Gallagher. Ellen

From: Gallagher, Ellen

Sent: Wednesday, July 23, 2014 9:27 AM

To: Silvers, Robert

Cc: Mack, Megan

Subject: The Use of Administrative and Disciplinary Segregation for Immigration Detainees
Attachments: Attachment 1.pdf, Attachment 2.pdf: Attachment 3.pdf: Attachment 4.pdf, Attachment

S.pdf, Memorandum for the Deputy Secretary - 7 23 2014.pdf

Deputy Secretary Mayorkas.

Attached for your review is information concerning the use of segregation in immigration detention.
As indicated in my memorandum, I have made every effort to follow appropriate protocol in elevating this matter.

I am available should you or any member of your staff have questions or concerns.

Sincerely,

Ellen Gallagher

?wull Rights and Civil Liberties

U.S. Department of Homeland Security

      

TO: Alejandro Mayorltas. Deputy Secretary.

Department of Homeland Security
FROM: Ellen Gallagher, Senior Policy Adviser,
Civil Rights and Civil Liberties
DATE: July 23. 2014
SUBJECT: The Use of Segregtioa for Immigration Detainees

Summary: The purpose of this memorandum is to elevate for review by the Department of Homeland
Security (DHS) Deputy Secretary the use administrative and disciplimry segregation for detainees in
immigration custody. Particularly with regard to detainees with ?special vulnerabilities.? the Performance-
Based National Detention Standards in conjunction with ICE Directive ll065.l, ?Review of the
Use of Segregation for ICE Detainees,? require that segregation be used ?only as a last resort and when no
other viable housing options exist.?' Implementation of this requirement necessitates a range of resources
applied in general and other modi?ed custodial settings that ICE reports is lacking, This has resulted in
segregation being used across detention facilities as a ?rst. not last resort, with ?sentences? of up to 60
consecutive days, or more. Segregation, also termed ?twenty-four hour lockdown.? is routinely applied to
immigration detainees for: ?Violations of the Rules/Regulatims; Inappropriate Behavior; Self-Threatening
Behavior; Posing a Threat to the Security of the Facility: and To Avoid Con?ict Between Yourself and
Others."2 Some groups. including detainees with serious mental illness or a prior sex offense. are placed
automatically in long-term administrative segregation. Others move chronically back and forth from the
general population to administrative or disciplinary segregation. with periodic. crisis-oriented admissions to
hospitals punctuating their return to the same disturbing cycle. I have attempted to document and
elevate within and beyond CRCL my concern regarding the widespread and at times extreme use of solitary
con?nement for detainees in immigration custody. More speci?cally, I have identi?ed what I believe to be an
ongoing violation of existing policies and procedures that require the use of less restrictive alternatives prior
to imposing administrative or disciplinary segregation. In a meeting with O?icer Megan H. Mack and other
CRCL staffon July 10. 20?. I recommended that the Of?cer briefSecretary Jeh Johnson on this topic. and
also share available information on segregation to inform the DHS Of?ce of the Inspector General?s open
report 1-62) on ?Management of Mental Health Cases in Immigration Detention? I respect the
Of?cer?s decision not to pursue either course of action at this time, however. after consultations with Ethics
Counsel and notice through my established chain of command. I feel obligated to seek your review.

Nature and Scope of Segregation: In accordance with ICE Directive l065.l. administrative segregation is
?a non-punitive form of separation from the general population for administrative reasons.?3 It is authorized
?only as necessary to ensure the safety of the detainee. facility staff, and other detainees; the protection of
property; orthe security orgoodorderofthe facility, andthereforeshould be forthe briefest termand under
the least restrictive conditions practicable. consistent with the rationale for placement.?? Disciplinary
segregation is ?a punitive form of separation ?'om the general population that is authorized only pursuant to
the order of a facility disciplinary panel. following a hearing in which the detainee is determined to have
committed serious misconduct in violation of a facility rule. and only consistent with the Disciplinary

 

See Immigration and Customs Enforcement?s New Directive on Segregation: Why We Need Further Protections,"

indicatin 

atAttaehmentS.

