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New documents obtained from U.S. Immigration and Customs Enforcement (ICE) reveal that the agency may have adjusted the results of county jail inspections to skirt a Congressional mandate that prohibits the agency from contracting with deficient facilities to hold immigration detainees.

Heartland Alliance’s National Immigrant Justice Center (NIJC) discovered the shift in inspection ratings through a review of ICE inspection reports and contracts obtained through a Freedom of Information Act (FOIA) request for our December 2011 report Not Too Late for Reform. The inspection reports examined were for Jefferson County Jail in Mt. Vernon, Illinois and the Tri-County Detention Center in Ullin, Illinois.

The documents reveal that ICE conducts minimal oversight of these two facilities and has disregarded a congressional directive not to hold immigrants in facilities that fail to meet the agency’s own national detention standards.
In response to intense media scrutiny into immigration detention conditions, Congress held hearings in 2008 and added a mandate to the Department of Homeland Security’s FY2009 Appropriations bill to prohibit ICE from continuing any detention contracts where a facility fails two consecutive inspections. That mandate continues in effect.
Meanwhile, in 2008, ICE was in the process of negotiating a contract with Jefferson County Jail in Mt. Vernon, Illinois, to hold immigrants awaiting removal proceedings. In anticipation of the contract, ICE inspected the Jefferson County Jail in 2007 and 2008. The facility failed inspections both times. Nevertheless, on January 19, 2009, ICE signed the contract to house immigrant detainees at the jail. 
Even after the contract was signed, ICE Headquarters in Washington once again found the Jefferson County Jail deficient in March 2009. The ICE director for detention management stressed: “This facility shall not house ICE detainees prior to the approval of the Plan of Action” (emphasis in original) to rectify the detention deficiencies. ICE provided no record of whether a plan of action was ever implemented and the deficiencies rectified. Yet, ICE went ahead and started detaining immigrants at the Jefferson County Jail the very next month.
As ICE steadily increased its detention population at Jefferson, in September 2009 ICE conducted a new inspection of the facility and gave it an initial “acceptable ” rating for the year. ICE provided no meaningful explanation for its change in rating. When the September 2009 inspection report reached Washington, however, ICE national headquarters changed the rating to “deficient.” Nevertheless, ICE continued to increase the number of immigrants detained at Jefferson. In 2010 and 2011, ICE has continued to rate the Jefferson facility “acceptable ”.
Even when ICE follows its guidelines for facility inspections, the process is grossly inadequate to identify and correct problems. The inspections are conducted annually over a three-day period, so ICE is unable to adequately assess the day-to-day operations of facilities or facility personnel’s conduct toward immigrant detainees. The inspections do not indicate that inspectors solicited or took into account detainees’ perspectives. This is despite the fact that the 2010 ICE Tri-County inspection report noted that the facility received 475 requests and grievances from detainees within a seven-month period, yet ICE and the facility had only responded to 60 of them in a timely fashion. 
NIJC client Rashed, an asylum seeker and former detainee at Tri-County, told us that only one inspector visited the jail during the nearly 18 months he was detained there. The inspector did not inquire with detainees regarding conditions at the jail and seemed to have little interest in their wellbeing. 
The inspection reports are devoid of significant narrative but instead consist of a laundry list of check boxes. There is minimal space for inspectors to explain their findings.
The lack of context the ICE inspections provide is particularly problematic when ICE inspectors award passing ratings for a detention standard even after marking the facility as deficient on a number of the criteria under that standard. For example, ICE’s detention standards require that detainees have access to outdoor recreation. Under the 2000 National Detention Standards, all new detention contracts are required to have outdoor recreation.  Nevertheless, each of ICE’s Jefferson inspection reports from 2009 through 2011 noted that the facility does not provide outdoor recreation. Jefferson is clearly not in compliance with the standard. Nevertheless, ICE inspectors rated the Jefferson facility “acceptable” on the Recreation Standard for each of those years.
The inspections also heavily focus on whether facilities have certain policies and procedures in place, but do not assure that they are implemented. For example, ICE’s 2011 inspection found the Tri-County Detention Center in compliance with all state and local health care facility laws and guidelines, remarking that the facility had a policy stating that its “medical care will be in compliance with Federal, State, and Local laws ...”   Under Illinois law, detainees have the right to receive medical care under the supervision of a doctor. Yet, the same ICE inspection found that the Tri-County medical staff did not have a doctor on staff or on call.
Perhaps even more troubling, when ICE does identify serious problem areas, it does not monitor them to ensure that they are resolved. For example, in its 2008 Tri-County inspection report, ICE highlighted that “[c]urrent Health Services staffing levels should be reviewed to ensure adequate staffing is available to carry out the current mission” and warned that its concern “could become problematic in the future.” In that report, ICE found Tri-County’s medical staffing to be inadequate. At that time, Tri-County’s detention population reportedly averaged 195 detainees and had a medical staff comprised of one registered nurse (RN), two licensed practical nurses (LPNs), two medical technicians (MTs), and a physician and physician’s assistant on-call . 
By 2011, Tri-County’s detention population reportedly averaged 211 detainees, but the medical staff had been significantly reduced to only comprise one registered nurse (RN), one licensed practical nurse (LPN), a medical technician (MT), and no doctor  to care for an average daily detention population of 200-plus immigrants and close to 5,000 immigrants annually. Nevertheless, after 2008 ICE never again mentioned its concerns with Tri-County’s medical staffing, giving it passing grades in 2009, 2010, and 2011.
Finally, ICE’s inspections often do not address critical conditions concerns. For example, ICE has awarded passing grades to Tri-County from 2007 through 2011, yet its inspections are also silent on one of its principal failings—overcrowding. Detainees there reported in the Fall 2011 that the facility had been chronically overcrowded and that some people were forced to sleep on cots with their heads next to toilets that were still in use. The jail’s law library had been converted into bed space, so detainees no longer had access to legal materials they needed to prepare their immigration cases or meet with attorneys.
ICE insists that it takes its inspection regime very seriously. With the March 2012 opening of the Karnes County Civil Detention Center, it was reported that ICE had closed 90 substandard detention centers.  Yet, a comparison of ICE’s list of authorized detention centers from FY2009 with those authorized today reveals that ICE ended contracts with facilities that it simply was not using. In fact in late 2010, when ICE did try to close the Etowah County Jail in Gadsden, AL, one active facility with chronic substandard conditions, ICE received substantial local pushback and changed course. By fall 2011, ICE finalized a long-term lease to bring its regional administrative offices to Etowah . 
Moreover, these reports and findings demonstrate why independent oversight of facilities that hold immigrant detainees is so important. At present, these audits are conducted by DHS officers or contracted individuals and not by independent observers that will assess compliance with appropriate and humane standards with neutrality and objectivity. One cannot help but conclude that DHS-led audits and inspections of facilities have one goal in mind: to pass substandard facilities and skirt a Congressional mandate that it must detain immigrants under humane conditions.  
Mark Fleming is the national litigation coordinator for Heartland Alliance's National Immigrant Justice Center.