The Eloy Triangle, Part II – It’s not punishment?
A look inside an asylum hearing at the Eloy Detention Center
This week I’m sharing some thoughts springing from my visit on Tuesday to the ICE Eloy Detention Center to attend a refugee asylum hearing. Today is Part II
Click here for Part I – Follow the Money.
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“Detention or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens, would be valid. But when Congress sees fit to enact that aliens shall be punished, in the sense of the Constitution… it must provide for a trial by jury.” - Wong Wing v. United States (1896)
“The proceedings at issue here are civil, not criminal, and we assume that they are nonpunitive in purpose and effect.” – Zadvydas v. Davis (2001)
“Detention during removal proceedings is a constitutionally permissible part of that process… It is not punitive but serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, and of protecting the community from dangerous criminal aliens.” – Demore v. Kim (2003)
The law is incredibly clear.
Detention for immigration violation is civil, not criminal and thus cannot be punitive – that would be in violation of the fifth amendment right to due process (punishment without a jury trial).
It’s not punishment.
That would be unconstitutional.
I’ve spent a good amount of time in jails and prisons, and one of the things that struck me walking into the Eloy Detention Center is how in environment and procedure it was virtually indistinguishable from walking into LA Men’s Central Jail, Twin Towers or the CRDF facility.
You have to be buzzed through two gates to get in, go through a security screening and get buzzed through an additional two gates to enter where the hearings are held.
In fact, in entering Eloy just to attend a hearing in a closed courtroom where I was not allowed to have any contact with the person being detained, I had to take off my belt and put it in a locker – something I’ve never had to do at any other facility.
It shouldn’t be surprising that the detention centers have basically an identical feel to prisons – they are built and run by the same people. CoreCivic, which operates the Eloy Detention Center, operates more than 60 state and federal jails and prisons across the country.
This is just how CoreCivic (and Geo Group, etc.) does business. It’s one-size-fits-all.
Except … not really.
More on that in a moment.
There is a traditional schedule to the incarcerated life when you are under criminal charges – when your time is supposed to be punitive. It is a rhythm of life inside.
For example, the average day at the Red Rock Correctional Center – a similarly sized criminal incarceration facility … also in Eloy … also operated by CoreCivic.
Wake up & Counts – Early morning with daily structure
Meals – In-person breakfast, lunch, dinner
Recreation – Regular outdoor recreation opportunities – two hours outdoors in the evening.
Programs & Work – Programming or continued work—self-improvement, literacy, reentry classes, faith-based options, life-skill classes
Communication – Daily phone access, two hours visitation time daily.
Housing Flow – Clear routine with evening lockdown
Now, this is the official information from the prison itself. If you have ever been in a jail or prison, you know that reality varies greatly, and conditions are usually far worse than advertised.
Still … this is the official information from the prison, which means it is an operating definition of what punitive time looks like. Which means – constitutionally -- time in immigration detention should be qualitatively better.
Well .. it’s different. But it’s not better.
In fact, at least at the Eloy Detention Center… it’s considerably worse.
Here’s a look inside the Eloy Detention Center using the same categories:
Wake Up & Counts – Early counts, structure variable, frequent lockdowns
Meals – Three meals cushioned by ICE standards; dining logistics vary
Recreation – ICE standard 1 hr/day; often reduced or canceled
Programs & Work – law/writing access; limited work ($1/day)
Communication – Limited, legal visits midweek, social visits weekend
Housing Flow – Lockdowns common; limited cell freedom
So just this cursory look shows that even in comparable facilities, those being detained for immigration violations have more lockdowns, less recreation, less access to lawyers and visitors, and less predictability … in short, more punitive conditions than those who are supposed to be being punished.
Why? Well one reason is a vast difference in oversight.
State prisons are run under state law and corrections codes, are subject to oversight by state legislatures, inspectors general, courts and sometimes independent prison boards. In addition, conditions are constrained by the Eighth Amendment prohibition of “cruel and unusual punishment” … since prisons are designated as punitive.
ICE detention facilities are authorized by civil immigration law (INA). Because they are not punishment, the Eighth Amendment does not apply (the Fifth Amendment Due Process Clause does but courts have historically given the government wide latitude in its application).
Standards for conditions? Those aren’t federal or state law … ICE sets its own Performance-Based National Detention Standards (PBNDS), which are guidelines, not binding law!
And … even compliance with those standards is measured by ICE-contracted inspections – often by private firms – that have been criticized as “rubber stamps.”
Occasionally, the Department of Homeland Security Office of Inspector General (DHSOIG) will issue a report but enforcement is weak and violations rarely end contracts.
In other words, ICE gets to make its own rules …and then doesn’t even have to be bound by them.
Given this, it is little wonder that Eloy Detention Center has been called the "deadliest immigration detention center in the U.S.," with at least 16 reported deaths, including five suicides.
Because there is little or no oversight, it is up to third-party organizations like the ACLU and amazing local organizations like The Florence Project, which provides pro bono legal assistance to people in immigrant detention (remember, they do not enjoy the constitutional right to counsel) and others to let us know what is really going on inside.
