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voices from detention:
A Report on Human Rights Violations
at the Northwest Detention Center
in Tacoma, Washington

July 2008
Seattle University School of Law International Human Rights Clinic
in collaboration with OneAmerica (formerly Hate Free Zone)

Voices from Detention:
A Report on Human Rights Violations at the
Northwest Detention Center
In Tacoma, Washington

Seattle University School of Law International Human Rights Clinic
in collaboration with OneAmerica (formerly Hate Free Zone)

June 2008

Table of Contents
Executive Summary .................................................................................................................................. 3
Background ................................................................................................................................... 3
Methodology ................................................................................................................................. 4
National Operation and Oversight of Detention Centers.......................................................... 4
International Human Rights Law ................................................................................................. 5
Applicable Domestic Law ............................................................................................................ 5
The Northwest Detention Center ................................................................................................ 5
Report Findings ............................................................................................................................ 6
Conclusions and Recommendations.......................................................................................... 9
I. Introduction ........................................................................................................................................... 11
II. Methodology ........................................................................................................................................ 12
III. Background of Immigrant Detention in the United States ............................................................. 14
A. Shift in Immigration Policy Led to Dramatic Increases in Detention ................................ 14
B. Operation of and National Standards for Detention Centers............................................. 16
C. Investigations Repeatedly Find Inhumane Conditions and
Abuse in Detention Centers .................................................................................................. 17
1. ABA and UNHCR Note Major Deficiencies ................................................................. 17
2. NGO Reports Also Note Serious Problems ................................................................ 17
3. U.S. Government Identified Similar Deficiencies ........................................................ 18
4. Poor Detention Conditions in the International Spotlight............................................. 19
5. All Reports Consistently Recommend Binding National Detention Standards............ 19
IV. International Human Rights Law ...................................................................................................... 21
A. Treaties ................................................................................................................................... 21
B. Customary International Law ................................................................................................ 22
C. Specific Rights under International Human Rights Law .................................................... 22
1. Right to Liberty: Freedom from Arbitrary Detention ..................................................... 22
2. Prohibition on Torture and Cruel, Inhuman or Degrading Treatment........................... 23
3. Right to Legal Access and Due Process...................................................................... 24
4. Right to Food and Medical Care .................................................................................. 25
5. Right to Family Unity.................................................................................................... 25
6. The Rights of Refugees under International Law......................................................... 26
a. The Convention on Refugees Prohibits Most Detentions of Refugees.......... 27
b. Treatment of Refugees in Detention............................................................ 28
V. Applicable Domestic Law................................................................................................................... 30
A. Federal Law and Regulations Governing Conditions of Detention .................................. 30
B. Constitutional Rights of Immigrant Detainees .................................................................... 31
1. Prohibition Against Cruel and Inhuman Treatment ...................................................... 31
2. Rights to Family Unity .................................................................................................. 32
VI. Conditions at the Northwest Detention Center (NWDC) ................................................................ 34
A. Background ............................................................................................................................ 34

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B. Oversight ................................................................................................................................ 34
C. Conditions and Violations of Rights .................................................................................... 35
1. Legal Due Process ................................................................................................................. 35
A. Attorneyʼs Concerns Regarding Due Process and Access to Representation ............ 35
B. Detaineesʼ Concerns Regarding Due Process ............................................................ 37
i. Attorney/ Client Confidentiality ........................................................................ 37
ii. Lack of Access to Legal Material ................................................................. 38
C. Conditions Relating to Due Process at the NWDC Violate Both
International and Domestic Law................................................................................... 38
2. Detainees Pressured to Sign Papers.................................................................................... 39
A. Pressure to Sign Papers Violates Both International and Domestic Law .................... 40
3. Filing of Grievances ............................................................................................................... 41
A. Treatment of Grievances May Violate Both International and Domestic Law.............. 41
4. Treatment by Officers ............................................................................................................ 42
A. Verbal and Physical Abuse ......................................................................................... 42
B. Sexual Harassment ..................................................................................................... 43
C. Strip Searches ............................................................................................................. 43
D. Inhuman Treatment by U.S. Marshalls During Transfer to Alabama........................... 44
E. Treatment by Officers Violates Both International and Domestic Law ........................ 44
5. Medical Care............................................................................................................................ 45
A. Access to Emergency Medical Care............................................................................ 45
B. Quality of Treatment .................................................................................................... 46
C. Access to Outside Medical Care ................................................................................. 47
D. Failure to Provide Adequate Medical Care Is a Violation of Both
International and Domestic Law................................................................................... 47
6. Mental Health Care and Treatment ....................................................................................... 48
A. Inadequate Mental Health Training for Prison Officers................................................ 48
B. Excessive Use of Solitary Confinement....................................................................... 49
C. Inadequate Treatment of Mental Health Problems Violates Both
International and Domestic Law................................................................................... 49
7. Food ......................................................................................................................................... 50
A. Inadequate Food and Nutrition .................................................................................... 51
B. Meal Times .................................................................................................................. 52
C. Food Safety Standards................................................................................................ 52
D. Poor Quality and Quantity of Food Violates International and Domestic Law ............. 54
8. Living Quarters ....................................................................................................................... 55
A. Pod Conditions and Privacy ........................................................................................ 55
B. Bathrooms and showers.............................................................................................. 56
C. Living Conditions May Violate International and Domestic Law .................................. 56
9. Visitation.................................................................................................................................. 57
A. Visitation Policies May Violate Both International and Domestic Law ......................... 58
10. Language Barriers ................................................................................................................ 59
A. Failure to Provide Information in a Detaineeʼs Language Implicates
Due Process Concerns of Both International and Domestic Law ................................ 60
11. Recreation & Exercise......................................................................................................... 60
12. Telephone Access ............................................................................................................... 60
13. Cumulative Effect of Conditions Results in Cruel, Inhuman
and Degrading Treatment, Violating Both International and Domestic Law. ................ 61
VII. Conclusion and Recommendations ................................................................................................ 62
Appendix A: NWDC Handbook............................................................................................................... 65

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Executive Summary
The number of detained immigrants has escalated in the last decade, shining a harsh light on the
immigration detention system nationwide. The New York Times, the Washington Post and CBS News
have all provided alarming evidence of shoddy care, inadequate staffing, lax standards, secrecy and
chronic ineptitude. This report corroborates detainee claims of human rights violations at the Northwest
Detention Center on the tide flats of Tacoma, Washington.

Background
In 1996, Congress passed legislation expanding the use of detention without bond provisions to
reach large categories of immigrants. Lawful permanent residents (“green card holders”) were
included with those who committed minor crimes and even with refugees escaping persecution.
Those 1996 laws also established “Expedited Removal,” a practice allowing immigration officials
to detain and almost always deport anyone arriving without proper documentation, including
refugees. In addition, the period for detention without a hearing was extended.
Detention is a very rapidly growing form of incarceration. The numbers are escalating. In 2001,
the U.S. detained approximately 95,000 people. By 2007, that number tripled to over 300,000.
The average daily population of detained immigrants increased six-fold from 5,000 in 1994 to
nearly 30,000 in 2007.
In 2004, Congress authorized 40,000 new detention beds by 2010, bringing up capacity to
approximately 80,000. Immigration Customs and Enforcement (ICE) reported the average stay
was 64 days in 2003, with 32% detained for 90 days or longer. Those seeking refugee status
were in detention for an average of ten months, with the longest period being 3.5 years.
Nearly 30,000 immigrants are detained daily across the nation. Some are held in local jails, others
in privately run facilities such as the Northwest Detention Center in Tacoma. ICE currently pays
private prison companies and local cities and counties for each immigrant held at an average rate
of $95 per immigrant per day. With the increase in numbers of immigrants being detained,
concerns have increased about such issues as overcrowding; holding immigrants for months—
even years—in facilities designed for smaller populations and short-term use, and the lack of
oversight of both the provision of due process rights and basic conditions at detention centers.
Voices from Detention: A Report on Human Rights Violations at the Northwest Detention Center
is a project of The International Human Rights Clinic at Seattle University (SU) School of Law and
OneAmerica (formerly Hate Free Zone), a Seattle-based immigrant, human and civil rights
organization. This report is the first in-depth study of conditions at the Northwest Detention
Center, and one of the first in the country to systematically apply both international human rights
law as well as domestic law to the violations and conditions in the detention center. The project
was funded through the U.S. Human Rights Fund, the Fund for NonViolence and individual
donations.

3

Methodology
This investigation was conducted by SU law students and faculty in the International Human
Rights Clinic and staff from OneAmerica (formerly Hate Free Zone). Over the course of eight
months in 2007-08, investigators conducted 46 interviews with 41 detainees, a family member
and four attorneys representing detainees. Investigators also took two official tours of the facility,
followed by a question and answer session with ICE and GEO officials.
Detainees interviewed were either referred or taken from a list from a posted hearing docket that
was available outside the courtroom at NWDC. Interviews were voluntary and detainees were
assured anonymity. Their actual names are not used in this report. Detainees were men and
women from all over the world who had been held in detention for varying amounts of time.
Of the 41 detainees interviewed, 16 were refugees as defined by the Refugee Convention. Of
those 16, four had been given formal refugee status while the others had pending asylum cases.
Attorneys were not interviewed specifically about conditions, but about obstacles in the
representation of their clients.
During the interviews, our questions were open-ended and non-leading. There is no information
in this report that could not be corroborated through other interviews or through research.

National Operation and Oversight of Detention Centers
In 2002, Congress passed the Homeland Security Act eliminating the Immigration and
Naturalization Service (INS) and creating the Department of Homeland Security.
The Department of Homeland Security now retains control over US Citizenship and Immigration
Services (USCIS) as well as the Immigration and Customs and Enforcement (ICE). ICE is made
up of four divisions. One, the Office of Department of Removals (DRO), is responsible for the
detention of people during removal proceedings. ICE utilizes four different types of facilities to
hold detainees. Detainees are held in Service Processing Centers (owned and operated by ICE);
Contract Detention Facilities (owned and operated by private corporations); Intergovernmental
Service Agreement Facilities (county and city jails); and Federal Bureau of Prisons Facilities.
In 2001, under pressure from outside organizations, ICE developed new National Detention
Standards that would apply to all privately run detention centers nationwide. The standards cover
issues such as access to legal services and materials, medical care, grievance procedures and
detainee transfers. A Detention Standards Compliance Unit within the DRO is the oversight body
of detention facilities.
However, the National Detention Standards are not legally binding, and therefore are
unenforceable. Nongovernmental organizations have issued multiple reports detailing continuing
abuses in U.S. immigration detention facilities. Even the Federal Governmentʼs own
Accountability Office (GAO), in a 2006 to 2007 compliance review process observing 23 facilities,
documented inadequate medical care, lack of access to legal materials, inadequate facility
grievance procedures, overcrowding and systematic telephone problems. All reports conclude
that detention standards should be made nationally binding and enforceable.

4

International Human Rights Law
Voices from Detention primarily measures detention conditions against international human
rights law. The United Nations established the Universal Declaration of Human Rights (UDHR),
The International Covenant of Civil and Political Rights (ICCPR) and the International Covenant
on Economic, Social and Cultural Rights (ICESCR). These documents are known as the
“International Bill of Rights.” Specific rights include:
•
•
•
•
•
•
•

Right to Liberty: Freedom from Arbitrary Detention
Prohibition on Torture and Cruel, Inhuman or Degrading Treatment
Right to Legal Access and Due Process
Right to Food and Medical Care
Right to Family Unity
Rights of Refugees Under International Law: Convention on Refugees Prohibits Most
Detention of Refugees and Specific Guidelines
Guide Treatment of Refugees in Detention

The United Nations High Commission for Refugees addresses detention conditions, including:
screening for trauma or torture victims; the receipt of medical treatment and psychological
counseling; and the opportunity to exercise religion and receive a religious diet.

Applicable Domestic Law
The only binding law setting standards for treatment in non-ICE facilities is a federal regulation
citing 24-hour supervision, conformance with safety and emergency codes, food service and
availability of medical care.
The National Detention Standards seek to ensure “safe, secure and humane conditions for all
detainees,” but they are not laws or federal regulations and therefore are not enforceable.
However, immigrant detainees are also entitled to Constitutional rights. Their rights and liberty
interests are protected by the Fifth Amendment, which prohibits conditions which amount to
punishment without due process of law. The U.S. Supreme Court has repeatedly held that liberty
interests protected by due process include reasonably safe conditions of confinement, freedom
from unreasonable bodily restraint, right to adequate food, shelter, clothing, medical care and
adequate training of personnel required by these interests. The U.S. Constitutionʼs Due Process
Clause also protects the right to family unity.
Recent Supreme Court decisions have re-emphasized that immigration laws must be in accord
with due process, which includes the importance of family as the fundamental unit in society. In
2001, the U.S. Supreme Court reaffirmed that all immigrants—documented or not, which would
include those subject to deportation—are entitled to the due process protections of the Fifth
Amendment. In Zadvydas v. Davis, the Court also reaffirmed a basic principle of justice with
respect to detention: that arbitrary and indefinite detention is unconstitutional.

The Northwest Detention Center
The Northwest Detention Center is owned and run by The Geo Group, Inc., a publicly traded,
privately-run company in the private prison business with facilities across the globe. Originally
contracted to house 500 immigrants, it now has the capacity to detain 1,000. In the first four
5

months of its operation, the NWDC admitted over 1,800 people. Over the next 12 months, that
number tripled to 6,456. In recent months, it has expanded even further to 8,849.
The current daily population is 985, about 890 men and 95 women. In February 2008, the NWDC
had 997 detainees representing about 80 countries, but primarily Mexico, Guatemala, El
Salvador, Honduras, China, Vietnam and India.
While the facility is designed for short-term detention, the reality is that there are a significant
number of detainees held for periods of time that average 35-60 days, with some held for as long
as four years.
Internal oversight of the NWDC consists of two annual internal reviews, one by GEO, the other by
ICE. Although ICE gave ratings of “Good” and “Superior” to the NWDC on compliance to
detention standards, ICEʼs own reviews noted numerous violations of detention standards each
year.

Report Findings
Based on the 46 interviews conducted, Voices From Detention finds numerous violations at the
NWDC. Conditions are substandard, and are not even in compliance with the National Detention
Standards, much less international human rights law. These violations, unacceptable in any
circumstances, are even more notable given the fact that detention—originally intended to be
short-term—often lasts for months or even years.
For the purposes of this Executive Summary, we highlight seven areas of significant concern.
Full descriptions of all the areas of concern are contained within the report.
1.

Legal Due Process: There are numerous obstacles in detainee legal
representation that not only interfere with detainees ability to secure
representation, but impact the attorney-client relationship itself :
a. Insufficient number of attorney-client meeting rooms for 1,000 detainees
(only four), leading to lengthy delays and waits to access legal counsel
b. Breaches of attorney-client privacy and confidentiality by detention center
guards during interviews and through monitoring of mail and telephones
c. Lack of notification of attorneys and family members of detainees when
transferred to other facilities

2.

Detainees Pressured to Sign Papers: About a quarter of all detainees
interviewed said they were pressured to sign papers whether they understood
them or not. They said if they refused to sign, guards exerted psychological
pressure with verbal threats and physical intimidation. An interviewed attorney
stated that ICE improperly advises arriving detainees to take voluntary departure
(deportation) without advising them that they will lose their right to an attorney
and will be deported again should they ever return to the U.S. This is in direct
violation of the U.S. Supreme Courtʼs clear direction since 1943 that immigrants
be allowed to make intelligent decisions about the documents they are signing.

3.

Treatment by Guards and Federal Marshals: Detainees reported numerous
allegations of misconduct and physical and verbal abuse. Five detainees
provided extremely disturbing accounts of strip searches. One estimated that he
was strip searched 5-10 times over a period of 2-3 months following attorney
visits. During these searches, he was stripped completely and made to stand in
front of officers and turn and bend over. He was not touched but felt humiliated.
6

Another female detainee was strip searched multiple times after attorney visits.
She described a strip search incident as follows:
“We were stripped completely naked, a female officer told me to
open my legs wide and she peeped into my vagina and later, she
asked me to turn by back-side and expose my anus [by separating
the cheeks with her hands]. I was told to cough several times
while in this position—with the officer looking at my private parts.
We were forced to subject ourselves to this dehumanizing
treatment. For several days afterward, I wept and have continued
to have nightmares about this treatment.”
One report provided a detailed event cited by six detainees. It involved the
transfer by of detainees on two flights to Alabama in the summer of 2007. The
transfers were conducted to prevent overcrowding expected from an upcoming
ICE workplace raid in Portland, Oregon. Abuse on the flight by U.S. Marshals
include physical abuse (hitting and punching and putting a hood on a mentally ill
detainee); refusing to allow detainees to use the restroom for over seven hours
resulting in defecation in their seats and sitting in their own feces; and
handcuffing and shackling the hands and feet of the detainees so that they could
not eat.
Domestic law prohibits treatment “not reasonably related to a legitimate goal” and
cites it as a violation of personal security and liberty constituting a denial of due
process. Under international law principles, “All persons deprived of their liberty
shall be treated with humanity and with respect for the inherent dignity of the
human person.”
4.

Medical Care: Approximately 75% of detainees interviewed reported medical
problems that required medical attention at the NWDC medical clinic. Eighty
percent who sought care were dissatisfied with the treatment they received.
Our interviews suggest a widespread problem of inadequate access to medical
care, especially emergency medical care. When a food poisoning outbreak
occurred on August 11, 2007, and over 300 detainees reported severe abdominal
cramps and diarrhea, guards told detainees to wait until the in-house medical
clinic opened in the morning. Even during its hours of operation, detainees wait in
a standing line for up to four hours. Those requiring outside care wear shackles
on their hands and feet. One detainee said shackles were not removed even
when the emergency room doctor requested it.
One detainee undergoing treatment for a cancerous brain tumor was arrested in
his home by ICE and admitted to NWDC. Medical staff that had previously treated
him contacted the NWDC and offered to send over his records but the NWDC
declined, saying he would be deported soon. The man had multiple seizures in
detention. Though medical experts told detention officials that if deported, he
wouldnʼt get adequate medical treatment and his terminal condition would
worsen, he was deported early this year.
The New York Times published a list of detainees who have died in immigration
detention across the nation. One of those detainees, Jesus Cervantes-Corona,
died at the NWDC on December 13, 2006. His cause of death is listed officially
as coronary artery disease, but the full circumstances of his death have not been
disclosed by ICE or GEO.
Inadequate access to medical care violates the United Nations Declaration of
Human Rights and the minimum standards of the UN Principles for Detained
7

Persons. Failure to provide adequate medical care is a violation of the Fifth
Amendment. Allowing a person to suffer from extreme pain without treatment is
cruel, inhuman and degrading treatment, a violation of both international law and
the Fifth Amendment.
5.

Mental Health Care: About 20% of the detainees interviewed reported they
suffered from mental health issues requiring attention. While many did not
complain they suffered from depression, their speech and body language
suggested otherwise. Many appeared subdued and others cried. Our
interviewerʼs general impression was that a substantial percentage of the
detainees appear depressed, nervous, scared or a combination of disorders.
There also appears to be improper and excessive use of solitary confinement of
those who suffer from mental health problems.
Thirty-seven percent of those we spoke with were refugees who likely suffered
some form of persecution and/or traumatic event in their homeland or during their
journeys to the U.S. for asylum. In the detention center, the lack of recreational
activities; the grey cement and windowless surroundings; the lack of privacy;
cultural isolation; and uncertainty around their detention confinement all
contribute to mental health instability.
The NWDC employs only one full-time psychologist for about 1,000 detainees.
While the National Detention Standards require staff at INS centers to be trained
to recognize suicide, there appears to be no such training at the NWDC. One
detainee described a fellow detainee whose appearance deteriorated over a short
period of time until he stopped talking all together. Detainees reported this
change to guards who responded that he needed to request medical help himself.
While watching TV, the man slumped over and fell on the floor. Detainees again
implored guards to help him with no result. Later that night, the man passed out
on the floor. Only then, was given attention.
The treatment of mentally ill detainees raises legal concerns. The Northwest
Immigrant Rights Project has found approximately nine detainees who turned out
to be U.S. citizens. These detainees were subsequently released as U.S. citizens
cannot be held in immigration detention. Attorneys at NWIRP contend that many
of those U.S. citizens detained have suffered from mental illness.
Inadequate treatment of the mentally ill is a violation of international law. Denying
proper treatment can constitute as cruel, inhuman and degrading treatment.
Under domestic law, prisoners have the right to receive medical treatment for
illness and injuries under the Eighth Amendment, which encompasses the right to
psychiatric and mental health care and the right to be protected from self-inflicted
injuries such as suicide.

6.

Food: About 80% of the detainees interviewed stated they received an
insufficient quantity of food and were often hungry after meals. For those
remaining in detention for months or years, scarce food results in hunger, poor
nutrition, and digestive problems.
One detainee weighed 190 pounds upon entering detention. Two years later he
was fifty pounds lighter due to insufficient food. The clinic doctor told him to stop
exercising because the food he receives doesnʼt provide enough nutrition for daily
exercise.
In August 2007, there was an outbreak of food poisoning at the NWDC that
affected about 300 detainees. The Tacoma-Pierce County Health Department
found the food poisoning was from heating or cooling food too slowly allowing

8

large amounts of bacteria to grow, and identified several problems with food
preparation procedures at the facility.
7.

Living Conditions, Visitation, and Language Barriers: Interviewees detailed
concerns about overcrowding and lack of privacy in the bathrooms and showers.
In one area, there are 80 people who share six or seven toilets. Dining tables
near the toilets give rise to concern about sanitation. One detainee reported
seeing a dead rat in the downstairs toilet that was left for two days preventing use
of that toilet.
Regarding visitation, one detaineeʼs wife drives for three hours from Oregon to
visit him once a month with their daughter who has a debilitating illness. Upon
arrival they typically wait an hour for a fifteen minute, no-contact visit. A few
times, she has waited two hours to see her husband. The visits have been
traumatizing. Some detainees say that the short, no-contact visits cause them to
feel even more depressed and hopeless.
Moreover, due to language barriers, detainees have reported being unable to
communicate with their guards and unable to read signs in English. The detainee
handbooks are in English with a truncated version in Spanish. Under the UN
Body of Principles, Principle 14 states that “[A] person who does not adequately
understand or speak the language used by the authorities responsible for the
arrest, detention or imprisonment is entitled to receive promptly in a language
which he understands…” the reason for his detention and his right to due
process.

Conclusions and Recommendations
The United States is obligated to comply with both international and domestic legal standards on
detainee treatment. Detention without accountability only increases mistreatment.
The authors of this report have concluded that the violations of rights and conditions within the
NWDC violate both international and domestic law. Specific issues include:
•

Unnecessary detention of refugees

•

Conditions violating legal due process protections, especially the forced signing of
papers, language barriers, access to attorneys and failure to ensure confidential
communications

•

Overcrowding, lack of privacy

•

Inadequate emergency medical care and pain management

•

Inhuman and degrading treatment by guards and U.S. Marshals

•

Failure to adequately address mental health issues and punitive segregation of those
with mental health problems

•

Extremely poor quality and quantity of food

•

No contact visits, inadequate visitation time, long waits and inadequate access to
telephones

These conditions violate the Fifth Amendment to the U.S. Constitution, the Refugee Convention,
and customary international law, as well as other international treaties.
Based on these findings, the authors of this report provide the following recommendations:

9

Federal Policy Recommendations
•

Adopt a U.S. immigration policy that comports with international human rights
obligations, including the use and conditions of immigration detention.

