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Statement for the record of ICE Office of Detention Policy and Planning Assistant Director Kevin Landy for a Senate Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights and Human Rights hearing titled “Reassessing Solitary Confinement II: The Human Rights, Fiscal, and Public Safety Consequences”

Release Date: 
February 25, 2014

216 Hart Senate Office Building

Introduction

Chairman Durbin, Ranking Member Cruz, and Members of the Subcommittee, on behalf of the men and women of U.S. Immigration and Customs Enforcement (ICE), thank you for the opportunity to provide this statement addressing the housing of ICE detainees, and the specific circumstances under which segregated housing is used to ensure safety and security.

ICE primarily consists of two operational programs: Enforcement and Removal Operations (ERO) and Homeland Security Investigations (HSI). Guided by ICE’s prioritized enforcement principles, ERO identifies and apprehends criminal and other removable aliens, detains these individuals, and removes individuals determined to be illegally present (or otherwise subject to removal) from the United States. HSI is responsible for a wide range of domestic and international criminal investigations arising from the illegal movement of people and goods into, within, and out of the United States, often in coordination with other federal agencies.

Detention Reform

The ICE Office of Detention Policy and Planning (ODPP), located within ERO, works to coordinate ICE’s efforts to overhaul the current immigration detention system. Recent efforts have been underway since 2009 and require extensive collaboration and consultation with both internal and external stakeholders. ODPP is charged with designing a detention system that meets the unique needs of ICE’s detained population. Detention reforms have included the deployment of a new risk classification assessment to improve transparency and uniformity in detention custody and classification decisions, the promulgation of revised national detention standards, enhanced oversight at detention facilities, and the issuance of an agency-wide Directive on Sexual Abuse and Assault Prevention and Intervention. Most recently, in addition to the Segregation Directive, ICE has also launched a nationwide toll-free hotline that detained individuals can call if they believe they may be U.S. citizens or victims of a crime. ICE also issued a directive on ensuring the preservation of parental rights of aliens encountered in the course of immigration enforcement activities. Additionally, ICE expects the final rule implementing the Prison Rape Elimination Action in DHS confinement facilities, which will include many detention facilities used by ICE, in the very near future.

Development of the Segregation Directive

At all of ICE’s detention centers, we take very seriously the health, safety, and welfare of our employees, detention facility staff and the individuals in our care. In September 2013, as part of our continuous review of detention policies and procedures, ICE issued a new directive, Review of the Use of Segregation for ICE Detainees. This directive enhances existing procedures for ICE review and oversight of facility decisions to place detainees in segregation for any extended period of time, and in the case of detainees for whom heightened concerns exist based on health issues or other special vulnerabilities, for any length of time.

The Directive complements the requirements in ICE detention standards. Detention standards require facilities to review the status of a detainee’s segregation at regular intervals in order to assess the continued need for segregation. The Directive enhances these existing procedures by requiring facilities to notify ERO leadership, specifically Field Office Directors (FODs), at frequent intervals of segregation placements and to conduct reviews regarding whether placement continues to be appropriate in each case. This additional layer of review enhances agency oversight of individual facility segregation determinations. The Directive also expounds upon the specific factors to be taken into consideration during such reviews, and establishes a further level of review of FODs’ evaluations by ICE headquarters.

Prior to the development of the Review of the Use of Segregation for ICE Detainees directive, ICE conducted a thorough review of the use of segregation at detention facilities, including collecting quantitative and qualitative data on the reasons detainees were placed in segregation and how long individuals remained there. ICE also conducted additional inspections of all detention facilities using segregation, and reviewed the facilities’ segregation policies and practices. In conducting this review and developing the new segregation directive, ICE Headquarters offices collaborated with the DHS Office for Civil Rights and Civil Liberties and ERO field office management. The Directive implements the oversight and process improvements developed as a result of this thorough review.

Fundamentals of the Segregation Directive

ICE national detention standards carefully circumscribe the use of segregation to ensure that it is used only as necessary and appropriate, and is subject to review and oversight. The use of segregation is, in some cases, necessary to ensure the safety and security of detainees, staff, or the facility; however, the detention standards impose stringent requirements relating to the reasons for which a detainee may be placed in administrative or disciplinary segregation, reviews of the status of a detainee in segregation, and programs and services to which segregated detainees are entitled. Detainees may be segregated for disciplinary reasons only pursuant to a disciplinary hearing in which they are found to have committed a serious facility infraction. They may be segregated for administrative reasons only when their continued presence in the general population poses a safety threat to themselves or others. All segregation placements must be regularly reviewed in order to ensure their continued necessity.

ICE policy and detention standards establish that placement of detainees in segregated housing is a serious step that requires careful consideration of alternatives. Placement in administrative segregation should be consistent with the rationale for placement and in compliance with applicable detention standards, occurring only when necessary, and under the least restrictive conditions practicable. For detainees placed in administrative segregation due to special vulnerabilities, segregation is only used as a last resort and when no other viable housing options exist.

