Segregation in immigration detention

By Sarah Dávila-Ruhaak

A report issued by The John Marshall Law School (Chicago) International Human Rights Clinic sheds light into the use of solitary confinement in immigration detention facilities around the country. The report, “U.S. Immigration and Customs Enforcement’s New Directive on Segregation: Why We Need Further Protections” (February 2014), found that the use of solitary confinement was commonly used by detention facilities to manage and discipline detainees in violation of current ICE detention standards.

Although the use of solitary confinement has been historically used by detention facilities around the country, the monitoring and reporting of the practice is now particularly relevant due to the current discussions for change in immigration policy and the use of solitary for criminally convicted and non-criminally convicted persons.

Solitary confinement has been widely recognized as a form of physical and social isolation where individuals are confined to a cell for 22 to 24 hours a day. Detention facilities, including those housed immigrant detainees, use solitary confinement to manage detainees and to punish them for violating facility rules. ICE classifies solitary as administrative (to protect detainees or maintain “good order”) and disciplinary segregation (to punish for serious offenses).

On September 4, 2013, ICE issued a new directive that established a policy on segregation. While the new ICE policy represents a step in the right direction, ICE’s history and current practices at detention facilities suggest that it is highly unlikely that the new directive will be implemented immediately, effectively and uniformly.

The new directive recognizes “special vulnerabilities” as a separate category requiring enhanced protections. Special vulnerabilities may include: mental or medical illness, disability, pregnancy or nursing, sexual or gender orientation, or victims of sexual assault, torture, trafficking or abuse. In addition, the new policy provides for increased oversight of solitary confinement practices. This is especially important feature of ICE’s new directive because ICE only operates a handful of the roughly 250 facilities nationwide it uses to detain immigrants. The rest are run by private contractors or local governments.

Though the recognition of “vulnerability” is extremely important since it requires enhanced protections, in practice the current use of solitary does not fully protect individuals who may be rendered vulnerable. One of the practical challenges of providing enhanced protections to those “vulnerable” is the knowledge requirement. In order for the enhanced protections to be triggered, however, the detention facility must have knowledge of the vulnerability prior to the segregation.

One of the challenges with this requirement is that there is no real incentive for facility personnel to proactively identify those who are vulnerable. Even in instances where facility personnel are aware of a detainee’s vulnerability, the use of solitary continues to be used. For example, in Butler County, Ohio, a female detainee who had been previously placed in solitary watch for having suicidal tendencies was placed in extended segregation for engaging in sexual acts with another detainee. She was placed in segregation for thirty days despite the fact that the facility personnel knew of her vulnerability due to a fragile mental state.

Another challenge has been the use of solitary confinement for minor offenses. While ICE detention standards and the new policy specify that disciplinary segregation may only be used for serious offenses and as a last resort, in practice we see the use of solitary for minor offenses. In Seneca County, Ohio, for example, a detainee was placed in extended segregation for having been found with medicine in his cell. The medicine had been given to him by a prior detention facility and had been approved. The detainee justified his reasons for having the medicine, including the prior approval by another facility and its medical necessity. The detention facility found that having medicine in his cell warranted fifteen days in solitary.

Other examples of the improper use of disciplinary segregation include the placement of a detainee in extended segregation with the use of Nutra-Loaf—a food product rich in nutrients but low in flavor that is commonly given to prisoners as a form of punishment—for having engaged in a fight, when the use of food or deprivation thereof, has been explicitly prohibited as a method of punishment. Another example includes an entire group of inmates who were denied a request for Spanish programming television, then, after one complained anonymous about a guard’s response to their complaint and the rest refused to identify the complainant, the entire group was placed in solitary. Solitary in that case had the purpose of punishing detainees for refusing to name the detainee who complained and filed a grievance.

As the practice shows, the use of solitary as a punishment for minor offenses and for vulnerable persons continues to be worrisome. While the new policy on segregation is a step in the right direction, the current use of solitary confinement reflects shortcomings of legally enforceable language, ICE’s capacity to enforce immigration detention standards uniformly, and the lack of very needed outside oversight.

Sarah Dávila-Ruhaak is the Co-Director of the International Human Rights Clinic at The John Marshall Law School in Chicago and is an adjunct professor at the University of Illinois at Chicago. Sarah’s areas of specialty are international law and human rights. She teaches international law, international human rights, transitional justice, and criminal law. Her areas of research are the responsibility of non-state actors and the rights of vulnerable persons under international human rights law.

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