Depun" SCC!"t'/III:'"

u.s. Department of Homehllld Security
W;lshington. DC 20528

July 24,2009

Michael J. Wishnie, Esq.
Clinical Professor of Law
Yale Law School
P.O. Box 209090
Ncw Haven, Connecticut 06320-9090
Paromita Shah, Esq.
Associate Director
National Immigration Project of the
National Lawyers Guild
14 Beacon Street, Suite 602
Boston, Massachusetts 02108
Re:

"Petition for Rulemaking to Promulgate Regulations Governing Dctention
Standards for Immigration Detainces," January 24, 2007

Dear Mr. Wishnie and Ms. Shah:
This letter responds to the January 24, 2007, petition for rulemaking under 5 U.S.C. §
553(c) (the "petition") to promulgate regulations governing detention standards for immigration
detainees. After careful considcration of the petition, and for the reasons statcd in this response,
the Department of Homeland Security ("DHS") does not intcnd to initiate a rulemaking
procceding covering detention standards for immigration detainecs at this time. Accordingly,
your petition is denied.
The Petition
The petition asserts that the National Detcntion Standards ("NOS"), adopted by U.S.
Immigration and Customs Enforcement ("ICE") in 2003, lack enforcement tools and are
ineffective in complying with existing detention standards governing environmental health and
safety, grievance procedures, access to legal materials and telephones, housing classifications,
and recreation. See Petition at 3-4, 7-8. The petition concludes that codified regulations would
provide the best enforcement instrument to cnsure compliance with immigration detention
standards.
Historical Development of National Detention Standards
The Immigration and Naturalization Service ("INS"), in consultation with outside
stakeholders, first issued uniform, comprehensive standards for facilities housing INS detainees
www.dhs.goY

in November 2000. These standards, which later became known as the NOS, took effect in
January 2001 and set out thirty-six standards governing conditions of confinement, access to
legal representation, safe and secure operations, and health care services that were designed to
serve the needs of detainees. See U.S. Immigration and Customs Enforcement, Department of
Homeland Security, 2000 Detention Operations lvIanual (last modified Nov. 17,2008)1. The
standards were based on thcn-current INS detention policies, Federal Bureau of Prisons ("BOP")
program statements, and the widely accepted American Correctional Association's ("ACA")
Standards for Adult Local Detention Facilities. The NOS covered areas from religious services
to legal services and materials and were implemented over a two-year period to enablc facilities
to "ramp up" their operations to meet these standards.
Thc American Bar Association (ABA) and other organizations were instrumental in
developing these standards. Then-ABA President Martha Barnett called the detention standards
"a significant aehicvement" and a positive move toward "providing uniform treatment and access
to counsel for immigrants and asylum-seekers, whether detained in INS-run facilities or county
jails." See INS Hopes to Bring Uniformity to Detention Facility Processes with Release of
Comprehensive Standards, 77 Int. Rei. 1637 (Nov. 20, 2000). The NOS applied to all facilities
housing detainees held for more than seventy-two hours, including Service Processing Centers
("SPC"), Contract Detention Facilities ("CDF"), and state and local government facilities with
which ICE had entered into an Intergovernmental Service Agreement ("IGSA"). These facilities
were required to meet implementing procedures for each detention standard and the facilities
were subject to annual inspections to ensure compliance with the standards.
In June 2004, the ACA issued its Fourth Edition Performance-Based Standards for Adult
Local Detention Facilities, which set out seven goals of safety, security, order, care, programs
and activity, justice, and administration and management. In response, ICE began revising its
detention standards to a performance-based format. ICE reasoned that this migration was
necessary to promote consistency with established industry standards and integrate its practices
and procedures with those measurements employed by the ACA.
Federal Bureau of Prisons and DHS administrative detention populations and operations
The petition relers to the regulations adopted by the BOP as a regulatory standard
that DHS should emulate, although, as the petition correctly notes, there are substantial
differences between BOP convicted criminal and DHS administrative detainee
populations. See 28 C.F.R. parts 522, 524, 527, 540 - 553. See, e.g., Be/! v. Wolfish,441
U.S. 520, 536-37 (1979) (conditions or restrictions of detention arc premised on whether
person is a pretrial detainee (Due Process Clause rights) or an inmate (punishment under
the Eighth Amendment)); Youngberg v. ROllleo, 457 U.S. 307,322 (1982) (confinement
treatment and conditions "more considerate" for civilly detained persons than criminals);
th
Jones v. Blanas, 393 F.3d 918, 932 (9 Cir. 2004) (person detained under civil process
cannot be subjected to punitive conditions), cert. denied sub nOIll., Count)' o(Sacralllento,
Cal. v. Jones, 546 U.S. 820 (2005).

I

Available at htlp:/lwww.ice.gov/pi/dr0/opsmanuaVindex.htlll.

