protection (CBP) do not engage in inhumane treatment.
However, executive orders have the tendency to be overturned when a new presidential administration enters office. Therefore, the issuance of an executive order could act as a temporary fix for the situation, until legislation is enacted or until ICE shifts policy away from detention. Additionally, with this action, immigration reform would be given a trial run, which could potentially influence support for future legislative action.
A third, more comprehensive solution to the decades-old problem of abuse, human rights violations, and lack of necessary oversight at most detention centers in the United States would be to get rid of detention facilities altogether. Instead of remaining in government custody while awaiting removal proceedings, noncitizens would be able to reside with family or in their own homes. Of course, this option would be an incredible shift away from the current system, but structural change is likely the only path that could actually create a true change in the lives of people awaiting immigration court.
Since 2004, ICE has an Alternatives to Detention (ATD) program; however, this Note is specifically arguing that a broad case-management system should be adopted by ICE in lieu of traditional detention Under ATD, multiple sub-programs work with non-detained immigrants to meet their court dates, provide resources, and allow certain noncitizens to remain outside of detention facilities. To enroll in ATD, an individual must be an adult who was released from DHS custody, which lessens ICE’s general requirement to “use[] its limited detention resources to detain noncitizens to secure their presence for immigration proceedings or removal . . . as well as those subject to mandatory detention . . . or those ICE determines are a public safety or flight risk . . . .”
This discretionary release is the preliminary requirement for a noncitizen to be eligible for ATD benefits. Once a noncitizen is released, ICE employees will conduct an additional screening process where employees look at the noncitizen’s community ties, humanitarian considerations, any immigration or criminal violations, or if they provide for others. Once enrolled, ICE officials determine the level of supervision that a person needs; this supervision status is subject to change based on ICE’s discretion. This places grave limitations on who can enroll in the current ATD programs, making detention a much more likely scenario for most noncitizens facing removal.
The Alternatives to Detention programs include technology-based releases that are often operated by subsidiaries of private prison corporations. These technology-based releases include reporting via telephone, wearing a GPS ankle bracelet, or an application called SmartLINK which uses facial matching, GPS location, and push notifications. ICE reports that the majority of people who are enrolled in ATD use SmartLINK and that “less than 20% of ATD participants have been assigned an ankle monitor.” However, even with a small number of individuals subject to GPS ankle bracelets, the use of this technology is mostly coming from subsidiaries of private prison companies. This use is concerning, as private prison companies are still enriched by federal contracts that may limit the freedom of noncitizens, even outside normal detention facilities. Although it is much less invasive and operates at a smaller rate, the use of GPS ankle monitors owned by private prison companies just increases profits for these entities.
Another category of sub-programs under ATD involves case management. Multiple types exist, including special case management for young adults (aged eighteen to nineteen ), extended case management for people who have “significant challenges,” and “psychosocial health support” for individuals and families.
The ATD programs that focus on community-based case management are similar to a 2016 case management program called the Family Case Management Program (FCMP). The FCMP was a pilot program where five cities in the United States provided services for families to help them navigate their court proceedings, as well as provide necessities through nonprofits. The FCMP and the newer Case Management Pilot Program (CMPP) can be used by DHS as models to implement a more accessible case management program that will phase out the reliance on detention centers.
The program was a great success, as it provided an alternative to detention but still fostered high compliance with ICE. FCMP ran from January 2016 to June 2017, with “more than 99% appearance rates at ICE check-in appointments and immigration court hearings.” Additionally, the FCMP was incredibly cost-effective compared to detention; FCMP was only thirty-eight dollars per day, whereas adult detention space costs $139 per day, per adult. The FCMP program was less expensive and more humane than traditional detention, and still maintained high compliance rates, making it a very attractive alternative to detention for both ICE and noncitizens.
However, this program was cut prematurely during the Trump presidency. The FCMP, although short, offered promising results for an alternative to detention that focused on providing resources and aid rather than detention.
In early 2023, under the Biden administration, plans for a new community-based case management system were set to begin; this program—an expansion of services offered under ATD—is called the Case Management Pilot Program (CMPP).
Essentially, DHS will award funds to nonprofits and local governments that provide services like legal orientation programs and connections to social services. Noncitizens who are awaiting removal proceedings and are enrolled in ICE’s ATD program can volunteer to enter into CMPP.
CMPP is governed by a National Board, consisting of DHS Office for Civil Rights and Civil Liberties and nonprofits that are experienced in managing case-management programs for immigrants. The DHS Appropriations Act appropriated $15 million dollars for CMPP in Fiscal Year 2022 (adding to the $5 million dollars appropriated in Fiscal Year 2021), and contract awards to nonprofits were set to be granted by December 2022. CMPP launched in early 2023 in both New York City and Houston.