•

Only subject immigrants to detention if there has been an individualized finding that he
or she poses a security threat or is a flight risk. Refugees have additional rights under
the Refugee Convention and should not be subject to ongoing detention.

•

Use alternatives to detention such as electronic monitoring or participation in the
Intensive Supervision Appearance Program for those who are potential flight risks.

•

Revise parole policies, especially refugees, allowing release while awaiting hearings.

•

Enact Federal regulations to make National Detention Standards binding.

Recommendations Regarding Northwest Detention Center:
•

Provide better access to attorneys and respect the attorney-client privilege. At a
minimum, ICE and The GEO Group should remove obstacles within their control that
discourage lawyers from taking cases of those in detention.

•

Conduct better training for officers on issues of detention, such as mental health,
attorney-client confidentiality, and grievance procedures.

•

Ensure resources and printed materials, especially the Detainee Handbook, are
available in all of the languages spoken by detainees, and ensure access to interpreters
in all languages.

•

Implement structural changes to the NWDC facility to increase the privacy of those
living in detention.

•

Provide food to detainees in adequate quantity and quality, and ensuring that meals
comply with regular FDA and federal food safety standards.

•

Ensure that detainees with mental health problems are not subjected to punitive
measures such as being placed in segregation, and providing adequate onsite mental
health support to assess and treat needs of detainees.

•

Ensure immediate and adequate medical care for emergency medical situations, and
ensuring access to treatment for severe pain.

•

Respect the right to family unity by reducing the restrictions on visitations, allowing
contact visits, and lengthening the visitation time.

•

Improve telephone access and ensuring that telephones are in good working order.

•

Provide detainees with safer and more efficient methods of having grievances
addressed in detention.

•

Given the reality of medium to long-term detention, improve the quality and quantity of
leisure activities and enhance educational activities.

10

I. Introduction
The dramatic increase of immigration detention in the United States within the last decade has
garnered national and international attention. Across the country, nearly 30,000 immigrants are detained
daily pending the final outcome of their immigration cases, some in local jails and others in privately run
detention centers such as the Northwest Detention Center in Tacoma, Washington.1 For the last few
years, the federal government has gridlocked trying to reform immigration law, universally acknowledged
as broken. While the political gridlock continues, the current Administration has increased enforcement of
our broken immigration laws, resulting in a dramatic increase in detention and deportation.
Although the politics of immigration policy play out regularly in the media, until very recently, issues
around detention of immigrants received little attention. However, recent deaths in detention have raised
serious questions about oversight of detention centers, conditions within detention centers, and the
overall numbers of immigrants who are caught within the web of detention and deportation. Many nongovernmental and public interest organizations are working to raise awareness about the issues
surrounding detention, including challenges to abuses within the detention centers. However, U.S. law
does not adequately protect immigrant detainees. Consequently, some organizations are looking
increasingly to international human rights law and international human rights bodies to advocate for the
rights of detained immigrants.
Locally, very few residents of Western Washington are aware that immigration detention exists in our
own backyard. The Northwest Detention Center (NWDC) was built amid controversy in April, 2004. It was
originally contracted to house 500 immigrants.2 With some structural changes inside the pods, or living
centers, the NWDC now has the capacity to detain 1,000 individuals.3
Many groups in the Tacoma-Seattle area have addressed the needs of detainees in the NWDC and
have worked tirelessly to raise awareness about the facility and its role in the larger immigration policy
landscape. Until now, however, very little has been documented about the actual conditions inside the
NWDC, the people inside, and how this facility and its problems reflect the national immigration detention
policy. This report seeks to provide a more detailed study of the actual conditions and violations of rights
taking place within the NWDC, and to document how these actions constitute violations of both
international human rights and existing domestic laws.

Honorable Julie L. Myers, Asst. Secretary of Homeland Security for ICE, Remarks at the Detroit Economic Club (April 7, 2008), available at
http://www.ice.gov/doclib/pi/news/testimonies/ice_detroit_econ_club_18a.doc (last accessed May 27, 2008).
2 NWDC tour with Jack Bennett, Asst. Field Office Director for NWDC, in Tacoma, WA (Feb. 25, 2008).
3 The GEO Group, Inc., Northwest Detention Center, available at http://www.thegeogroupinc.com/northamerica.asp?fid=105 (last accessed May 27,
2008).
1

11

II. Methodology
This report is based on an assessment of the conditions of detention at the Northwest Detention
Center (NWDC) in Tacoma, Washington. The Seattle University School of Lawʼs International Human
Rights Clinic,4 in collaboration with Hate Free Zone5 conducted all research between September 2007
and April 2008.
Our researching of detention conditions consisted primarily of 41 interviews of detainees or recently
released detainees and two tours of the detention facility over a period of eight months. We also
interviewed four attorneys who represent detained individuals, and one family member. Each interview
was conducted by two legal interns under the supervision of an attorney. Nearly all interviews ranged
between one to two hours. Additionally, we engaged in informal conversations with the facility staff, other
attorneys representing detainees at NWDC and family members of detained individuals.
The detainees we interviewed had either been referred to us by their attorneys, community
organizations, family members, other interviewed detainees, or were taken from the posted hearing
docket that was available outside the courtroom at NWDC.
Detainee interviews took place in one of four attorney interview rooms located near the entrance of
the NWDC. Interviews were voluntary and we assured detainees that their actual names would not be
used in this report. The interviewed detainees consisted of both men and women, and detainees who
had been in long-term (several months or years) and short-term (less than three months) detention.
Detainees came from 23 different countries, from five continents. Though a majority of the detainees
spoke either English or Spanish, we also interviewed detainees who spoke only Russian, Haitian Creole,
and Mandarin with the assistance of interpreters. There were also detainees we were unable to interview
because we were unable to timely locate interpreters who spoke their language, such as Mam and
Punjabi. Finally, the interviewed detainees came from different pods, or dormitories, allowing for a more
thorough assessment of living conditions throughout NWDC.
During the interviews, our questions were open-ended and non-leading regarding the conditions at
NWDC, taking care not to suggest specific areas of concern or problematic conditions. When the
detainee described an issue, we then followed up and asked more specific questions, but then only in a
non-leading manner. Toward the end of the interview, after the interviewee had discussed his or her
primary concerns, we asked non-leading questions about other specific conditions in order to see if other
detaineesʼ concerns could be corroborated. We did not include information in this report that could not be
corroborated through the interviews or research.
On the whole, we had reasonably regular access to detainees. However,
on
occasion,
we
encountered several obstacles while arranging and conducting the interviews which both corroborated
problems described to us by attorneys representing detainees as well as prevented us from interviewing a
larger sample of the detainee population. A more detailed description of those obstacles can be found in
the Conditions section on attorney access.

This report was largely student-driven work under the tutelage of Professors Gwynne Skinner and Raven Lidman of Seattle University School of
Law’s International Human Rights Clinic, with the assistance of Deena Ledger, Hate Free Zone’s Human Rights Associate. Spring semester students
who conducted interviews and drafted this report were: Kevin Cahill, Timothy Cole, Brian Howe, Renee Lewis, Lena Madden, Riddhi Mukhopadhyay,
Andre Olivie, and Alyce Perry. Students from the Fall semester who also conducted interviews and contributed research were: Forrest Carlson,
Amelia Guess, Natalie Hansen, Raj Khunkhun, Grant Manclark, and Jillian Pressnall.
5 Hate Free Zone advances the fundamental principles of democracy and justice at the local, state and national levels by building power within
immigrant communities, in collaboration with key allies. See its webstie at http://www.hatefreezone.org.
4

12

Finally, we have chosen to measure the conditions of the NWDC primarily against what is required
by international human rights law. However, we also researched and addressed domestic law
requirements, including constitutional law and statutes, regulations and standards.

13

III. Background of Immigrant Detention in the United States
The detention of immigrants pending the resolution of their legal status and potential deportation was
not always the norm. Immigrants were not detained at all until the 1890s when the United States opened
its first federal immigration detention center in Ellis Island, New York.6 A shift in immigration policy
occurred in 1952 when Congress passed the Immigration and Nationality Act (INA), which eliminated
detention except in cases in which an individual was a flight risk or posed a serious risk to society.7 Ellis
Island subsequently closed.

A. Shift in Immigration Policy Led to Dramatic Increases in Detention
The 1980s saw the beginnings of a shift in detention policy, largely influenced by mass Cuban and
Haitian immigration.8 In the 1990s, however, the United States made a monumental shift in immigration
policy, using detention as a primary means of enforcement, regardless of whether the individual was a
flight risk or serious risk to society. In 1996, Congress passed legislation that dramatically expanded the
use of detention, with the Illegal Immigrant Reform and Immigrant Responsibility Act (IRIRA) and
Antiterrorism and Effective Death Penalty Act (AEDPA), collectively referred to as the 1996 laws.9 These
laws drastically amended the INA by expanding mandatory detention without bond provisions to include
large categories of immigrants, including lawful permanent residents (LPRs) who commit sometimes
minor crimes,10 and those who attempt to enter the country without proper paperwork, including refugees
escaping persecution.
The 1996 laws also established a new procedure called Expedited Removal that allows immigration
inspectors to summarily remove all immigrants arriving without proper documentation, including refugees.
This is done without a hearing, and detention is mandated for the time it takes to remove or deport that
person to their country of origin. Refugees and asylum seekers who pass an initial “credible fear” hearing
are held until their status is determined, which can take months and even years, unless there is a
compelling humanitarian or medical need.11 Originally, Expedited Removal was required only at the
border, but was expanded in 2004 to include all undocumented immigrants apprehended within 14 days
of entry and 100 miles of the border in some Border Patrol sectors.12
Due to these drastic changes in immigration law, the number of individuals detained has grown
dramatically since the 1990ʼs. In 2001, the U.S. detained approximately 95,000 individuals. By 2007, the
number of individuals detained annually in the U.S. had grown to over 300,000.13 The average daily
population of detained immigrants has grown from approximately 5,000 in 1994, to 19,000 in 2001, and to
“Ellis Island-History,” http://www.ellisisland.org/genealogy/ellis_island_history.asp, (last accessed Apr. 1, 2008).
INA, codified at 8 U.S.C. §§ 1101et seq. (1952). See also Human Rights Watch, Forced Apart: Families Separated and Immigrants Harmed by United
States Deportation Policy, Vol. 19, No.3(G),(June, 2007), available at http://hrw.org/reports/2007/us0707 (last accessed May 23, 2008).
8 Human Rights Watch, “Chronic Indifference: HIV/AIDS Services for Immigrants Detained by the United States,” 7, Vol. 19 No.5(G), (December
2007) available at http://hrw.org/reports/2007/us1207 (last accessed May 20, 2008) (hereafter Chronic Indifference).
9 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (hereinafter IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-546 (1996); AntiTerrorism and Effective Death Penalty Act of 1996 (hereinafter AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996).
10 The types of crimes under the 1996 laws categorized as “aggravated felonies” under the INA were also broadened to include even non-violent
crimes. Judicial review for many of the “criminal alien” categories was removed so that judges could not weigh factors like personal ties to the U.S.,
long term residence (especially begun at a young age), service in the Armed Forces, evidence of hardship if deported, history of employment, existence
of property or business ties, proof of genuine rehabilitation and other factors. IIRIRA; AEDPA; Human Rights Watch, Forced Apart: Families
Separated and Immigrants Harmed by United States Deportation Policy, Vol. 19, No. 3(G), 16-34, July 2007, available at
http://www.hrw.org/reports/2007/us0707 (last accessed May 27, 2008).
11 ICE, Directive 7-1.0, “Parole of Arriving Aliens Found to Have a ‘Credible Fear’ of Persecution or Torture,” effective date November 6, 2007.
12 United States Commission on International Religious Freedom, Report on Asylum Seekers in Expedited Removal, Feb. 8, 2005.
13 Gary Mead, Deputy Director, Office of Detention and Removal Operations, Regarding a Hearing on “Problems with ICE Interrogation, Detention
and Removal Procedures,” Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law, 2-3 (Feb. 13, 2008), available
at http://judiciary.house.gov/media/pdfs/Mead080213.pdf (last accessed May 27, 2008).
6
7

14

30,000 by the end of 2007.14 In 2004, Congress authorized the creation of 40,000 new detention beds by
2010, which will bring detention capacity close to 80,000.15 ICEʼs stated goal is to deport all removable
aliens by 2012. Given the growing practice of holding those in deportation proceedings in detention, the
numbers will only grow without a policy change at the federal level.16

Figure 117

ICE reported that for all immigrant detainees, the average stay in 2003 was 64 days, with 32 percent
detained for 90 days or longer.18 Asylum seekers granted refugee status spent, on average, 10 months in
detention, with the longest period being 3.5 years.19
ICE pays an average per diem rate of $95 for each immigrant held in detention. Private prison companies
tend to negotiate higher per diem rates than local city and county jails. The highest known per diem rate
ICE paid was $225 for each detainee placed into a GEO facility in Queens, N.Y. Regardless, if DHS were
to reach its stated goal of removing the estimated 12 million people without legal immigration status,
detention based on current practices would cost the federal government $94 billion.20

General Accounting Office, Alien Detention Standards, Telephone Access Problems Were Pervasive at Detention Facilities; Other Deficiencies Did
Not Show a Pattern of Noncompliance, July, 2007, (hereinafter GAO ADS Report, (2007)); Statement of Joseph Greene, Acting Deputy Executive
Associate Commissioner for Field Operations, INS, 2002 Review of Justice Immigration Detention Policies, Hearing Before the Subcommittee on
Immigration and Claims of Committee on the Judiciary, House of Representatives, the December 19, 2001, available at
http://commdocs.house.gov/committees/judiciary/hju76810.000/hju76810_0f.htm (last accessed May 27, 2008).
15 Intelligence Reform and Terrorism Prevention Act of 2004 (hereinafter IRTPA) Pub.L. 108-458, Dec. 17, 2004, 118 Stat. 3638 § 5204.
16 ENDGAME, Office of Detention and Removal Strategic Plan, 2003-2012, Detention and Removal Strategy for a Secure Homeland, taken off DHS
website, but now available at http://www.aclum.org/pdf/endgame.pdf (last accessed May 27, 2008).
17 Statement of Joseph Greene, Acting Deputy Executive Associate Commissioner for Field Operations, INS, 2002 Review of Justice Immigration
Detention Policies, Hearing Before the Subcommittee on Immigration and Claims of Committee on the Judiciary, House of Representatives, the
December 19, 2001, available at http://commdocs.house.gov/committees/judiciary/hju76810.000/hju76810_0f.htm (last accessed May 27, 2008).
18 Bill Frelick, Amnesty International, USA, “U.S. Detention of Asylum Seekers and Human Rights” (2005), available at
http://www.migrationinformation.org/USFocus/display.cfm?ID=296 (last accessed March 8, 2008).
19 Physicians for Human Rights and Bellevue/NYU Program for Survivors of Torture, “From Persecution to Prison: The Health Consequences of
Detention for Asylum Seekers,” July 2003, available at http://physiciansforhumanrights.org/library/documents/reports/report-perstoprison-2003.pdf
(last accessed May 27, 2008).
20 CNN, ICE: Tab to Remove Illegal Residents Would Approach $100 Billion, http://edition.cnn.com/2007/US/09/12/deportation.cost (last
accessed May 27, 2008).
14

15

B. Operation of and National Standards for Detention Centers
After the 9/11 attacks, Congress passed the Homeland Security Act of 2002 (HSA), which eliminated
the Immigration and Naturalization Service (“INS”) and created the Department of Homeland Security
(DHS).21
DHS has several agencies, including US Citizenship and Immigration Services (USCIS),
Customs and Border protection (CBP), and Immigration and Customs and Enforcement (ICE).22 ICE is
made up of four divisions, one of which includes the Office of Department of Removals (DRO), which is
responsible for the detention of the individuals during removal proceedings.23
Individuals in detention are held in four different types of facilities: Service Processing Centers (owned
and operated by ICE), Contract Detention Facilities (owned and operated by private corporations),
Intergovernmental Service Agreement Facilities (county and city jails), and some federal Bureau of
Prisons Facilities.24
After increased pressure from outside organizations and negotiations with the American Bar
Association (ABA) Commission on Immigration, the INS (now ICE) adopted national detention standards
– 36 in all - that took effect in 2001.25 These standards apply to all privately run detention centers and
cover issues such as access to legal services and materials, medical care, grievance procedures, and
detainee transfers. (More detailed descriptions of the National Detention Standards are discussed below
in the sections on applicable domestic law and within the separate sections dealing with specific
conditions). Although these standards are supposed to be internally applied within contract detention
facilities, they are not legally binding or enforceable.
ICE, through the DRO, created the Detention Standards Compliance Unit (DSC), a unit charged with
ensuring that individuals are detained “in accordance with ICE National Detention Standards” and which
“provides ICE and the public the assurance that detainees in ICE custody…are detained under
appropriate conditions of confinement.”26 DRO is responsible for conducting annual reviews to ensure
compliance with these standards.27 ICE created another division to provide oversight, the ICE Office of
Professional Responsibility (OPR).28 This unit is responsible for providing “enhanced oversight of DRO
facilities to ensure that detention standards are met.”29
With regard to public oversight of the standards, the ABA recruits attorneys from the private bar as
part of its Detention Standards Implementation Initiative to tour detention facilities and report on their
observations as a means of public oversight. Volunteers submit their drafts to the ABA, who review it and
submit it to the ICE Detention Standards Compliance Unit; however, the reports are not publicly
available.30
In April, 2008, several groups filed a lawsuit demanding that DHS issue legally enforcement
regulations concerning conditions of detention.31

Homeland Security Act, 6 U.S.C. § 111, PL 107-296, 116 Stat. 2135 (2002).
DHS, “Department Components,” http://www.dhs.gov/xabout/structure (last accessed April 19, 2008).
23 ICE Fact Sheet, http://www.ice.gov/pi/news/factsheets/040505ice.htm (updated October 1, 2005) (last accessed April 21, 2008).
24 DHS, Office of Inspector General, Treatment of Immigration Detainees Housed at Immigration and Customs Enforcement Facilities, OIG-07-01
(hereinafter DHS OIG Report), 2 (2006), available at http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_07-01_Dec06.pdf (last accessed March 31,
2008).
25 DHS ICE, Detention Operations Manual (adopted 2000, updates to 2006) (hereafter DOM), http://www.ice.gov/pi/dro/opsmanual/index.htm
(last accessed May 20, 2008). In 2006, two additional standards were added. See note 130, infra.
26 ICE Fact Sheet, November 2, 2006, www.ice.gov/pi/news/factsheets/dro110206.htm (last accessed March 25, 2008).
27 GAO ADS Report, 2 (2007).
28 ICE Fact Sheet, November 2, 2006, www.ice.gov/pi/news/factsheets/dro110206.htm (last accessed March 25, 2008).
29 Ibid.
30 ABA Commission on Immigration, The Detention Standards Implementation Initiative,
http://www.abanet.org/publicserv/immigration/detention_standards.shtml (last accessed May 27, 2008).
31 Immigrants Challenge U.S. System of Detention, Nina Bernstein, New York Times, May 1, 2008,
http://www.nytimes.com/2008/05/01/nyregion/01detain.html?_r=1&partner=rssnyt&emc=rss&oref=slogin (last accessed May 13, 2008).
21
22

16

C. Investigations Repeatedly Find Inhumane Conditions and Abuse in Detention Centers
Despite adoption of the National Detention Standards and ICEʼs oversight, multiple reports issued by
the U.S., government, NGOs, and the United Nations have detailed continuing abuses within U.S.
immigrant detention facilities.
1. ABA and UNHCR Note Major Deficiencies
The ABA and United Nations High Commissioner for Refugees (UNCHR) have both
conducted investigations of detention conditions. Although the reports were not publicly
released, the American Civil Liberties Union (ACLU) was able, through litigation, to obtain
copies of 200 reviews The ABA and UNCHR conducted between 2002 and 2005
concerning detention conditions.32 Based on these reviews, the ACLU reported to the
United Nations (UN) Special Rapporteur in May 2007 that not only had the U.S. “failed to
promulgate binding minimum standards for the conditions of confinement for detained
immigrants,”33 the U.S. “has failed to ensure that detention facilities comply with the
nonbinding standards that exist.”34 The ACLU also stated that the management of
immigration detention is “further marred by ineffective oversight, lack of accountability,
and lack of transparency.”35
2. NGO Reports Also Note Serious Problems
In May 2007, the ACLU of New Jersey released a report critical of conditions of
immigration detention at local jails. In the report, the ACLU documented detainee reports
of physical and verbal abuse, inadequate medical care to long-term immigration
detainees, inadequate dental care, lack of phone and library access, lack of family
access, and overcrowding inappropriate for prolonged detention.36 It found that its
detention standards “fall far short of providing even the basic necessities for detainees
and are rarely in compliance with the standards.”37 The report also noted that “[l]ack of
federal regulations and government oversight has led to inconsistent and inhumane
treatment of detainees in local jails” and “long-term detention continues to be a problem
in New Jerseyʼs county jails.”38
Human Rights Watch (HRW), an international human rights organization, has repeatedly
focused on immigration detention in the United States as a serious human rights concern.
The most recent report released in December, 2007 describes the experience of HIV
positive detainees whose HIV/AIDS treatment was “denied, delayed, or interrupted,
resulting in serious risk and often damage to their health.” HRW notes that detention
facilities failed to consistently treat and monitor HIV/AIDS patients, failed to ensure
continuity of treatment during transfer, and failed to ensure confidentiality of medical
care.39 Its report contained several recommendations for OIG including:
• Increase the number and quality of inspections;
• Ensure transparency and accountability to the public by converting the detention
standards to federal administrative regulations;
• Ensure that the current system be improved for tracking complaints from
detainees so that detainees who complain are protected from retaliation;

ACLU, Substandard Conditions, 2, citing Qrantes-Hernandez v. Gonzales, No. CV 82-1107 (C.D. Cal., 2006).
ACLU Substandard Conditions, 1.
34 Ibid.
35 Ibid.
36 ACLU, Behind Bars: The Failure of the Department of Homeland Security to Endure Adequate Treatment of Immigration Detainees in New Jersey,
1-15 (2007), available at http://www.aclu-nj.org/downloads/051507DetentionReport.pdf (last accessed May 28, 2008)(hereafter Behind Bars).
37 Behind Bars, 4.
38 Behind Bars, 1.
39 Human Rights Watch, “Chronic Indifference: HIV/AIDS Services for Immigrants Detained by the United States,” Vol. 19 No.5(G), (December
2007) available at http://hrw.org/reports/2007/us1207 (last accessed May 20 2008) (hereafter Chronic Indifference).
32
33

