Office.for Ciril Rights and Civil Liberties
U.S. Department of Homeland Security
Washington, DC20528

ri#*? Homeland

=tffi Security
June 6,2016

REQUEST FOR RECONSmERATION
FOR:

Karen Gorman and Olare Nelson
DOJ Office of Special Counsel

FROM:
SUBJECT:

File No. DI-14-

Purpose: Consistent with our telephone eonversation on June 3,2016,I am writing to request your active
involvement in the above-referenced matter despite effotts by the DHS Office of the Inspector General (DHS
OIG) to: a) conduet "spot checks" across immigration detention facilities regarding the use of administrative
and disciplinary segregation, a.k.a. solitary confinement, b) review Immigration and Customs Enforcement
oversight of contracted detention centers, and c) examine the manner in which the Office for Civil Rights and
Civil iiberties (CRCL) receives and manages individual complaints.l It has been almost two years since the
filing of my original disclosure. Still, it is clear based upon available data that thousands of civil immigration
detainees corttinue to be "sentenced" to protracted periods in solitary confinement (approximately 1/3* of
those sentenced are seriously mentally ill) where they are denied proper medical and mental health care,
deteriorate, and in many instances simultaneously miss court mandated evaluations and competency hearings
that might otherwise entitle them to receive appointed counsel.'
Discussion: The OSC File No. DI- 14-5 1 1 5 includes alleged violations of law, rule, or regulation that
contribute to an ongoing abuse of authority and create a substantial and specific danger to public health and
safety. Over the pastZ2 months, I have forwarded extensive information in an attempt to convey the nature
and scope of this problem. Most recently, I have shared with you (on April 23,2016) a Master Segregation
Report for Fiscal Year (FY) 2015 that describes 8,127 detainees in solitary confinement; a Master Segregation
Report for FY 2016 covering January and February onlythat describes 922 detainees in solitary confinement;
a Master Segregation Report for Code 98 and 99 Disciplinary Cases that features excessive penalties or so

I

To dut" based upon staffrng and other limitations, I believe DHS OIG spot checks have focused on CBP short term
hold facilities with additional outreach scheduled to target family detention c€nters; not yet investigated is the broader
universe of Immigration and Customs Enforcement and contract detention settings.
2
As indicated in my earlier memorandum dated August 13,2A15, a settlement agreement in the case of Franco Gonzalez
v. Holder establishes under the Due Process Clause of the U.S. Constitution and Section 504 of the Rehabilitation Act
the right to legal representation for a plaintiff class and sub-classes consisting of: All indtviduqls wha are or will be in
fDepartment of Homeland Security ("DHS")] custodyfor [immigrationJ proceedings in California, Arizona, and
Washinglonwho hove been tdentified by or to medical personnel, DHS, or an Immigration Judge, as having a serious
mental disorder or defect that rnay render them incompetent to represent themselves in [immigration] proceedings, and
who presently lqck counsel in their fimmigrationJ proceedings. Subllass ]: Individuals in the sbove-named Plaintiff
Clqss who have a seriow mental disorder or defect that renders them incotnpetent to represent themselves in
[immigrationJ proceediigs. Sub-Class 2: Individuals in the above-named Plaintif Class who hsve been detainedfor
more than six months. Many individuals who art*or may be covered by the Franco-Goraalez settlement continue to
appear on weekly segregation reports received and reviewed by CRCL along with information indicating that they are
seriously mentally ill and lack counsel.

I

 called "stacked charges," as well as internal CRCL communication stating that,"[Immigration and Customs
Enforcementl ICE appears to interpret the word 'violation' to meen 'offense code.' ICE's apparent
interpretation of the word 'violation' means that [the Performmtce Based National Detention StandardsJ
PBNDS ceases ta have limits, and as a resuh, detainees may receive three 30 day chatges for a single
incident, which amowts to a 90 day sentencefor one incident. " A particularly egregious illustration of this
problem also forwarded earlier to your office as well as to the DHS OIG involves a seriously mentally ill
detainee at an ICE run facility (Eloy) sentenced to 390 days in solitary confinement for throwing two cups of
his own feces at a security guard.3

In other messages (on June 3,2016) I have provided Disciplinary Panel notes and Sample 30 Day Reports
pertaining to individuals sentenced to solitary confinement for periods far in excess of what has been deemed
torture.a The Disciplinary Panel notes show two different detainees sentenced to 60 days in solitary
confinement for possession of a cell phone. The Sample 30 Day Reports from Hampton Roads Regional Jail
show mentally ill detainees naked in deplorable conditions and denied reenfiy to the general population until
they agree to maintain'oproper hygiene.o')

Conclusion: Given the urgent and at times life-threatening nature of cases involving immigration detainees
with mental health conditions placed without proper care and oversight in administrative or disciplinary
segregation, and CRCL's posture as "a policy offrco, not a redress office" (described more fully in my August
13,2015 memorandum) your reengagement is warranted both to protect vulnerable individuals and to inform
the work of the DHS OIG. Since CRCL is the only office within DHS mandated to investigate and resolve
civil rights and civil liberties complaints, its refusal to act on individual cases, including cases contained in
weekly and FY segregation reports creates a substantial and specific danger to the health and safety of
immigration detainees as well as the broader universe of people affected adversely by DHS policies or
activities, or actions by DHS personnel. Finally, in view of evolving Department of Justice (DOJ) findings
and recommendations on this topic,6 intervention by your office could be instrumental in halting violations of
lawo rule, or regulation and ensuring accountability.

t
a

Seethe attached email exchange, Eloy Casethatwas posted on CRCL's share drive by managers in that office.
ln a preface to the 2014 Spanish edition of the Sourcebook on Solitary Confinement, Juan Mdndez, the United Nations

Special Rappofieur on torture, sfiongly rgcopmends against any use of solitary confinement beyond 15 days, explaining;
"Prolonged solitary confinement raises special concerns, because the risk ofgrave and irreparable hsrm to the detained
person increases with the length of isolation snd the uncertainty regarding its duration In my public declarations on this
theme, I have defined prolonged solitary confinement as any period in excess of I 5 days. This definition reflects the fact
that most of the scientific literqture shows thal, after I5 days, certain changes in brainfunctions ocq.r and the harmful
psychological effects of isolation can become irrwersible."
t This facility was the
subject of a recent article in CNN documenting the death of a seriously mentally ill detainee
placed in solitary confinement: //www.cnn.com/2A6l$5ll6lus/jamycheal-mitchell-hampton-roads-virginia-jaillawsuit/index.hunl.
6
See, e.g., DOJ Report and Recommendations Concerning the Use of Restrictive Housing, January 25,2U16,avai1able
at: hnps://v,ww.iusiice,sdvidaglfile/81555I /ctownload: and DOJ lnvestigation ofthe Pennsylvania Department of
Corrections' Use of Solitary Confinement on Pri!&rers with Serious Mental Illness and/or Intellectual Disabilities,
February 24,2014, available at https://www. iustice.gqv/sites/default/files/crtllegac.v-120 i4102125lpdqq*Eldilg*2.24-

14.pdf.

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