ICE Regularly Covers Up 'Deficient Conditions' by Giving Waivers to Its Detention Contractors

Immigration and Customs Enforcement has routinely provided waivers to vendors that maintain detention facilities in violation of their contracts instead of punishing them, according to a new audit, with unpenalized infractions including those that “jeopardize the safety and rights of detainees.”

ICE identified more than 14,000 violations at its contracted detention facilities in a three-year period beginning October 2015, the Homeland Security Department’s inspector general found, but has issued financial penalties to the companies that run them just twice. Violations included “significant understaffing, failure to provide sufficient mental health observation and inadequate monitoring of detainees with serious criminal histories,” as well as contractors failing to notify ICE about sexual assault allegations and misconduct by facility staff. ICE maintains contracts for 106 facilities to detain a daily average of 25,000 immigrants facing deportation, at a cost of $3 billion over the three-year span.

The agency regularly inspects its contracted facilities through annual investigations by a private sector company, triennial reviews by its own Office of Detention Oversight, and assigned “detention service managers.” ICE maintains two paths for correcting deficiencies. The first option is to send a corrective action plan to the contractor, which the IG found last year “does not lead to sustained compliance or systemic improvements.” ICE can also make contract adjustments through a provision of the document known as a quality assurance surveillance plan. Those are established to enable ICE to issue financial penalties to delinquent contractors, but the IG found that just one-quarter of the agency’s contracts included the plans. ICE employees provided differing answers on whether they could impose financial penalties without them.

ICE told the IG it had no data on how many “discrepancy reports” its contracting officers had issued, nor did it maintain any information on whether identified problems had been corrected. Of the two penalties ICE has issued, one resulted from repeated violations of health care and mental health standards and the other was because the Labor Department found the contractor was underpaying wages.

The IG said that ICE has attempted to work around any issues it identifies at its contracted facilities.

“Instead of holding facilities accountable through financial penalties, ICE frequently issued waivers to facilities with deficient conditions, seeking to exempt them from having to comply with certain detention standards,” the auditors said.

The investigators added that ICE does not actually maintain any policy on waivers and officials are granting them without the authority to do so. Contractors submit waiver requests when claiming compliance would create a hardship. ICE has granted 96 percent of those requests.

ICE officials admitted to the IG that “there are no policies, procedures, guidance documents, or instructions to explain how to review waiver requests.” They could not explain, for example, why waivers were granted to permit strip searches without considering constitutional or policy concerns. Another waiver allowed a facility to use a gas 10 times more toxic than normal pepper spray. In some cases, the waivers directly violated detention standards, Federal Acquisition Regulations or other requirements. Virtually all waivers were granted on an indefinite basis.

Violations by ICE contractors can range from the mundane to the extreme. A surprise IG visit to one contracted facility last year found braided sheets referred to as “nooses” in cells and detainees being improperly isolated and placed in shackles.

The “serious deficiencies” highlighted in the report are “not new,” according to Aaron Reichlin-Melnick, a policy analyst for the American Immigration Council, a group that has recently filed complaints with the DHS IG on the conditions at ICE’s contracted detention facilities.

The issues “have been raised to ICE time and time again,” Reichlin-Melnick said, adding that the IG’s report “barely dips a toe into the long-documented issues at these facilities.” He highlighted insufficient care and medical issues as longstanding issues at various detention centers and suggested the issues should force Congress to reckon the necessity of keeping the ever-growing population of immigrants in detention at all.

ICE claimed that it has taken corrective actions at some of its contracted facilities, but the IG said the agency did not provide any evidence of those steps. The auditors recommended that ICE add more quality assurance plans in its existing contracts, develop protocols to impose more financial penalties and boost oversight of waivers, among other changes. ICE agreed to implement the changes the IG suggested.

This story has been updated with additional comment.

Image via EddieHernandezPhotography / Shutterstock.com.