17

•
•

Guarantee that all immigrants detained by ICE receive notification of complaint
procedures in their native languages; and
Increase oversight of conditions of detention.40

The immigration detention system garnered greater public scrutiny when the Womenʼs
Commission for Refugee and Children and Lutheran Immigration and Refugee Services
revealed the inner workings of the T. Don Hutto “Residential Center” where entire families
are detained in prison-like settings.41 With the illustration of families, including infants,
wearing prison garb and living in a penal like setting, the notion that immigration detention
is not punitive in nature became harder to defend. Additionally, the report revealed
conditions issues not specific to family detention including inadequate medical care
including lack of prenatal care.
ICEʼs detention facilities have also been the subject of litigation. On June 13, 2007, the
ACLU filed a class action lawsuit alleging inadequate medical and mental health care at
the San Diego Correctional Facility. Included in this lawsuit was Francisco Castaneda,
who spent eleven months in detention and made multiple attempts to get treatment for
what turned out to be penile cancer. He was denied treatment that could have saved his
life.42 An additional lawsuit was filed at approximately the same time against the San
Pedro facility to stop drugging detainees in order to facilitate their deportation.43 The San
Pedro facility also failed to treat a transgendered woman, Victoria Arrellano, with
HIV/AIDS who died during her detention.44 In October, 2007, officials closed the San
Pedro facility to “carry out preventative maintenance” transferring 400 detainees to
locations around the country, including the Northwest Detention Center, without notice to
attorneys or families.45
3. U.S. Government Identified Similar Deficiencies
Deplorable conditions of immigration detention are not only reported by various civil rights
and human rights organizations, the U.S. government has reported similar deficiencies.
The U.S. Government Accountability Office (GAO)46 was asked to review ICEʼs
compliance with its own standards, its compliance review process, and how detainee
complaints are processed.47 When it observed 23 facilities from May 2006 through May
2007, GAO documented problems involving inadequate medical care, lack of access to
legal materials, inadequate facility grievance procedures, and overcrowding. It also found
systemic telephone problems, singling out the Northwest Detention Center as
problematic. At facilities that used this system, GAO auditors encountered “significant
problems in making connections to consulates, pro bono legal providers, or the DHS
Office of the Inspector General (OIG) complaint hotline.”48

Chronic Indifference, 4-5.
Women’s Commission for Refugee Women and Children and Lutheran Immigration and Refugee Service, “Locking Up Family Values: The
Detention of Immigrant Families,” February 2007, available at http://www.womenscommission.org/pdf/famdeten.pdf, (last accessed May 20, 2008)
(hereafter Locking Up Family Values).
42 American Civil Liberties Union, ACLU Sues Over Lack of Medical Treatment at San Diego, press release,
http://www.aclu.org/immigrants/detention/30095res20070613.html (last accessed May 28, 2008).
43 ACLU of Southern California, ACLU/SU Investigations of Forced Drugging, http://www.aclu-sc.org/News/OpenForum/102460/102471/ (last
accessed May 28, 2008). ICE admitted to the drugging and has officially ended this policy. See U.S. Ends Forced Drugging of Immigrants After
Shocking Lawsuit, http://www.aclu-sc.org/news_stories/view/102757 (last accessed May 28, 2008).
44 Chronic Indifference, 16.
45 ABA Commission on Immigration, Open Letter to ICE Assistant Secretary Julie L. Myers, Regarding San Pedro Transfers, October 24, 2007,
available at http://www.abanet.org/publicserv/immigration/san_pedro_transfers_ltr102407.pdf (last accessed May 28, 2008).
46 The U.S. Government Accountability Office (GAO) is an independent, nonpartisan agency that works for Congress, investigating how the federal
government spends taxpayer dollars. See http://www.gao.gov/about/index.html (last accessed April 20, 2008).
47 GAO ADS Report, Highlights, (2007), available at http://www.gao.gov/new.items/d07875.pdf (last accessed Mar. 9, 2008).
48 Ibid.
40
41

18

The Homeland Security Act also established an Office of Inspector General (OIG), which
is responsible for ensuring independent and objective audits, inspections, and
investigations of the operations of DHS.49 In December 2006, the OIG found numerous
violations and criticized the amount of oversight in ICE contract facilities and the
sufficiency of the ICE compliance monitoring system. The 2006 OIG report found
problems with timely initial and responsive medical care; non-compliance with disciplinary
policy; inadequate process for detainees to report abuse or civil rights violations; no
handbooks telling detainees of their rights, responsibilities, and rules; inadequate
handbooks in other languages.50 These findings are consistent with the independent
reporting of outside organizations.
4. Poor Detention Conditions in the International Spotlight
From April 30 to May 18, 2007, the United Nations Special Rapporteur of the Commission
on Human Rights on the Rights of Migrants, Jorge Bustemante, visited the United States.
The Special Rapporteur met with NGOʼs and immigrants who had spent time in detention,
and toured one detention facility.51 On March 5, 2008, he issued a scathing report against
the United States and the immigration detention system.52 In particular, the Special
Rapporteur noted that the U.S. detention policy impaired an individualʼs right to obtain
counsel and present their case; that detainees were often transferred thousands of miles
from their homes without notice to their family or counsel; that individuals were often
detained in remote locations that discourage private attorneys from taking cases; that
access to mail and property is often limited and creates a significant obstacle. Notably,
the Special Rapporteur attributed the use of mandatory and prolonged detention as a
coercive mechanism, pressuring those with potential claims for relief to abandon their
claims and self deport.53
Additionally, on October 12, 2007, attorneys with Rights Working Group and the
Womenʼs Commission for Refugee Women and Children testified before the InterAmerican Commission on Human Rights regarding the detention of juveniles and the
conditions of detention generally.54 The testimony of Kerri Sherlock of the Rights Working
Group focused primarily on multiple conditions issues and noted that the national
detention guidelines are regularly violated. She highlighted widespread reports of lack of
medical care for chronic conditions; shackling; use of solitary confinement for disciplinary
purposes; inability to visit with family members; and difficulty accessing legal counsel.
The group requested the Commission to issue an advisory opinion on the prolonged
detention of children, families, and asylum seekers, and to visit select detention centers in
the U.S. or alternatively, to appoint a Special Rapporteur to investigate and report on the
detention of refugees and migrant children.55 The Human Rights Commissionʼs response
is currently pending.
5. All Reports Consistently Recommend Binding National Detention Standards
All of the preceding reports have recommended, in addition to specific recommendations
regarding conditions and care, that DHS codify the detention standards, making them
6 U.S.C.§ 113(b).
DHS OIG Report, 1 (2006), available at http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_07-01_Dec06.pdf (last accessed March 31, 2008).
51 Jorge Bustamante, “Report of the Special Rapporteur on the human rights of migrants,” Addendum, Mission to the United States of America,
March 5, 2008, available at http://daccessdds.un.org/doc/UNDOC/GEN/G08/112/81/PDF/G0811281.pdf?OpenElement (accessed on May 20
2008) (hereafter Special Rapporteur Report).
52 Special Rapporteur Report.
53 Ibid, 16-17.
54 “Rights Working Group and Women’s Commission for Refugee Women and Children Testify Before the Inter-American Commission on Human
Rights, Speakers call for better treatment of vulnerable populations in detention,”
http://www.womenscommission.org/projects/detention/iac_detention.php (last accessed May 28, 2008).
55 Testimony of Kerri Sherlock Talbot before the Inter-American Commission on Human Rights, available at
http://www.womenscommission.org/pdf/OAS_Testimony_KSherlock.pdf (last accessed May 28, 2008).
49
50

19

legally enforceable, as one important step toward proper oversight of detention
conditions. In a 2007 GAO report, ICE officials said that they were currently in the
process of revising the National Detention Standards based on American Correctional
Association Fourth Edition, Performance-Based Standards for Adult Local Detention
Facilities.56 ICE Assistant Secretary Myers agreed to meet with some NGOs to discuss
the revision of the detention standards; however the process is still not open and
transparent to the public.57

56
57

GAO ADS Report, 8 (2007).
Chronic Indifference, 15, n. 39.

20

IV. International Human Rights Law
As mentioned above, this report measures conditions of immigrant detention primarily against
international human rights law. International human rights are rights that individuals possess solely by
virtue of being human. In a world of diverse languages, different cultures and competing religions,
common ground can often be difficult to find. However, there are certain core values which are accepted
by all civilized nations and which are incorporated into a large body of universal rights and freedoms to
which all people are entitled. These rights and freedoms are found in human rights law.
Modern international human rights law emerged after WWII, when the abomination of the Nazi
regime finally pushed the international community to organize and develop a framework for protecting the
basic rights of every individual. In 1945, the United Nations (UN) was formed through the Charter of the
United Nations, a legally binding treaty.58 Under the U.N. Charter, the United States and other member
nations agreed that one of the purposes of the U.N. was “promoting and encouraging respect for human
rights and for fundamental freedoms for all…”59 The U.N. established what it believed ought to be the
basic human rights of every individual through the Universal Declaration of Human Rights (UDHR).60
Shortly thereafter, the U.N. developed the International Covenant of Civil and Political Rights (ICCPR) and
the International Covenant on Economic, Social and Cultural Rights (ICESCR).61 These two covenants,
along with the UDHR are known today as the “International Bill of Rights.”62

A. Treaties
Treaties are international contracts or agreements made between two or more nations that
become binding when signed and ratified. Under the United States Constitution, “all treaties shall
be the supreme Law of the Land.”63 Human rights treaties have been drafted by the U.N. and
made available for signature and ratification to all 192 U.N. member states. However, signing a
treaty does not always automatically mean that a nation is legally bound by that treaty.
Depending on a countryʼs domestic policy, further action may need to be taken by that country for
a treaty to become binding. In the United States, the President may sign a treaty, but the nation
is not legally bound to the obligations of that treaty until the Senate ratifies it and enacts
implementing domestic legislation.64 However, even if implementing legislation is not enacted,
once a treaty is signed, the signatory is obligated to refrain from taking any action which defeats
the object and purpose of the treaty.65
Reservations and Understandings to treaties must also be taken into account when assessing the
legal obligations set forth in a treaty. A countryʼs reservation may set out exceptions or special
U.N. Charter June 26, 1945, 59 Stat. 1031, T.S. 993, 3 Bevans 1153, entered into force Oct. 24, 1945, art.1, para. 1-4. (hereafter UN Charter).
U.N. Charter art. 1, para. 3.
60 Barbra Macgrady, “Resort to International Human Rights Law in Challenging Conditions in U.S. Immigration Detention Centers,” 23 Brook J. Int’l
271 (1997).
61 See Universal Declaration of Human Rights General Assembly resolution 217 A (III)f 10 December 1948 (hereinafter UDHR); International
Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171,
entered into force Mar. 23, 1976, ratified by U.S. September 8, 1992 (hereinafter ICCPR); International Covenant on the Economic, Social and Cultural
Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976, (signed
by U.S. 5 Oct 1977). 3 (hereafter ICESCR).
62 See U.N. Factsheet No. 2 (Rev 1), The International Bill of Human Rights, available at http://www.unhchr.ch/html/menu6/2/fs2.htm (last accessed
May 28, 2008).
63 U.S. Const. art. VI, cl. 2.
64 Medellin v. Texas, __ U.S. __,128 S.Ct. 1346, 1356 (2008) (“while treaties ‘may comprise international commitments…they are not domestic law
unless Congress has either enacted implementing statutes, or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these
terms.”).
65 Vienna Convention on the Law of Treaties, art. 18 (a), May 23, 1969, 1155 U.N.T.S. 331, (hereafter Vienna Convention).
58
59

21

terms to the treaty agreement.66 Under international law, a country has the right to make
reservations to any section of a treaty as long as the reservation does not defeat the object and
purpose of that treaty.67 The United States often makes reservations to human rights treaties.
Such reservations include stating that the treatyʼs obligations will in no way infringe on the
Constitution of the United States.

B. Customary International Law
Another source of international law is customary international law (CIL). CIL is the set of norms
established through a general consensus of the international community and is evidenced by the
general and consistent practice of States out of a sense of legal obligation.68 A principle that
becomes CIL is binding on all nations, even on new states and those states that have remained
silent regarding such customs.69 If a state is found to have been a persistent objector, however, it
is not be bound to the custom to which it has objected.70 However, there are certain violations of
international norms such as genocide, torture and extrajudicial killings which are believed to be so
appalling that under international law, no state is allowed to contract out of or persistently object
to such international norms.71 These norms are known as jus cogens.
It is important to note that since the founding of our nation, customary international law has been
72
part of United States law. Treaties and other customary international law have been directly and
73
indirectly applied by federal courts for more than 200 years.
Importantly, human rights have
74
consistently been treated as fundamentally important to our nationʼs sense of justice and
treaties and customary international law protecting human rights should be strongly enforced in
75
our domestic courts as well.

C. Specific Rights under International Human Rights Law
1. Right to Liberty: Freedom from Arbitrary Detention
The right to liberty and freedom from arbitrary prolonged detention is a fundamental right,
and applies to all persons regardless of nationality, citizenship, or immigration status.76 A
state may be found in violation of international law if, “as a matter of state policy, it
practices, encourages, or condones… prolonged arbitrary detention.”77 Detention
without due process is clearly considered arbitrary; however, detention may also be found
to be arbitrary if “it is incompatible with the principles of justice or with the dignity of the
human person.”78
Vienna Convention, art. 41.
Vienna Convention, art. 18, Sec. 2. A reservation is defined as “a unilateral statement…made by a State, when signing, ratifying, accepting,
approving, or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to
that State.” Vienna Convention, art. 2.1(d) Sec. 1.
68 Restatement (Third) of Foreign Relations Law §102.2 (1990) (hereinafter Foreign Relations Restatement).
69 Foreign Relations Restatement §102, cmt. b.
70 Foreign Relations Restatement §102, cmt. d.
71 Foreign Relations Restatement §102, cmt. k.
72 See Jordan J. Paust, “Customary International Law and Human Rights Treaties Are Law of the United States,” 20 Mich. J. Int'l L. 301 (1999); see also
Louis Henkin, Foreign Affairs and the United States Constitution 234, 510 n.20 (2 ed. 1996).
73 See U.S. v. The Paquete Habana, 189 U.S. 453 (1903); see also Filartiga v. Pena-Irala, 630 F.2d 876, 880-887 (2d Cir., 1980).
74 See, e.g., United States v. Haun, 26 F. Cas. 227, 230-32 (C.C.S.D. Ala., 1860) (No. 15, 329) (stating that Jefferson was concerned about "violations of
human rights" by the citizens of the United States).
75 For instance, the U.S. Supreme Court, in deciding whether the juvenile death penalty is unconstitutional, found relevant the fact that the
International Convention on the Rights of the Child prohibits the death penalty for juveniles and has been ratified by every country except the United
States and Somalia. Roper v. Simmons, 543 U.S. 551, 576 (2005).
76 This fundamental human right has been codified in all major human rights treaties and can be found in most developed legal systems throughout the
world. Foreign Relations Restatement §102, cmt. k. This fundamental right applies to all persons regardless of nationality, citizenship, or immigration
status. Foreign Relations Restatement §102, cmt. j. Article 9 (1) of the ICCPR states “[e]veryone has the right to liberty and security of person. No
one shall be subjected to arbitrary arrest or detention.”
77 Foreign Relations Restatement §702, cmt. e.
78 Ibid.
66
67

22

The Human Rights Committee (HRC), the authoritative body which reviews complaints of
violations of the ICCPR, has held that the use of detention should be reviewed
periodically to justify ongoing detention.79 When a State cannot provide adequate
justification for prolonged detention, detainees should be released.80 The HRC also
reemphasized that arbitrariness “must not be equated with ʻagainst the lawʼ but be
interpreted more broadly to include such elements as inappropriateness and injustice.”81
2. Prohibition on Torture and Cruel, Inhuman or Degrading Treatment
The prohibition against torture and cruel, inhuman or degrading treatment (CIDT) is a
fundamental human right that has been recognized as a principle of customary
international law.82 It has been codified in all major human rights treaties, including the
ICCPR and the Convention against Torture (CAT), both of which have been ratified by the
U.S.83 Under Article 7 of the ICCPR, the U.S. is prohibited from subjecting anyone to
torture or to cruel, inhuman or degrading treatment or punishment.84 The underlying goal
of Article 7 is to protect the physical and mental integrity and the dignity of every
individual.85 In addition to preventing and protecting against CIDT, the U.S. is also
obligated to adhere to Article 10(1) of the ICCPR, which requires that “[a]ll persons
deprived of their liberty shall be treated with humanity and with respect for the inherent
dignity of the human person.”86 The prohibition against CIDT includes physical pain as
well as mental suffering.87
Under both the ICCPR and the CAT, the United States is not only prohibited from
inflicting CIDT, but is also obligated to make sure all people within its jurisdiction—
regardless of whether or not they are lawfully within its jurisdiction—are protected against
CIDT.88 Under the CAT, the United States is also obligated to ensure that all government
officials are complying with the Conventionʼs obligations concerning detained or
imprisoned persons.89
It is important to note that the United States has attached several reservations,
understandings and declarations to the prohibition of CIDT under both the ICCPR and
CAT. In each reservation, the United States has stated that it is bound to prevent CIDT
only to the extent such conduct violates the Fifth, Eighth and/or Fourteenth Amendments
ICCPR art. 3; A v. Australia, Communication No. 560/1993, Human Rights Committee, 59th session, 24 March -- 11 April 1997.
Ibid. Reasons that could justify a prolonged detention could include the lack of cooperation with an investigation or the likelihood of absconding.
Detention should be reviewed regularly and a decision to continue detention must be made on an individual basis.
81 Ibid.
82 Foreign Relations Restatement, Reporter’s Notes 11.
83 ICCPR art. 10; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art.16 , G.A. res. 39/46, annex, 39
U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987 (signed by U.S April 18, 1988, ratified by U.S. October
21, 1994), (hereinafter CAT).
84 ICCPR art. 7.
85 Human Rights Committee, cmnt. 20, art. 7 (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations
Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 30, note 2 (1994).
86 ICCPR art. 10.
87 Human Rights Committee, cmnt. 20, art. 7 (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations
Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 30 (1994). Equally important, under the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment, Article 7(1) states that cruel, inhuman or degrading treatment or
punishment should be interpreted broadly to protect against abuse whether it be physical or mental. This can include the holding of a detained or
imprisoned person in conditions which deprive him of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and
the passing of time. G.A. res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988), Article 7(1).
88 CAT art. 16.
89 CAT art. 10, 11. Article 10 provides that “[e]ach State Party shall ensure that education and information regarding the prohibition against torture are
full included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved
in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.” Article 11 declares, “Each
State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and
treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any
cases of torture.”
79
80

23

to the U.S. Constitution.90 According to U.S. law, CIDT is found when the alleged cruel,
inhuman and degrading treatment constitutes punishment.91
The Human Rights
Committee of the ICCPR has stated that it believes this limitation fails to meet the object
and purpose of the ICCPR.92 Thus, U.S. interpretation of CIDT is not in line with
international human rights law. However, the U.S. is required to refrain from and prevent
CIDT at least when conditions violate the Fifth Amendment to the Constitution – i.e.,
when such conditions constitute “punishment.”93
3. Right to Legal Access and Due Process
The right to due process found in international law guarantees that individuals – whether
citizens or non-citizens – shall not be deprived of their liberty without the opportunity to be
heard. The right to legal access and due process is a general principle of international law
that has been codified in all human rights treaties and is found in all the major legal
systems.94 This right not only applies to all U.S. citizens, but to all persons subject to
U.S. jurisdiction.95 The ICCPR states that “[a]nyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings before a court, in order that that
court may decide without delay on the lawfulness of his detention and order his release if
the detention is not lawful.”96 Article 14 under the ICCPR guarantees the right to legal
assistance.97
The UNʼs Office of the High Commission for Human Rights has issued a Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
(hereinafter UN Principles for Detained Persons).98 The UN principles were adopted to
give further guidance on minimum due process requirements, and thus should be used
as a tool in assessing a detaineeʼs due process rights. In addition to reiterating the right
to a court hearing and the assistance of counsel,99 the Principles state that all detained
persons who do not speak the language used by those responsible for his or her
detention, must be provided information regarding his or her rights “in a language which
he understands the information…”100 In addition, the principles dictate that detained
persons also should be provided with “adequate time and facilities for consultation with
his legal counsel.”101 The Principles also state that an “[i]nterview between a detained or
imprisoned person and his legal counsel may be within sight, but not within the hearing,
of a law enforcement officer.”102
Confidentiality and access to counsel is imperative to providing adequate due process.
The right to legal access and due process is clearly a right guaranteed under customary

U.S. reservations, declarations, and understandings, Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Cong. Rec. S17486-01 (daily ed., Oct. 27, 1990); U.S. reservations, declarations, and understandings, International Covenant on Civil and
Political Rights, 138 Cong. Rec. S4781-01, reservation 1(3) (daily ed., April 2, 1992).
91 See discussion above, on pages 26-27, and notes 150-157.
92 Human Rights Committee, Comments on the United States of America (Fifty-third session, 1995), Consideration of Reports Submitted by States
Parties under Article 40 of the Covenant, U.N. Doc. CCPR/C79/Add 50 (1995).
93 U.S. Const. amend. V; U.S. reservations, declarations, and understandings, Convention Against Torture, and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Cong. Rec. S17486-01 (daily ed., Oct. 27, 1990); U.S. reservations, declarations, and understandings, International Covenant
on Civil and Political Rights, 138 Cong. Rec. S4781-01, reservation 1(3) (daily ed., April 2, 1992).
94 See UDHR, ICCPR art. 2(2), 14.
95 Foreign Relations Restatement §711, cmnt. i.
96 ICCPR art. 9(4).
97 ICCPR art. 14.
98 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, G.A. res. 43/173, annex, 43 U.N. GAOR
Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988) (hereafter UN Principles).
99 UN Principles art. 11.
100 UN Principles art. 14 (emphasis added).
101 UN Principles art. 18(2).
102 UN Principles art. 18(4).
90

