“Theater of Compliance”: New Report Details How ICE Escapes Detention Center Oversight

The people locked inside the for-profit detention center spoke to journalists and advocates. They staged protests and hunger strikes. They wanted the world to know that inside the Otero County Processing Center in Chaparral, New Mexico, due process was a fiction and degradation was the norm. None of it seemed to work. So in the fall of 2019, they escalated their tactics — this time threatening mass suicide.

Four months later, in January 2020, a team of inspectors working for the Nakamoto Group, the company that the government pays to inspect its immigration jails, arrived on the scene. The group describes itself as a “small, disadvantaged, minority woman-owned business” based out of Jefferson, Maryland — “Are you ready for the Prison Rape Elimination Act Standards? Nakamoto is!” its website reads. Prior to the team’s arrival, U.S. Immigration and Customs Enforcement created a by-the-numbers summary of the situation at Otero, noting that the people locked inside had filed 257 grievances in the preceding year and been accused of 301 disciplinary infractions. Nakamoto’s summary of its inspection offered no indications of serious conflict on the inside, let alone the kind of conditions that would prompt multiple people to deprive themselves of food or consider suicide.

“Without exception, detainees stated that they felt safe at the facility,” the inspectors reported, after conducting “no less than” 100 interviews. Run by Management and Training Corporation, or MTC, a private prison company out of Utah, the facility was described as “clean and orderly” with a “relaxed” atmosphere that offered “no areas of concern or significant observations.” The private immigration jail was found to have met its government regulated standards, just as it had the year before, when the protests first kicked off.

The threat of mass suicide notwithstanding, none of this was terribly unusual. Inside the nation’s sprawling immigrant detention apparatus, hunger strikes and protests are common, as are contracted inspections that routinely give a stamp of approval to facilities accused of fostering dangerous and dehumanizing conditions — as of 2018, Nakamoto was conducting roughly 100 facility inspections a year. A new report by advocates focused on the Otero facility argues that this is an example of “performative compliance,” a process in which ostensible oversight bodies undermine their own stated purpose.

“The inspections process actively legitimizes the detention system and conceals its inherent problems, which upholds a profitable industry for incarcerating immigrants.”

“There is a larger concern beyond just failing to document problems,” reads the report, published Tuesday by Advocate Visitors with Immigrants in Detention, the Immigration Law Lab, and the El Paso Immigration Collaborative, or EPIC. “The inspections process actively legitimizes the detention system and conceals its inherent problems, which upholds a profitable industry for incarcerating immigrants.” Scholars have documented patterns of performative compliance in public-private sector partnerships “where different organizational forces seek to give the illusion that they are conforming to the ‘agreed’ rules of delivery,” the report said, adding, “The theater of compliance via regulation that arises in these public-private partnerships guarantees that any outcomes that could affect the profitability of the partnership are concealed.”

This is precisely what’s happening at Otero, the report claimed, and in the immigration detention system more broadly. The advocates based their conclusions on conversations with more than 200 people locked inside Otero from August 2019 to June 2020. More than 150 individuals who took part in those conversations raised concerns about their experience of the U.S. immigration system. Far from being “safe” and “relaxed,” the picture of Otero that emerged from the 259 complaints detailed in the report pointed to a profoundly dehumanizing place. From medical concerns to a lack of access to the legal system, interviewees described conditions that felt aimed at wearing people down and seemed to directly undermine the stated justification for their detention.

MTC pushed back on several of the claims made in Tuesday’s report, telling The Intercept in an email, “There’s nothing more important to us than the safety and well-being of our employees and those in our care” and that MTC staff “treat those in their care with dignity, respect, and the highest level of professionalism.” The company added that staff at the Otero facility “strictly follow” ICE detention standards and that individuals in detention “have multiple avenues to address any issues they might have,” including speaking to MTC staff or ICE officials, or filing official grievances. ICE did not respond to multiple requests for comment by publication. The Nakamoto Group declined to comment.