Immigration and Enforcement Directive 11065.1. Review ofthe Use ofSegregation for ICE (DHS 20l3)? 3.l.
Id

Severity Scale from the applicable standards, and only when alternative dispositions would inadequately
regulate detainee behavior.? Detainees with special vulnerabilities are de?ned within ICE Directive 1065]
as including, ?those who are known to be suffering from mental illness or serious medical illness; who have a
disability or are elderly. pregnant or nursing; who would be susceptible to harm In general population due' In
pan to their sexual orientation or gender identity; or have been victims - in or out of ICE custody? of sexual
assault. torture traf?cking or abuse. As indicated previously. placement In administrative segregation for
detainees with special vulnerabilities Is permitted only as a last resort and when no other viable housing
options exist.?7 The Directive further states, detainee?s age. physical disability, sexual orientation, gender
identity. race or religion may not provide the sole basis for a decision to place the detainee in involuntary
segregation."l Nor should detainees with a medical or mental illness or identi?ed a being a suicide risk or
on a hunger strike remain in segregation if ?the IHSC determines that the segregation placement has resulted
in deterioration of the detainee 5 medical or mental health and an appropriate alternative Is available."9

ICE Directive 11065.1 requires Headquarters oversight and review related to the use of segregation in
detention facilities. ICE Enforcement and Removals Operations (ERO) Custody Management Division

(C MD) compiles a weekly Segregation Report based on ?eld data to track detainees held in segregation for 14
days (either consecutive or within a 21-day period), 30 days, and at every 30 day interval thereafter. or within
72 hours for detainees with a special vulnerability. Fach Segregation Report typically describes up to 200
detainees, the vast majority of whom are unrepresented, being placed into disciplinary or administrative
segregation for reasons that range from ?suicide risk? to ?mental illness" to ?protective custody: criminal
offense.? to ?pending investigation of disciplinary violation," ?disciplinary? or ?medical: other.? Given
reporting restrictions. it is difficult to know exactly how many detainees in immigration custody are placed in
segregation every day. and for what speci?c or cumulative timeframe. While IHSC staffs l6 of 204 detention
facilities nationwide. they recognize that severe resource shortages have resulted in a polarized approach to
managing detainees. Essential ly, where a detainee?s behavior or characteristics are perceived to be disruptive,
evidence of noncompliance, or a threat to the general population or ?good order? of the facility. segregation
serves as a default remedy. Administrative and disciplinary segregation ?sentences? are further marked by
imposition of the maximum time permitted under the even for initial, isolated or minor
transgressions without meaningful consideration or application of less restrictive alternatives. The use of
restraints to handcu?', shackle and strip-search detainees placed for protracted periods in administrative or
disciplinary segregation is another feature of this problem

Cases: To illustrate anecdotally how the and ICE Directive ll065.l are being applied with respect to
segregation decisions. I offer the following examples. Related case information is attached and labeled.

I) The detainee is seriously mentally ill and suicidal
disorder with hallucinations). He was sentenced to 60 days in disciplinary segregation a?er a
facility staff person interpreted his statement. ?The ?rst chance i get, I am going to get one of as a
threat toward him ?and his fellow o??icers.? The detainee is unrepresented. refused to participate in or
sign documents related to his disciplinary hearing, and received a one-page dismissal of his pro-3e
Disciplinary Appeal requesting imposition of a lesser period of segregation.

2) The detainee was placed into administrative segregation on
6f7f20l4 pending investigation of a disciplinary violation. On 6/10/2014, he was put on a ?Level 1
mental health watch. which was lowered to a Level 2 on 6/ 2120?.? One day later, he was sanctioned to

 

Id 3.2.

Id. 3.3.

7 Id 5.2.

Id.