24

international law as well the ICCPR, ICESCR and all regional human rights treaties.103
The right to legal access and due process is also a general principle of law found in the
majority of legal systems around the world, including the United States.104
4. Right to Food and Medical Care
The UDHR declares that every human being has the right “to a standard of living
adequate for the health and well-being of himself and of his family, including food,
clothing, housing and medical care and necessary social services, and the right to
security in the event of unemployment, sickness, disability, widowhood, old age or other
lack of livelihood in circumstances beyond his control.”105
Although the ICCPR and CAT, treaties that the U.S. has ratified, do not require States to
provide food and medical care, the Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights (ICESCR), and the UN Principles for
Detained Persons all acknowledge the basic right to be free from hunger and to be able
to access both physical and mental healthcare.106
The right to health care is currently being debated within the U.S. while it continues to
evolve significantly within international human rights law.107 In addition, UN Principles for
Detained Persons 24 states that in addition to ensuring a person entering detention has a
proper medical exam, “medical care and treatment shall be provided whenever
necessary.”108 In addition, several regional human rights bodies have held that denying
the right to health care may constitute CIDT.109
5. Right to Family Unity
The right to family unity is deeply rooted in international human rights law and is an
emerging customary international law norm.110 It is codified in all major human rights
treaties, including the UNDCHR,111 ICCPR, ICESCR, Convention on the Rights of the
Child, African Charter on the Rights and Welfare of the Child, the European Convention
on Human Rights and the American Convention on Human Rights.112
The UN Principles for Detained Persons expands on the right to family unity, stating: “A
detained or imprisoned person shall have the right to be visited by and to correspond
with, in particular, members of his family and shall be given adequate opportunity to
ICCPR art. 14; see also Organization of American States, American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S.
123 (hereinafter American Convention); Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4,
1950, C.E.T.S. No. 5 (hereinafter European Convention); and Organization of African Unity, African [Banjul] Charter of Human and Peoples’ Rights,
Jun. 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982) (hereinafter African Charter).
104 U.S. Const. amend. V, XIV; ICCPR art. 14; See also American Convention, European Convention and African Charter.
105 UDHR art. 25.
106 UDHR art. 25; ICESCR art. 11; UN Principles art. 24.
107 For example, see ICESCR art. 12, providing that “State Parties to the present Covenant recognize the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health.”
108 UN Principles art. 24.
109 See Nathaniel Williams v. Jamaica, Communication No. 609/1995, U.N. Doc. CCPR/C/61/D/609/1995 (4 November 1997) (Holding that the denial
of mental health for a death row inmate violated articles 7 and 10, paragraph 1, of the ICCPR). See also D v. United Kingdom, 24 EHRR 423 (European
Court of Human Rights), ( deporting a person dying in the advanced stages of AIDS back to a country that would not be able to provide the necessary
medical care constituted inhuman treatment).
110 Sonja Starr and Lea Brilmayer, “Family Separation as a Violation of International Law,” 21 Berkeley J. Int’l L. 213 (2003).
111 The UDHR recognizes that “[n]o one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks
upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.” UDHR art. 12.
112 ICCPR art. 17 and 23; ICESCR art. 10; Convention on the Rights of the Child art. 16 , G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at
167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990, (signed by U.S. Feb. 16, 1995) (hereinafter CRC); African Charter on the Rights and
Welfare of the Child art. 10 and 18 adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986
(hereinafter African Charter); American Convention art. 11 and 17 O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978,
(signed by U.S. June 1, 1977); European Convention art. 8, [European] Convention for the Protection of Human Rights and Fundamental Freedoms,
(ETS 5), 213 U.N.T.S. 222, entered into force Sept. 3, 1953, as amended by Protocols Nos 3, 5, and 8 which entered into force on 21 September 1970, 20
December 1971 and 1 January 1990, respectively.
103

25

communicate with the outside world, subject to reasonable conditions and restrictions as
specified by law or lawful regulations.”113

Chen Jiang
Chen came to the United States from China in 1994, at the age of 16, when
smugglers brought him across the border from Canada. He worked in a factory
in New York under conditions that amounted to slave labor. He believed at the
time that his employers obtained legal immigration status for him, but they did
not. Subsequently, Chen married a U.S. citizen, had two children, and had
begun a successful restaurant business. One day, immigration officials came
to his home with guns pointed at him and his wife, who was then six months
pregnant. The officials tried to arrest them both; however, his wife was lucky to
have her U.S. passport at hand.
Since Chen had been in detention for fifteen months and could not earn money
for his family, his house and car had been taken by the bank, and his
restaurant has gone out of business. His wife and children subsist largely on
the savings Chen accrued from his business. He has never seen his youngest
child, who was born since his detention. Chen says that he cries at night when
nobody can see him because he thinks about the problems that his wife and
children are presently facing. Chen has an ongoing legal case and is applying
for asylum.

6. The Rights of Refugees under International Law

Definition of a Refugee
any person who has “a well-founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social group or political
opinion, is outside the country of his nationality and is unable or, owing to such
fear, is unwilling to avail himself of the protection of that country; or who, not
having a nationality and being outside the country of his former habitual
residence as a result of such events, is unable or, owing to such fear, is
unwilling to return it.”
Source: Convention Relating to the Status of Refugees, Article 1.

Nations have recognized that there are certain communities and groups of people who
are the most vulnerable and require further protections. Refugees and asylum-seekers
have been identified as one of these most vulnerable communities. Additional treaties
and rights apply to both asylum-seekers and refugees.
 
The primary source of international law regarding the treatment of refugees is the
Convention Relating to the Status of Refugees (hereinafter “the Convention”) drafted
shortly after and as a result of WWII, as well as the Protocol Relating to the Status of
113

UN Principles art. 19.

26

Refugees (to which the U.S. is a party) that expanded the temporal geographic
protections of the original Convention. 114 The Convention codifies previous international
instruments relating to refugees and provides the most comprehensive codification of the
rights of refugees under international law. The United Nations High Commissioner for
Refugees (UNHCR) Detention Guidelines provide further guidance to the convention
articles regarding the detention of refugees. Although the guidelines are not binding, the
U.S. Supreme Court has stated that a similar document, the UNHCR Handbook on
Procedures and Criteria for Determining Refugee Status, provides significant guidance
when interpreting the Convention.115 The same should be true of the guidelines.
a. The Convention on Refugees Prohibits Most Detentions of Refugees
According to the United Nations High Commissioner on Refugees (UNHCR), the
detention of refugees and those seeking asylum is “inherently undesirable.”
Pursuant to the Convention, recognized refugees and asylum seekers whose
cases are pending should not be detained except for a brief period of time to
confirm their identity.116 In addition, in order to prevent psychological harm to
vulnerable refugees, unaccompanied elderly persons, torture or trauma victims
and persons with a mental or physical disability should only be detained “on the
certification of a qualified medical practitioner that detention will not adversely
affect their health and well being. In addition there must be regular follow up and
support by a relevant skilled professional. They must also have access to
services, hospitalization, and medication counseling etc. should it become
necessary.”117
The Convention places obligations on all States in relation to refugees, whether
or not they have been formally recognized as refugees.118 Article 26 requires that
refugees who are lawfully in the territory have the right to move freely in that
territory. The term “lawfully” under Article 26 is satisfied by the fact that United
States law authorizes refugees to remain in the U.S. while their status is being
verified. 119
Article 31 states that refugees who have entered the country illegally or without
authorization should not be penalized, provided that they present themselves
within a reasonable amount of time and show good cause for their illegal entry.
Penalization would include unnecessary detention. Article 31(2) prohibits
restrictions on refugeesʼ movements unless such restrictions are necessary,
typically long enough only to ascertain his or her identity.120 Article 31 is
especially relevant to the detention of immigrants because refugees who enter
the United States often do so unlawfully. Refugees often must flee at a momentʼs
notice, and there is little time to secure a valid visa. In addition, fear of
persecution by the government they are fleeing may require the use of false
identification.
Convention Relating to the Status of Refugees, 189 U.N.T.S. 150, entered into force April 22, 1954; Protocol Relating to the Status of Refugees, 606
U.N.T.S. 267, entered into force Oct. 4, 1967.
115 I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 438-439 (1987).
116 U.N. High Commissioner for Refugees, Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers,
Guideline 3 (1999), available at http://www.unhcr.org.au/pdfs/detentionguidelines.pdf (last accessed April 17, 2008). The only exception is for those
who pose a threat to national security. Ibid.
117 UNHCR, Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers, Detention Guideline 7, 7
(February 1999) available at http://www.unhcr.org.au/pdfs/detentionguidelines.pdf (last accessed on Apr. 20, 2008).
118 James C. Hathaway, The Rights of Refugees under International Law, 278 (Cambridge: Cambridge University Press, 2005).
119 UN Doc. E/AC.32/SR.15, Jan. 27, 1950, 15 (“The stage between `irregular’ presence and the recognition or denial of refugee status, including the
time required for exhaustion of any appeals or reviews, is also a form of “lawful presence.”).
120 U.N. High Commissioner for Refugees, Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers,
Guideline 3 (1999), available at http://www.unhcr.org.au/pdfs/detentionguidelines.pdf (last accessed April 17, 2008).
114

27

It is important to note that asylum seekers arriving in the U.S. without proper
documents are subject to ʻexpedited removalʼ in which undocumented
immigrants, including asylum-seekers, arriving at ports of entry are subject to
immediate removal without a judicial hearing.121 If the immigrant expresses a
desire to apply for asylum or a fear of persecution in his or her home country, he
or she will be afforded an initial “credible fear” hearing by an immigration officer.
If the officer finds he or she has no credible fear, he or she will be removed
without the ability to appeal or have his or her case heard by an immigration
judge. If he or she is found to have a “credible fear,” he or she will be subjected
to mandatory detention until a decision is made on his or her case by an
immigration judge, or an appellate body, a process that could take years.122
The United Statesʼ practice of detaining refugees pursuant to expedited removal
procedures is a violation of Article 26 and Article 31 of the Convention. The U.S.
is violating Article 26 by restricting the movement of refugees in general and
Article 31(2) by detaining refugees for longer than for identification purposes.
Unless the refugee poses a threat, refugees should not be detained even while
their formal recognition of their status is pending.
Despite Article 31(2) and the Department of Homeland Security having the
discretion to parole refugees, the U.S. has recently made it more difficult to
th
parole refugees currently in detention. On November 6 2007, ICE issued new
guidelines on the paroling of refugees in detention.123 These guidelines further
limit the release of refugees from detention and are inconsistent with international
refugee and human rights law.
b. Treatment of Refugees in Detention
Refugees should not be held in detention for any amount of time longer than
necessary to procure their correct identification, and once they are in detention,
they are entitled to certain protections under international law. For example,
Article 16 of the Convention requires that refugees have free access to courts of
law with regard to legal assistance. Asylum seekers should also have the right
and the means to communicate with their representatives in private. It is
important to ensure that detention not constitute an obstacle to an asylumseekersʼ pursuance of their asylum application.124
For those refugees who are in detention, the UNHCR, has specific guidelines on
how those in detention should be treated. Guideline 10 addresses specifically the
conditions of detention most relevant to this report. The Guideline lists the ten
items that contracting parties to the Refugee Convention/Protocol should respect
when detaining refugees:
•
•
•

Initial screening of all asylum seekers at the outset of detention to identify
trauma or torture victims, for treatment in accordance with Guideline 7.
Segregation within facilities of men and women; children from adults
(unless relatives).
Use of separate detention facilities to accommodate asylum-seekers.

Immigration and Nationality Act, 8 USCA §1225(b)(1)(A)(1), cited in James C. Hathaway, The Rights of Refugees under International Law, 373
(Cambridge: Cambridge University Press, 2005).
122 Ruth Ellen Wassum, US Immigration Policy on Asylum Seekers: CRS Report for Congress, 5, http://www.fas.org/sgp/crs/misc/RL32621.pdf,
May 5, 2005 (last accessed April 20, 2008).
123 ICE, Parole of Arriving Aliens Found to Have a “Credible Fear” of Persecution or Torture, directive 7-1.0, November 6, 2007, available at
http://www.humanrightsfirst.org/media/asy/2007/statement/385/index.htm (last accessed May 21, 2008).
124 U.N. High Commissioner for Refugees, Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers,
Guideline 6 (1999), available at http://www.unhcr.org.au/pdfs/detentionguidelines.pdf (last accessed April 17, 2008).
121

28

•
•
•
•
•
•
•

Opportunity to make regular contact and receive visits from friends,
relatives, religious, social and legal counsel.
Opportunity to receive appropriate medical treatment, and psychological
counseling where appropriate.
Opportunity to conduct some form of physical exercise through daily
indoor and outdoor recreational activities.
Opportunity to continue further education or vocational training.
Opportunity to exercise their religion and to receive a religious diet.
Opportunity to have access to basic necessities, i.e., beds, shower
facilities, basic toiletries, etc.
Access to a complaints mechanism, (grievance procedures) made
available in different languages.125

Of the 41 detainees interviewed for this report, 16 were refugees as defined by
the Convention. Of those 16, four had told us they had already been given formal
refugee status. The others had pending asylum cases.

125

Ibid, Guideline 10 (1999), available at http://www.unhcr.org.au/pdfs/detentionguidelines.pdf (last accessed April 17, 2008).

29

V.

Applicable Domestic Law

Although this report is measuring conditions of detention primarily against international human rights
law, we have also chosen to measure them against the requirements of our domestic law. Immigrant
detainees include lawful permanent residents, asylum-seekers, undocumented individuals, and, in some
cases, United States citizens.126 Like all persons in the United States, they should be afforded the
protection of our Constitution and laws before, during, and after the time spent in civil detention.

A.

Federal Law and Regulations Governing Conditions of Detention

DHS has the full authority over administration of all immigration-related laws, including laws to
regulate detention conditions in contract facilities such as the NWDC.127 The one and only
binding law which sets standards for detaineesʼ treatment in non-ICE facilities is simply a federal
regulation which cites “four mandatory criteria” for immigration detainees:
(1)
(2)
(3)
(4)

24-hour supervision,
Conformance with safety and emergency codes,
Food service, and
Availability of emergency medical care.128

As mentioned above, federal immigration authorities adopted generalized detention standards.
The 2000 standards, adopted by the former INS under the name of National Detention Standards
(NDS), were established to ensure the “safe, secure, and humane conditions for all detainees.”129
The 38 standards are contained within the Detention Operations Manual (DOM) and cover a
broad spectrum of areas such as telephone access, legal access, medical services, detainee
grievance procedures, food services, and recreation.130 The standards establish the minimal
detainee rights and protections that must be adhered to by Special Processing Centers (SPCs)
and Contract Detention Facilities (CDFs). ICE officials have stated that these standards usually
apply to state or local facilities as well,131 with some exceptions.132 However, the standards are
not even enforceable by detainees to whom the standards do apply since the standards have not
been adopted as laws.133

While ICE does not track the number of U.S. Citizens who are detained or deported, it does admit to detaining U.S. Citizens. See Gary Mead,
Deputy Director, Office of Detention and Removal Operations, Regarding a Hearing on “Problems with ICE Interrogation, Detention and Removal
Procedures,” Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law, 2-3 (Feb. 13, 2008), available at
http://judiciary.house.gov/media/pdfs/Mead080213.pdf (last accessed May 27, 2008).
127 8 U.S.C. § 1103(a)(1), (a)(11); see Roman v. Ashcroft, 340 F.3d 314, 320 (6th Cir. 2003) (“It is clear that the INS does not vest the power over detained
aliens in the wardens of detention facilities because the INS relies on state and local governments to house federal INS detainees. Whatever daily
control state and local governments have over federal INS detainees, they have that control solely pursuant to the direction of the INS.”).
128 8 C.F.R. §235.3(e).
129 U.S. Dep’t of Homeland Security, U.S. Immigration and Customs Enforcement, Detention Management Program, ¶ 7,
http://www.ice.gov/partners/dro/dmp.htm (last accessed March 31, 2008).
130 Since the original adoption of the standards in September 2000, two additional standards regarding staff-detainee communication and detainee
transfer have been added. DOM, Detainee Transfer, http://www.ice.gov/doclib/partners/dro/opsmanual/DetTransStdfinal.pdf and DOM, StaffDetainee Communication, http://www.ice.gov/doclib/partners/dro/opsmanual/DetTransStdfinal.pdf; see also DHS OIG
Report, 2 (2006), http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_07-01_Dec06.pdf (last accessed Mar. 31, 2008).
131 GAO ADS Report, 9, n.8 (2007), available at http://www.gao.gov/new.items/d07875.pdf (last accessed Apr. 20, 2008).
132 For instance, a law library is not required if the CDF is designed to detain persons for 72 hours or less. DOM, Access to Legal Material, 1,
http://www.ice.gov/doclib/partners/dro/opsmanual/legal.pdf (last accessed April 20, 2008).
133 Immigration scholars and human rights organizations have made convincing arguments that DHS could and should make the standards legally
enforceable against ICE and contract facilities. See National Immigration Project of the National Lawyers Guild, Detention Petition, 8-31,
http://www.nationalimmigrationproject.org/detention_petition_final.pdf (last accessed May 11, 2008).
126

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One standard entitled the Detainee Services Standard requires every facility to prepare a sitespecific handbook for detainees. The handbook must be provided to each detainee upon
admission to the facility. The handbook is to describe the “services, programs, and opportunities
available through various sources, including the facility, INS, private organizations, etc.”134
After DHS was created in 2003, ICE has been responsible for the oversight and implementation
of the National Detention Standards, including the site specific detainee handbooks. While ICE
receives significant support and funding for detention services, the care and treatment of
detainees continues to be a “significant challenge to ICE, and concerns have been raised by
members of Congress and advocacy groups about the treatment of aliens while in ICE
custody.”135 These concerns have led to some effective changes in ICEʼs overall compliance with
the standards.136 However, the standards are not codified in law and the rights provided under
the standards remain largely unenforceable.137

B.

Constitutional Rights of Immigrant Detainees
The constitutional protections of substantive and procedural due process of law extend to
all persons held in immigration detention. In 2001, the U.S. Supreme Court in Zadvydas v.
Davis unequivocally reaffirmed that all immigrants—documented or not, and even those
th
subject to a final order of deportation—are entitled to the due process protections of the 5
Amendment. 138 That landmark decision also reaffirmed a basic principle of justice with
139
respect to detention—that arbitrary and indefinite detention is unconstitutional.
1. Prohibition Against Cruel and Inhuman Treatment
As mentioned above, in its reservations to various treaties prohibiting CIDT, the United
States has indicated it will honor such obligations to the extent that conditions would
amount to CIDT or punishment under the Eighth and Fifth Amendments to the
Constitution. The Eighth Amendment prohibits cruel and unusual punishment and
applies to individuals incarcerated within the prison system.140 Immigration detainees,
however, are not convicted prisoners and this protection does not directly apply to
them.141 Instead, like all government detainees,142 immigration detainees derive their
rights and liberty interests from the Fifth Amendmentʼs Due Process Clause, including its
prohibition against punishment without due process of law.143
Since detention is not “punishment,” immigration detainees are owed even greater rights
under due process than those owed to incarcerated criminal offenders under the Eighth
Amendment.144 The Eighth Amendment protects prisoners from cruel and unusual

DOM, Detainee Handbook, 1, http://www.ice.gov/doclib/partners/dro/opsmanual/handbk.pdf.
GAO ADS Report, 1 (2007).
136 See DHS OIG Report, 44-52 (2006).
137 “According to ICE officials, ICE has never technically terminated an agreement for noncompliance with its detention standards. However, under
ICE’s Detention Management Control Program policies and procedures, ICE may terminate its use of a detention facility and remove detainees or
withhold payment from a facility for lack of compliance with the standards.” GAO ADS Report, 9, (2007).
138 Zadvydas v. Davis, 533 U.S. 678, 678-80 (2001) (the Due Process Clause applies to all persons within the United States, including aliens, whether their
presence is lawful, unlawful, temporary, or permanent); Mathews v. Diaz, 426 U.S. 67, 77 (1976) (even one whose presence is unlawful is entitled to
constitutional protections under the 5th and 14th amendments); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (the “fourteenth amendment to the
constitution is not confined to the protection of citizens.”)
139 Id. at 691.
140 U.S. Const. amend. VIII.
141 Cadet v. Bulger, 377 F.3d 1173, 1173-75 (11th Cir., 2004).
142 Government detainees in this category include pre-trial criminal detainees, civil detainees, and criminal detainees who, after finishing their criminal
sentence, are held as civil detainees under civil law.
143 U.S. Const. amend. V; Youngberg v. Romeo, 457 U.S. 307, 317 (1982).
144 Youngberg, 457 U.S. at 324 (holding that persons who have been involuntarily committed are entitled to more considerate treatment and conditions
of confinement than criminals whose conditions of confinement are designed to punish).
134
135

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punishment while the Fifth Amendment protects immigration detainees from any condition
or behavior amounting to punishment.145
The U.S. Supreme Court has also determined that if a condition constitutes cruel and
unusual punishment under the Eighth Amendment, it is a presumptive denial of due
process under the Fifth Amendment.146 In addition, the U.S. Court of Appeals for the
Ninth Circuit has held that conditions of confinement for civil detainees must be superior
not only to convicted prisoners, but also to pre-trial criminal detainees.147
For 120 years, the Supreme Court has held that liberty interests protected by due
process include reasonably safe conditions of confinement, freedom from unreasonable
bodily restraint, right to adequate food, shelter, clothing, and medical care, and adequate
training of personnel required by these interests.148
2. Rights to Family Unity
The U.S. Constitutionʼs Due Process Clause, which protects everyone within the United
Statesʼ jurisdiction, also protects the right of the family. Domestic courts have repeatedly
recognized and protected the important role of family as the fundamental group unit in
society.149
Historically, courts considered how a personʼs immigration status would affect his or her
family and took the family into account in rendering immigration decisions.150 While the
effect on a family may still be considered under some forms of relief, two 1996
immigration reform laws signaled a general shift away from respecting the integrity of the
family. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the
Antiterrorism and Effective Death Penalty Act (AEDPA) significantly expanded the
criminal offenses defined as “aggravated felonies,” for which immigrants, even lawful
permanent residents, are automatically subject to deportation.151 Such decisions are not
subject to judicial review, foreclosing the possibility of a court choosing to consider the
effect on a family. 152 Laws such as the IIRIRA and the AEDPA do not allow for
considering family relationships, and in particular, they do not allow for considering the
fundamental importance of relationship between parent and child.
However, recent Supreme Court decisions have re-emphasized that immigration laws
must be in accord with due process, which includes the importance of the family as the
fundamental unit of society.153 In addition, to the necessity of amending these
Bell v. Wolfish, 441 U.S. 520, 535 (1979) (“In evaluating the constitutionality of conditions or restrictions of pretrial detention …, we think that the
proper inquiry is whether those conditions amount to punishment of the detainee. For under the Due Process Clause, a detainee may not be punished
prior to an adjudication of guilt in accordance with due process of law.”)
146 City of Revere v. Mass. General Hosp., 463 U.S. 239, 244 (1983) (“In fact, the due process rights of a person in Kivlin's situation are at least as great as
the Eighth Amendment protections available to a convicted prisoner.”)
147 Jones v. Blanas, 393 F.3d 918, 918-922 (9th Cir., 2004) (holding that civil conditions of confinement which were the same as or similar to those for
criminal prisoners or even pretrial detainees were presumptively punitive and unconstitutional).
148 Youngberg, 457 U.S. at 307, 315-16.
149 For example, in Moore v. City of East Cleveland, the Supreme Court stated that “Our decisions establish that the Constitution protects the sanctity of
the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition. It is through the family that we inculcate
and pass down many of our most cherished values, moral and cultural.” 431 U.S. 494, 503 (1997). See also Toxel v. Granville, 530 U.S. 57, 65, (2000).
150 See Sonja Starr & Lea Brilmayer, “Family Separation as a Violation of International Law,” 21 Berkeley J. Int’L. 213, 236 (2003).
151 § 348 (a) of the IIRIRA amended § 212(h) to preclude family hardship waivers for lawful permanent residents convicted of an "aggravated felony,"
and § 321(a) of IIRIRA simultaneously expanded the definition of "aggravated felony". Pub.L. No. 104-208, 321 (a), 348(a), 110 Stat. 3009, 3546
(1996).
152 On April 14, 1996, Congress amended 8 U.S.C. § 1105 (a) to add subsection (a)(10), which provides: "Any final order of deportation against an alien
who is deportable by reason of having committed a criminal offense covered in [8 U.S.C. § 1251(a)(2)(A)(iii)] shall not be subject to review by any
court". Pub. L. No. 104-132, 440(a), 110 Stat. 1214, 1276-77 (1996).
153 For instance, in Zadvydas, the Court stated that “…once an alien enters the country, the legal circumstance changes, for the Due Process Clause
applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent.” 533 U.S. at
284.
145

32

immigration laws to allow for family unity to be taken into consideration in immigration and
deportation decisions, the federal government is obligated to respect the rights of family
when a person is in immigration detention.

