June 2018 DHS OIG Report re ICE's Failure to Effectively Enforce Compliance w/ Detention Standards & Policy (Department of Homeland Security Office of Inspector General)

To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

Please see the attached correspondence for a full description of the records requested. Briefly, the Catholic Legal Immigration Network, Inc. (“CLINIC”) submits this Freedom of Information Act (“FOIA”) request (the “Request”) for specific records and information identified or discussed in the June 26, 2018, Department of Homeland Security (“DHS”), Office of Inspector General (“OIG”) Report, OIG-18-76, entitled: “ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements” (the “Report”).

CLINIC seeks certain records that are identified in the Report and or implicated by its public release. As noted in the Report, at the end of fiscal year 2017, ICE held nearly 38,000 detainees in custody, with nearly 35,000 detainees in facilities that undergo the ICE inspections discussed in the Report.

As the recent flurry of immigration-detention-related events and widespread media coverage thereof demonstrate, there is an intense public interest in ensuring that the rights and dignity of immigrants are and remain protected in detention and elsewhere. Indeed, as has been widely reported, the Trump Administration’s public approval rating with respect to immigration policy “hit an all-time low” in June 2018—sitting at just 35 percent; a five-point drop from where it stood just one month prior—after the administration instituted its “zero-tolerance” policy by which families were and continue to be forcefully separated, with the children being detained in cramped detention facilities that have, at least once, been described as “cages.”

Release of the requested records is critical to ensure meaningful public access to and debate about how the Government apprehends and detains individuals when purportedly necessary. These records *will* contribute to the American public’s understanding of governmental policy and inform current and future public discussion about the legality and wisdom of the current administration’s ‘approach’ to immigration, as well as the resulting harm to individuals’ human right, our nation’s values, and our national security.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Michael Edelman

August 31, 2018

U.S. Immigration and Customs Enforcement
Freedom of Information Act Office
500 12th Street, S.W., Stop 5009
Washington, D.C. 20536-5009

Re: Request under the Freedom of Information Act for records related to the June 28, 2018, Department of Homeland Security Office of Inspector General Report, “ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements.”

Dear FOIA Officer:

The Catholic Legal Immigration Network, Inc. (“CLINIC”)[1] submits this Freedom of Information Act (“FOIA”) request (the “Request”) for specific records[2] and information identified or discussed in the June 26, 2018, Department of Homeland Security (“DHS”), Office of Inspector General (“OIG”) Report, OIG-18-76, entitled: “ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements” (the “Report”).[3]

I. Background

On June 28, 2018, DHS OIG released the results of its investigation into whether (1) “ICE’s immigration detention inspections ensure adequate oversight and compliance with detention standards” and (2) “ICE’s post-inspection follow-up processes result in correction of identified deficiencies.”[4] Therein, DHS OIG concluded:

. . . neither the inspections nor the onsite monitoring ensure consistent compliance with detention standards, nor do they promote comprehensive deficiency corrections. Specifically, the scope of ICE’s contracted inspections is too broad; ICE’s guidance on procedures is unclear; and the contractor’s inspection practices are not consistently thorough. As a result, the inspections do not fully examine actual conditions or identify all deficiencies. In contrast, ICE’s Office of Detention Oversight uses effective practices to thoroughly inspect facilities and identify deficiencies, but these inspections are too infrequent to ensure the facilities implement all deficiency corrections. Moreover, ICE does not adequately follow up on identified deficiencies or consistently hold facilities accountable for correcting them, which further diminishes the usefulness of inspections. Although ICE’s inspections, follow-up processes, and onsite monitoring of facilities help correct some deficiencies, they do not ensure adequate oversight or systemic improvements in detention conditions, with some deficiencies remaining unaddressed for years.[5]