Here’s what they have found:
*Health and sanitation: Unsanitary living conditions and inadequate diet accommodations for chronically ill detainees.
*Medical delays: Long waits for specialized medical care.
*Abuse and segregation: Frequent and improper use of segregation, especially impacting those with mental health issues. During lockdowns, detainees were confined for hours at a time without access to recreation, showers, phones, or communal areas.
*Other violations: Language and privacy violations for women, and reports of verbal and physical staff abuse. When allowed outside time, it was often reduced to only 30 minutes a day, rather than the standards outlined in ICE’s policy.
Click to see the full report here
Immigrants in detention told the Florence Project:
“We went days without cleaning liquids or toilet paper.”
“Pods are sometimes not given recreation for several days… often only 30 minutes to an hour per day.”
“They would leave us locked in our cells for up to 72 hours:”
“I wonder if they care if we live or die.”
In addition, Congresswoman Yassamin Ansari, whose district includes Eloy, made a surprise oversight visit of her less than three months ago and wrote a letter to Homeland Security Secretary Kristi Noem and Acting Director of US Immigration and Customs Enforcement Todd Lyons detailing deep concerns about the inhumane conditions of the Eloy ICE Detention Center and demanding answers and independent oversight.
The full text of the letter is here. Here is an excerpt:
Specifically, some of the incidents I learned about included:
An instance that occurred approximately one month ago in which a guard ordered detainees to walk laps in the courtyard outside the cafeteria for hours until they were dizzy and sick. One detainee apparently collapsed and fainted due to these unsafe conditions.
Instances where guards apparently manipulated the A/C system, such as by turning off the A/C for weeks in the Alpha living areas and then blasting the A/C at alarmingly low temperatures, resulting in many detainees being unable to sleep at night and eventually becoming ill.
Instances where facility staff removed furniture from cells and placed plastic mats on the floor to accommodate more detainees.
Reports from social workers and attorneys noting a significant decline in the number of detainees attending legal orientation presentations in recent weeks and months. These examples, and others, raise serious concerns that some staff under your respective departments have abused the power of their positions and are not executing their duty to “house aliens to secure their presence for immigration proceedings or removal from the U.S.”
And yet it gets even worse.
Remember that immigration detention is not criminal and not supposed to be punitive. That’s because the presumption is they have done nothing wrong and they are being detained until their immigration status and future can be clarified.
They have done nothing wrong … and that doesn’t mean that plenty of terrible things have not been done to them.
Nearly half of migrants experience PTSD from trauma before, during or after migration (for more on this, read this excellent peer-reviewed article: Immigration Trauma: What It Is and How to Cope)
Among children in detention, 17% had a probable PTSD diagnosis – more than triple the rate among general adolescents.
Up to 44% of refugees/asylum seekers are survivors of torture.
And it gets worse.
In one study of Mexican transgender refugees, 100% met criteria for PTSD; 93% had depression; more than half had suicidal ideation or attempts. Children and asylum seekers—especially those fleeing violence—are especially likely to have significant trauma histories.
This sort of trauma is debilitating under the best of circumstances. A compassionate and trauma-informed society would ensure that people suffering this sort of trauma got significant counseling and care.
A minimally humane society would ensure that people suffering this sort of trauma not be put in conditions that exacerbate it.
And then there’s us. We take immigrants and refugees and put them right back into conditions that retraumatize them over and over again.
Locked cells, guards, headcounts, strip searches – all these mimic conditions of past persecution … and often imprisonment and torture. They trigger flashbacks, panic attacks and hypervigilance in those with PTSD. Survivors often describe detention as “being back in prison” or “like reliving torture.”
Multiple studies report detention increases the severity of PTSD (including nightmares, intrusive memories and dissociation); and heightens depression, anxiety and suicidal ideation. Even short periods of detention can cause mental deterioration .. and prolonged confinement can have chronic, disabling effects.
Even after release, detention-related re-traumatization can lead to persistent PTSD, difficulties with family reintegration, and distrust of institutions.
And it doesn’t stop there. Children with detained parents often experience secondary trauma, further amplifying impact.
For an excellent summary of data, read this article, The impact of immigration detention on mental health: a systematic review
And … as if that weren’t cruel enough … between 2015 and 2021, there were 308 sexual abuse complaints from detainees—more than half directed at staff. Many involved survivors of prior traumas.
And that’s just those that were reported.
So … we take someone with PTSD, who often has suffered extreme trauma…
… we put them in retraumatizing conditions.
… we subject them to conditions that are unconstitutionally worse than punitive
… we isolate them from family, friends and legal counsel
… we give them no sense of timeline for how long (or short) their detention will be
… we make them be their own legal representation, often in a language they do not speak and with little or no access not only to counsel but to the law itself.
And that’s the life of someone detained at the Eloy Detention Center.
But it’s not punishment.
That would be unconstitutional.
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Tomorrow … Part III — A’s story
Thank you. Thank you. Thank you. Again, sent to TRMS. I'm hoping this gets the attention of some of the legacy media as well as other progressive outlets like Axios. Good work. Thank you.
This is a very important series you are writing, Mike. The data and the observations and the excellence of your reporting style makes it very readable. Terrific impact!