33

VI. Conditions at the Northwest Detention Center (NWDC)
A.

Background
The Northwest Detention Center (NWDC) was built on the Tacoma tideflats, a former toxic waste
dump and Superfund cleanup site, amid controversy in April, 2004. The NWDC was originally owned
and operated by Correctional Services Corporation (CSC). In 2005, it was purchased by The Geo
Group, Inc., a publicly traded, privately-run company primarily in the privte prison business with
facilities located around the globe. The NWDC was originally contracted to house 500 immigrants.
With some structural changes inside the pods, or living centers, the NWDC now has the capacity to
detain 1,000 individuals.
Since the NWDC opened, the number of individuals detained has continually increased just as the
nationʼs detention population has increased. In the first four months of its operation from April to July
2004, NWDC admitted 1,855 individuals into the facility.154 Over the next 12 months, NWDC admitted
6,456 individuals.155 From June 2006 to June 2007 the number grew to 8,849.156
Of the approximately1000 beds at the NWDC, the current average daily population is 985, with
roughly 890 men and 95 women.157 As of February 2008, the NWDC had 997 detainees.158
Detainees at the NWDC represent approximately 80 countries with the majority from Mexico,
Guatemala, El Salvador, Honduras, China, Vietnam, and India.159 Detainees are held in several
different pods, or living areas, with men and women separated.
The average length of detention at NWDC is 35 days, with the longest period being four years,
served by an individual who has been in detention eight years and was transferred to the NWDC
when it opened.160 While the facility is designed for short term detention, the reality is that there are a
significant number of detainees held for long periods of time. Many of the detainees interviewed for
this report had been in detention for an extended period of time.

B.

Oversight
Internal oversight of the NWDC consists of two annual internal reviews, one prepared by GEO and
the other by ICE.161 When conducting a review, ICE gives NWDC 30 days notice and spends two to
three days at the NWDC to generate a report.162
Out of the four annual ICE reports on the NWDC, it has given GEO a rating of “good” three times and
“superior” once with respect to compliance of detention standards. Yet, despite these ratings, ICE
noted numerous violations of detention standards each year. For instance, employees were not

2004 ICE Annual Review of NWDC, July 27-29, 2004.
2005 ICE Annual Review of NWDC, July 19-21 2005.
156 2007 ICE Annual Review of NWDC, June 19-21, 2007.
157 NWDC tour with Jack Bennett, Asst. Field Office Director for NWDC, in Tacoma, WA (Feb. 25, 2008).
158 Ibid.
159 Northwest Detention Center Population, October 21, 2007, received from Jack Bennett during NWDC Tour, on file with author.
160 Ibid.
161 NWDC tour with Jack Bennett, Asst. Field Office Director for NWDC, in Tacoma, WA (Feb. 25, 2008).
162 ACLU, “U.S. Immigration System: Substandard Conditions of Confinement and Ineffective Oversight, Prepared for the United Nations Special
Rapporteur on the Human Rights of Migrants,” May 3, 2007, on file with author (hereafter ACLU Substandard Conditions); see also ICE Annual
Reviews of NWDC, on file with author.
154
155

34

documenting the time and date on which detainees were fed. ICE also found that staff-detainee
communications was deficient, in that detainee request forms were not always being addressed or
resolved timely. ICE further noted that officers were not logging request forms or documenting
issues that had been resolved.163
In 2006, ICE noted even more concerns, such as detainees failing to receive their property back,
problems with access to the telephones, high level offenders mixed with people with no criminal
record, and lack of communication with the detaineesʼ attorneys by the deportation officer. 164
In 2007, ICE again found problems, such as improper serving of food and kitchen staffing.
Furthermore, the report noted that “on one occasion during dinner feed-up the detainees received
over cooked and cold meals.”165 All meals had to be collected and replaced. ICE also found that
detaineesʼ grievances were not being addressed in a timely fashion.166
Just recently, NWDC officials reported that they had hired a consulting firm to perform third-party,
independent reviews of the NWDCʼs compliance with the National Detention Standards.167
According to the officials, the auditor comes once a month to interview approximately 20
detainees.168 Because NWDC just implemented this additional review, it is unclear at this time
whether the review process is proving effective, or whether the results of such audits will be made
public.

C.

Conditions and Violations of Rights
Our interviews with detainees revealed several major concerns regarding conditions at the Northwest
Detention Center. Although certain of the conditions might not be problematic for those in detention
for a short period of time, they certainly become problematic the longer a detainee is in detention. As
mentioned previously, the NWDC was designed for short-term detention, but in reality, it is a facility
for medium to long-term detention for many. Below is a summary of results of our interviews and the
most prominent concerns raised.

1. Legal Due Process
Detainees and attorneys who were interviewed expressed concerns regarding legal due process.
Attorneysʼ concerns included the lack of adequate meeting rooms, insufficient training of officers
working at the front desk and those monitoring attorney rooms, long waits to see detainees, and
the unexpected transfer of detainees to other locations. Detainees were concerned about having
legal mail opened and read, privacy and confidentiality when conversing with their attorneys
(whether on the telephone or in person), and access to sufficient legal material, especially for
those working on their own cases.
A. Attorneyʼs Concerns Regarding Due Process and Access to Representation
A series of interviews with immigration attorneys revealed that there are numerous
obstacles in the representation of those in detention. These obstacles result in many
attorneys not wanting to represent detainees, even those who are able to pay. The
attorneys noted a number of concerns. First, for the nearly 1,000 detainees at the center,
The Annual Report indicated that the Field Office has implemented a revised schedule mandating that ICE officers be present in detainee living
units at least three times per week. The schedule is now posted in each pod. Additionally, a detainee request form log has been implemented to track
the status of detainee concerns. 2005 ICE Annual Review of NWDC, July 19-21, 2005, on file with author.
164 2006 ICE Annual Review of NWDC, June 20-22, 2006, on file with author.
165 2007 ICE Annual Review of NWDC, June 19-21, 2007, on file with author.
166 Ibid.
167 NWDC tour with Jack Bennett, Asst. Field Office Director for NWDC, in Tacoma, WA (Feb. 25, 2008).
168 Ibid.
163

35

there are only four attorney-client meeting rooms. The rooms were designed to
accommodate a facility that held 500 detainees and were not modified when the
population doubled. This has resulted in attorneys having to wait for long periods of time
before talking with their clients. In the past, getting an interview room in a timely manner
was not a problem as the attorney could phone ahead and reserve a room. However,
without explanation, this system changed. As a result, a visiting attorney never knows
what to expect with regard to wait time. Interviewers for this project experienced wait
times of 1 to 2 hours to see a detainee. It takes approximately 45 minutes to travel from
Seattle, where most attorneys are located. Thus, the combined travel and wait time make
it either too expensive for detainees to retain counsel, or makes it not worthwhile for
attorneys to take detained clients.

David, a Seattle based immigration attorney, stated that the time used
traveling to Tacoma and waiting at the detention center adds a lot of cost to
detention cases. This high cost deters potential clients from seeking
representation by his firm. Attorneys at Davidʼs firm try to diminish these
problems by trying to see as many clients as possible during each trip to the
detention center. However, the attorneys cannot see all of the clients they had
hoped to visit in one day due to several factors: (1) limited meeting space, , (2)
suspension of detainee movement during headcount, and (3) inconsistent
detention center policies.

Second, the inconsistent treatment of attorneys by some of the officers working at the
front desk and monitoring the interview rooms is a problem. For instance, attorneys are
typically given expedited entry into the facility (i.e. moving to the front of the line before
other visitors), yet sometimes officers refuse to let them through. Also, certain officers
have improperly knocked on the windows of the interview rooms and entered, in order to
gauge how much longer an interview was going to take. Interviewers for this project
experienced officers who barged into the interviewing room without notice on two
occasions. In another instance, interviewers noticed an officer who stood outside the door
of the interview room and stared through the window into the room. Overall, there is the
belief on the part of the attorneys we talked with that the officers need more training and
better communication skills.
Third, when headcount takes place, the detainees cannot be transported between the
pods and the visitation area of the detention center. If an attorney arrives but there is a
delay in bringing the detainee to the interview room, he or she can expect to wait an
additional half hour to an hour for the headcount to be completed in addition to the
ordinary wait time for the arrival of the detainee.
Fourth, detention cases are difficult because of unexpected transfers of detainees to
different locations. ICE is obligated to inform a detaineeʼs attorney when they transfer a
detainee to another facility; however this does not always happen. The attorneys who
were interviewed thought this practice was completely unfair.
The interviewers involved in this project can corroborate the attorney statements
regarding the frustrations experienced while attempting to meet with detainees. Although
we had sent in the proper authorization letter and had received approval for law students
to meet with detainees in the attorney conference rooms, in the beginning the officers
36

could not find our authorization and would not admit us. This also occurred on two
occasions with interpreters whose authorization could not be found. There was no
computerized system; rather, the authorization letters were kept in a large binder, and
each time the officer at the front desk would spend time thumbing through the letters to
find our authorization.
There were several occasions where upon arrival, we were informed that the detainee
had in fact been released or deported, sometimes days before.
This was after
confirming the day before or on the morning of the interview that a detainee was still in
detention. It appeared to us that often the person with whom we were speaking was not
actually reviewing the list to ensure the person was still in detention. In fact, it was
typically on these occasions that the problem occurred. Moreover, sometimes the NWDC
staff was not always forthcoming with information, even though the proper name and
identification number of the detainee was provided.
We typically had to wait before we could begin the interview, and often the wait was
significant – up to several hours. Sometimes this appeared to be due to the fact that no
attorney rooms were available (there are only four attorney rooms and often they were
already in use), and other times it just appeared the NWDC was slow to bring the
detainee to the attorney area. A few times, after being admitted and waiting several
hours to conduct an interview, we would be informed that a detainee would be
unavailable because the headcount had started. Finally, on a few visits to NWDC we did
not conduct an interview because no rooms became available even after several hours.
Sometimes the staff would ask us to meet with the detainee in the hallway, but we would
not do so given that there was no semblance of privacy.
Finally, several interviewers in this investigation discovered that conversations taking
place inside the interview rooms can be easily overheard by someone standing outside of
the door. Thus, officers standing in the hallway where the attorney rooms are located can
hear what transpires in these rooms and this in effect limits the confidentiality of such
exchanges. This directly conflicts with the Detention Operations Manual, which states, “…
officers may observe such meetings visually through a window or camera to the extent
necessary to maintain security, as long as the officer cannot overhear the
conversation.”169
B. Detaineesʼ Concerns Regarding Due Process
Detainees we spoke with described incidents where they had legal mail opened or not
sent; were not able to readily make confidential telephone calls to their lawyers; and in
one case, not even allowed to take necessary documents to the courtroom.
i. Attorney/ Client Confidentiality
Of significant concern to detainees was the lack of confidentiality when sending
mail to their attorneys and when talking to their attorneys over the telephone.
The Detention Operations Manual distinguishes between general and special
correspondence – special correspondence would include letters to attorneys.
With regard to special correspondence the manual states, “Outgoing special
correspondence will not be opened, inspected, or read.”170 However, several of
the detainees spoke of problems that they had encountered when attempting to
send legal mail to attorneys. For unexplained reasons, these detaineesʼ legal
mail was not delivered, not sent, or tampered with en route.

169
170

DOM, Visitation, 1, http://www.ice.gov/doclib/partners/dro/opsmanual/visit.pdf (last accessed Apr. 12, 2008).
DOM Manual: Correspondence and Other Mail, 1, http://www.ice.gov/doclib/partners/dro/opsmanual/corresp.pdf (last accessed Apr. 12, 2008).

37

A number of detainees also had similar misgivings regarding telephone
conversations with their attorneys. Each pod contains four payphones, and
above the telephones is a sign that reads: “All calls are recorded and monitored.”
The sign is only in English. Detainees told us that a specific request could be
submitted to allow for a “non-monitored” call using a telephone in a different
location. This often is not realistic. It takes at least three days to get access to the
confidential telephone after one sends a request. Some detainees did not even
know how to access the private telephone.
According to Jack Bennett, ICE Assistant Field Office Director, detainees can
submit a request to make non-monitored calls to their attorneys. After receiving a
request, detention staff calls the attorney and confirm that they represent this
particular detainee. They then program that attorneyʼs number into the system.
Afterwards, when the detainee calls the attorneyʼs number, there should be no
call monitoring. However, there may still be a recorded message at the
beginning of the call that would indicate the call was being monitored, even
though it was not. Therefore, some detainees may not trust that their calls are
actually confidential. In addition, they cannot make confidential calls using these
telephones to potential lawyers who have not yet agreed to representation. Mr.
Bennett confirmed detainees who wish to make a confidential call to potential
lawyers, or those who may not trust their calls are confidential, can put in a
request to use a phone outside of their housing unit, often in the intake area, to
make unmonitored calls.
The Detention Operations Manual states, “The facility shall ensure privacy for
detaineesʼ telephone calls regarding legal matters. For this purpose, the facility
shall provide a reasonable number of telephones on which detainees can make
such calls without being overheard by officers, other staff or other detainees.”171
Detainees reported that it is difficult to find privacy because there are always a
number of officers standing around “listening in,” even at the telephone
designated for non-monitored attorney calls. Listening in by officers seems to
occur in part because these non-monitored telephones are located in the busy
“intake” area of the facility.
ii. Lack of Access to Legal Material
Several of the detainees mentioned that the law library lacks sufficient material to
adequately research their cases and that much of the material seems dated.
One detainee told us that it was particularly difficult to find information on
immigration and habeas corpus cases. For detainees working on their own
appeals, this can pose significant barriers.
Detainees are also not permitted to have access to newspapers or the internet.
This type of information about what is happening in oneʼs home country may be
useful and necessary as evidence to support an asylum claim.
C. Conditions Relating to Due Process at the NWDC Violate Both International and
Domestic Law
Under principles of international law “a detained person shall be entitled to have the
assistance of legal counsel. He shall be informed of his right by the competent authority
promptly after arrest and shall be provided with reasonable facilities for exercising it.”172
DOM Telephone Access, 1, http://www.ice.gov/doclib/partners/dro/opsmanual/teleacc.pdf (last accessed Apr. 12, 2008).
UN Principles for Detained Persons, art. 17. The right to legal access and due process are fundamental international principles codified in every
human rights treaty and this right has extensively been recognized as customary international law. The right to legal access and due process for
detained persons has been expanded on in the U.N. Principles for Detained Persons. These guidelines were provided by the U.N. to provide some
171
172

38

International law also states that “interviews between a detained or imprisoned person
and his legal counsel may be within sight, but not within the hearing, of a law
enforcement official.”173
Under domestic law, although courts do not afford individuals in deportation proceedings
the right to a publicly-paid counsel under the Sixth Amendment, the violation of the right
to access pro bono or privately-paid counsel is a violation of both statutory guarantees174
and the Fifth Amendmentʼs right of due process.175 Courts of appeal have treated the
relationship between the statutory and constitutional right to counsel in a variety of
ways.176 However, it is agreed that, at minimum, the due process right of access to courts
includes being able to have access to privately-paid or pro bono counsel.
At NWDC, the difficulties in accessing counsel are due to the relatively remote location of
the detention center,177 long waits, lack of punctuality and professionalism from the
officers, the insufficient number of meeting rooms, and regularity of detainee transfers
without notice.178 This cumulatively results in a serious lack of access to counsel, and
thus due process for detainees.
Second, attorneys must regularly engage in personal consultations in order to effectively
represent their clients. At minimum, this requires a place for “private interviews,
consultations, and necessary examinations” within the detention building.179 The opening
of mail, the lack of practical access to non-monitored telephones, officers barging into
meetings unannounced, and the overhearing of confidential attorney/client meetings and
calls by officers curtails a detaineeʼs ability to receive effective assistance of counsel.

2.

Detainees Pressured to Sign Papers

One of the most commonly heard complaints by the detainees was the fact that they are often
pressured to sign papers, or are asked to sign papers whether they understand them or not.
Approximately one fourth of the detainees stated that they were either pressured to sign papers,
overheard others being pressured or forced to sign papers, or were presented with papers that
they could not understand and were required to sign them. According to some detainees, if they
refused to sign, officers exerted psychological pressure upon them by way of verbal threats and
even physical intimidation.
Furthermore, an attorney who was interviewed informed us that ICE improperly advises newly
arriving detainees to take voluntary departure or removal. Detainees who take this advice never
get to see attorneys. Those who sign removal orders are unaware of the fact that the removal
minimum standards for countries to implement in order to be in compliance with international law. In order to comply with international human
rights treaties and customary international law, the NWDC should adhere to these guidelines.
173 UN Principles for Detained Persons, art. 18.4.
174 The statutory right is encoded in INA § 240(b)(4), which states that "the alien shall have the privilege of being represented, at no expense to the
Government, by counsel of alien's choosing who is authorized to practice in such proceedings." 8 U.S.C. § 1229a(b)(4)(A). This statutory provision has
been tracked in the applicable INS regulations. See 8 C.F.R. §§ 3.16(b), 240.3, 292.1, and 292.5.
175 See Uspango v. Ashcroft, 289 F.3d 226, 231 (3rd Cir., 2002).
176 See Ponce-Leiva v. Ashcroft, 331 F.3d 369, 372-373 (3rd Cir., 2003) (“According to the Ninth Circuit, due process is violated only if a violation of the
statutory right to counsel is accompanied by significant prejudice); Castro-O'Ryan v. U.S. Dep't. of Immigration and Naturalization, 847 F.2d 1307, 1313 (9th
Cir., 1987). The First Circuit has recognized both rights, but it has considered them without distinguishing them. See, e.g., Nelson v. INS, 232 F.3d 258,
261 (1st Cir., 2000). The Eighth Circuit has also recognized both, and it has suggested (but not explicitly stated) that in order for a due process
violation to be found, the deprivation must be especially egregious. See, e.g., United States v. Torres-Sanchez, 68 F.3d 227, 230-31 (8th Cir., 1995).
177 Though not many immigration cases have considered the remoteness of facilities, Nunez v Boldin, which was dismissed without opinion on appeal,
originally granted a preliminary injunction which reasoned that because of the remoteness of facility at which detainees were held, prohibiting attorneys
from visiting their clients after 3:30 p. m. was unduly restrictive. 537 F Supp 578, (1982, SD Tex), dismd without op (CA5 Tex) 692 F2d 755.
178 The failure to notify an attorney who has entered his appearance of any proceeding involving his client is a denial of due process. See Mendez v. INS,
563 F.2d 956 (9th Cir., 1977).
179 ABA House of Delegates, ABA Standards for Criminal Justice: Providing Defense Services, App. B., 68-69. (3d ed. 1993).

39

orders can be summarily reinstated if they ever return to the U.S. Moreover, the removal orders
use generic language that the detainees cannot understand and which is never explained to
them. In the past, these forms were written in Spanish and English, but now are only available in
English.
A. Pressure to Sign Papers Violates Both International and Domestic Law
In addition to the due process rights found under both international and domestic law
discussed in the previous section, international law further states that, “A person who
does not adequately understand or speak the language used by the authorities
responsible for his arrest, detention or imprisonment is entitled to receive promptly in a
language which he understands the information referred…”180 In addition, since at least
1943, the United States Supreme Court has held that elementary fairness requires
immigrants be allowed to make intelligent decisions about the documents they are
signing. 181 ICE and GEO officers violate international and domestic law when they
pressure detainees to sign legal documents and when they ask them to sigh such
documents without the detainee understanding what he or she is signing.

Hector Pena Ortiz
Hector came to the United States from Mexico in 1976 with a student visa. He
attended college from 1976-1980 and became a legal permanent resident in
1981. He was convicted of a misdemeanor in 1989 and was picked up by
immigration officials in 2005. He had been detained at the NWDC since; almost
three years at the time of our interview.
When he first arrived in detention he had a continuous fear of being deported.
At his initial intake he had to sit for six hours, sweating. He couldnʼt sleep at
night, and still has problems sleeping at night. For a couple of months he took
sleeping medication but he stopped because it made him feel like a zombie. He
said many other detainees take medicine to sleep. Eventually, he realized they
could not deport him while his case is pending, so he was no longer
afraid.
He has been asked twice to sign papers that would allow ICE to deport him
immediately. The first time, they shackled him and took him to the intake room.
An officer told him to sign the papers. He argued with them, and told the
officers that he had a pending appeal, but they did not believe him. He refused
to sign the documents and asked them to check his file again. Eventually, an
officer did check his file and confirmed that he had an appeal in federal court.
The second time, he was brought to the intake room, shackled, and told he
should sign the papers and leave immediately. This time they had the wrong
name. They were referring to him as Mr. Ortiz, even though he had always
been called Mr. Pena-Ortiz before. He refused to sign the document again,
despite their insistence and pressure. Eventually, the officers acknowledged
that they had the wrong detainee.

UN Principles, art. 14.
See Johnson v. United States, 318 U.S. 189, 197 (1943) (holding that an intelligent waiver of options is required by elementary fairness and to hold
otherwise would be to entrap persons); see also Partible v. INS, 600 F.2d 1094, 1096 (5th Cir., 1979) (remanding a deportation proceeding where the
respondent had waived counsel without sufficient understanding of the complexities of her situation.)
180
181

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3. Filing of Grievances

Wilson stated that when he filed a grievance, the officer he was writing the
grievance about was the first to see it, and Wilson felt that the officer retaliated
on this basis. Wilson also mentioned that one of the detainees who had filed
several grievances seemed to have his bunk searched an inordinate number of
times, which seemed unusual given that the searches are to be random.