The Directive adopts a case management approach where ERO Field Offices conduct individualized assessments of all segregation placements covered by the Directive, and the agency tracks and reviews those placements on an ongoing basis. It also ensures that agency leaders will review extended placements in segregation for all detainees and continue them only if necessary and in line with applicable detention standards. As always, the safety and security of ICE employees, detention facility staff, and detainees in ICE custody remain paramount.

Detention facility administrators are required to notify FODs within 72 hours of the initial placement in segregation of detainees with particular specified vulnerabilities or other factors. Detainees requiring notification are defined as any detainee who is in segregation on the basis of a disability, medical or mental illness, or other special vulnerability, or because the detainee is an identified suicide risk, on a hunger strike, or an alleged victim of a sexual assault; or any detainee, regardless of the reason for the segregation placement, placed in segregation who has a mental illness, a serious medical illness, or a serious physical disability.

After reporting the placement to ERO headquarters, the FOD must initiate an expedited review of the segregation case to determine whether segregation is necessary and whether alternatives to segregation are appropriate and available. During this review, the FOD is required to ensure that any setting used to house detainees who are at risk for suicide allows for close supervision and minimizes opportunities for individuals to harm themselves. For a detainee placed in administrative segregation due to a special vulnerability, the FOD must ensure that the placement is only used as a last resort, and when no other viable housing options exist. If the detainee placed in segregation is an alleged victim of sexual assault, the FOD will ensure the detainee is not held in administrative segregation on that basis for more than five days, except in highly unusual circumstances or at the detainee’s request.

As stated in the Directive, the ICE Health Services Corps (IHSC) Headquarters staff must conduct an expedited review of all relevant cases. The IHSC must evaluate the suitability of the placement and ensure appropriate health care is provided for a detainee who is medically or mentally ill, a suicide risk, or is on a hunger strike. A detainee in any of these categories must be removed from segregation if IHSC determines the segregation placement has resulted in the deterioration of the detainee’s medical or mental health, and an appropriate alternative is available. In the case of a detainee who is physically disabled, IHSC must evaluate the appropriateness of the placement and, in coordination with the FOD, consult with facility staff about any necessary accommodations. IHSC, in coordination with the FOD and ICE Headquarters, must review the segregation placement in these cases at least every 14 days.

Detention facility administrators are also required to notify FODs whenever a detainee has been held in segregation continuously for 14 days or for 14 days out of any 21 day period; or continuously for 30 days, and at 30 day intervals thereafter. FODs must then immediately commence a review of the detainee’s segregation case to determine whether the placement is necessary, excessive, or in violation of applicable detention standards. The review must also include an assessment of whether the segregation placement is consistent with ICE policies and applicable detention standards. A new review is required at 30 day intervals thereafter to consider whether circumstances have changed, or whether the extended duration of the segregation is excessive.

After conducting an individualized assessment of the segregation placement, FODs must consider whether a less restrictive housing or custodial option is appropriate and, in coordination with ICE Headquarters when necessary, arrange for alternatives to segregation when they are appropriate and available. These alternatives include the return of the detainee to the general population; the transfer to another facility where the detainee can be housed in the general population or in an environment better suited to his or her needs; and release from custody, if consistent with the requirements of mandatory detention, public safety, and other immigration enforcement considerations. FODs are required to submit to ERO Headquarters comprehensive written reports at 30 day intervals for segregated detainees, and after 14 days for detainees who have the specified special vulnerabilities or whom the FOD determines should have their cases reviewed by ICE Headquarters.

The Directive established a subcommittee of the Detention Monitoring Council (DMC) to review individual segregation decisions, as well as to address systemic issues. The subcommittee is co-chaired by ERO Custody Management Division and ODPP, and consists of IHSC, ERO Field Operations, the Office of the Principal Legal Advisor, the Office of Professional Responsibility, the Office of Acquisition Management, and the DHS Office for Civil Rights and Civil Liberties. Subcommittee members collaborate in reviewing segregation placements. The review process includes communication with ERO Field Offices to request additional information, and discuss and implement alternatives to segregation.

To facilitate the review process established by the Directive, in October 2013, ICE deployed an automated Segregation Review Management System (SRMS). The SRMS is a web-based system that is the central point for documenting, tracking, and reviewing cases on detainees in segregation. SRMS allows ERO Field Offices to submit notifications about segregation placements to ICE Headquarters in real time, and automatically triggers updated reports prompting Field Offices to furnish the information required by the Directive whenever a detainee has reached the requisite notification or re-evaluation intervals (14 days, 30 days, etc.). ICE Headquarters components are able to jointly review new and updated cases in the system and to share comments within each, in order to reach a coordinated recommendation as to the appropriateness of continued segregation and any available alternative housing or custody options. The SRMS also provides a centralized historical record of all segregation cases entered into the database, and subsequent Field Office and Headquarters level reviews.

Conclusion

ICE remains committed to a civil detention system where the safety, health, and welfare of both the detention staff and the detainees are of primary concern. Placement of detainees in segregated housing is a serious step that requires careful consideration of alternatives, and should occur only when necessary and in compliance with applicable detention standards. Thank you for the opportunity to provide this statement on behalf of ICE.

Review Date: 
February 25, 2014
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