Karnes Family Immigration Prison as an Adult Immigration Prison: A Case Study

K ARNES FA MI LY IMM IGR AT ION P R IS ON AS A N ADULT I M MIGR AT ION P R IS ON :

A CASE ST UDY O N WH Y E XP E D IT E D R E MOVA L AND I M MI G R A NT D E T E N T ION MU ST E ND

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This report is dedicated to the people impacted by immigrant detention and deportation whom RAICES has worked alongside towards the goal of ending these harmful systems. We remember those who have died in Karnes or after their deportation from Karnes, and we strive to continue to center the vision of those directly impacted by these systems.

Thank you to our community of contributors.

Authors: Alexandra Cohen, Andrea Meza, Laila Ayub, Julia Valero Primary Data Collection: Jamie Pantazi and the Family Detention team of attorneys, legal assistants, and volunteers

CONTENTS TA B L E O F

CONTENTS

Introduction About RAICES and the Karnes Pro Bono Project 4 Content Warning 5 Purpose of the Report 5 Author’s Note About Gender 6 Roadmap of Report 7 Part I - Context on Family Detention, Karnes, and Asylum Methodology 8 Background About Family Detention at Karnes 10 Process of Seeking Asylum and Legal Protection in Expedited Removal Proceedings 12 Overview of Visitation 14 Part II - Experiences of Women Detained at Karnes

Population Change at Karnes and Accompanying Demographic Shifts 18 Conditions in the Custody of Customs and Border Protection: “I thought I was going to die.”

20 Part III - Access to Counsel

Rule Changes in Violation of ICE’s Own Standards 33 Limitations on Group Meetings 33 Requirement to Present Form G-28 Notice of Representation for All Legal Meetings 34 De Facto Private Attorney Privilege 35 Other Changes Impacting Access to Counsel 36 Inability of GEO to Locate Detained Persons 37 Removal of the “Walk-In List” to Screen for Legal Emergencies 37 Removal of Provisions for Attorneys 37 Access to Counsel by the Numbers 38 Part IV - Outcomes Judge Discrepancies 42 Medical 46 Part V - Recommendations and Action Items Recommendations 53 Action Items 54

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ABOUT RAICES AND THE KARNES PRO BONO PROJECT RAICES is a 501(c)(3) nonprofit agency that promotes justice by providing free and low-cost legal services to underserved immigrant children, families, and refugees. With legal services, social programs, bond assistance, and an advocacy team focused on changing the narrative around immigration in this country, RAICES is operating on the national frontlines of the fight for immigration rights.

In response to the Obama administration’s opening of the Karnes County Family Residential Center (“Karnes family immigration prison” or “Karnes”) in 2014, a group of legal service providers came together to form the Karnes Pro Bono Project. The Karnes Pro Bono Project began in 2014 as a joint effort between the University of Texas School of Law Immigration Clinic, Akin Gump Strauss Hauer & Feld LLP, RAICES, the St. Mary’s School of Law Immigration and Human Rights Clinic, the Tahirih Justice Center, and local immigration practitioners such as Kate Lincoln-Goldfinch, in an effort to provide legal services to those detained in Karnes and, ultimately, to close the prison. The Karnes Pro Bono Project evolved into the RAICES Family

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Detention Services program, which offers free legal services to anyone detained at Karnes.

The team provides services at Karnes minimally five days a week under a model of universal representation, meaning, services are avail-

The p rogram also works with d etained peop le in other cap acities includ ing ind ivid ual ad vocacy aime d at imp roving d etention cond itions and ob taining release from d etentio n, and national ad vocacy cam p aigns and litigation in an effor t to end the p ractice of im m igrant—and all— d etention.

able to anyone who seeks them. RAICES Family Detention Services program provides representation through expedited removal proceedings, in custody determinations, and, in cases of family separation, through defensive asylum proceedings in immigration court.

