ICE’s new prisoner transfer policy: Something old, something new

ICE’s new policy regarding prisoner transfers promises to shed more light on decisions to move prisoners from one facility to another, but relies heavily on requirements the agency has long imposed on itself without success and inadvertently identifies major reform obstacles that arise from its heavy reliance on private prison operators. U.S. Immigr. & Customs Enforcement, Policy 11022.1: Detainee Transfers (Jan. 4, 2012).

The policy announced in January 2012 makes some significant improvements by recognizing the impact of transfers and the reality of immigrant relationships. For example, it recognizes civil unions and domestic partnerships alongside marriages. Detainee Transfers at § 3.3. It requires that medication accompany a detainee when transferred, § 5.11, and requires that the detainee’s attorney of record receive notice of the transfer, § 5.3.

In addition, it sets out specific criteria that militate against transfer: immediate family or an attorney of record nearby, pending or on-going removal proceedings, or a bond or scheduled bond hearing. Detainee Transfers at § 5.2(1).

These are all common sense considerations. So common sense that some have been part of ICE’s requirements for years. In a 2011 article I wrote about DHS’s policy of informing attorneys of all transfers. “ICE’s detention standards require ICE staff to notify a detainee’s attorney-of-record of an impending transfer, notify the attorney again when the detainee has arrived at the new location, and provide the attorney with contact information for the new facility,” I wrote in Due Process and Immigrant Detainee Transfers: Moving LPRs to Isolated Prisons Violates Their Right to Counsel, 21 Berkeley La Raza Law Journal 17, 42 (2011). “All this must be done as soon as practicable, but no later than 24 hours after the transfer.”

I then went on to list several violations of this policy. According to a 2009 report that I discussed, “the DHS Inspector General, reviewing ICE’s compliance with the current transfer policy, reported that ICE staff interviewed at the sites visited said they did not notify the detainee’s legal representative because they considered the notifications to be the detainee’s responsibility. Indeed, the Inspector General found that the Detainee Transfer Notification form, a one-page form that ICE officials are required to fill out upon any transfer, was not properly completed for 143 of the 144 transfers we tested. As the Inspector General added, ‘[a]gency staff interviewed generally considered completing and providing copies of the transfer forms to detainees a low priority.’”

My concern isn’t that DHS has adopted faulty policies. It hasn’t. Rather, my concern is that, without an effective accountability measure, DHS field officials won’t bother to comply with departmental mandates. This is what’s been happening for years and the new directive doesn’t seem to change the status quo. As we’ve seen in the context of prosecutorial discretion, DHS headquarters and DHS field offices don’t always see eye-to-eye. And, much like the prosecutorial discretion context, prisoner transfer policy is an area in which it’s crucial that everyone be on the same page.

Another feature of DHS’s policy that concerns me is its subtle but clear failure to apply to contractors. “This Directive,” the document states, “establishes responsibilities and procedures for ICE employees who perform detainee transfers and does not govern contract staff.” Policy 11022.1: Detainee Transfers at 1. The lines between ICE and contract employees working for the private prison companies that DHS pays millions of dollars to run its prisons—the Corrections Corporation of America, GEO Group, and Management Training Corporation, among others—are frequently fuzzy. As such, it’s unclear to me exactly how common it is to have contract staff “perform detainee transfers.” My hunch is that there is no shortage of contract staff doing this work, but I would love to hear from others with more insight into this. If my guess is correct, then this policy might not mean very much to the 360,000 people who find themselves in an immigration prison every year because the people actually moving prisoners from one location to another don’t work directly for DHS.

Thanks to Mark Noferi (Brooklyn Law) for sharing his thoughts on immigration imprisonment and, specifically, this detention policy with me.