Donald Trump

ICE Abuses Solitary Confinement for Protection, Punishment, Lawyers Say

Undocumented immigrants across the country are being held in private prisons and government centers that lawyers say follow rules intended for criminals, not civil detainees

When Jose Mendez was held at Stewart Detention Center in Georgia, he met another young undocumented immigrant who over time became his boyfriend. They would hold hands and occasionally steal a kiss, he said. Mostly, they shared love letters.

Early last year, as Mendez’s boyfriend was telling him how afraid he was of deportation, Mendez reached over to rest a hand on his. Just then a female guard passed. Fifteen minutes later, Mendez was isolated and accused of having oral sex in the recreation room, said his attorney, Bryan Johnson.

An official told Mendez that there was visual evidence, which he demanded to see it, confident of his innocence. But his request was denied and he was sentenced to 30 days in disciplinary segregation — the U.S. Immigration and Customs Enforcement equivalent of solitary confinement.

“Segregation is the worst thing that could exist,” he said.

Mendez, who does not have a criminal record and sought asylum in the United States after fleeing El Salvador when he was 19, averaged two hours outside of his cell each day as punishment for something he said he did not do. Even if he had, lawyers said, as a civil detainee he should not have faced the same punishment as a felon.

“These are civil detainees,” said R. Andrew Free, an immigration attorney based in Nashville, “Solitary confinement is a tool of a criminal detention system that is geared toward punishment, and in some cases rehabilitation.”

But undocumented immigrants across the country are being held in private prisons and government centers that lawyers say follow rules intended for criminals. They have “grafted all of the rules and all of the infrastructure” from the prison industry onto immigrant detention, according to Free.

The facilities operate with little oversight even as the detainees have no right to lawyers or other protections. Undocumented immigrants who can't find pro bono representation are particularly at a disadvantage, lawyers say. And as President Donald Trump promises to ramp up enforcement of immigration laws, advocates fear even more detainees will get caught up in unreasonable and dangerous situations.

Solitary confinement can be abused easily, lawyers said. Their clients are punished for indefinite periods and arbitrary reasons, they say.

Mendez’s confinement record, for example, doesn’t mention oral sex. The reporting officer wrote that Mendez admitted to “kissing and holding hands in the rec. yard,” enough to find him guilty of committing a “sexual act.”

After about a month in segregation, he was released from Stewart, a private prison run by Corrections Corporation of America, and he boarded a plane to New York thanks to Johnson’s efforts.

His boyfriend was deported.

Both Republican and Democratic presidents have used solitary confinement for undocumented immigrants. It was practiced during Barack Obama’s administration, and George W. Bush’s before that. ICE has arrested more than 41,000 undocumented people since Trump took office, so more people could be at risk of solitary confinement at detention centers around the country.

According to the Los Angeles Times, a White House memo that circulated among top Department of Homeland Security officials in late January said that DHS would bump up the number of immigrants in detention to 80,000 people a day, nearly double the figure under Obama. Over 5,000 immigrants without criminal records were arrested between January and March, more than double Obama’s figure from the same period in 2016.

On top of disciplinary actions, ICE facilities also use segregation as a means to isolate vulnerable people, those who are LGBTQ or mentally unstable, for their own safety, according to the agency.

“ICE’s policy governing the use of special management units protects detainees, staff, contractors, volunteers, and the community from harm by segregating certain detainees from the general population for both administrative and disciplinary reasons,” an ICE official wrote in a statement. “ICE provides several levels of oversight in order to ensure that detainees in ICE custody reside in safe, secure and humane environments and under appropriate conditions of confinement."

Former Nissan CEO Carlos Ghosn, who has spent the last 51 days detained in a Japanese jail, says he is not guilty of financial misconduct.

The duration of segregation for some immigrants exceeds international regulations, even for humane criminal practices. In 2015, the United Nations ruled that “prolonged solitary confinement” should be prohibited, and equated the practice to torture. The UN defined “prolonged solitary confinement” as more than 15 days in unwanted isolation.

When a guard recommends an immigrant for segregation, there’s almost no oversight, lawyers say. A judge has to rule that the detainee deserves punitive solitary, but in the meantime, he or she can be placed in administrative segregation, as Mendez was for two days before he was found guilty.