When a detainee makes a request, he or she can file an informal kite. For example, a kite is
required when a detainee wishes to use the law library or make non-monitored attorney phone
calls. When, however, a detainee wishes to report a serious problem or make an official
complaint, he or she files an official grievance. Of the 17 detainees we interviewed who had filed
formal grievances, 12 experienced problems that included: 1) unanswered grievances; 2) a slow
response time; 3) inconsistent decisions by the NWDC administration; 4) claims by officers that
they had not received the grievances; 5) grievances being thrown away; 6) that grievances could
only be filed in English as a practical matter; and 7) officials returning grievances because they
are not “specific enough.” In one instance, a detainee told us that officers informed him that
“stolen property” was not an appropriate issue for a grievance. The detainees who had filed
grievances all shared the sentiment that the process was futile and consumed a lot of time with
little or no result. Corroborating these concerns is a 2007 ICE audit of the NWDC revealing that
“the procedures are in place but there are several grievances which were not addressed in a
timely manner, some were actually resolved a month later.”182 In addition, a detainee provided us
his grievance that was several pages in length and very detailed, but was returned as “not
specific enough.” We verified that the grievance was highly detailed and specific.
Beyond futility, there was also fear on the part of some detainees that the filing of a grievance
would result in retaliation by the officers. In fact three of the detainees specifically stated that they
did not file grievances because of fear of retaliation. While the Detentions Operations Manual
explicitly states, “Staff will not harass, discipline, punish, or otherwise retaliate against a detainee
lodging a complaint,”183 detainees continue to observe retaliatory behavior and sentiment.
Detainees told us that they often must hand the grievance to the very officer they have filed the
grievance about. Notably, ICEʼs 2007 Northwest Detention Center Annual Review found at least
one documented, substantiated case of staff harassing, disciplining, penalizing, or otherwise
retaliating against a detainee for lodging a complaint. This was a grievance titled “Protection From
Harm” which should have raised red flags, but instead went unresolved for nine days.184
A. Treatment of Grievances May Violate Both International and Domestic Law
Under due process protections of both international and national law, the ability to be
heard and/or complain about conditions is critical. In addition, when the Human Rights
Committee of the ICCPR had occasion to comment on the prohibition of cruel, inhuman
and degrading treatment, it stated that there is a right to lodge a complaint against
182
183
184

2007 ICE Annual Review of NWDC, June 19-21, 2007.
DOM Manual, Detainee Grievance Procedures, 4, http://www.ice.gov/doclib/partners/dro/opsmanual/griev.pdf (last accessed Apr. 12, 2008).
2007 ICE Annual Review of NWDC, June 19-21, 2007.

41

maltreatment and seek appropriate redress as well as to have that complaint investigated
promptly, impartially and by competent authorities that can make the remedy effective.185
This right to seek redress for maltreatment is effectively eliminated when the grievance
process discourages detainees from filing because of futility or fear of retaliation.
In addition, under domestic law, if the above-described problems related to grievance
procedures constitute official practice, or if the official acted with “deliberate indifference”
with regard to the grievance, it would constitute a violation of due process.186 The flippant
manner in which grievances are lost, ignored, or dismissed likely constitutes deliberate
indifference in some cases. Thus, detainees likely have valid complaints of constitutional
violations from the current grievance procedure.

4. Treatment by Officers
The majority of the detainees interviewed stated that most of the officers conduct themselves
professionally and are fair with the detainees. There were, however, reported instances of serious
misconduct by officers at the facility that involve allegations ranging from physical and verbal
abuse in the forms of inappropriate physical contact, racial slurs and demeaning comments, to
sexual harassment and strip searches.
A. Verbal and Physical Abuse
Approximately one out of every three detainees interviewed noted instances of verbal
abuse and degrading comments from officers. Of these detainees, most felt that certain
officers over-stepped their bounds and abused their power, creating an atmosphere of
intimidation. As an example, one particular officer was cited several times by detainees
as exceptionally belligerent and arrogant toward detainees. Several detainees
independently described how this officer tore down shower curtains and or threw them
open before the detaineeʼs shower had ended, leaving the detainee naked and exposed
before the entire pod. This same officer was also heard making comments about prior
gang affiliations and actively attempting to “wind up” detainees by provoking them to the
brink of anger. Additionally, several detainees described an incident where this officer
asked the detainees if they were watching a certain program on the television. When
they answered in the affirmative, the officer turned off the television for no apparent
reason except as a show of power. One detainee commented, “He just wants to show us
who is boss” and “He treats us like weʼre bad criminals.”
While ICE states their policy is that “the use of force is authorized only after all
reasonable efforts to resolve a situation have failed,”187 several of the detainees
interviewed commented that on occasion certain officers have inappropriately grabbed
detainees by the arm and have also pushed or shoved detainees. For example, when
Joseph refused to get into line to take his ADHD medication, an officer grabbed him and
pushed him into a wall. The officer also threatened to send Joseph to segregation if he
did not get into the line. When Joseph told the medical staff that he did not want to take
the medication, they told him it was not a problem.

Human Rights Committee, General Comment 20, Article 7 (forty-fourth session, 1992), Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/ GEN/ 1/ Rev.1, 30 (1994).
186 If the complained-of condition is maintained by the detention center and found to be “promulgated” by the Center, it is assumed that the alleged
constitutional violation was intended. See, e.g., Hare v. City of Corinth, 74 F.3d 633, 644 (5th Cir., 1996) (en banc). This triggers the reasonable relationship
test of Bell v. Wolfish, resulting in a constitutional violation if it is found that the condition is not reasonably related to a legitimate and non-punitive
governmental objective. 441 U.S. 520, 539 (1979). With regard to the “deliberate indifference” violations, see Scott v. Moore, 114 F.3d 51, 54 (5th Cir.,
1997) (en banc).
187 DOM, Use of Force, 1, http://www.ice.gov/doclib/partners/dro/opsmanual/useoffor.pdf (last accessed Apr. 12, 2008).
185

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In addition, female detainees reported that there were certain female officers who were
verbally and physically inappropriate with the detainees. Some officers in the female pod
reportedly yell in a menacing tone, threaten physical violence, and push or shove
detainees. One officer refers to Mexican detainees as “cucarachas”, the Spanish word for
“cockroaches.” Another officer tells detainees, many of whom fear persecution in their
home countries, that she wishes they would get deported. Detainees fear retaliation from
the officers and believe that certain officers will lie about a detainee in order to put them
in segregation. One officer sprayed cleaning chemicals on detaineesʼ food while they
were eating. Although the officer eventually apologized, the detainees did not get
additional food. Language barriers also contribute to the mistreatment of detainees by
certain officers. One detainee was screamed at and shoved up against a wall for failing to
follow orders in English, when the officer knew she only spoke Spanish.
B. Sexual Harassment
Two of the detainees interviewed discussed inappropriate sexual behavior and comments
by two different officers. The most serious of the allegations was an escalating series of
incidents ranging from sexual innuendos and predatory grooming to overt and
inappropriate touching by an officer toward a detainee. Some of the alleged “grooming”
behavior in this circumstance involved the officer offering “gifts” that made the detainee
feel like the officer was “trying to buy him.” The detainee stated that the officer created an
atmosphere of shame and embarrassment for him because the officerʼs statements and
actions were of such an overtly sexual nature. For example, on one occasion the officer
rubbed the detaineeʼs buttocks in an effort to “wake him up.” This detainee told us that
the inappropriate behavior made him fear for his safety and that other detainees in his
pod noticed the inappropriate behavior as well.
Additionally, another detainee living in a different pod stated that an officer had stayed in
one cell for a prolonged amount of time to talk with a particular detainee. This officer had
been overheard asking detainees how sexually active they were and referring to their
genitals. The detainee noted that the officer seemed to favor certain detainees and
brings in items for these detainees.
C. Strip Searches
Five of the detainees complained of strip searches. Two of the instances were related to
attorney visits. For example, one detainee described being strip searched after attorney
visits and without his consent. He estimated it happened to him 5-10 times for a period of
2-3 months. It stopped after he told his lawyer. During these searches, he was stripped
completely naked and made to stand in front of officers, as well as turn and bend over.
He was not touched, but felt humiliated.
Another detainee, Claire, was strip searched multiple times. Claire was transferred by
ICE, along with several other detainees, from NWDC to SeaTac Federal Detention Center
because of overcrowding. Upon arrival at SeaTac Detention Center, a female officer strip
searched Claire. Although the officer did not find anything, Claire was segregated in an
uncomfortably cold room. After a period of time, an officer transferred Claire from this
room to the area where the rest of the detainees were being held. Claire described each
strip searching incident as shameful and embarrassing. Claire was also strip searched
after attorney visits at the NWDC.

43

Claire described a strip search incident: “Here we were stripped completely
naked, a female officer told me to open my legs wide and she peeped into my
vagina and later, she asked me to turn my back-side and expose my anus [by
separating the cheeks with her hands], I was told to cough several times while
in this position- with the officer looking at my private parts. We were forced to
subject ourselves to this dehumanizing treatment. For several days afterward I
wept and have continued to have nightmares about this treatment. I have been
so embarrassed and ashamed of this treatment, that it has hurt my self.”

D. Inhuman Treatment by U.S. Marshalls During Transfer to Alabama
One of the most disturbing events we were told about by six detainees involved a transfer
of detainees on two flights to Alabama in the summer of 2007 in anticipation of
overcrowding pending an ICE workplace raid in Portland, OR.
The detainees
interviewed, all of whom were subjected to the transfer, uniformly told the same story of
abuse and neglect at the hands of United States Marshals. Such abuse included both
physical abuse, and not allowing detainees to use the restroom for over 7 hours, resulting
in some defecating in their seats and effectively having to sit in their own feces.
According to some of the detainees, while in custody of U.S. Marshals, but before the
plane took off (at Boeing field), a Cambodian detainee who was mentally ill yelled
something at the officers that provoked them. Four marshals began to hit and punch the
detainee, mostly in the face. One detainee, Charles, explained that this particular
detainee was mentally ill and had been in segregation the entire time Charles had been
detained. Apparently, other detainees attempted to explain the manʼs mental illness to the
marshals to no avail. The marshals put a hood on the detainee before putting him on the
plane. Charles said that the detainee at one point fell down some steps because he lost
balance and that it was apparent that the detainee had trouble breathing the entire time
the hood was on during the flight. He also said that detainee was bleeding and that his
face was black and blue.
Some of the detainees also stated that they were not allowed to use the bathrooms on
the flight. The detainees had not been informed about not being able to use the
bathrooms prior to the seven hour flight and their requests were ignored by the officers.
The detainees reported that at least three detainees on one of the planes defecated in
their seats. One elderly Indian man who had defecated himself particularly seemed
singled out. The marshals released one of the elderly manʼs hands and told him to clean
himself up, but he was only given some towels and not allowed out of his seat. He was
not able to clean up the feces and remained sitting in it for the entire trip.
In addition, while on the airplane, the detainees were handcuffed and their feet were
shackled. The detainees were given a sandwich, but could not eat it because of the
handcuffs.
E. Treatment by Officers Violates Both International and Domestic Law
Under principles of international law, “All persons deprived of their liberty shall be treated
with humanity and with respect for the inherent dignity of the human person.”188 Under
domestic law, conditions or restrictions on immigration detainees that are “not reasonably
188

ICCPR, art. 10.

44

related to a legitimate goal” and result in violations of personal security and liberty
constitute a denial of due process. 189 So are conditions that amount to “punishment.”190
To the extent that detainee claims of physical abuse, sexual harassment, arbitrary strip
searches, and neglect and abuse in the transfer to Alabama are unrelated to a legitimate
government objective, such conditions and behaviors constitute arbitrary infringements
on liberty and security. For example, with regard to the detainee in the transfer to
Alabama who was forced to sit in his own feces, a court has found that a similar situation
constituted cruel and unusual punishment.191
The NWDC falls short of meeting the standards of both international and domestic law
when detainees are verbally disrespected and pushed and shoved by officers.
Furthermore, NWDC fails to treat detainees with respect for their inherent dignity by
exposing them to officers who engage in sexually inappropriate behavior. Finally, much
of what has been described also likely constitutes cruel, inhuman, and degrading
treatment, a violation of both international law and the Constitutionʼs Fifth Amendment
because such treatment also constitutes punishment.

5. Medical Care
The NWDC medical clinic is administered by the United States Public Health Service.
Approximately 75 percent of the detainees we interviewed had experienced medical problems
that required medical attention at the NWDC medical clinic. Of the total number of detainees who
had sought medical attention, about 80 percent were dissatisfied with either the treatment that
they received or the procedure for sick call.
In addition, the information derived from our interviews suggests that there is a widespread
problem of inadequate access to medical care at the NWDC. For example, detainees reported
problems with medical access for emergency medical needs. Detainees also reported problems
with medical access to treat preexisting medical conditions. Moreover, there were instances of
long delays prior to medically necessary surgical procedures, unresponsiveness to requests for
medical care, and pure refusal to treat painful medical conditions.
A. Access to Emergency Medical Care
The National Detention Standards state that “(e)ach facility will have a written plan for the
delivery of 24-hour emergency health care when no medical personnel are on duty at the
facility, or when immediate outside medical attention is required.”192 The standards also
state that the “[d]etention staff will be trained to respond to health-related emergencies
within a 4-minute response time.”193 In particular, the ICE website claims that the NWDC
clinic is staffed 24 hours a day, seven days a week.194 However, this does not appear to
be accurate. For example, when a food poisoning outbreak occurred on August 11,
2007, and over 300 detainees complained of severe abdominal cramps and diarrhea,
officers told detainees they had to wait until the in-house medical clinic opened in the
morning before they could receive treatment. It was only because of the large volume of
complaints that the administration eventually called the clinic staff to come in earlier.
Block v. Rutherford, 468 U.S. 576, 584 (1984).
See notes 150-157, above.
191 Mitchell v. Newryder, 245 F.Supp.2d 200 (D.Me., 2003) (Detainee's complaint sufficiently pled both that he was denied minimal civilized measure of
life's necessity and that county jail correctional officer had a culpable state of mind, as required for Eighth Amendment cruel and unusual punishment
claim; complaint alleged that detainee was purposefully subjected to dehumanizing conditions when he was denied access to facilities both to go to the
restroom and to clean himself up during five hour period in which he sat in his feces, and that officer displayed hostility towards him, using insulting
and offensive language and expressions.)
192 DOM, Medical Care, 5, http://www.ice.gov/ partners/dro/opsmanual/medical.pdf (last accessed Apr. 12, 2008).
193 DOM, Medical Care, 6, http://www.ice.gov/partners/dro/opsmanual/index.htm.
194 Ibid.
189
190

45

However, by that time, many of the detainees affected by the outbreak were unable to be
seen at the medical clinic due to the long lines that formed when staff finally arrived. The
information derived from the interviews suggests this was not an isolated occurrence.
There were several incidents where detainees reported that officers had simply refused
requests for emergency medical care.

Charlie, who has been held at the NWDC for approximately two months,
described an elderly Mexican man who was suffering from a high fever. Once
notified, emergency care personnel gave him a pill and told him to lie down.
However, the fever got worse, and other detainees in the pod requested that
someone from emergency care come and help this man. In response, the
emergency staff told the detainees to put the man in the shower to cool him off.
It was not until very early in the morning that emergency staff finally arrived and
administered medical care.

B. Quality of Treatment
The National Detention Standards state that “[e]ach facility will have a mechanism that
allows detainees the opportunity to request health care services provided by a physician
or other qualified medical officer in a clinical setting. The health care provider will review
the request slips and determine when the detainee will be seen.”195 Many of the
detainees complained of the sick call and triage procedures related to medical care.
Male detainees reported that they can access medical care in two ways. They can file a
“kite” or request for medical attention and wait for a response, or go to “sick call” during
the week. Female detainees do not have “sick call.” Sick call is Monday through Friday at
6 a.m. When sick call is announced, detainees wishing to be seen by the nurse proceed
to the processing doorway and line up in the main corridor. Detainees are required to
stand in line while waiting and may not sit down to rest at any time. Because there is
normally a large number of detainees who seek medical attention, the line is long and
detainees are often forced to wait in a standing position before seeing a nurse. Some
detainees experienced an hour long wait, others described a wait time of up to four hours,
making them miss breakfast. The line is often longest on Monday mornings.
One detainee, who suffered from both chronic back and foot pain, complained that his
ailments were further aggravated while standing in line for sick call. Moreover, detainees
also complained that after waiting uncomfortably in line for several hours, they would
often receive ineffective medical treatment. Another detainee, who suffered from stomach
pains so intense that he cried in pain, complained that he was only issued Pepto-Bismol
after waiting in the sick call line. The Pepto-Bismol did nothing to relieve his excruciating
stomach pains. Consequently, many detainees who are extremely sick may not pursue
medical attention because the long periods of standing may aggravate their medical
condition and the medical treatment is ineffective.
When a detainee files a “kite” requesting medical attention, the response time can be
over a week. One detainee filed a kite when he had a fever and was taken to the medical
clinic seven days later. Other detainees experienced similar periods of time, up to two
weeks.

195

DOM, Medical Care, 5, http://www.ice.gov/doclib/pi/dro/opsmanual/medical.pdf [last accessed May 21, 2008].

46

C. Access to Outside Medical Care
Another concern is the treatment of detainees who require outside medical care. When
the circumstances necessitate outside medical care, detainees are escorted by armed
officers and must wear shackles around their hands and feet, even if they are not
considered dangerous. The National Detention Standards state that “this means the
detainee will attend the sickbed … in restraints,” and “escorts can exercise no discretion
in this matter; they are prohibited from removing the detainee's restraints.”196 One such
detainee, who had suffered a long episode of seizures, remained shackled for the entire
five days that she spent at the hospital, even though she was not considered dangerous.
When she was first seen in the emergency room, the attending doctor requested the
shackles be removed in order to treat her, but the officer was unable or unwilling to
remove them. Such extreme treatment of immigration detainees can create the
misperception that the detainees are actual violent criminals. It was reported by
administrators at the NWDC that outside doctors are often reluctant or simply refuse to
treat detainees.197
One detainee was undergoing treatment for a cancerous brain tumor at the time he was
arrested in his home by ICE and admitted to the NWDC. Juan informed officers and
medical staff of his medical condition, and requested that they contact the hospital
treating him. Staff at the hospital that was treating Juan contacted a doctor at the NWDC
and offered to send his medical records, but the doctor declined, saying Juan would be
deported soon. Juan had multiple seizures while in detention, an expected consequence
of his condition that was likely to increase with changes in his medication. Hospital staff
acknowledged that if deported to Mexico, Juan would not be able to access adequate
medical treatment and his terminal condition would worsen. Juan was deported earlier
this year.
Recently, the New York Times obtained a list of detainees who have died in immigration
detention nationally. One of those detainees, Jesus Cervantes-Corona, died at the
NWDC on December 13, 2006.198 His cause of death is listed as coronary artery disease.
We did not uncover any information regarding this personʼs death through our interviews,
but urge ICE and GEO to fully disclose the circumstances of his death.
D. Failure to Provide Adequate Medical Care Is a Violation of Both International and
Domestic Law
Inadequate access to medical care is a violation of the UNDHR and the minimum
standards of the UN Principles for Detained Persons. The UNDHR declares that every
human being has the right “to a standard of living adequate for the health and well-being
of himself and of his family, including food, clothing, housing and medical care and
necessary social services, and the right to security in the event of unemployment,
sickness, disability, widowhood, old age or other lack of livelihood in circumstances
beyond his control.”199 Principle 24 under the UN Principles for Detained Persons states:
“A proper medical examination shall be offered to a detained or imprisoned person as
promptly as possible after his admission to the place of detention or imprisonment, and
thereafter medical care and treatment shall be provided whenever necessary.”

DOM, Non-Medical Emergency Escorted Trips, 3, http://www.ice.gov/doclib/partners/dro/opsmanual/index.htm (last accessed Apr. 20, 2008).
Email from Jack Bennett, Asst. Field Office Director for NWDC, in Tacoma, WA to Gwynne Skinner, Visiting Professor of Clinical Law, Seattle
University School of Law (March 04, 2008, 8:56 AM) (on file with recipient).
198 New York Times, Immigration Agency’s List of Deaths in Custody, May 5, 2008, available at
http://www.nytimes.com/2008/05/05/nyregion/05detain-list.html?ref=nyregion (last accessed May 23, 2008).
199 UNDHR, Article 25.
196
197

47

In addition, failure to provide adequate medical care is a clear violation of the Fifth
200
Amendment.
Moreover, failure to provide adequate medical care, or allowing a person
to suffer from extreme pain without treatment is cruel, inhuman, and degrading treatment,
a violation of both international law and the Fifth Amendment.