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DHS alien detainees differ from inmates remanded to BOP to serve federal criminal sentences.
BOP inmates are confined incident to punishment; DHS alien detainees are detained only for the
minimum time necessary to effectuate their removal from the United States or release from
custody. As of February 2,2009, for example, ICE detainees averaged thirty-three days in
custody, while the average length of stay was forty months for a BOP prisoner for calendar year
2008. In fiscal year 2007, ICE detained approximately 311,000 aliens. See Office of
Immigration Statistics, Department of Homeland Security, Immigration EI!!orcement Actions:
2007 (Dec. 2008)2. ICE currently has 32,000 authorized detention "beds," only a small
percentage of which are owned and operated directly by DHS. BOP, on the other hand, has
reportcd its inmate population as approximately 200,000. See Federal Bureau of Prisons,
Dcpartment of Justice, State oIthe Bureau 2007, at II (at the end ofFY2007, BOP's total inmate
population was 200,020)3 ICE is trying to reduce the length of time that aliens are detained in
its facilities. Due to the fundamental differences in populations, the health care goals, for
cxample, vary grcatly between DHS and BOP. DHS provides detainees access to health carc
within the relatively bricf period of detention typical for the detainee population, while BOP
provides inmates with health maintenance throughout their extended term of imprisonment.
Performance Based National Detention Standards
On September 12,2008, ICE published forty-one Performance Based National Detention
Standards ("PBNDS") to replace the NOS. The PBNDS, which were revised on December 5,
2008, and modified on February 20,2009, to add an additional standard, are publicly available at
http://www.ice.gov/partners/dro/PBNDS/index.htm. The PBNDS identify specific outcomes and
expected practices to be achieved for each standard, and require SPCs, CDFs, and IGSAs to meet
90% of the non-mandatory components and 100% of the mandatory components.
Implementation is multi-phased, with the new PBNDS first applying to SPCs and CDFs. ICE
will implement thc PBNDS gradually until final implementation in 20 I O. On-sitc compliance
reviewers and annual reviewers began using the PBNDS for ICE SPCs on April I, 2009. On
June I, 2009, the PBNDS were implemented at all CDFs with compliance reviewers and annual
reviewers to begin work on January 1,2010. In addition, starting on January I, 2010, the
PBNDS will begin implementation at [GSA facilities; implementation at IGSAs will also include
the use of on-site compliance reviewers and annual reviewers.
Many of the standards in the PBNDS address concerns raised in your petition. For
example, in the PBNDS, the Facility Security and Control standard cnumerates procedures
protecting the community, staff, contraetors, and detainces from harm and outlines cxpected
outcomcs ensuring that: (I) security posts and positions are staffed with quali fied personnel, and
(2) the health and safety of the staff and detainees are enhanced through observation,
supervision, and interaction. See ICE/ORO Detention Standard, Facility Security and Control at
I (Dec. 5, 2008). Additionally, the Environmental Health and Safety standard prescribes
hygiene standards to provide for living area safety, housekeeping sanitation and cleanliness, fire
prevention and control, and medical operations in administering care to detainees. This standard
provides that compliance with the applicable safety and sanitation laws are reflected by
documented internal and external inspections and corrective aetions when indicated. See
2

Available at http://www.dhs.gov/xlibrary/assets/st8tistics/publications/enforcement_ar_07 .pdf.

3

Available at hllp://www.bop.gov/news/PDFs/sob07.pdf.

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ICE/ORO Detention Standard, Environmental Health and Safety (Dec. 5,2008). Furthermore,
the Grievance System standard explains the formal and informal grievance process and provides
a mechanism to resolve disputes between staff and detainees, the law libraries standard explains
the dctainees' accessibility to the law libraries and legal materials, and there are individual
standards that govern telephone access, recreation, and housing classification. See ICE/ORO
Grievance System (Dec. 5, 2008), Law Libraries and Legal Material (Dec. 5, 2008), Telephone
Access (Dec. 5, 2008), Recreation (Dec. 5,2008), and Classification System (Dec. 5, 2008). The
PBNDS also include facility quality assurance and inspection contracts, and compliance is
monitored through internal assessments, independent annual audits, and quality assurance
reviews. In summary, the PBNDS cover the subject matter areas that you express concerns
about, and provide performance outcome measures to ensure compliance with these standards.
ICE coordinated with a number of nongovernmental organizations (NGOs) in drafting the
PBNDS through the collaborative efforts of the lCE/NGO Working Group, which included,
among other organizations, the ABA and the American Immigration Lawyers Association, and
also with other organizations such as the United Nations High Commissioner for Refugees
(UNHCR). The input and perspective gathered £i·om the NGO community was exceedingly
valuable as a means for ensuring that the PBNDS give due consideration to the rights, needs,
safety, and humane care of the detainee population. ICE thus integrated many of the NGOs'
comments and suggestions in the drafts, culminating in a finished product that represents the
interests ofthe agency and interested parties to safely house detainees in an environment that
protects their legal rights and promotes each facility's compliance with the standards established.
Besides issuing the PBNDS, ICE has implemented another oversight mechanism to
ensure compliance. ICE created the Detention Facilities Inspection Group within the Oftice of
Professional Responsibility, which reviews the inspection of facilities against the PBNDS for
facility accreditation and conducts quality assurance reviews to further validate these inspections.
Put simply, ICE has implemented institutional measures to cross-check facilities' compliance
with the PBNDS. ICE plans to publish semi-annual reports on compliance with these standards.
DHS believes that performance-based standards, which currently are employed by the
ACA, the National Commission on Correctional Health Care, and the Joint Commission, will
effectively improve the conditions of confinement for immigration detainees in ICE custody and
hold facilities housing detainees accountable by cross-checking their performance against the
criteria set out in the PBNDS. The performance-based standards enumerated in the PBNDS
articulate goals and objectives in providing detainee care, measure each facility's practices and
procedures against these standards, and require the facilities to document actions taken to
promote quality detainee and health care services. In focusing on expected outcomes and
identi fying clear practices and objectives, the performance-based standards enable the agency to
measure specific outcomes over time and evaluate the progress each service provider achieves in
meeting the defined performance criteria. In other words, DHS believes that integrating its
detention standards into a performance-based format improves the accuracy and credibility of
facility performance ratings consistent with industry standards, and will promote best practices
and accountability, which will improve detention conditions. Critically, the PBNDS will
facilitate ICE's oversight of the facilities and expedite remediation or modification, if
appropriate, when standards are not satisfied.