ICE had an average daily population of 1.1 percent of detainees in segregation during 2012 and 2013, and more recent estimates show similar numbers. In a system that holds tens of thousands of immigrants and is expanding, that means hundreds are being kept in solitary cells. In 2015, 13 percent of those in segregation were part of ICE's non-criminal population.

ICE sent out a directive about protocols for solitary confinement in September 2013. The memo said that “placement of detainees in segregated housing is a serious step that requires careful consideration of alternatives.” It also mandated regular review of long-term segregation cases to ensure that a detainee is not held in solitary confinement for longer than necessary.

When asked how long segregation could last for an undocumented immigrant, an ICE spokesperson did not respond directly. She instead referenced the 2013 directive that "requires agency reporting, review, and oversight of every facility decision to place detainees in segregated housing for over 14 days, and requires immediate reporting and review of segregation placements when heightened concerns exist based on the detainee’s health or other factors."

But from Free’s vantage point, the standards aren’t followed.

“Oversight is really weak and lax, and there are no real consequences to these facilities if they engage in serial violations,” Free said. “In my experience [with clients], the solitary confinement went on for months -- literally months -- without any indication of an official sign-off.”

He said that ICE never actually used the phrase, “solitary confinement,” substituting euphemisms such as “medical isolation,” “administrative segregation,” and “disciplinary segregation.”

“They use everything but ‘solitary confinement,’ and one has to ask why,” he said.

Mulugeta, an Ethiopian immigrant who came to the United States as a child, asked to only use his first name because he intends to re-apply for U.S. residency after being deported. He was in immigrant detention between 2010 and 2014 while he fought his case and says he spent more than a year in segregation.

“It was a very long time, and a very tough experience,” he said. “Through those four years, I went through a lot of ups and downs.”

Mulugeta had a green card as a child. When he was 18, he and his friends were playing with a BB gun at one of their homes and someone called the police. Officers searched Mulugeta and found a Ziploc bag of marijuana, more than half an ounce but no more than five pounds, according to his 2009 court indictment. Though he said he had bought the drugs for personal use, he was convicted of intent to distribute. When he was released from prison, ICE was waiting to deport him. But first he was detained for another four years.

Their Sunday outing comes hours after they attended a late-night SNL after-party together.

While in immigrant detention, Mulugeta was placed in a special housing unit after a fight broke out at the Oakdale Federal Detention Center in Louisiana, which then held immigrant detainees alongside convicts. He said he was defending himself from attackers when he accidentally fell onto a guard, whose leg broke in several places. As a result, Mulugeta was put in solitary confinement.

“There was no charge,” he said. “They just kept me there for no reason.”

While in segregation, Mulugeta received maybe one phone call a week, but he spent most of his time reading, he said. Sometimes, he went outside for sunlight; even then, they put him in an enclosed "cage" so he did not feel free, he said.

ICE does not comment on specific cases and did not confirm his account. Nor would an ICE spokesperson comment on whether detainees in special housing units are confined during recreation time.

Guards let Mulugeta shower sporadically, but they didn’t follow a regular schedule. When the cafeteria served pork, Mulugeta, an Ethiopian orthodox Christian, didn’t get to eat.

“What they did to that kid, I’ll never get over it,” said Paul Scott, his attorney.

Because ICE detainees are often mixed in with prisoners at county jails and private prisons, Mulugeta said that he and other immigrants were treated like serious offenders.

“Immigration detainees and a criminal are not the same,” he said. But, to the guards at the detention centers where he was held, he continued, “Everybody is the same.”

Many undocumented immigrants in the United States are seeking refuge from violence against them in their homes countries because of their gender or sexuality. Members of the LGBTQ community are especially at risk of being put into solitary cells because they are targets for sexual assault and bullying by other prisoners.

“I know that they’re also scared to remain in some cases in the housing unit with their biological sex, so it’s kind of a no-win situation when the only answer is to put people in a box,” Free said.

But solitary confinement does not always make people safe. Guards also have been accused of taunting transgender or gay prisoners about their lifestyles and other harassment.