CLINIC seeks certain records that are identified in the Report and or implicated by its public release. As noted in the Report, at the end of fiscal year 2017, ICE held nearly 38,000 detainees in custody, with nearly 35,000 detainees in facilities that undergo the ICE inspections discussed in the Report.[6]
As the recent flurry of immigration-detention-related events and widespread media coverage thereof demonstrate, there is an intense public interest in ensuring that the rights and dignity of immigrants are and remain protected in detention and elsewhere. Indeed, as has been widely reported, the Trump Administration’s public approval rating with respect to immigration policy “hit an all-time low” in June 2018—sitting at just 35 percent; a five-point drop from where it stood just one month prior—after the administration instituted its “zero-tolerance” policy by which families were and continue to be forcefully separated, with the children being detained in cramped detention facilities that have, at least once, been described as “cages.”[7]
Release of the requested records is critical to ensure meaningful public access to and debate about how the Government apprehends and detains individuals when purportedly necessary. These records will contribute to the American public’s understanding of governmental policy and inform current and future public discussion about the legality and wisdom of the current administration’s ‘approach’ to immigration, as well as the resulting harm to individuals’ human right, our nation’s values, and our national security.

II. Requested Records

CLINIC seeks the release of the records outlined below. With respect to the form of production,[8] CLINIC request that responsive electronic records be provided in their native file format. Alternatively, CLINIC requests that records be provided electronically in a text-searchable, static-image format (PDF), in the best image quality in the agency’s possession, and that the records be provided in separate, Bates-stamped files.

A. According to the Office of Inspector General: “[a]s part of its layered approach, various ICE offices manage the oversight and monitoring of detention standards and have different roles and responsibilities.”[9]

For each and every ICE Area of Responsibility, please produce any and all records that would be necessary to accomplish the following task for each of the last ten years:
o Identify the various ICE offices and or officers that manage the oversight and monitoring of detention standards as well as each office and or officers’ different roles and responsibilities to that end.

B. According to the Office of Inspector General: “ICE ERO Custody Management, which manages ICE detention operations and oversees the administrative custody of detained aliens, contract with Nakamoto to annually or biennially inspect facilities that hold ICE detainees more than 72 hours.”

For each of the last eleven years, please produce any and all records related to:
o Contract(s), agreements, memoranda of understanding, or any other record or information that would fall within the definition of “contract” as such term is defined and or used in the Report, between ICE ERO and Nakamoto, as well as any amendments there to, that were executed at any time since 2005.
o The “detention review summary forms and inspection checklists”[10] that ICE provides to Nakamoto to determine compliance with detention standards;
o The “procedures” ICE provides to Nakamoto for evaluating detention conditions;[11]
o The “written policies and procedures” of or for each and every facility that Nakamoto (or ODO) would be expected to review as part of its inspection;
o Incidents outlined in the Report in which “some inspectors did not consistently look at documentation to substantiate responses from staff or ensure the facility was actually implementing the policies and procedures.”[12]

C. According to the Office of Inspector General: “ICE also has procedures for operational review self-assessments, which allow facilities with an average daily population of fewer than 10 detainees or those designated as short-term facilities that house detainees under 72 hours to conduct their own inspections under the guidance of the local ICE ERO field office.”

For each of the last ten years, please produce any and all records related to:
o With respect to making a determination as to whether a given facility should be designated as a “short-term facility,” the data, procedures, standards, and or means otherwise by which such a determination is or was made and the factual basis upon which it purports to be based.
o The “procedures” related to “operational review self-assessments” as referenced above;
o The “review self-assessments” as referenced above, including, but not limited to, all records that were or should have been submitted by facilities;
o The “guidance” provided to each and every “facility” by each and every local ICE ERO field office as referenced above;
o Any training and or supervision that are or were provided to local ICE ERO field offices and or officers with respect to providing “guidance” to “short-term facilities”;