“The kinds of concerns that are being raised by the people who were interviewed by the advocacy groups are very familiar to those of us who monitor what’s happening across ICE’s detention system year after year,” said César Cuauhtémoc García Hernández, a law professor at the University of Denver and the author of “Migrating to Prison: America’s Obsession with Locking Up Immigrants.” There will always be a degree of variation between individual facilities, García Hernández told The Intercept, “but the end result is concerns about medical care, concerns about access to counsel, and concerns about the treatment that people are receiving inside of these facilities.” Those concerns each raise their own important legal questions, he added, such as whether the due process rights of people in detention are meaningfully respected, “but the bigger concern is just the overriding failure of the Department of Homeland Security to install an adequate oversight mechanism.”

“The department’s own inspector general has found that the existing oversight mechanisms are poorly equipped to actually ensure that problems are identified and then addressed,” García Hernández noted. While it was no surprise that those concerns went unaddressed in the era of President Donald Trump, he said, “the reality is that these problems go back to the Obama years.”

Medical issues were far and away the No. 1 category of complaint cited in Tuesday’s report, comprising more than two-thirds of the detention conditions concerns raised. Nakamoto, by contrast, made no mention of medical issues as an area of concern in its summary of its 2020 inspection.

Four asylum-seekers at Otero told advocates they were denied medical treatment for injuries they sustained while fleeing their home countries or as a result of being forced to stay in Mexico under the Migrant Protection Protocols program. Otherwise known as “Remain in Mexico” or MPP, the Trump-era program has forced tens of thousands of asylum-seekers to wait out their cases in Mexico, leading to bottlenecks in some of the border’s most dangerous cities and widespread kidnappings, extortion, and violence against migrants.

Multiple interviewees reported that denial of prescribed medication was also a problem at Otero, including for conditions such as HIV and heart disease. In 2019, Johana Medina León, a transgender woman seeking asylum, died after what her family claimed was a denial of medical care at Otero. Though billed as an all-male facility, Otero also houses transgender women with men, creating a host of other serious problems cited in the report, including harassment and abuse, which, according to those inside, can feel inescapable. “Individuals who complained about the abuse and harassment were retaliated against with solitary confinement,” the report said.

MTC flatly denied that access to medical care was a problem at Otero. “All new detainees receive a medical evaluation, and any medical concerns are immediately addressed. Detainees can request to be seen by a member of our medical team at any time,” the private prison corporation said. “The allegation that we denied anyone medical care is wrong. We have a team of medical professionals, including doctors, nurses, and dentists who provide a variety of medical services whenever needed. If an individual requires medical services beyond what the medical team can provide at the facility, they are transported to a local hospital to address their medical needs.” The company also denied all allegations of retaliation at the facility, stating: “We work directly with ICE to house each detainee in the safest and most appropriate housing environment. Retaliation has never been and will never be a tactic used by any of our staff.”

For three individuals cited in the report, the road to Otero began with a series of ICE raids in Albuquerque, New Mexico, launched as part of the Trump administration’s politicized crackdown on so-called sanctuary cities. For many others, it started with one of the government’s infamous hieleras. Spanish for icebox, the border holding cells fall under the authority of U.S. Customs and Border Protection. Notorious for their cold temperatures and humiliating absence of privacy, the cells are intentionally designed without beds and are not meant to serve as overnight holding facilities — yet that’s routinely how they are used.

In this handout photo provided by the Office of Inspector General, overcrowding of families is observed by the OIG at the U.S. Border Patrol Centralized Processing Center on June 11, 2019, in McAllen, Texas.

Photo: Office of Inspector General/Department of Homeland Security via Getty Images

On average, individuals cited in the report spent two weeks in a hielera before being processed to another location, though one individual described being kept in one of the cells for nearly two months. Most described sleeping on the floor with nothing more than a mylar blanket. “One individual, held in a hielera for 26 days reported being held with 127 individuals in a space with a capacity for 44. Two other individuals reported being held with 100 other individuals,” the report said. With several individuals reporting that they were unable to brush their teeth for weeks on end, the report characterized the government’s use of hieleras as a form of “‘clean torture,’ which causes physical harm but leaves no immediately-visible, physical mark.”