In 2005, ICE detained trans woman Bamby Salcedo after she filed a request to change her legal name. According to her online bio, during her early life, “she fell into a deep cycle of drugs, crime, juvenile institutions and later, after immigrating to the US, prisons.” She told NBC that in California she survived by dealing illegal substances. After Salcedo got to San Pedro Detention Center, which lost its accreditation in 2007 and has since been shuttered, the guards placed her in a dorm with her biological sex, where men put their genitals in her face, grabbed her breasts and buttocks, and made sexually suggestive comments to her, she said.

“It was constant, and it was too much,” Salcedo added.

After she told officials that she had been assaulted, she said she was placed in segregation for a week.

Bamby Salcedo

“They said they were trying to protect me, but I was actually being punished further for just being me,” she said.

In 2015, ICE outlined a Transgender Care Memo, and an agency official wrote that its “ultimate goal with regard to this population is to find facility partners willing to adopt the best practices.”

But immigrant detainees are often put in solitary after accusing staff members or other residents of sexual assault, according to NBC News. Victims often believe they are being punished by ICE for reporting abuse.

Salcedo, who founded TransLatin@ Coalition, said that when she visits detention centers as an advocate, she hears similar stories to her own. She said that “really, things have not changed.”

ICE detainees can also be placed in solitary for protesting or for expressing mental health problems, advocates say.

Azadeh Shahshahani, legal and advocacy director at the Atlanta-based non-profit Project South, said that other immigrants at the Stewart Detention Center have been segregated “in retaliation” because they’ve gone on hunger strikes to spark administrative interest.

“They have filed complaints,” Shahshahani said. “Nobody has paid attention to them. And so basically their last option is to put their bodies on the line.”

And a mother at Karnes County Residential Center in Texas alleged that she and her 11-year-old son were put in medical isolation there as punishment after going on a fast. The account came from a congressional employee who had visited the center, Rep. Hank Johnson (D-Ga.) told NBC.

“I believe they were putting women and children -- young babies, infants even -- into solitary confinement for punishment measures,” he said.

During a hearing of the House Committee on the Judiciary in April 2015, Johnson asked former ICE Director Sarah R. Saldaña about the charge.

“I am not aware of that incident,” Saldaña said. “... If that is a fact, that disturbs me greatly.”

In its directive, ICE says that detainees on hunger strikes can be placed in segregation for their medical safety.

An ICE spokesperson wrote that, “The ICE family residential centers do not have segregation areas. Special monitoring or cohorting may be done in cases where it is deemed medically necessary.”

Advocates respond that while family detention facilities do not have cells explicitly used for solitary confinement, rooms in the medical wing can be used as segregation chambers.

If detainees admit to considering harming themselves, they are often subjected to segregation, which can exacerbate their issues. In its 2013 memo, ICE says that immigrants can be placed in solitary for “mental illness” or “suicide risk.”

“It has been my experience that detainees are reluctant to express anxiety or depression out of fear that that would lead to them being put into segregation,” Free said.

Attorneys sometimes try to use their clients’ segregation as a reason for release or transfer. Scott, for example, cited Mulugeta’s long-term stay in the special housing unit in a letter to the New Orleans field office director advocating for his discharge. He wrote that Mulugeta had been maced in his cell, and that he had been denied the opportunity to meet with his attorney on multiple occasions, which he called a “serious constitutional violation.”

But when asked, immigrant attorneys could not think of any lawsuits that specifically targeted the use of solitary confinement at ICE facilities. They also couldn’t cite any larger movement fighting against the systemic employment of segregation by ICE officials.

“As immigration lawyers, we do have unified efforts on a lot of things, but it’s usually not that,” Scott said.

Free echoed him, saying, “I don’t think that that exists.”

A little over a year after his release, Mendez recalled how many of those in segregation hadn’t done anything wrong, and how unreasoned discipline was. While he and other detainees were shut in for months, actual bullies and troublemakers faced no consequences for their actions, he said.

“There were some people they punished for no reason, and others who were guilty but were allowed to live freely,” Mendez said.

Even after leaving detention, he insists that he never had sexual relations with his then-boyfriend while they were at Stewart.

“We only sent each other letters,” he said. “What they accused us of never happened.”

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