Jurisprudence

Why Hasn’t Joe Biden Shut Down the Worst ICE Detention Facilities?

One man addresses a large crowd of immigrants outside
Eli Fernandez, a volunteer for Catholic Charities, speaks to immigrants, most seeking political asylum, who were released from U.S. government detention in McAllen, Texas, on Nov. 3, 2018. John Moore/Getty Images

On May 13, Secretary of Homeland Security Alejandro Mayorkas told Congress he would be “taking action very quickly” on immigrant detention centers. Within a week, he ordered U.S. Immigration and Customs Enforcement to cut contracts with two detention centers that have been the targets of extended organizing and community-led shutdown campaigns.

At one of them, the Irwin County Detention Center in Georgia, more than 40 predominantly Black or Latina immigrant women came forward last fall with reports of unnecessary, invasive, and nonconsensual gynecological procedures following a whistleblower complaint, leading to investigations by the FBI, Justice Department, and Homeland Security inspector’s office, as well as a lawsuit.

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Despite the successful campaign by Detention Watch Network and others to close the Georgia site, the operators of the Irwin County Detention Center are actually still in business. Indeed, the private prison corporation responsible for that scandal, LaSalle Corrections, is headquartered in Louisiana and continues to run six facilities that detain immigrants for ICE in the state. Those facilities—all in remote locations—remain open, despite endemic medical neglect and lack of access to advocates, attorneys, and families. These facilities and others run directly by ICE in Louisiana are almost all included in the list of 39 detention centers that the ACLU has asked Mayorkas to shut down, as the government has continued to pay more than $1 million a day for empty beds across the country. Now new research offers further evidence of how immigrant detention has become punitive and why it must be curtailed.

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On Tuesday, our law clinic at Tulane Law School published a report, “No End in Sight: Prolonged and Punitive Detention of Immigrants in Louisiana,” looking at federal court litigation over a 10-year period filed by immigrants seeking release from detention in Louisiana. Because of the regular denials of release and hefty bond requirements, more immigrants have turned to seeking release from detention through filing writs of habeas corpus in the federal courts. These cases are based on claims of punitive or prolonged detention.

In the 499 habeas corpus cases filed, we uncovered troubling trends. First, we found that by the time that detained immigrants file a petition challenging the legality of their detention, they had typically already endured months or even years of confinement. On average, detained immigrants had been detained for nearly one year and one month at the time they filed a habeas petition, and the average habeas case took a further six months for resolution. We also found serious challenges for detained immigrants to access lawyers to represent them in their habeas cases, with 85 percent of detained immigrants filing habeas without counsel. Lastly, we found disturbing racial disparities, with Black immigrants disproportionately represented among immigrants filing for habeas. Black immigrants represented more than half of detained immigrants filing for habeas, while for comparison Black immigrants make up only 7.2 percent of noncitizens. Even though habeas petitions and the federal courts are supposed to be a safety valve for immigration detention that becomes unlawful, systemic delays and obstacles for detained immigrants are preventing habeas from serving as a check on indefinite and punitive detention, our report shows.

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The stakes of the national immigration detention debate are nowhere higher than in Louisiana. Although often overlooked in national coverage, Louisiana has more detained immigrants than any other state except Texas. This is despite having a much smaller total population than states like California and New York, and not being a border state like Arizona. Louisiana is a prime example of ICE’s Southern strategy, expanding recent immigrant detention disproportionately in the Deep South, where bed space is often cheapest and challenges to accessing family, counsel, community organizations, and other services are often the most pronounced. In Louisiana, local sheriffs have jumped at the chance to hold immigrants on the heels of statewide criminal justice reform, filling their coffers with federal contracts that reimburse at almost triple the daily rate for state inmates.

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Under President Donald Trump, immigration detention ballooned to the largest numbers in history. For Louisiana, that meant that between 2018 and 2019 the state expanded from two major jails that held about 2,000 immigrants combined to 12 facilities with capacity to detain nearly 9,000 people. A recent Government Accountability Office report found that with the vast majority of new facilities opened, ICE failed to follow its own process and ignored local immigration enforcement input regarding safety issues, remote locations, histories of understaffing, and punitive conditions.

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Additionally, 2020 was the deadliest year for immigrants in detention for the past 15 years, even with a plummeting detention population due to the COVID-19 pandemic. As ACLU attorney Eunice Cho stated, “Even before this crisis, detained people were unable to receive basic care and were held in a culture of fear, without any clear way to get out of detention. In a global pandemic, these conditions—overcrowding, unsanitary conditions, lack of access to medical care, staff who speak only English—become especially deadly. This is not the kind of country we want to be.”

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As law professors and immigration attorneys, we have seen the devastating impact of detention firsthand. This past year, we represented a Cuban asylum-seeker, Luis Nuñez Saavedra, who had collapsed while in detention and had to be rushed to a nearby hospital. Doctors there diagnosed him with a heart condition and ordered an immediate examination by a cardiologist, but months passed, and ICE did nothing. Meanwhile, with COVID outbreaks at the facility, our client faced increased risk of death or serious harm with his untreated heart condition. Ultimately, after months of persistent advocacy from law students, ICE finally agreed to release him from custody.

Nuñez Saavedra’s case is emblematic of systemic medical neglect and resistance to release throughout the agency. This approach has been particularly egregious in Louisiana, where in 2018 the ICE New Orleans field office denied 98.5 percent of requests for release. Even as ICE has begun to grant release to more immigrants, it has created new hurdles, like charging exorbitant bonds of between $10,000 and $30,000. Despite repeated federal court orders requiring ICE to consider the release of medically vulnerable detained immigrants, more than 1,700 have been detained in Louisiana since October of last year. This has led to multiple outbreaks of the COVID-19 virus in the detention facilities and in surrounding communities, leading the Washington Post to label ICE the “superspreader agency.”

The immigrant detention system has become a multibillion-dollar business that profits from mass and prolonged detention of immigrants. The historically low detention numbers right now present a pivotal opportunity for a new path forward. ICE’s immigration detention system does not need to exist in its current state. President Joe Biden should shut down facilities that are wasting money and causing harm. And Louisiana facilities, expanded during the Trump era, should be among those first to close.

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