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Administration of Performance Based National Detention Standards
The petition suggests that the detention standards be promulgated as legislative rules for
the purpose of making those standards judicially enforceable. Petition at 7, 9-10. DHS declines
to create additional judicially enforceable rights through such an action. Adoption of judicially
enforceable regulations is no substitute for management of facilities and DHS is committed to
better management of detention facilities. Many of the "gaps" raised by the petition have been
met by the 2008 PBNDS. Petition at 31-42.
DHS uses a number of internal and external means to ensure quality and compliance with
the PBNDS. For example, the Detention Management Control Program (DMCP) assesses
detention-related risks and tests the adequacy of internal controls within detention operations.
The DMCP provides a template to examine ICE's detention program and conduct reviews and
special assessments to ensure compliance with applicable laws, policies, and procedures;
recommend solutions to remedy deficiencies at detention facilities; and identify key performance
indicators to monitor critical areas and operations. DHS and ICE believe that these standards as
implemented promote safe and secure environments for detainees and provide appropriate
conditions of confinement.
The Detention Standards Compliance Unit (DSCU) oversees the facility inspection
program and develops policies, standards, and procedures for ICE detention operations to
conduct compliance reviews. DSCU-certitied officials have unconditional access to the facilities
and have employed contract inspection companies to evaluate facilities based on direct
observations, interviews with detainees and staff, and documentary reviews. DSCU reviews the
final report of the contractor and assigns a rating. Facilities that receive a deficient or at-risk
rating must submit a plan of action identifying the correcti ve measures to be taken to address the
non-complying conditions. ICE reserves the right to discontinue using any facility that fails to
comply with the NOS, and PBNDS, until it receives an acceptable rating. DSCU further distills
these assessments to determine whether the detention standards should be amended and internal
controls should be modified to improve detention operations.
Moreover, representatives from the UNHCR and the ABA regularly visit detainee
facilities. These visits, which commenced in 1993, permit these organizations to give ICE
information, recommendations and opinions based on their observations. ICE meets with the
UNHCR to discuss its observations and compliance concerns.
Conclusion
Aftcr careful consideration of the petition to initiate a rulemaking action, DHS has
determined that the PBNDS is the appropriate mechanism to improve detention facility
management and ensure compliance with detention standards. DHS believes that implementing
the PBNDS, rather than codifying the NOS, is the best way to ensure appropriate detention
conditions and improve the quality of life of detainees. The PBNDS will provide the agency
with the necessary t1exibility to enforce standards that ensure proper conditions of confinement
and will change those standards as appropriate.

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DHS has considered the benefits and burdens of conducting a rulemaking to codify the
NDS and coneludes that rulemaking would be laborious, time consuming, and less flexible, and
could impede DHS's ability to expeditiously respond to changed circumstances, emergency
situations, and crises to protect the health, safety, and welfare of the detained aliens, agency
personnel and contractors, and to ensure compliance with the NDS. DHS advises that ICE may
modify the PBNDS in the hlture, depending on, among other things, suggestions by accrediting
bodies or organizations like those you represent. DHS believes that the PBNDS and the multilayered review process now in place preserve and protect the health and welfare of alien
detainees, and provide appropriately for both quality control and accountability of the facilities
housing the detainees. DHS had decided that ICE will employ the PBNDS as currently
published (and subsequently updated, as appropriate) rather than initiating a rulemaking action.
As always, DHS appreciates your commitment to the humane and just treatment of the
detaincd immigrant population and remains engaged in mecting the necds of detainees housed at
ICE facilities. Nevertheless, at this juncture, ICE intends to administer the PBNDS and not
codify the NDS. Accordingly, the petition for rulemaking is denied.
Sincerely,

:~"

6v
.

\

~

Jane H·1l Lute
Deput)j Secretary

cc: John Morton, Assistant Secretary, ICE

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