6. Mental Health Care and Treatment
One of the most disturbing problems we found at the NWDC was the inadequate and often
nonexistent treatment of detaineesʼ mental health problems, as well as punitive measures taken
against those who suffer from mental health problems.
Approximately 20 percent of the detainees we interviewed reported they suffer from mental health
problems that required attention at the NWDC medical clinic. In addition, while many detainees
did not complain that they suffered from depression or other mental health issues, their speech
and body language suggested otherwise. Many appeared overly subdued and others would cry.
Our general impression was that a substantial percentage of the detainees interviewed appeared
to be depressed, nervous, scared, or a combination thereof.
It should be noted that 37 percent of those we spoke with were asylees or refugees, which by
definition means they likely suffered from some form of persecution. Many in detention, including
refugees, have suffered traumatic events that likely contribute to mental health problems. In
addition, some factors which have likely contributed to ongoing or new mental health problems
include minimal exercise and lack of recreational or educational opportunities; grey and cold
surroundings; lack of privacy; cultural isolation; limited or no communication with family; and the
uncertainty generated by the indeterminate nature of their confinement. For several detainees,
such conditions have either exacerbated preexisting conditions or led to new occurrences of
serious mental health issues. Even though detainees may exhibit signs of severe mental illness,
they are regularly placed in living quarters with the rest of the detainee population.
To administer mental health care to the approximately 1,000 detainee population, the NWDC
employs only one full-time psychologist. Furthermore, many detainees are hesitant to share
mental health problems with staff, in fear that they may be deported on that basis.
A. Inadequate Mental Health Training for Prison Officers
The National Detention Standards state that “[a]ll staff working with INS detainees in
detention facilities will be trained to recognize signs and situations potentially indicating a
suicide risk. Staff will act to prevent suicides with appropriate sensitivity, supervision, and
referrals. Any clinically suicidal detainee will receive preventive supervision and
treatment.”201 Seemingly, one of the major problems associated with the confinement of
the mentally ill at the NWDC is a lack of officer training on how to deal with mental health
issues. The information derived from the interviews suggests that the officers either
exhibit a misunderstanding of or an indifference to mental health issues.
For instance, Charles recounted an incident of a detainee in his twenties whose
personality and appearance had substantially changed over a period of time. Eventually,
the detainee stopped talking all together. Other detainees pointed out this personality
change to the officers, who responded that the detainee needed to request medical help
if he so desired. While watching the Super Bowl, the man slumped over and fell out of
the chair. Detainees again pointed the man out to the officers, but the officers did not

Jones v. Blanas, 393 F.3d 918, 931-32 (9th Cir., 2004); Hare v. City of Corinth, 36 F.3d 412, 415 (5th Cir., 1994), read in conjunction with Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976) and Gregg v. Georgia, 428 U.S. 153, 173 (1976) (concurring opinion).
201 DOM, Suicide Prevention and Intervention, 1, http://www.ice.gov/ doclib/partners/dro/opsmanual/suciprev.pdf (last accessed Apr. 20, 2008).
200

48

respond. Later that same night, the man passed out and collapsed on the upstairs floor.
At this point, officers finally notified medical personnel of the troubled detainee.
Another description was given by Reginaldo, who reported that the detention center is
unconcerned with mental health issues. For instance, one detainee who he described as
“crazy” spoke incoherent Spanish when he attempted to communicate. This detainee
came into the center weighing 87 pounds and was not given any extra food or special
treatment. Reginaldo also mentioned another individual, who swung at persons with the
sharp edge of a pencil if they came near him. Once this individual nicked himself while
shaving and began to draw pictures with his own blood.
The identification and treatment of mentally ill detainees in detention raises additional
legal issues. The Northwest Immigrant Rights Project (NWIRP), an organization that
provides the Legal Orientation Program in the NWDC, has discovered approximately nine
detainees who turned out to be U.S. citizens.202 These detainees were subsequently
released, as U.S. citizens cannot be held in immigration detention. It is the opinion of the
attorneys at NWIRP that many of those U.S. citizens detained have suffered from mental
illness.203
B. Excessive Use of Solitary Confinement
The National Detention Standards state, “When imminent risk of bodily injury or death is
determined, medical staff will make a recommendation for hospitalization for evaluation
and treatment.”204 The Standards also recognize that “[a] mentally incompetent individual
unable to appreciate the difference between appropriate and inappropriate behavior
- between ʻrightʼ and ʻwrongʼ -is not capable of acting in accordance with those norms.
Therefore, he/she is not responsible for his/her ʻwrongfulʼ actions.”205 In contrast to what
is stated in the Standards, several detainees reported that the mentally incompetent are
placed in segregation as “punishment.” While experiencing a psychiatric episode,
mentally ill detainees may yell and scream. As punishment for their “disruptive
behavior,” the officers will often send these detainees to segregation rather than
provide them mental health treatment.
C. Inadequate Treatment of Mental Health Problems Violates Both International and
Domestic Law.
Not only is the inadequate treatment of those with mental health problems a violation of
international lawʼs requirement of adequate medical care described above, denying
proper mental health can constitute cruel, inhuman, and degrading treatment (CIDT). For
example, the Human Rights Committee of the ICCPR found that denying an inmate
mental health treatment was a violation of article 7 of the ICCPR.206 Furthermore,
excessive use of solitary confinement can constitute CIDT. Under the HRC comments on
interpreting the ICCPR, the HRC stated: “The Committee notes that prolonged solitary
confinement of the detained or imprisoned person may amount to acts prohibited under
article 7.”207

Email from Jorge Baron, Executive Director of the Northwest Immigrants Rights Project, April 18, 2008, on file with the author.
Ibid.
204 DOM, Suicide Prevention and Intervention, 2, http://www.ice.gov/ doclib/partners/dro/opsmanual/suciprev.pdf (last accessed Apr. 20, 2008).
205 DOM, Disciplinary Policy, 2, http://www.ice.gov/ partners/dro/opsmanual/discip.pdf.
206 Williams v. Jamaica, Comm. No. 609/1995, UN Doc. CCPR/C/61/D/609/1995 (17 Nov 1997) (denying a death row inmate adequate medical
treatment for his mental condition was inhuman treatment as well as a denial of respect for the inherent dignity of his person (Arts. 7, 10(1), the
Political Covenant).
207 HRC, General Comment 20, Article 7 (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by
Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1, 30 (1994).
202
203

49

Under domestic law, prisoners have a right to receive medical treatment for illness and
injuries under the Eighth Amendment, which encompasses the right to psychiatric and
mental health care and the right to be protected from self-inflicted injuries, including
suicide.208 As mentioned in the previous section, the United States Supreme Court has
held that deliberate indifference to serious medical needs of prisoners constitutes the
209
cruel and unusual punishment proscribed by the Eighth Amendment.
The medical
needs of detainees must be treated with as high or a higher level of care than that owed
prisoners.210 For instance, the Fifth Circuit held that pretrial detainees enjoy an even
211
greater right to accessing medical care than prisoners.
Thus, if a detaineeʼs medical
needs are treated with deliberate indifference by officers or doctors, it is a violation of the
detaineesʼ due process.212

7. Food
Problems with quality and quantity of food constituted the most common complaint about
conditions at the detention center. Approximately 80 percent of the detainees interviewed stated
that they received an insufficient quantity of food, and were often hungry after meals. Similarly,
about 70 percent of the detainees reported that the quality of the food they received was poor and
inadequate. Detainees labeled the food as bad, watery, tasteless, rotten, poor quality, low
quantity, overcooked, repetitive, and cold. A few detainees who previously spent time
incarcerated mentioned that the food was much better and more plentiful in prison. Many
detainees complained that the food resulted in stomach and digestive problems. Unless a
detainee is on a special diet, detainees usually do not receive fresh fruit and rarely receive fresh
vegetables. A detainee reported that people can fill out a form to request vegetarian options, but
they need a note from either a doctor or someone in the religious community stating that being a
vegetarian is for health or religious reasons.
Detainees at the NWDC also reported that their food occasionally smells bad, appears rotten, has
been served on dirty trays, and has even contained bugs. Additionally, the food that is served
does not match the descriptions posted on the menu, and it is often served lukewarm or cold. For
those who leave detention within a few days, the inadequate food is a passing problem and a
temporary source of discomfort. However, for those who remain in detention for months or even
years, the scarce food results in poor nutrition, digestive problems, continuous discomfort, and
ongoing hunger.
In fact, many of detainees supplement their diet with food from the commissary. The commissary
is a service that allows detainees to purchase food items, telephone cards, postage, writing
supplies, and hygiene products to augment what is issued to them. Detainees obtain a
commissary order form from a officer, and then commissary items are delivered on the next
Thursday and Monday.213 If a detainee receives money from his family, friends, or loved ones, he
or she can use the money to buy food from the commissary. About 37 percent of the detainees
mentioned that they rely on food from the commissary because the food they are served is
inadequate. However, the commissary does not provide healthy and nutritious food options, such
as fruits and vegetables, which are not available during regular meals. Rather, detainees are only
able to purchase foods like instant noodles and granola, or chips and candy, all at inflated prices.

Gish v. Thomas, 516 F.3d 952 (11th Cir., 2008).
Estelle, 429 U.S. at 104; Gregg v. Georgia, 428 U.S. 153, 173 (1976); (Howard B. Eisenberg, “Rethinking Prisoner Civil Rights Cases and the Provision
of Counsel,” 17 S. Ill. U. L.J. 417, 429 (1993).
210 Jones, 393 F.3d at 931-37 (holding persons who have been involuntarily committed are entitled to more considerate treatment and conditions of
confinement than criminals whose conditions of confinement are designed to punish).
211 Hare, 36 F.3d at 415.
212 Jones, 393 F.3d at 931-32.
213 The GEO Group, Inc., Northwest Detention Center, Detainee Handbook, 10 (Dec. 10, 2007).
208
209

50

For example, a small package of ramen noodles costs 40 cents, which is more expensive than it
would be at a regular store outside of detention.214

Ricardo has also been in the detention for more than two years, and his
biggest complaint was about the food. Upon arrival to the NWDC, he
weighed about 190 pounds, but he has lost fifty pounds largely due to the
insufficient amount of food he receives. Ricardo also mentioned that many
detainees lose a lot of weight during their first two weeks at the detention
center due to lack of nutrition. Ricardo tries to stay busy by working out, but
the doctor at the NWDC told him to stop exercising because the food he
receives does not provide enough nutrition to continue daily physical exercise.

A. Inadequate Food and Nutrition
No federal or state laws exist governing the amount of food or nutritional balance
provided to the hundreds of thousands of people in immigration detention each year.215
ICE has stated through its non-binding food service guidelines 216 and has agreed in its
contract with GEO that detainees should receive nutritionally-balanced meals and
quantities of food in compliance with the Recommended Daily Allowances (RDAs) set
forth by the National Academy of Sciences.217 Additionally, federal case law provides
some minimum guidance for what basic needs must be provided to a person in
custody.218 For treatment to be considered humane, prisoners must receive adequate
food.219
Detainees are supposed to receive sufficient food as defined by the RDAs set forth by the
National Academy of Science. Under the contract with the predecessor to GEO, the
minimum diet in every 24 hour period must consist of the full number of servings that
meet provisions of the RDAs.220 The RDAs set forth specific guidelines for daily calorie,
vitamin, protein, and carbohydrate consumption based on a personʼs age, gender, and
activity level.221 Additional recommendations are made for pregnant and lactating
women.222
The contract specifies that the detaineesʼ diets must meet these
requirements. Despite this, however, GEO does not alter meals based on a personʼs size
or activity level. Each detainee receives the same amount of food and is not allowed
second portions. Regardless of size, many detainees interviewed said they had to
supplement their diets with food from the commissary or they were always hungry.
However, a detainee without money would have no way to supplement his or her diet.
One detainee, who remained in custody for over four years before a judge granted him
asylum, had a doctor prescribe him fresh fruit because his health deteriorated
substantially while at the detention center.
In two local grocery stores, we found ramen priced at 29 cents per package.
Medical Care and Treatment of Immigration Detainees and Deaths in DRO Custody: Hearing Before the House Committee on the Judiciary Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law Subcommittee, U.S. House of Rep., 110th Cong., 2 (Oct. 4, 2007) (testimony of Gary E. Mead),
available at http://www.ice.gov/doclib/pi/news/testimonies/071004icetestimony.pdf (last accessed Mar. 9, 2008).
216 DOM Food Service Policy, http://www.ice.gov/ partners/dro/opsmanual/foodsvc.pdf (last accessed Apr. 20, 2008).
217 Dietary Reference Intakes (DRIs): Recommended Intakes for Individuals, Vitamins, Food and Nutrition Board, Institute of Medicine, National Academics,
(2004), available at http://www.iom.edu/Object.File/Master/21/372/0.pdf (last accessed Apr. 20, 2008).
218 See Farmer v. Brennan, 511 U.S. 824 (1994); Phelps v. Kapnolas, 308 F.3d 180 (2nd Cir., 2002); Ramos v. Lamm, 520 F.Supp. 1059 (D.C. Colorado, 1981).
219 Farmer v. Brennan, 511 U.S. 825, 832 (1994).
220 Correctional Services Corporation and U.S. Government Contract, Chapter 14-Food Service, C-62 (July 26, 2002), on file with author.
221 Food and Nutrition Board, Institute of Medicine, National Academics, Dietary Reference Intakes (DRIs): Recommended Intakes for Individuals,
Vitamins (2004), available at http://www.iom.edu/Object.File/Master/21/372/0.pdf (last accessed on Apr. 20, 2008).
222 Food and Nutrition Board, Institute of Medicine, National Academics, Dietary Reference Intakes (DRIs): Recommended Intakes for Individuals,
Vitamins (2004), available at http://www.iom.edu/Object.File/Master/21/372/0.pdf (last accessed on Apr. 20, 2008).
214
215

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Furthermore, the contract requires GEO to provide alternative meals that are nutritionally
adequate to ensure good health.223 However, alternative meals provided to detainees
also do not meet nutritional standards set forth in the contract or the ICE food guidelines.
Detainees are provided with sack lunches as alternative meals, and specific guidelines
for what a sack lunch must contain are specified in the ICE detention food guidelines.
Each lunch must include two sandwiches (at least one must have meat), fruit, dessert,
and a snack item (like fresh vegetables, snack crackers, or chips).224 However, detaineesʼ
sack lunches have not matched up to those guidelines on several occasions. For
example, one detainee discussed receiving a sack lunch with two peanut butter
sandwiches.
Additionally, one detainee who has been in detention for over two years requires a
special lactose free diet. She gave up trying to receive the lactose free diet because the
officer refused to give the detainees their special meals. Furthermore, the detention
center stopped providing soy milk as a milk replacement and told detainees it would only
be available through the commissary. However, the commissary has never carried soy
milk.
B. Meal Times
Some detainees reported that the meals have been late almost on a daily basis. One
detainee reported that other detainees will get very agitated and scream because they
are hungry and do not have money to buy food from the commissary. Another detainee
stated that he has seen detainees eat out of the garbage when they do not have money
to buy food, and are still hungry. According to the NWDCʼs Detainee Handbook, breakfast
is supposed to be served at approximately 5:30 a.m., lunch at 12 p.m., and dinner at 5
p.m.225 Instead, lunch is sometimes served at 1 or 2 p.m., leaving detainees without food
for nearly eight hours. Furthermore, dinner is not served sometimes until 7 or 7:30 p.m.
Additionally, the delay in delivering food often results in lukewarm or cold food being
served which raises concerns about food safety, discussed below.
C. Food Safety Standards
Minimum standards for food safety require that food be served at specific temperatures to
be safe to eat. Additionally, food safety laws set forth minimum standards for sanitation
and food handling, which apply to food service at the NWDC. Safety guidelines require
that hot food be served at a temperature of 60ºC or 140ºF.226 Additionally, according to
ICEʼs National Detention Standards for Food Service, it is ICE policy to “provide
detainees with nutritious, attractively presented meals, prepared in a sanitary manner
while identifying, developing and managing resources to meet the operational needs of
the food service program.”227
During an annual review of the NWDC during June 19-21, 2007, it was noted that
“several meals were observed being served to detainees on one occasion during dinner
feed-up [and] the detainees received over cooked and cold meals. The facility corrected
the advisory during the review. All meals were collected and replacement meals were
reserved.”228 However, the NWDC did not take heed to this warning, and less than two
Correctional Services Corporation and U.S. Government Contract, Chapter 14-Food Service, Subsection H, Alternative Meals, C-63-64 (July 26,
2002), on file with author.
224 DOM, Food Service Policy, 22, http://www.ice.gov/ partners/dro/opsmanual/foodsvc.pdf; see also Correctional Services Corporation and U.S.
Government Contract, Chapter 14-Food Service, Subsection G, C-63 (July 26, 2002), on file with author.
225 The GEO Group, Inc., Northwest Detention Center, Detainee Handbook, 7 (Dec. 10, 2007).
226 U.S. Department of Health and Human Services, Public Health Service, Food and Drug Administration, 2001 US Food Code (updated April 2004),
available at http://www.cfsan.fda.gov/~dms/fc01-3.html#3-2 (last accessed Apr. 20, 2008).
227 DOM, Food Service, www.ice.gov/doclib/pi/dro/opsmanual/foodsvc.pdf [last accessed May 21, 2008].
228 2007 ICE Annual Review of NWDC, June 19-21, 2007.
223

52

months later, an outbreak of food poisoning of the type associated with cold food
occurred in August 2007.
The food poisoning outbreak was investigated by the Tacoma-Pierce County Health
Department, which determined that a specific type of food poisoning made approximately
300 of the 1,000 detainees at the NWDC ill.229 Many detainees we interviewed reported
the food poisoning outbreak as much more widespread. Detainees were asked to fill out
forms explaining whether they were sick and what they had eaten. However, by the time
this form was handed out, many detainees had already left the area and had no
opportunity to fill out the paperwork. Additionally, the forms were only in English so many
detainees could not fill them out. One detainee, Chen, reported that although eighty
people in his pod were sick, about 20 filled out the forms. Another detainee, Ernesto, in a
different pod reported that everyone in his pod became ill. Ernesto was given “Gatorade”
to drink, although he said it tasted like Kool-Aid, and felt ill for three days.
The Tacoma-Pierce County Health Department found this specific type of food poisoning
resulted from heating or cooling food too slowly allowing bacteria to grow in great
numbers.230 Furthermore, it identified several problems with the food preparation
procedures at the facility. For example, the NWDCʼs practice of cooking certain foods too
far in advance, cooling them improperly, and not reheating them properly resulted in the
food poisoning outbreak.231

Scott Fontaine, Detention Center Cooks Faulted in Food Poisoning Outbreak, Dec.10, 2007,
http://www.thenewstribune.com/news/local/story/225491.html (last accessed on Apr. 21, 2008).
230 Ibid.
231 Ibid. However, some detainees have mentioned that the food poisoning outbreak was actually much more widespread than official reports indicated.
229

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Charlie Santoso
Charlie came to the United States in 1992 from Indonesia on a student visa.
He studied at Seattle Central Community College and earned an Associates
Degree. Afterwards, Charlie applied to several universities for admission to
Bachelors Degree program. However, due to economic problems in Indonesia,
he was unable to secure financing for his tuition. Charlieʼs student visa expired
in 1997. In 1998, Charlieʼs parents warned him not to return to Indonesia.
Violence had broken out in his home country against ethnic Chinese Christians,
a group to which his family belonged. Charlie applied for asylum without the
assistance of an attorney, Charlie lost his case and subsequent appeal.
Charlie was arrested and detained in December of 2007. ICE officers came to
his apartment and told him they were looking for a Mexican woman. They
showed him a picture and description of the woman. The officers asked Charlie
if they could check his room, and he said yes. Once they entered the
apartment, they arrested him. Charlie still does not have an attorney.
Since entering detention, Charlie has been struggling with the food. The food is
often so bad it is inedible, and he will throw it away even though he is very
hungry. The portion size is far too small and he is very skeptical that the food is
based on a 2,000 calorie diet like the staff claim. The food is also often served
late and cold. Detainees who do not have money to buy food from the
commissary get very agitated when meals are late. He also was frustrated that
they were not served fresh fruits and vegetables, and were not able to buy
them from the commissary.

D. Poor Quality and Quantity of Food Violates International and Domestic Law
Because the detainees are not afforded the basic human necessity of nutritious food, and
such deprivations result in inhuman treatment, several international laws have arguably
been violated. For example, Article 10 of the ICCPR provides that all detained persons
should be treated with dignity,232 and the UN Principles of Detained Persons states that
all detained persons should be treated in a humane manner.233 Similarly, the UDHR and
the UN Principles of Detained Persons all acknowledge the basic right to be free from
hunger.234 For reasons outlined above, it is clear that detainees at the NWDC are not
treated with dignity or humanely because they are not provided food of sufficient quantity
or quality.
With regard to domestic law, although no federal or state law governs the amount of food
or nutritional balance the NWDC is required to provide, the ICE National Detention
Standards for Food Service, the Correctional Services Corporation and U.S. Government
Contract, and federal case law set minimum guidelines for what the detainees should
receive. The NWDC fails to meet many of these standards. The detainees do not
receive adequate food and remain hungry after meals. Food provided to the detainees
does not meet standards set forth by ICE to be palatable, nutritious, and appealing. All
persons taken into custody by the United States government should receive adequate
food, and the detainees at the NWDC are not afforded this basic human necessity.

ICCPR, Dec. 16, 1966, 999 U.N.T.S. 171.
UN Principles,, G.A. res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988).
234 Ibid; UDHR art. 25.
232
233

54

In addition, federal constitutional law requires that immigrant detainees not endure
conditions in detention that rise to the level of punishment.235 The small quantity and
poor quality of food rise to the level of punishment, thus violating the Fifth Amendment.
Moreover, U.S. courts have consistently held that conditions in civil detention that are
worse than conditions in criminal detention presumptively violate detaineesʼ constitutional
rights.236 Because the food in detention is worse than food at most prisons, there is a
presumption that the food served at the detention center is punitive in nature, thus
violating the detaineesʼ civil rights.

8. Living Quarters
About 75 percent of the detainees complained about the overcrowding, noise, lack of privacy, and
unsanitary bathrooms in their pods.
A. Pod Conditions and Privacy
Approximately 60 percent of the detainees complained about the lack of privacy, and
about 80 percent complained of overcrowding in their pods. Many of the detainees felt
that the pods were filled to capacity, with extra bunk beds added to the pods from time to
time to keep up with the influx of detainees. As a result, privacy is almost non-existent,
and detainees are doing their best to adjust to living in very crowded conditions.
Charlie has been in the detention center for two months, and he stated that his living
quarters in pod C-3 are unsanitary because there are too many people living in one area.
The pod was designed to hold 64 beds, but it currently holds more than 80 detainees,
and the detention center keeps adding more and more people to his pod. There are four
showers, six toilets, and two microwaves. Some people have to eat their meals in their
bunk because there is not enough room at the tables for everyone. He also noted he has
difficulty sleeping at night because detainees stay up late talking or making noise
throughout the night. The officers keep the lights on at night, which also makes it difficult
to fall asleep.
In one of the larger pods, B-1, Pablo reported that there were 40 cells with bunk beds, but
the pod was holding 120 men. Additional bunks were added outside of the cells to
accommodate the overflow. This meant that approximately 50 men did not have a cell,
and had to share the bathrooms at the bottom of the pod. These bathrooms quickly
became very dirty.
Charlotte reported that on June 13, 2007, the NWDC installed 40 additional bunks to the
outside day room and received 63 women in one day from a workplace immigration raid
in Portland, Oregon. She stated that “the population doubled” and “it was horrendous.”
She said that eight months later, her pod “still hasnʼt gotten back to normal.” As a result
of the new bunks, some cells were emptied out to make additional bathrooms. She
stated that 50 detainees share four bathrooms.
Overcrowding also raises the issue of “mixing” detainees with different security levels.
Detainees are administered colored jumpsuits. Blue uniforms indicate the lowest risk,
level one, and may include detainees with minor criminal records and nonviolent felonies.
Level one detainees may not be housed with Level three detainees.237 Orange uniforms
indicate medium risk, level two, and may not include detainees whose most recent
Jones, 393 F. 3d at 932.
Jones, 393 F.3d at 931-32 (civil conditions of confinement which were the same as or similar to those for criminal prisoners or even pretrial detainees
were presumptively punitive and unconstitutional).
237 The GEO Group, Inc., Northwest Detention Center, Detainee Handbook, 5 (Dec. 10, 2007).
235
236

55

conviction was for any offense under the ʻhighestʼ section of the severity scale.238 Red
uniforms are for the highest level of risk, level three, requiring medium to maximumsecurity housing.239 Although detainees with blue jumpsuits are not allowed to be placed
with red jumpsuits, several detainees have reported that detainees with all three colors
are mixed together in the pod, raising security concerns among the detainees.
B. Bathrooms and showers
Lack of privacy in the bathroom and showers was a constant complaint we received from
detainees. Because the toilets do not have any doors and are only separated by dividers,
many detainees feel uncomfortable using the toilets. Additionally, some of the showers
do not have curtains so detainees have no privacy while bathing.
Although some
detainees reported the toilets and showers to be clean, others reported them to be
extremely dirty. Moreover, in some pods, toilet paper and paper towels often run out, and
they are not replaced in a timely manner. For instance, one detainee stated that toilet
paper and paper towels have run out at least five times in the last four months. No
substitute products were offered, and detainees were told that they should “improvise.”
In Reginaldoʼs pod there are 80 people who share six or seven toilets. Though they are
cleaned twice a day, they were still filthy. He said that nobody in the bathrooms has
privacy because you can see people in the bathroom over the stalls, as the bathrooms
have no doors. There are some dining tables near the bathroom also, which he felt gave
rise to serious sanitation issues. Toilet water can spray onto food at these tables.
When the food poisoning incident occurred, one had to unclog other peopleʼs mess in the
toilet before using it. Some people threw up in the sinks because the toilets were all full.
Additionally, the toilets are often clogged, forcing the detainees to try to clean them in
order to use them. About five months ago, Reginaldo saw a rat in the downstairs toilet in
C-3. It was dead and was left there for two days: bloating, rotting, and preventing use of
the toilet. He mentioned that the smell was terrible and very noticeable to everyone.
Reginaldo also stated, “The toilets are very loud. People sleep with earplugs at night
because it is so loud. The earplugs hurt, they are not soft, but itʼs better than hearing the
toilet.”
C. Living Conditions May Violate International and Domestic Law
The right to privacy is codified in all international human rights. As stated by Article 12 of
the Universal Declaration of Human Rights, everyone has the right to privacy, which is
also reflected in Article 17 of the ICCPR and Article 11 of the American Convention.240
Additionally, Article 8 of the UN Body of Principles provides that detainees should be
treated appropriately to their non-criminal status. Because the detainees are not serving
time for crimes committed, the invasion of their privacy in some instances may be
arbitrary, and in other instances, may constitute cruel, inhuman, and degrading treatment.
Under domestic law, in determining whether a restriction on immigrant detainees or
conditions of detention constitute punishment and thus deprives a detainee of liberty
without due process of law, courts infer that a restriction is intended to be punishment if it
appears to be unrelated to a legitimate governmental objective, and is, for example,
arbitrary or purposeless.241 While the NWDC clearly has the right to maintain security
and order at the facility, such restrictions may not be “excessive in relation to that
Ibid.
Ibid.
240 Organization of American States, American Convention on Human Rights art. 5, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 (hereinafter
American Convention).
241 Bell, 441 U.S. at 561 (holding that even when limitations on a pretrial detainee's freedom are rationally related to a legitimate non-punitive
governmental purpose, they will amount to punishment if “they appear excessive in relation to that purpose.”).
238
239

56

purpose.”242 Although safety and order is certainly a legitimate purpose, the intrusions
into privacy, openness of toilets, lack of toilet paper, and level of cleanliness are all likely
excessive in relation to their purposes. In addition, overcrowding violates the Eighth
Amendment when it, by itself or in combination with other conditions, deprives detainees
“of the minimal civilized measure of lifeʼs necessities.”243 Thus, the overcrowding that
leads to detainees having to eat in their bunks, lack of sleep, and extreme lack of privacy
likely collectively amounts to punishment and therefore violates detaineesʼ due process
rights. 244 Although such may not be the case for a detainee in the pod for a short amount
of time, the longer the detainee is in detention, the more such conditions likely to be seen
as punitive in nature.