D. According to the Office of Inspector General: “ODO is unit (sic) of the ICE’s Office of Professional Responsibility, Inspections and Detention Oversight Division. ODO is institutionally separate from ERO. As such, ODO inspections aim to provide ICE executive leadership with an independent assessment of detention facilities. About once every 3 years, ODO also inspects detention facilities that hold ICE detainees more than 72 hours (and have an average daily population of more than 10 detainees). ODO adjusts its inspection schedule based on perceived risk, ICE direction, or national interest. ODO leadership determines the facilities to review each year based on staffing budget, agency priorities, and special requests by ICE leadership. Contract staff from Creative Corrections, LLC support ODO teams. ODO inspects facilities to determine compliance with 15 to 16 “core” standards, identified in appendix D. ODO inspected 23 facilities in FY 2015, 29 in FY 2016, and 33 in FY 2017.”[13]

For each of the last ten years, please produce any and all records related to:
o Any “independent assessment” of any and all detention facilities provided by ODO to ICE executive leadership, including, but not limited to, any communications between ODO and ICE executive leadership related thereto, whether such communications were made with respect to a specific assessment and or with respect to conducting assessments generally;
o With respect to making a determination as to whether a given facility should be subject to ODO inspection, the data, procedures, standards, and or means otherwise by which such a determination is or was made and the factual basis upon which it purports to be based.
o Dates and locations of any and all independent assessments conducted by ODO;
o With respect to making a determination as to “perceived risk” (as such term is used and or defined in the Report), the data, procedures, standards, and or means otherwise by which such a determination is or was made and the factual basis upon which it purports to be based, including, but not limited to, those records related to all instances in which ODO “adjust[ed] its inspection schedule” based on “perceived risk” or lack thereof;
o Instances in which ODO “adjust[ed] its inspection schedule” as a result of “ICE direction” (as such term is used and or defined in the Report), including, but not limited to, records that reveal the source and basis for such direction;
o The process by which ODO leadership has or does determine the facilities to review each year, including but not limited to those records related to the “staffing budget,” “agency priorities,” and “special request by ICE leadership” (as such terms are used and or defined in the Report) and reveal the source and basis for such budget, priorities, and or special requests;
o Contract(s), agreements, memoranda of understanding, or any other record or information that would fall within the definition of “contract” as such term is defined and or used in the Report, between or for the benefit of ODO and Creative Corrections, LLC;
o The 15 to 16 “core” standards identified by ODO and the data, procedures, and or means by which ODO selects and or amends its selection of such standards as “core” and any communications related thereto;
o ODO’s inspection of the 23 facilities inspected in FY 2015;
o ODO’s inspection of the 29 facilities inspected in FY 2016;
o ODO’s inspection of the 33 facilities inspected in FY 2017;
o ODO’s inspection of any facilities conducted and or ongoing thus far in FY 2018;
o Any and all “compliance inspection reports” that ODO issued to “various ICE stakeholders and the public … as well as any immediate remedial actions facilities initiated or completed in response to identified deficiencies.”[14]

E. According to the Office of Inspector General: “ICE ERO Custody Management also has a Detention Monitoring Program through which onsite DSMs at select facilities, covering each facility type listed in table 1, continuously monitor compliance with ICE detention standards. In December 2017, 35 DSMs monitored compliance with ICE detention standards at 54 facilities holding more than 70 percent of detainees.”[15]

For each of the last ten years, please produce any and all records related to:
o With respect to making a determination as to whether a given facility should participate in ICE’s “Detention Monitoring Program,” the data, procedures, standards, and or means otherwise by which such a determination is or was made and the factual basis upon which it purports to be based.
o The name, location, dates, and rationale for each ICE ERO facility selection and or removal from the “Detention Monitoring Program”;
o Communications between each and every “DSM” and each and every facility being monitored under the “Detention Monitoring Program”;
o Any and all DSM identified deficiencies that were corrected “on the spot.”[16]
o Instances in which “DSMs at a few facilities portrayed local ERO management as ‘disengaged’ or ‘reluctantly responsive’ in detention issues;”[17]
o Instances in which DSMs “described the relationship between DSMs and ERO field management as ‘not very productive[;]’”[18]
o Instances in which ERO field office personnel expressed their consideration that DSMs are “a nuisance.”[19]

