March 15, 2021

Floor or Ceiling: How Two Sets of Standards Result in Divergent Treatment for People in ICE Detention, and a Call for Consistency

ICE detention standards, which establish a minimum standard of care, vary by facility causing inconsistencies in the level of care detainees receive.

ICE detention standards, which establish a minimum standard of care, vary by facility causing inconsistencies in the level of care detainees receive.

“You have one minute remaining,” the familiar voice cut in. 

I sighed and let the caller know that he could call back if he had any additional questions. I had been in the middle of explaining the complicated “nexus” requirement to a detained asylum seeker who was preparing to represent himself at his upcoming asylum hearing. He thanked me and said he would, both of us knowing the hurdles he would face in court by himself the next day and the likelihood that his hearing would end with a removal order.

This exchange is all too familiar for detained migrants and asylum seekers. Since 2002, the Commission on Immigration has operated an information line that reaches the nearly 200 ICE detention facilities across the United States. Staff on the information line provides callers with an orientation to immigration proceedings, answers questions about specific forms of relief and assists where we can in providing translations and country conditions and legal research.  The information line also aims to connect callers with resources in the geographic area where they are detained, tapping into various networks of legal social services providers.  Given our nationwide reach, we often are able to connect particularly vulnerable individuals with assistance, including those with serious medical or mental health conditions, both of which are usually worsened by prolonged incarceration.

While the services provided by the information line are critical, they are not a substitute for an attorney.  However, as there is no right to a government-appointed attorney in immigration proceedings, programs like the information line are a crucial lifeline to unrepresented immigrants in detention who may otherwise have no access to legal information or who may slip through the system’s cracks.

The information line serves a secondary purpose through acceptance and elevation of complaints from callers about conditions in ICE detention.  All facilities that hold ICE detainees are subject to sets of standards promulgated by ICE that purport to establish the minimum standard of care for those in ICE custody. These standards vary by type of facility.  For example, facilities that only hold ICE detainees (known as dedicated facilities) fall under the 2011 Performance-Based National Detention Standards (PBNDS 2011). But ICE also contracts for bed space with many other facilities that hold detainees in state or other federal custody. Those are called non-dedicated facilities and are subject to the 2019 National Detention Standards (NDS 2019).  There are also separate standards for facilities that house families including children.

Like many aspects of immigration proceedings, your geographic location determines much of your legal fate. For example, so far in fiscal year 2021, 84 percent of the case decisions in Georgia immigration courts have been removal orders, while only 38 percent of case decisions in California immigration courts have been removal orders.

Despite the impact of geographic location on case outcomes, once someone is officially in ICE custody, they have no control over where they are sent within the United States. For a federal system that supposedly adheres to the tenets of uniformity and due process, the system is falling short.

The same is true for ICE detention facilities.  If you are arrested by ICE and detained at the Krome Service Processing Center, a dedicated ICE facility in South Florida, your conditions of confinement are governed by the PBNDS 2011. If you are detained by ICE down the road at the nearby Glades County Detention Center, your detention conditions are governed by the NDS 2019. The differences between the two sets of standards lie in the discretion given to local authorities in the NDS 2019.  Where the PBNDS 2011 sets forth expected outcomes, the NDS 2019 allows for the state or local authorities to set their own standards of care, requiring only that a minimum standard be met.

This presents a problem because where ICE has presented standards as a “floor” in the NDS 2019, those standards have the potential to become the “ceiling” when the decision is left to other authorities. This paves the way for greater inconsistencies in the level of care individuals receive. For example, where one set of standards sets a numerical limit on legal mail that may be sent out by the facility for indigent detainees and another set of standards does not, detained people subject to the limitation are potentially disadvantaged in pro se proceedings in ways other detained individuals are not. The location of the bed a detained person is in should not dictate their level of legal access or other standards of treatment.

The Commission on Immigration has long advocated for a single set of detention standards that would cover all immigration detention facilities. A single set of standards is the first step to ensure a continuity of care for all those in ICE detention.  It also would make accountability and oversight of ICE custody easier and more transparent. A 2020 report by the majority staff of the House Homeland Security Committee found that existing oversight structures were inadequate to provide actual accountability where deficiencies were found, resulting in a pattern of unaddressed abuses in ICE detention facilities.  Among other issues, the report identified problems with the contractor charged with inspecting facilities, finding that “inspections cover too much ground in too short a period of time” and that inspections were pre-announced allowing the facilities to address deficiencies in the short-term for inspection purposes only.  The report also found that there was a pattern of ICE contracting with facilities poorly equipped to meet the ICE detention standards.

While a single set of standards would not automatically address the deficiencies in the ICE detention space, it could simplify the inspection process and lead to more meaningful oversight and the termination of contracts with facilities unable to meet the standards of care.  Uniform standards also could go a long way in addressing other inequities across the immigration detention system, including assessment for release or enrollment in alternatives to detention programs. 

ICE bears ultimate responsibility for the care of people in its custody and should ensure that standards of care are not only consistent but enforced across the entire system. Uniformity in the detention standards is the first step to ensuring consistency and accountability in the immigration detention space.

About the Author

Elizabeth Taufa is a staff attorney with the American Bar Association’s Commission on Immigration in Washington, D.C. working on the Detainee Correspondence Project.  Previously, Elizabeth represented children in removal proceedings as a justice Americorps attorney at Catholic Charities of the Archdiocese of Boston and worked as an attorney advisor in the Office of Legal Access Programs at the Executive Office for Immigration Review.  She is a native of Winchester, Virginia, and holds a bachelor’s degree from the State University of New York at Buffalo and a juris doctor from Northeastern University School of Law where she completed internships with the ABA’s Immigration Justice Project in San Diego, Greater Boston Legal Services, and the Office of Immigration Litigation. She also volunteered with the International Refugee Assistance Project (IRAP).