INTRODUCTION C O N T E N T WA R N IN G This report touches on the following topics, all of which are issues inherent to incarceration: physical and verbal abuse, suicide, solitary confinement, racism, sexism, anti-queer violence, anti-trans violence, family separation, and medical neglect, among others. It includes harsh, offensive language from government officers including the use of racial epithets and expletives that migrant women experienced. The report includes aggregate data as well as firsthand accounts of these issues.

P U R P O S E OF THE R EP ORT This report covers the unique time in immigration enforcement in which ICE detained single adult women at one of its three family prisons. Since the Bush administration, but particularly during the Obama administration, the government has lauded the three Immigration and Customs Enforcement (ICE) family immigration prisons as model and humane approaches to custody of noncitizens. However, during the Trump administration, ICE used Karnes, a facility built to detain adults before Obama converted it into a family prison, as a sort of “flex” detention center. In 2019, for the first time in five years, adults were again detained at Karnes.

This period of time provides an interesting snapshot into what “humane” adult immigration detention might be.

For instance, for a period of time during the detention of adult women, ICE operated Karnes under the slightly more generous family residential standards, not the detention standards to which all other ICE prisons for adults are subject. Furthermore, in the family immigration prisons, legal services organizations such as RAICES developed a unique presence at Karnes, Dilley, and Berks by which a model of universal representation was possible. Such presence and access to free legal services is all but unheard of in the world of immigration detention. Improvements in access to counsel to permit for more legal services models such as those that exist in family prisons remain a rallying cry for advocates who seek to better conditions of immigration detention.

However, RAICES’ experience offering universal repre-

sentation to detained adults at a model ICE prison indicates that, in effect, such reforms provide little meaningful benefit to detained adults overall. Therefore, prison closure and the end of immigrant detention are requisite steps to effectively further due process for those in immigration proceedings.

This report is particularly timely for two reasons. First, the Biden administration has shifted response to family migration from prior administrations. Beginning in 2021, the Biden administration re-named the family prisons “staging centers.” Instead of subjecting families to fast track expedited removal proceedings, they are allowed entry into the U.S. to begin court proceedings and seek asylum outside of immigration custody. Coincidentally with this change, the administration emptied the Berks family prison, and reports indicate that ICE may detain single adult women there as it did at Karnes in 2019. Furthermore, ICE again detained adult women at Karnes during the summer of 2021 amidst several changes in population. Additionally, this report is timely as expedited removal continues to be a tool to deter migration of adults who either migrate alone or who are separated from their families during the migration experience.

Because of the unique existence of legal services organizations that historically have offered legal services under a universal representation model in the three family prisons, the RAICES family detention services team was able to obtain an unprecedented

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amount of information about the migration experiences of adult women detained at Karnes in 2019. This information is illustrative and may be representative of the horrors and barriers to safety that exist in immigration prisons around the country. The authors’ purpose is to share this information in furtherance of the end of immigration detention and the end of the expedited removal process.

AU T H O R S’ N OTE A BOUT G ENDER Prison limits the opportunities for individuals to safely express their gender, and detained transgender people face extended periods of isolation, inadequate medical care, and various forms of abuse.1 Transgender and gender-nonconforming migrants also face the systemic harm of misgendering in ICE detention. Upon arrival to the U.S., they often find themselves incarcerated without adequate access to medical care and within a system that continues to mirror or exacerbate the harms they fled. It is important to note that while this report uses the word “woman” generally for all clients detained during the time period covered, the term likely does not encompass the entire spectrum of gender identities of the adults detained at Karnes at the time. As the limitations of emergency legal services in detention required intakes to frequently be completed in a group setting, RAICES did not universally ask clients their gender at the intake phase. As such, RAICES does not know how many trans and/or gender nonconforming individuals were detained at Karnes during this period. The authors acknowledge that use of the word “woman” here may perpetuate any misgendering that occurred at the hands of ICE and that misgendering is a form of harm.