F. According to the Office of Inspector General: “Detention facilities develop Uniform Corrective Action Plans (UCAP) when either Nakamoto or ODO inspections find instances of noncompliance. DSCU and ICE ERO field office managers work with facilities to resolve the issues.”
For each of the last ten years, please produce any and all records related to:
o The “Uniform Corrective Action Plans” developed by a facility in response to any and all instances of noncompliance found by Nakamoto and or ODO inspections, including any communications related thereto;
o Any and all instances in which “DSCU and ICE ERO field office managers work[ed] with facilities to resolve the issues,” including any communications related thereto;
o Any and all instances in which “ERO field offices [did] not … respond to DSCU with proposed corrections;”[20]
o Any and all instances in which “ERO field offices respond[ed] late”;”[21]
o Any and all instances in which “ERO field offices . . . submitt[ed] incomplete responses[;]”[22]
o Any and all instances in which “ERO field offices . . . report[ed] that facility deficiencies [would] continue due to local policies or conditions[;]”[23]

G. According to the Office of Inspector General: “[DHS OIG] evaluated policies, procedures, and inspection practices, and we observed Nakamoto and ODO inspections of detention facilities. Between April and August 2017, we observed Nakamoto inspections at Irwin County Detention Center in Ocilla, Georgia, and at Johnson County Detention Center in Cleburne, Texas. We observed ODO inspections at Eloy Detention Center in Eloy, Arizona, and at Stewart Detention Center in Lumpkin, Georgia. We also reviewed a sample of Nakamoto and ODO inspection reports and UCAPs to evaluate how ICE reports on and corrects identified deficiencies . . . ”[24]

Please produce any and all records related to:
o The “policies, procedures, and inspection practices” that DHS OIG “evaluated” in connection with its investigation as outlined in the Report;
o The Nakamoto inspections at Irwin County Detention Center in Ocilla, Georgia, and at Johnson County Detention Center in Cleburne, Texas;
o The ODO inspections at Eloy Detention Center in Eloy, Arizona, and at Stewart Detention Center in Lumpkin, Georgia.
o The “sample of Nakamoto and ODO inspection reports and UCAPs”;
o The “nine DSMs from various types of facilities” that were “interviewed” by DHS OIG;
o The standards and methodology by which DHS OIG “sought to determine the effectiveness of both ICE’s immigration detention inspection and follow-up processes as well as its monitoring of detention facilities.”

H. For each of the following conclusions made in the Report, please provide any and all records and or information related to the factual basis underlying each conclusion:

o “ICE does not adequately follow up on identified deficiencies or systematically hold facilities accountable for correcting deficiencies…[;]”[25]
o “ICE ERO field offices’ engagement with onsite DSMs is inconsistent, which hinders implementation of needed changes[;]”[26]
o “Although ICE’s inspections, follow-up processes, and DSMs monitoring of facilities help correct some deficiencies, they do not ensure adequate oversight or systematic improvements in detention conditions[;]”[27]
o “[C]ertain deficiencies remain unaddressed for years[;]”[28]
o “As some of our previous work indicates, ICE’s difficulties with monitoring and enforcing compliance with detention standards stretch back many years and continue today[;]”[29]
o “ICE does not provide clear guidance on procedures[;]”[30]
o “Nakamoto inspectors are not always that thorough[;]”[31]
o “In general, the Nakamoto inspection practices we observed fell short of the SAW requirements[;]”[32]
o “Several ICE employees in the field and managers at ICE ERO headquarters commented that Nakamoto inspectors ‘breeze by the standards’ and do not ‘have enough time to see if the [facility] is actually implementing the policies. They also described Nakamoto inspections as being ‘very, very, very difficult to fail.’ One ICE ERO official suggested these inspections are ‘useless[;]’”[33]
o “[I]nspections are scheduled in advance and announced to the facilities, which, according to ICE field staff, allows facility management to temporarily modify practices to ‘pass’ an inspection[;]”[34]
o “ICE ERO does not exercise enough quality control over these contracted inspections to evaluate or improve Nakamoto’s performance.”[35]
o “ICE does not consistently enforce compliance with detention standards.”[36]
o “ERO field offices’ engagement in detention oversight varies widely.”[37]

