A new ICE policy on use of segregated detention surfaced last week. The policy appears to respond to widespread criticism of ICE’s use of detention by more clearly articulating circumstances in which segregation is permitted. U.S. Immigration and Customs Enforcement, Review of the Use of Segregation for ICE Detainees (September 4, 2013).
As I summarize in a forthcoming article in the UCLA Law Review, immigration detainees
are reportedly placed in solitary confinement where they are locked in cells for twenty-three hours a day without contact with other detainees. A recent review of government data reported that several dozen were held in solitary confinement for more than seventy-five days, well above the fifteen days that a United Nations representative found to be the point at which “some of the harmful psychological effects of isolation can become irreversible.”
Despite its significant impact on detainees, solitary confinement is sometimes meted out for a range of transgressions. Internal documents obtained by advocacy groups indicate that in one facility solitary confinement may sometimes result from nothing more than “[f]ailure to speak English when able, [or] watching [the] Spanish channel on the TV.” In one particularly striking example, in the immediate aftermath of the September 11, 2001 attacks on the Pentagon and World Trade Center, some individuals arrested on civil immigration charges were placed in high-security federal prisons such as the BOP’s Metropolitan Detention Center (MDC) in Brooklyn. Within the MDC they were placed in the Special Housing Units, a segregated part of the prison designed for individuals “who have committed disciplinary infractions or who require administrative separation from the rest of the facility’s population.” Even subject to these conditions, they were not afforded the routine individualized review required by BOP regulations because they were civil immigration detainees.
César Cuauhtémoc García Hernández, Immigration Detention As Punishment, 61 UCLA Law Review – (forthcoming 2014), at 39-40 (internal quotations and citations omitted).
ICE’s newly issued policy attempts to standardize use of this contested practice. Significantly, the policy explains that “placement in administrative segregation due to a special vulnerability should be used only as a last resort and when no other viable housing options exist.” ICE Policy at ¶ 2. According to ICE, “[a]dministrative segregation may be necessary for, among other reasons, detainees requiring or requesting protective custody from others who may be likely to harm them; detainees awaiting an investigation or hearing for a violation of facility rules; detainees scheduled for release removal, or transfer within 24 hours; or detainees presenting a clear threat to the security of the facility.” ICE Policy at ¶ 3.1
Detainees placed in administrative segregation “because he or she was alleged to have been a victim of sexual assault, ensure the detainee is not held in administrative segregation on that basis for more than five days, except in highly unusual circumstances or at the detainee’s request.” ICE Policy at ¶ 5.2(6)(c).
This limitation does not apply to “disciplinary segregation,” which the policy explains can be “authorized only pursuant to the order of a facility disciplinary panel, following a hearing in which the detainee is determined to have committed serious misconduct in violation of a facility rule, and only consistent with the Disciplinary Severity Scale from the applicable ICE detention standards, and only when alternative dispositions would inadequately regulate detainee behavior.” ICE Policy at ¶ 3.2
The policy imposes a review process after an individual has been in segregation for 14 days, 30 days, and every 30 days thereafter. ICE Policy at ¶ 5.1(1). The review process for individuals segregated “on the basis of a disability, medical or mental illness, or other special vulnerability, or because the detainee is an alleged victim of a sexual assault, is an identified suicide risk, or is on a hunger strike,” must begin no later than 72 hours after the initial segregation. ICE Policy at ¶ 5.2(2).
Importantly, the policy does not create a cap on the number of days a person may be segregated.
Without question, this is a positive development, but as with so much involving ICE’s sprawling immigration estate, we will have to see how much oversight ICE insists on. Moreover, it remains unclear how ICE will determine whether a person has “committed serious misconduct in violation of a facility rule,” thus meriting disciplinary segregation. Lastly, ICE’s new policy does not address the fundamental question of whether it is ever justifiable to segregate immigration detainees since they are not confined due to their potential dangerousness but instead because they allegedly violated a provision of civil immigration law.