Because people in ICE detention are dealing with civil immigration offenses rather than criminal convictions, their lockup is the result of an active decision on the part of the government — it is not obligatory. ICE insists this is neither punishment nor incarceration, but instead an administrative action taken to ensure that the detained have their cases adjudicated. Many of the people locked in Otero, however, reported an absence of contact with their deportation officer as an ongoing problem. In fact, it was one of the principle reasons that a group of mostly Cuban men calling themselves los plantados began a series of protests that led to the threats of mass suicide in 2019. Their tactics included planting themselves in a location and refusing to move until they were able to speak to their deportation officer.

Several people locked in Otero described being “treated like animals” and targeted with “psychological abuse.”

“ICE officials and MTC staff first responded to the protests with harassment and physical force. Only after threats, pepper spray, and disruptive searches in which detained individuals’ personal belongings, including court documents, were taken did [deportation officers] agree to meet with the plantados,” the report said. “When they did finally meet, ICE brought in additional armed personnel who wore tactical gear and stood menacingly near the detained protestors.”

MTC told The Intercept it had no knowledge of the events in question. “We are not aware of any incident at the facility that required the use of force or any incident that even resembles the allegations made in this statement,” the company said. “The safety of our staff and detainees is our top priority.”

Interviewees cited in the report claimed unidentified Homeland Security personnel would sometime pressure people to sign their own deportation orders before seeing a judge and described “entire dorms of persons” being “told to sign deportation paperwork en masse … without having the documents properly explained.” The advocates also documented cases of ICE detaining people for up to 90 days before initiating proceedings in immigration court. “Recalling that the alleged purpose of ICE detention is to ensure that individuals are present for their hearing and removal if so ordered by an immigration judge, these delays make no sense,” the report noted.

Several people locked in Otero said MTC staff often made threats of physical harm or the use solitary confinement and deprived people of food for failing to sit where they were told in the lunchroom. They described being “treated like animals” and targeted with “psychological abuse.” MTC said its staff are “trained to treat each person in our care with respect and dignity” and added that “all detainees are given three meals a day and have access to medical and dental care, daily recreation and other activities including educational classes, and legal resources to help them with their cases.”

The company’s assertions stand in direct contradiction to the claims of individuals cited in Tuesday’s report. Fear of retaliation was a “pervasive and often overwhelming barrier to hearing or receiving the accounts of individuals detained regarding the violence and abuse they face,” the report said. Six individuals said they were placed in solitary confinement for reasons ranging from participating in a sit-in to contracting Covid-19. “One of the individuals was among the leaders of the 2019 OCPC plantados,” the report said. “Upon being put into solitary confinement after an action, this individual slit his wrists.”

MTC claimed that “the use of special housing units” — prison-speak for solitary confinement — “is a management tool used in rare cases for the safety of staff and detainees and for the overall safety of the facility.” The private prison company again said it “strictly” follows ICE detention standards and added that “anytime special housing is used, it is approved by ICE, and each case is reviewed weekly to determine whether the use of special housing is still necessary.”

Often, the people locked in Otero were already coping with heavy psychological trauma. “All of the individuals that EPIC spoke to who were subjected to MPP and were willing to speak about it reported surviving violent assaults or developing a medical condition due to stress,” the report said, adding that “after being placed in MPP, one individual’s wife was raped while he was held at gunpoint.” The man was among a group of 10 individuals who reported being separated from their children at the border. Each of the separations occurred well after the president signed an executive order supposedly ending his administration’s “zero tolerance” policy. “Several individuals indicated that they were deeply depressed due to being separated from their families, and from prolonged detention,” the report noted. Advocates spoke to three individuals who attempted to take their own life at Otero. “A fourth individual indicated they were seriously considering suicide,” the report said. “All four of these individuals were seeking asylum.”

Guards prepare to escort an immigrant detainee from his 'segregation cell' back into the general population at the Adelanto Detention Facility on November 15, 2013 in Adelanto, California.