I. According to the Office of Inspector General: “ODO policies direct ODO inspection teams to research and compile information from the facility and the relevant ERO field office.”[38]

For each of the last ten years, please produce any and all records related to:
o The “policies” governing ODO inspection teams;
o The “research” and “information” compiled for each and every inspection undertaken by ODO, including but not limited to, “ODO’s pre-inspection packages and any and all contracts, facility records, local ERO policies and procedures, complaints the ICE Joint Intake Center received about the facility, and any detainee death reports” as well as “policies on emergency response, safety inspections, and use of force”[39] contained therein or associated therewith.

J. According to the Office of Inspector General: “Nakamoto sends ERO a completed checklist with an assessment of each element of the valuated standards and a summary of the inspection. We identified inaccuracies in Nakamoto’s summary report and checklists we selected for our sample.”[40]

For the last ten years, please produce any and all records and information related to:
o Completed “checklist[s]” provided to ERO;
o “[S]ummary report[s]” provided to ERO;
o The “inaccuracies” identified in Nakamoto’s summary report and checklists;

K. According to the Office of Inspector General: “In some instances, Nakamoto’s reports misrepresented the level of assurance or the work performed in evaluating the actual conditions of the facility and the information in the reports was inconsistent with what we observed during inspections.”[41]
Please produce any and all records and information related to:
o Any and all instances in which DHS OIG identified Nakamoto as having “misrepresented” the “level of assurance” or “work performed in evaluating the actual conditions of the facility[;]”[42]
o Any and all instances in which DHS OIG identified “the information in the reports” as being “inconsistent with what [DHS OIG] observed during inspections[;]”[43]

L. According to the Office of Inspector General: “[W]e identified examples in which the repeated use of waivers allowed facilities to exempt themselves from standards that ICE deems critically important . . . “[44]
For the last ten years, please produce any and all records and information related to:
o Policies, procedures, guidance, and or like documents that purport to govern ICE’s use and or grant of waivers;
o The date, location, and reason for any and all prior or current waivers granted to detention facilities, as well as whether each waiver was granted prior to or after an inspection identified the deficiency to which the waiver applies;
o The data, standards, and polices by which ICE determines which, if any, detention standards constitute “priority components” on inspection checklists;
Note that CLINIC does not seek any personally identifiable information about any third party including and petitioner, applicant, and or detainee. If responsive records and or information contain personally identifiable information, please redact such information and produce such redacted records in response to this Request.

III. Application for Expedited Processing

CLINIC requests expedited processing of the above Request pursuant to applicable law and regulations.[45] There is a “compelling need” for these records, as defined in the statute and regulations, because the information requested is urgently needed by an organization primarily engaged in disseminating information in order to inform the public about actual or alleged government activity.[46] In addition, the records and information sought relate to a “breaking news story of general public interest.”[47]

A. CLINIC is an organization primarily engaged in disseminating information in order to inform the public about actual or alleged government activity.

