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For six years, the United States Department of Homeland Security (DHS) and Immigration and Custom Enforcement (ICE) committed secrecy abuses and fought requests under the Freedom of Information Act (FOIA) for records that detailed the use of solitary confinement in immigrant detention facilities.
A new report from Physicians for Human Rights, Harvard Law School, and Harvard Medical School called “‘Endless Nightmare’: Torture and Inhuman Treatment in Solitary Confinement in U.S. Immigration Detention” [PDF], shows that the two government agencies were hiding ICE’s increased placement of immigrants in isolation.
The report also shines a light on the extent to which numerous detained immigrants endure cruel treatment. The average amount of time that an immigrant was found to spend in solitary confinement was 27 days. (United Nations experts have long maintained that isolation for more than 15 days amounts to torture.)
FOIA lawsuits have risen in the past years because agencies like DHS and ICE are not responding to requests for information. That requires organizations or individuals to expend resources and spend money on litigation over several years in order to obtain documents, which should have been provided.
The report indicates that the Harvard Immigration and Refugee Clinical Program (HIRCP) submitted FOIA requests for “previously unpublished communications, records, training materials, evaluation reports, and memorandums documenting ICE’s use of solitary confinement in detention facilities” back in November 2017.
More specifically, HIRCP sought information from DHS’s Office of the Inspector General and Office for Civil Rights and Civil Liberties that related to “immigrants placed in solitary confinement by ICE.” They also asked for records involving complaints or claims that may have sparked investigations by the U.S. Office of Special Counsel into the use and impact of "segregation" on detained immigrants.
When DHS and ICE did not, a lawsuit [PDF] was filed on December 13, 2021. The U.S. District Court in the District of Massachusetts ruled on July 21, 2023, that ICE had not conducted “adequate searches” for records containing data on solitary confinement. ICE used narrow search terms to seemingly avoid producing certain files.
Additionally, ICE failed or declined to produce reports on visits by the inspector general that involved assessing confinement conditions and reviewing instances where “detainees with mental health conditions were held in segregation."
The court ordered DHS and ICE to conduct several searches for records and produce documents that HIRCP had requested long ago. By October 2023, ICE finally provided records on solitary confinement.
Records obtained showed that nearly half of the detained immigrants placed in solitary confinement were held in isolation for longer than 15 days. Documents indicated that 682 immigrant were held in solitary for 90 days. Forty-two immigrants were held in solitary for over a year.
“Among the 8,788 records for this period where ICE reported the mental health status of immigrants in solitary confinement, over 40 percent had documented mental health conditions,” according to Physicians for Human Rights.
The files from 2023 suggested that the “total number of solitary confinement placements and the average length of stay” in isolation were “on track to be greater than in previous years.” That means under President Joe Biden solitary confinement in immigrant detention facilities has increased. The uptick has particularly impacted transgender people and individuals with “mental health and medical conditions.”
“President Biden pledged to end solitary confinement during his 2020 campaign – yet the egregious use of solitary confinement is on the rise in immigration detention facilities overseen by Biden officials,” declared Tessa Wilson, senior program officer for PHR’s asylum program and co-author of the report. “Despite years of whistleblower reports, oversight investigations, and courageous activism by affected people and advocates, our report makes it clear that there has been no meaningful progress or reform over the past decade.”
Records reflected how ICE arbitrarily imposes solitary confinement. One immigrant was put in isolation for 29 days because they used profanity. Two other immigrants were put in solitary for a “consensual kiss.” Another allegedly “refused” to get out of their “bunk during count.”
A contract facility in Denver, Colorado, put one immigrant in solitary confinement for “eating too slowly.” That same immigrnat was placed in isolation 10 more times.
“If I climbed on top of a table to get a guard’s attention, solitary [confinement],” the immigrant shared. “If I had suicidal thoughts, solitary [confinement]. When the guards would tease me about being deported back to my home country and make airplane sounds at me and gesture like a plane was taking me away, I would become upset and then get solitary [confinement] for being upset.”
At least 14,264 solitary confinement placements in the past five years from 2018 to 2023 were identified in the documents that were provided by DHS and ICE, but according to Physicians for Human Rights, that number is “likely an undercount due to ICE’s documented underreporting and misrepresentation of its use of solitary.”
It is true that FOIA processing across U.S. government agencies is woefully underfunded. That should not excuse the secrecy abuses that DHS and ICE committed, which continued to hide records after the agencies were sued. They effectively concealed the inhuman treatment that thousands upon thousands of detained immigrants experience daily.
*Note: The FOIA data that underpinned the “Endless Nightmare” report is available on the Harvard Dataverse.