1. N/A. “Do You See How Much I’m Suffering Here?” Abuse Against Transgender Women In US Immigration Detention.

Human Rights Watch. Mar. 13, 2016, https://www.hrw.org/ report/2016/03/24/do-you-see-how-much-im-suffering-here/ abuse-against-transgender-women-us 2. Huisha-Huisha v. Mayorkas, 27 F.4th 718 (D.C. Cir. 2022)

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BORDER ENFORCEMENT POL ICY CH ANGE S OFT EN AND QUICKLY. Border Enforcement Policy changes often and quickly. The Biden Administration has continued the Trump Administration’s use of CDC authority under Title 42 of the U.S. Code to effectively close the border to asylum seekers. The ACLU, along with RAICES as co-counsel and others, sued the Biden Administration over its use of Title 42 against family units in a lawsuit known as Huisha Huisha v. Mayorkas, 21cv5200 (D.D.C.) (“Huisha Huisha”). 2 During the pendency of litigation, the Administration permitted thousands of individuals and families to lawfully enter the United States to seek asylum through an opaque “exemption” referral process. In effect, families would either be permitted entry to seek asylum without going through Expedited Removal, or would be expelled under Title 42.

However, in late July 2021, the Administration announced that it would resume the use of Expedited Removal against families for whom CBP did not register a fear of return to their home countries. A week later though, the government and the ACLU, along with co-counsel, announced that they would end the litigation abeyance and return to court in Huisha Huisha. Simultaneously the Administration issued its own updated Title 42 order so as to no longer rely on the previous Trump Administration order. Therefore, as of the time of this report, it appears that the Biden administration likely did not subject many, if any, families to Expedited Removal and instead is expected to continue to expel families under Title 42.

The ways in which ICE’s detention standards further anti-trans violence merit reports of their own, as ICE reinforces anti-trans violence in multiple ways through language, policies, and lack of policies. For example, ICE erases nonbinary people by repeatedly utilizing language of “same gender” and “opposite gender” throughout the detention standards.3 It is unclear under what circumstances a detained transgender or gender-nonconforming person could safely express their gender identity within detention considering the scale of accounts of mistreatment.4 According to ICE, all people detained at Karnes during this time period were women, but this is likely inaccurate.

R OA D M A P OF R EP ORT This report will cover not only the legal and medical experiences and outcomes of women detained at Karnes in 2019, but will also touch on their experiences prior to Karnes. In addition, because of the particularities of the expedited removal process, the report will include some background to explain expedited removal and asylum. Furthermore, because of the unique nature of RAICES’ family detention services legal program at the time, the report will provide some context as to how services were provided in 2019 and the state in which women encountered RAICES staff. To illustrate the context in which women were detained in 2019, the report will also include information about the population detained at Karnes prior to the adult women— fathers and sons reunited at Karnes after Trump’s zero tolerance family separations. Because of the plethora of data collected, the report will include graphics and appendices to expound upon information relevant to the topics covered.

ADDITION AL RESOURC ES REGARDI NG GENDE R/T R ANS MIGR ANT J U ST I CE: • Transgender Law Center • Black LGBTQIA+ Migrant Project (BLMP) • Familia: Trans Queer Liberation Movement • LGBTQ Freedom Fund • Lambda Legal

While the report compares adult detention to the relatively less harmful practices that occurred in family detention, comparisons are not meant to undermine the serious harms of family detention5 or endorse the practice. RAICES believes unequivocally that all immigrant detention is needlessly punitive and should be abolished. For more information on the harms of family detention, please read RAICES’ 2020 report, “The U.S. Government Kidnapped My Son.”6

3. U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards 2011, https://www.ice.gov/doclib/detention-standards/2011/pbnds2011r2016. pdf 4. Ana Castro. LGBTQ, Civil Rights and Immigration Justice Organizations Call For Release of LGBTQ, PLWHIV Currently In Immigration Prisons. Transgender Law Ctr. Sep. 15, 2019, https://transgenderlawcenter.org/archives/14789 5. RAICES, Fact Sheet: Things to Know About ICE Family Detention, Jan. 28, 2021. https:// www.raicestexas.org/2021/01/28/family-detention-factsheet/ 6. RAICES, The U.S. Government Kidnapped My Son, 2019, https://www.raicestexas.org/ take-action/karnes-pro-bono-project/ms-l-report/

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CONTEXT ON FA M I LY D E T E N T I O N , KARNES, AND ASYLUM

This section of the report will provide foundational information about the context of RAICES’ services at Karnes including methodology, a brief description of the modern use of immigrant family detention as a policy strategy, the legal framework families face while in detention, and the model by which RAICES provided legal services at Karnes.