As of February 2024, CMPP is active in New York City and Houston. CMPP provides trauma-informed care, mental health screenings, legal orientation, and reintegration services to noncitizens enrolled in the program. These services are meant to be separate from ICE monitoring and enforcement, with the focus on comprehensively supporting a noncitizen’s needs during removal proceedings. With the focus on the individual rather than enforcement, it is likely that CMPP will be more humane and helpful to noncitizens, whether they are removed from the United States or are granted an immigration benefit.
While CMPP and other case management programs within ATD are a great start to providing better alternatives to detention, it remains true that only a small number of noncitizens can access these services. To truly mitigate the abuses that occur in detention facilities, ICE should make case management alternatives more accessible by approving more people, and ICE should ultimately transition from detention to a community-based case management system.
This structural change would provide noncitizens who are not subjected to mandatory detention per the INA a system free from insufficient medical care, food insecurity, and the stigma of being detained and watched by guards. By taking FCMP and CMPP a step further by expanding case management to the majority of people detained by ICE, the federal government would save money, and most noncitizens would not be subjected to the harsh conditions found in detention facilities.
Admittedly, phasing out detention centers and replacing them with a case-management program would be a significant jump from the current system, which has been in place for many decades. An alternative to this Note’s proposed solution of phasing out detention centers would be providing the same nonprofit services found in the case management program to people in detention. For example, nonprofits that provide legal orientation or human trafficking screenings can visit detention centers and provide detainees with resources not currently available in ICE facilities. With access to training and services that focus on mental health, legal access, and reintegration, detainees can receive better care while in ICE custody. This alternative to a broadly accessible case management system would provide some relief to individuals in ICE detention centers and likely boost support for a future where case management is the norm instead of detention facilities.
The ability to find and contract with entities that provide mental health services, cultural and legal orientations, and reintegration services is possible. Therefore, ICE can contract for these services to be implemented into detention facilities to offer detained people services that improve experiences in detention centers. This is critical, as people in ICE detention likely do not speak English, are separated from their loved ones in their countries of origin, and are surrounded by strangers. With the inclusion of these services, detainees can better represent themselves in immigration proceedings and have a smoother transition into living in an ICE detention facility.
Some may argue that ICE already has national standards they must abide by and that adding more requirements and services for ICE to manage would be futile. Evidenced by multiple lawsuits about abuses in detention centers, ICE does not have a perfectly clean record of maintaining national standards. Additionally, given the many allegations against ICE’s struggle to comply with detention standards, adding more responsibilities might be difficult.
However, ICE cannot disregard its obligation to treat people in its custody humanely and its responsibility to follow national detention standards. With a detailed plan and commitment from both ICE officials and nonprofit entities, there should be no excuse as to why reform to immigration detention cannot be made. Providing broad community-based case management services would provide a higher quality of life for people in ICE detention, which ICE should prioritize.
This Note argues that ICE should phase out traditional detention centers and expand community-based case management so that it encompasses most noncitizens that are awaiting immigration proceedings. Both FCMP and CMPP provide a framework for how case management can operate. However, they are too limited in scope; thus, case management should be available to most noncitizens in removal proceedings because this program places individual care over mass detention.
The United States is responsible for “operat[ing]es the world’s largest immigration detention system.” This detention system presently relies, in large part, on the use of IGSAs, which are characterized by a less competitive award process, do not require in-depth past performance reviews of operators, and can be entered into with local governments in less than three months. The lack of regulations and proper oversight of IGSAs make them efficient agreements for ICE to enter into; however, this administrative ease seems to be prioritized over ensuring detention standards are met.
To mitigate the unjustifiable abuses that noncitizens suffer in detention centers, Congress should amend the INA to make it more difficult for ICE to enter into IGSAs, the President should issue an executive order that limits the use of private prison contracts with respect to ICE detention centers, and Congress should direct ICE to phase out detention to a majority case-management system that is accessible to most noncitizens subject to detention.
It is likely that these individuals were already forced to make the impossible decision to leave everything they know behind; in detention, they must face another stressful environment that can include verbal and physical abuse, denial of medical care, and unsanitary conditions. These individuals are in the backyards of many Americans, who are often unaware of the harrowing conditions suffered by people who are simply looking for a better life. Immigration detention is not a criminal punishment, and the United States should not subject civilly detained people to inhumane, unsanitary conditions. The proposed solutions seek to end this suffering, which has lasted for decades, and implement a fair immigration system.