CLINIC is “primarily engaged in disseminating information” within the meaning of the statute and regulations. Obtaining information about government activity, analyzing that information, and widely publishing and disseminating that information to the press and public are critical and substantial components of CLINIC’s work and are among its primary activities.[48] For example:
o Since 1997, CLINIC’s programs have helped more than 100,000 people apply for citizenship; helped approximately 12,000 refugees and asylees apply for green cards; and have provided immigrants with over 15,000 hours of English language instruction.
o CLINIC represents more than 170 dioceses and religious communities that bring foreign-born priests, sisters, seminarians and religious laypersons to the United States each year.
o CLINIC trained more than 7,000 immigration practitioners in 2012.
o CLINIC’s Attorney-of-the-Day Help Line fields at least 20 calls per day from member agencies on the most effective strategy for representing clients. CLINIC’s attorneys staff the hotline which covers topics such as family-based immigration, naturalization, temporary employment authorization, and relief from removal.
o CLINIC’s pro bono attorneys have filed briefs and represented more than 500 immigrants before the Board of Immigration Appeals (BIA).
CLINIC plans to analyze, publish, and disseminate to the public the information gathered through this Request. The records and information requested are not sought for commercial use and the requestors plan to disseminate the information disclosed as a result of this Request to the public at no cost.

B. The records sought are urgently needed to inform the public about actual or alleged government activity.

The records and information sought by this Request are urgently needed to inform the public about actual or alleged government activity; moreover, the records sought relate to a breaking news story of general public interest.[49] As noted above, there is enormous public interest and debate about DHS’s detention program and its recent failures to protect the dignity and rights of those it chooses to detain. Release of the records and information sought by the Request will aid the American public in drawing its own conclusions about the legitimacy and legality of ICE’s immigration detention program. Moreover, the records and information sought relate to a “matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity that affect public confidence.”[50] Given the foregoing, expedited processing should be granted for this Request.

IV. Application for Waiver or Limitation of Fees

CLINIC asks that all fees associated with this Request be waived because disclosure of the requested records and information will contribute significantly to public understanding of the governmental activities identified above and because the disclosure is not in CLINIC’s commercial interest.[51]

A. Disclosure of the records and information is in the public interest.

Disclosure of the requested information will contribute significantly to public understanding of government operations and activities related to the means by which the government detains certain immigrants. CLINIC has the capacity and intent to disseminate widely the requested information to the public. CLINIC provides technical support to the members of its network on a broad range of immigration law topics. The network includes approximately 1,200 attorneys and accredited representatives and assists some 600,000 clients, parishioners, and community members with immigration matters annually. CLINIC publishes books, produces a monthly newsletter, and provides in-person training, online courses, and webinars on a variety of immigration law issues including those affecting detained individuals. In addition, CLINIC’s materials are disseminated to the public through its website, www.cliniclegal.org, which for the past couple of months has received approximately 100,000 unique views per month.
Information obtained through this FOIA request will contribute to CLINIC’s public education materials on the immigration system and will assist CLINIC in providing technical assistance to nonprofit legal services providers and pro bono attorneys who represent individuals in immigration detention. Finally, CLINIC has regular contact with national print and news media and may share information gleaned from this Request with interested parties.

B. Disclosure of the information is not in CLINIC’s commercial interest.

CLINIC is a not-for-profit organization. CLINIC seeks the requested information and records for the purpose of educating the public and not for the purpose of commercial gain. CLINIC will also use the information obtained to inform our organization’s technical assistance and training programs, which provide free consultation and resources to immigrants and their attorneys across the United States.

Thank you for your prompt attention to this request. Please reply to this request within the timeframe provided by law. If portions of the requested records and or information are claimed to be exempt from disclosure under FOIA, please indicate the specific reasons for the alleged exemptions, the number of pages withheld, and the dates of the records withheld, producing the remaining non-exempt portions.

Please do not hesitate to contact us should you have any questions or concerns.

Sincerely,

Michael Joseph Edelman, Esq.
Federal Litigation Attorney
Catholic Legal Immigration Network, Inc.
8757 Georgia Avenue, Suite 850
Silver Spring, MD 20910
P: 301-565-4800
F: 301-565-4824
medelman@cliniclegal.org
www.cliniclegal.org