Id The Immigration and Customs Enforcement?s Health Service Corps (li-lSQserves as the agency's medical
authority, providing direct or arranging outside care for detainees. As of August 20 ID. the DHS found vacancy
rates at ll ofthe (then) l8 facilities staffed by to be 50% or more. (01041-62, March 201 

l4 days In disciplinary segregation for ?creating a disturbance. According to the Shift Commander 5
notes. Mr. _was the victim of a physical assault (he wm punched repeatedly by another detainee)
and "at no time? attempted to retaliate. He did verbally criticize the detainee that attacked him.

3) The detainee received 15 days of disciplinary segregation for
?an act that could endanger a person? and ?refusing staff orders? a?er he repeatedly threatened to commit
suicide. While doing so. he climbed atop his bunk andjumped onto a cement ?oor. He then "took a
towel and wrapped it around his neck pulling it very tight with his hands." Mr.?was placed
in restraints. escorted out of his cell for medical evaluation and found to pose a risk to the safety and
security of the facility.

4) The detainee hm a history of mental illness (mood disorder and
depreSSIon . Inc uding a previous suicide attempt. She is a lawful permanent resident from Haiti who

received two consecutive (but for one day) sentences to disciplinary segregation The first, from June I-
I3 was for "threatening another inmate. The second, from June 14-24 was for? engaging in sexual
acts? '(shortly alter her release to the general population on June l3?. she kissed consensually another
detainee).

Monitoring: ICE Directive 1065.] establishes a Detention Monitoring Council (DMC) with one
subcommittee co-chaired by CMD and the Of?ce of Detention Policy and Planning. The subcommittee
consists exclusively of ICE personnel though ?a representative from the DHS Of?ce for Civil Rights and
Civil Liberties (CRCL) may participate in subcommittee meetings as CRC deems appropriate, but CRCL
shall not use information ICE shares with CRCL pursuant to such participation in any RC investigation or
inquiry."l0 Since issuance of ICE Directive l065.l on September 4. 2013. the subcommittee has met once.
During the week of July 7. 2014. RC l. arranged a forum with ICE staff. many of whom serve on the DMC
subcommittee. to discuss how related to mental illness may form the basis of disciplinary
segregation. especially in facilities underserved by IHSC. This exchange highlighted a pronounced lack of
resources - medical. structural, and in terms of training/education that fuels overreliance on administrative
and disciplinary segregation. It also suggested that where detention facilities keep individuals in segregated
settings due to seriom medical or mental health conditions, such segregation may be non-therapeutic. in
a small or open short stay unit without padded cells, or may mirror disciplinary ?lock-down? including
extremely limited out-of-cell time. Such placements can impose improper punitive conditions. and subject
vulnerable detainees to physical and mental deterioration. I have provided in prior email messages to the
CRCL Of?cer and other staff articles. reports and investigations highlighting the detrimental effects of
solitary con?nement.? and have reviewed as I hope you will April I I. 20I 3 "Findings Regarding
Mental Health Issues in Segregation.? I am available should you require additional information.

Attachments:

Pinal County Disciplinary Documents

  
  

 

   

 

I
2 Pike County Disciplinary Documents
3 Northwest Detention Center Disciplinary Documents
4 IYork County Prison Disciplinary Documents
5 - Douglas County Department of Corrections Disciplinary Documents
?Id 7. 5

Among items earlier conveyed was an April 20l3 report by Physicians for Human Rights entitled ?Buried Alive:
Solitary Con?nement In the US Detention System." 1' siciansforhum ri d- aliye-
solit ?in ention-s stem. l. the 20 2 American Association Position Statement on
Detained Immigrants with Mental Illness. Imp; 'wywt. org advga gy?newsmm posit 53' statements. and the

Department of heme 5 ?Investigation of the State Correctional Institution at resson and Notice of Expanded
Investigation? (May 2013). WW ?usti about 5 ldocum 4-