Guards prepare to escort an immigrant detainee from his “segregation cell” back into the general population at the Adelanto Detention Facility on Nov. 15, 2013 in Adelanto, Calif.

Photo: John Moore/Getty Images

In 2018, the Office of Inspector General for the Department of Homeland Security, the federal watchdog responsible for providing oversight of ICE, published a blistering report laying out the many ways in which inspections of immigration detention centers — both by Nakamoto and by ICE’s Office of Detention Oversight, or ODO — fail in their mission.

With small teams of inspectors tasked with checking adherence to dozens of federal standards for immigration detention in brief visits to scores of facilities across the country each year, the IG’s office found that Nakamoto’s inspection scope was “too broad,” that ICE’s guidance on procedures was “unclear,” and that Nakamoto’s inspection processes were “not consistently thorough,” resulting in inspections that “do not fully examine actual conditions or identify all compliance deficiencies.” The report found that the interviews Nakamoto conducts were in fact “brief, mostly group conversations with detainees in their detention dorms or in common areas in the presence of detention facility personnel, generally asking four or five basic questions about treatment, food, medical needs, and opportunities for recreation.” Investigators spoke to “several” ICE employees who said that Nakamoto inspectors “breeze by the standards” and do not “have enough time to see if the [facility] is actually implementing the policies.” Employees described the inspections as “very, very, very difficult to fail” and “useless.”

The IG’s office found that the ODO inspections were more effective, but noted that they “are too infrequent to ensure the facilities implement all corrections” and that “ICE does not adequately follow up on identified deficiencies or systematically hold facilities accountable for correcting deficiencies, which further diminishes the usefulness of both Nakamoto and ODO inspections.”

The question remains why the government continues to rely on a demonstrably failed oversight process in a system where human lives are at stake.

Though the apparently surface-level nature of Nakamoto’s inspections may help to explain why there is such a wide gap between the trauma captured in Tuesday’s report and the approval Nakamoto gave to Otero in 2020, the question remains why the government continues to rely on a demonstrably failed oversight process in a system where human lives are at stake.

García Hernández argues that the fault lies with the Department of Homeland Security and the administrations that have hired Nakamoto, which has received contracts from ICE since 2007. “That’s Trump, but that’s also Obama,” he said. “They’re apparently disinterested in ensuring that when problems are identified that they’re taken seriously. And so Nakamoto has absolutely no reason to think that the Department of Homeland Security or the administration, whichever that is, is all that concerned about the quality of life inside of these facilities.” He added, “My concern is that under a Biden administration we will be repeating similar conversations.”

President-elect Joe Biden has pledged to “end for-profit detention centers” and vowed that his administration “will ensure that facilities that temporarily house migrants seeking asylum are held to the highest standards of care and prioritize the safety and dignity of families above all.” He has also promised to “end prolonged detention” and “reinvest” in programs that offer alternatives to detention. The incoming president has not offered an explanation as to why the asylum-seeking migrants he refers to, as well as other non-asylum-seeking immigrants, should be detained at all, and he has not articulated how his process for holding ICE to the highest standards possible will differ from the present system. Biden’s transition team declined to make any of the president-elect’s immigration advisers available for comment.

Reform will not fix the problems in the country’s immigrant detention centers, the authors of Tuesday’s report argued. ICE’s inspection regime itself was a product of reformist thinking, the report said, and it has produced a cycle of performative compliance “that not only fails to identify and expose problems, but forms part of a system that conceals those problems.” Citing the large body of court record evidence showing that an extremely high percentage of immigrants and asylum-seekers do in fact attend their hearings in the U.S. — among non-detained asylum-seekers, 99 out of 100, according to one 2019 study — the report argued that the stated justification for ongoing immigrant detention is hollow.

“This reform-oriented approach to systemic problems ends up justifying and sustaining the troubling situations that evoke the need for reforms in the first place,” the report said. “ICE detention, the use of CBP temporary holding facilities, and the practice of returning immigrants to Mexico to await a hearing should be abolished.”

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