9. Visitation
Detainees have described the visitation policy at the NWDC as depressing, sad, and intolerable.
Unlike many prisons where contact visits are permitted, visitation takes place behind a glass
partition that separates the detainee from his or her family. Detainees communicate with visitors
over a phone. Visits typically last no longer than 30 minutes. Many detainees have stated that
they are willing to be strip searched after visits if contact was allowed. Such lack of contact is
especially difficult for detainees who have young children or for those who cannot hug a sick or
elderly family member.
According to the Detainee Handbook, visitors are permitted to meet with the detainees every day,
except Tuesday and Wednesday.245 Although the Handbook states that “sessions will normally
be for one hour,” many detainees have reported that visits are limited to fifteen to thirty minutes,
which is not a sufficient amount of time to connect with a family member or friend.246 Additionally,
due to mistakes made by officers, such as bringing the wrong detainee to a visitor, or leaving the
detainee in the holding area too long, the time detainees are able to spend with their visitors is
sometimes cut short. As a result, some detainees have requested that their family and friends do
not visit because the short and no-contact visits only make them more depressed.
On one of our detention visits, we noticed a long line of visitors waiting. Although visiting hours
are permitted until 3:30 p.m., the officer turned everyone away at 2:45, without warning. One
visitor at the beginning of the line pleaded for entry, but was denied.

Ibid.
Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (the definition of cruel and unusual punishment must be based on evolving and contemporary
“standards of decency that mark the progress of a maturing society.” ) The Court did not articulate the specific range of conditions that would lead to
a finding of cruel and unusual punishment. Thus, lower courts are divided as to what conditions meet the overcrowding standard and different circuits
take entirely different approaches.
244 The Supreme Court has made clear that overcrowding may constitute punishment. For instance, “confining a given number of people in a given
amount of space in such a manner as to cause them to endure genuine privations and hardship over an extended period of time might raise serious
questions under the Due Process Clause as to whether those conditions amounted to punishment....” Bell, 441 U.S. at 542.
245 The GEO Group, Inc., Northwest Detention Center, Detainee Handbook, 11 (Dec. 10, 2007).
246 Ibid.
242
243

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Ricardo Jiminez
Ricardo left El Salvador and arrived in Los Angeles in 1982, at the age of 9. He became
a lawful permanent resident. In 1994, he moved to Oregon, where he worked in
construction. He was convicted of a felony and served time in 1996. In 2005, ICE
arrested him in his home and brought him to the NWDC where he has been fighting his
deportation ever since. Ricardoʼs wife and two children, ages 6 and 4, are U.S.
citizens. His seven year old daughter has a debilitating, chronic illness and his wife
had struggled to take care of the family and finances in his absence.
Knowing how sick his daughter is, he wants to have contact visits with his family,
saying that “I want to hold her, hug her. Itʼs hard on her, hard on me, but all I can do is
see her through the glass.” He stated that under the current process, he would be
allowed only one contact visit with his family one week before he is deported. Being in
detention has not only taken a toll on Ricardo emotionally and physically, but also on
his family.
Donna, Ricardoʼs wife, says she tries to visit Ricardo at least once a month. It takes
her about three hours to drive up from Oregon to see him at the detention center.
Usually, she waits up to an hour for a fifteen minute, no-contact visit. The entire
process of driving up, visiting and driving back takes a full day and is very taxing on
her, the kids and Ricardo. There have been a couple of times where she has waited
nearly two hours to meet with Ricardo. During these waits, she demanded that she be
able to meet with him longer and was granted a longer visit on two occasions. Donna
stated that this was because “depending on who has been there, the rules change.”
Donna is concerned about the conditions of the visiting rooms and found them to be
extremely dirty, which is very problematic for their ill daughter.
The visits to the detention center have been especially traumatizing for Donna and
Ricardoʼs daughters. Donna stated that there are no toys or books to occupy the
children while they wait, and they are they permitted to bring anything with them. Many
of the visiting children have been in a car for a long period of time and are restless by
the time they are in the waiting room. The guards do not seem understanding of
normal childish behavior. Instead, they have threatened visitors and kicked them out
because of their children. They have also loudly criticized the parenting abilities of
visitors in front of their children. Guards have even intimidated children, by either
yelling or trying to discipline them.
Finally, since Donna has been going to see Ricardo, the visiting rules have changed
multiple times, further complicating the process and making it difficult for family who
cannot visit often.

A. Visitation Policies May Violate Both International and Domestic Law
The right to family unity is codified in every international human rights treaty and is
recognized as a principle of customary international law.247 Moreover, according to the
UN Principles for Detained Persons, “A detained or imprisoned person shall have the
right to be visited by and to correspond with, in particular, members of his family and shall
be given adequate opportunity to communicate with the outside world, subject to
247

See UNDHR; ICCPR; ICESCR; American Convention; European Convention; African Charter.

58

reasonable conditions and restrictions as specified by law or lawful regulations.”248 Laws
and policies are to be assessed in light of their arbitrariness with respect to family unity
related rights such as visitation and communication with family members. Thus, the nocontact visits and the short amount of time provided for visitation arguably violates
international law. These procedures constitute an arbitrary interference of the right to
family unity and do not afford the detainees humane and dignified treatment.
With regard to domestic law, the Constitution strongly indicates that family unity rights are
protected by the Due Process Clauses of the Fourteenth and Fifteenth Amendments.249
The current visitation policies at the NWDC have deprived detainees of family contact in
one form or another. With respect to how these rights relate to protecting the family, the
impact of detention policies should be considered.

10. Language Barriers
For detainees who do not speak English, language often creates barriers at the NWDC. Spanish,
Russian, Chinese, and Haitian Creole are just some of the languages spoken by the detainees at
the Northwest Detention Center; however, interpreters are rarely accessible.
Upon arrival at the detention center, detainees are supposed to be given a detainee handbook.
However, the handbook is only available in English, with a truncated version provided in Spanish.
Similarly, according to the detainees, although some officers speak Spanish most of the officers
speak only English. If a detainee is unable to communicate with a officer, he or she usually relies
on another detainee in his or her pod who can translate English into his or her native language.
While some officers attempt to communicate with detainees, other officers ridicule detainees by
repeatedly yelling orders at them in English, even though the officers are aware that the
detainees do not understand. Claire, a detainee, explained that a detainee must speak English to
really understand what is happening at the detention center.

Kuo, a detainee who only spoke Chinese, communicated his frustration
regarding the language barrier at the detention center. He said that upon
arrival he was given an instruction manual, but it was not in Chinese and he
was not offered an interpreter. Additionally, none of the officers in his pod
spoke Chinese, so he was forced to rely on his podmates to help him when he
needed to communicate with the officers. He also found the language barrier
to be a problem when he wanted to file a kite. Kuo wanted to request some
books in Chinese for reading and to report that his laundry had been stolen, but
the kite procedure was in English, so he did not know how to file his grievance.
Kuo also had trouble with the telephones because the directions are not in
Chinese. Additionally, signs on the walls state in English only that calls will be
monitored, so those who do not speak English are not aware that their
conversations are being taped.

UN Principles art. 19.
See Moore v. City of Cleveland, OH, 431 U.S. 494, 503 (1977) (“Our decisions establish that the Constitution protects the sanctity of the family precisely
because the institution of the family is deeply rooted in this Nation’s history and tradition. It is through the family that we inculcate and pass down
many of our most cherished values, moral and cultural.”); Troxel v. Granville, 530 U.S. 57, 65 (2000).
248
249

59

A. Failure to Provide Information in a Detaineeʼs Language Implicates Due
Process Concerns of Both International and Domestic Law
Due process rights, both substantive and procedural, are simply illusory if a detainee is
not provided information in a language he or she understands. Moreover, under the UN
Body of Principles, Principle 14 states that “[A] person who does not adequately
understand or speak the language used by the authorities responsible for his arrest,
detention or imprisonment is entitled to receive promptly in a language which he
understands…” the reason for his detention and his right to due process, including
information and explanation about how to avail himself of such rights.250 Consequently,
not providing the Detainee Handbook in languages other than English and Spanish
arguably violates these principles, even if they are non-binding.

11. Recreation & Exercise
Approximately 50 percent of the detainees we interviewed felt that they received inadequate time
to exercise or that the conditions for exercise are insufficient.
The National Detention Standards state that “all facilities shall provide INS detainees with access
to recreational programs and activities, under conditions of security and supervision that protect
their safety and welfare.”251 There is one, large recreational yard available to the detainees every
other day for one hour.252 There is also a small partially enclosed quarter basketball court
attached to each pod, or housing unit, which is available to detainees daily from 8 a.m. until 8
p.m. However, when detainees are permitted to exercise outdoors, very limited recreational
equipment is made available to them. The NWDC Administration claims that free weights are not
offered for security reasons, even though such equipment is readily offered to inmates in the
recreational yards of many federal penitentiaries. Thus, during this recreation period made
available one hour every other day, many detainees spend their time walking the parameter of the
yard. The partially enclosed court is not large enough to really walk around in a manner that
would allow sufficient exercise.
Detainees are not issued replacement clothing when it rains. Once outside, detainees are
prohibited from going back inside until the recreational period has ended, even under extreme
adverse weather conditions. Because detainees are issued limited clothing, they may not have a
change of clothes if their uniform becomes wet from the rain. Consequently, a significant
percentage of detainees abstain from participating in outdoor recreational activities because they
worry that they will be forced to remain outside in bad weather.

12. Telephone Access
The most common complaint regarding telephones, aside from the privacy issues raised above,
is how expensive it is to make a call. The Detention Operations Manual does not specifically
address what is a “reasonable expense” when making a telephone call, but the policy as to
telephone access states, “Facilities holding INS detainees shall permit them to have reasonable
and equitable access to telephones.”253 Presumably “reasonable and equitable” would mean
affordable. However, over half of the detainees we spoke with stated that they use phone cards to
make calls but that the phone cards do not last very long. For example, many detainees said that
a $20 phone card generally lasts around 15 minutes. If a detainee does not have any money, it
can be nearly impossible for him or her to make a call. One detainee stated in an interview that
UN Principles art.19.
DOM, Recreation, 1, http://www.ice.gov/doclib/partners/dro/opsmanual/recreat.pdf (last accessed Apr. 20, 2008).
252 The GEO Group, Inc., Northwest Detention Center, Detainee Handbook, 10 (Dec. 10, 2007).
253 DOM, Telephone Access, 1, http://www.ice.gov/doclib/partners/dro/opsmanual/teleacc.pdf (last accessed Apr. 12, 2008).
250
251

60

detainees in general are not allowed to call 1-800 numbers and no explanation for this has been
given. Thus, if a detainee only has the 1-800 number for his or her lawyer, the detainee is not
able to contact them via telephone. In addition, another detainee stated that you can only put so
many numbers in the phone, so that if you call 1-800 and use an extension, or if you call Bureau
of Immigration Affairs to check on your case and you have to enter the number, the phone cuts
off.
The other general issue concerning the telephones in the detention center had to do with
availability. Many detainees commented on the long wait involved in using a telephone because
so many detainees want to use the phone. The Detention Operations Manual states, “To ensure
sufficient access, the facility shall provide at least one telephone for detainee use for every 25
detainees held.”254 Due to the crowed conditions there can be 80 or more detainees in a particular
pod, and if one or two telephones happen to be out of service then sufficient access could be a
problem. For example, one detainee stated that there were 110 people in her pod and five
telephones, and that at peak calling time it was almost impossible to make calls on the phone.
Compounding the load on the telephones is the fact that there is no time limit on how long a
detainee can talk.
In addition to the phones being busy, phones are often broken, which increases the use on the
phones that are working. Although the Detention Operations Manual states that telephones will be
kept in proper working order and repair service will be prompt,255 detainees stated that it often
takes a long time for the NWDC to perform the necessary maintenance on the broken telephones.
These problems confirm the findings of United States Government Accountability Office (GAO) in
2006.256 The GAO singled out the NWDC as having systemic telephone access problems in 2006
and found that problematic telephone access restricts detaineesʼ ability to reach pro bono
services.

13. Cumulative Effect of Conditions Results in Cruel, Inhuman and Degrading
Treatment, Violating Both International and Domestic Law.
In addition, considering all of the above conditions problems, the cumulative effect of the
conditions of detention arguably results in inhuman and degrading treatment, especially for those
who are in the detention facility for more than just a few days. Detainees consistently reported to
us they felt as though they were being treated as prisoners. They also consistently described the
treatment they received in detention as degrading and inhuman, and some stated that they felt
they were being treated like animals.
For those in detention for more than a short time, the totality of conditions – the poor quality and
quantity of food, gray and cold surroundings, lack of recreation and educational stimulation and
lack of privacy - violates the prohibition of inhuman and degrading treatment found in both
numerous treaties and customary international law. Such conditions also most certainly become
punitive in nature, violating the detaineesʼ rights under the due process clause of the Fifth
Amendment.

Ibid.
Ibid.
256 GAO ADS Report, Highlights, (2007), available at http://www.gao.gov/new.items/d07875.pdf (last accessed Mar. 9, 2008).
254
255

61

VII.

Conclusion and Recommendations

When detaining immigrants, the U.S. has an obligation to comply with both international and
domestic legal standards on detainee treatment. Detention without accountability only increases
maltreatment and decreases the most basic American values of liberty and dignity. Current detention
practices, including detention conditions such as those found at the NWDC, violate both international
human rights law and domestic Constitutional protections. Moreover, immigration detention should not
and is not meant to mimic a prison.
This investigation has uncovered serious problems regarding detainee treatment within the NWDC.
Detainees have been subject to mistreatment in areas of legal access, family visitation, medical care,
food, officer treatment and living conditions. The federal government should create a system of
accountability to ensure that public entities such as DHS and private corporations like GEO are not
violating the rights of individuals. There should also be a recognition that current immigration policy,
which GEO cannot control, has led to overcrowding, which in turn has led to many of the problems this
investigation has found. Current conditions at the NWDC and similar centers around the country should
prompt the federal government to explore alternatives to detention that are humane and respect the
dignity of legal permanent residents, asylum-seekers and undocumented individuals alike.
First, the United States must adopt an immigration policy that comports with international
human rights obligations, including the use and conditions of immigration detention. Second, an
immigrant should not be subjected to detention unless there has been an individualized finding that
he or she poses a security threat or is a flight risk. It should also be noted that refugees have additional
rights under the Refugee Convention to not be subject to on-going detention. For those who ICE has
shown to be a potential flight risk, there should be alternatives to detention, such as electronic
monitoring or participation in the Intensive Supervision Appearance Program (ISAP).
However, as long as ICE continues to detain those who are not deemed to pose a security threat or
flight risk, then conditions for parole should be relaxed and amounts required for bonds should be
reduced. In addition, conditions inside the NWDC should be greatly improved. We recommend that the
following alterations be made at the Northwest Detention Center as soon as possible so that ICE is in full
compliance with international and domestic standards and to ensure the dignity of the civil detainees held
inside. Outlined below are a series of comprehensive recommendations that would improve current
conditions at the Northwest Detention Center.
•

The detention standards should be formally codified and made legally binding. The
detention standards and guidelines must become legally binding so there is a clear
understanding and accountability for how detainees are treated and the conditions of the
detention center. ICE must adopt the National Detention Standards as regulations through a
formal rule-making process that includes input from civil society. Detainees must have legal
means of redress for abusive conditions that holds DHS, ICE, and its private contractors
accountable.

•

Detainees should be provided better legal access to their attorneys and the attorneyclient privilege must be respected. To enhance legal access for detainees, the following
actions should be taken:
1. attorneys should be notified of a detainee transfer;
2. attorneys should be allowed to schedule appointments with detainees for a set time in
advance;
62

3. the number of attorney visitation rooms should be expanded;
4. the visiting rooms should be soundproofed;
5. detainees should have prompt access to unmonitored telephones to speak with their
attorneys or potential attorneys.
•

Officers should be better trained to identify and respond appropriately to issues of
mental health and language barriers. Regular trainings of officers should include more
specialized training on identifying mental health issues and proper treatment of those with mental
health problems. In addition, officers should be trained on recognizing language barriers.

•

Resources and print material should be made available in all of the languages spoken by
detainees, and interpreters should be provided in all languages. Though a majority of
detainees either speak Spanish or English, many do not. There are many different languages
spoken by detainees as their sole or primary language. ICE must ensure that manuals, including
the Detainee Handbook, and resources are available in all languages spoken by the detention
population. ICE must also ensure access to interpreters in all languages.

•

The NWDC should make structural changes to its facility to increase the privacy of those
living in detention. NWDC must stop adding additional beds to common areas and respect the
intended capacity of each pod. To respect the privacy of the detainees, NWDC should
reconfigure the bathrooms so that detainees are not exposed to the entire pod. Although it
might not be feasible for security reasons to entirely enclose the bathrooms, at a minimum,
structural changes should be made to ensure coverage over much of the body. For example, the
restrooms could have a panel that would expose legs and the upper body, but would provide
coverage over detaineeʼs private parts. NWDC should also provide each detainee with a locker
or private space for personal items. Concerns about safety and security on the part of the
NWDC could be addressed by providing the administration with keys to lockers for random
security checks.

•

Food provided to detainees should comply with FDA and federal food safety standards.
The NWDC must increase the amount of food made available to detainees. If food cannot be
served buffet-style, and if the portions cannot be individualized depending on each detaineeʼs
size, weight and activity level as recommend by the FDA, then portions should simply be
increased. In addition, the NWDC must provide edible, unspoiled, and properly prepared food.
Moreover, it is imperative that more fruit and vegetables are provided, and that fresh fruit and
vegetables are provided as often as possible.

•

To ensure food safety standards are met, NWDC should serve breakfast, lunch and
dinner at a regular time, and more must be done to ensure proper temperature of food.
Finally, NWDC must acknowledge and respect special diets of detainees due to either health or
religious reasons.

•

Punitive segregation of detainees with mental health conditions must end. Moreover,
onsite mental health support must be made available. This report found that detainees with
mental health issues are often placed in segregation. This practice needs to end and those with
mental health issues need to be managed through more appropriate methods. In addition, many
individuals arrive at the detention center with mental health issues that are further aggravated by
detention, and others develop mental health issues while being detained. Moreover, fear of
deportation prevents many detainees from coming forward with issues of depression, suicide
and other mental health conditions. Therefore, more in depth and on-going mental health
assessment is required, instead of just the initial screening process. The NWDC should also
clearly state that physical and mental health information provided to medical personnel cannot
and will not be shared with immigration officials. Proper identification and intervention of mental
health issues will allow for better living conditions for detainees.
63

•

Medical care, including emergency medical care, needs to be improved. ICE needs to
ensure that detainees have prompt, direct access to medical treatment, including that treatment
which can only be accessed outside of the detention facility. When treatment is sought outside
the facility, detainees should not be shackled unless they are found to pose a specific threat.
Second, ICE needs to ensure that the NWDC responds promptly and adequately to emergency
medical situations 24/7. Third, ICE must ensure that chronic conditions are addressed promptly
and adequately, especially those conditions that result in severe pain. Fourth, detainees should
not be made to stand for any significant length of time when they are ill, as they currently must
do during “sick call” each morning.

•

Family unity should be respected by reducing the restrictions on visitations, and
improving telephone access. Detention breaks up families and makes it difficult for loved ones
to see each other. Current NWDC policies add to this tragedy. More rooms should be made
available for family visits and visiting hours should be extended to accommodate families that
travel great distance to visit detainees. Flexibility should be the rule and not the exception.
Contact visits should be allowed, especially if detainees consent to being searched. Finally,
cheaper phone cards should be made available. Preferably, detainees should have more
phones available to be able to call family members and should ideally be provided free phone
access, especially for local calls.

•

NWDC must ensure that abusive guard treatment ends, and detainees should be
provided with safer and more efficient methods of having grievances addressed in
detention. First, officers that are alleged to be abusive, make sexual overtures, or retaliate
should be investigated promptly, and where it is more likely than not that such allegations are
true, the officers must be promptly removed. Second, NWDC must create a safe and fair
process for submitting grievances and complaints. Alternative methods for being able to file
written grievances about officers must be explored. There currently is no clear method that
ensures that a detainee can safely write a grievance against an officer. The fact that a detainee
may have to hand the grievance to the very officer that the grievance is against is unacceptable,
and this process needs to be remedied. Additional changes may have to be implemented so that
written grievances can be vetted and dealt with in a timely manner. This will help restore
detainee confidence in written grievance process.

•

NWDC should improve the quality and quantity of leisure activities and enhance
educational activities. Given the amount of time detainees often spend in detention, combined
with the requirement that detention not amount to punishment, detainees should have a greater
variety of leisure activities. Reading material should be enhanced. In addition, be educational
opportunities should be created.

64

Appendix A: NWDC Handbook

65

 

 

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