M E T H O DOLOGY This report was written by a group of women, none of whom are Black or trans. The information presented in this report is aggregate data from clients, collected by RAICES staff. Due to the program’s position as the only nonprofit legal service provider dedicated to representation at Karnes, RAICES typically works with a majority of the people detained there.

In initial meetings with new clients, staff present clients with an agreement form that describes the scope of legal services and the advocacy mission of the program and asks for consent to share non-personally identifiable information6 Due to both the volume of the work and constant operational changes from ICE that impact access to counsel, obtaining comprehensive data from all clients can present challenges. Data accuracy is

also dependent on both what clients report and what staff record from client interactions. Limitations on access to counsel, covered later in this report, impede the comprehensiveness of data collection. The shift in population at the detention center, and with it an increased volume of individual cases, limited the scope of information that RAICES could obtain from individual clients. Data in this report comes from databases that include client intake documents, client declarations, and staff case notes. An unknown portion of the data may be missing or inaccurate, but the best effort has been made to cross-check data in this report, and the authors have used the most conservative numbers possible as a means to ensure accuracy. Thus, while the data may be incomplete, it is likely the most comprehensive information available outside of government records.

6. Any information shared regarding specific clients is subject to a separate consent process in which staff ascertain a particular level of anonymity with which clients are comfortable.

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TEXAS

SAN ANTONIO

Contractor: The Geo Group Contractee: The Karnes County Commissioners Location: 409 FM 1144, Karnes City, TX 78118 Distance from nearest major city/hospital: 1 hour (San Antonio)

KARNES COUNTY RESIDENTIAL CENTER

1 HOUR BY CAR

“ICE projects total costs of $271.1M in FY 2022 for family beds,” (per ICE FY 2022 budget) Congressional Representatives: Rep. Vicente Gonzalez, Senator Ted Cruz, Senator John Cornyn

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BAC KG R OUND A BOUT FA M ILY D E T E N T ION AT K A R NES Family prisons have existed in many forms throughout U.S. history, including slavery, genocide and forced assimilation of Indigenous peoples, and Japanese internment during World War II. The so-called Karnes County Family Residential Center or Karnes Family Staging Center was previously an adult prison but in 2014 was converted for the detention of adult women with their children who recently arrived at the Southern border to seek asylum and other protections. With the exception of the period of time covered in this report and numerous changes in population in 2021, ICE has continued to detain families in Karnes since 2014. The nearest metropolitan area and hub for legal aid, San Antonio, is located 55 miles north of Karnes City. ICE oversees Karnes but the prison is operated by a for-profit contractor, The GEO Group, which owns and manages prisons throughout the world.

From 2014-2018, RAICES’ caseload primarily consisted of cases involving expedited removal. However, under the Trump Administration, ICE began to use Karnes as a “flex” family detention center, repurposing it and changing the population with various enforcement priorities. In 2018, families at Karnes experienced the Zero Tolerance policy, and the types of legal proceedings varied greatly from expedited removal.7 From spring to fall of 2019, the period of time covered in this report, ICE detained single adult women at Karnes over a period of six months. From the end of 2019 to July 2021, ICE detained families including those with two parents, subject to legal processes including Title 42 expulsions, Migrant Protection Protocols (MPP), and expedited removal. In 2020, ICE detained

7. Under the Zero Tolerance Policy, the Department of Justice prosecuted all adults apprehended crossing the border without authorization with no exceptions for asylum seekers. People crossing for the first time were charged with a misdemeanor while all who had prior removals were charged with a felony. See The Trump Administration’s “Zero Tolerance” Immigration Enforcement Policy. Congressional Research Service

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SINCE 20 01, IMMIGR AT I O N AND CUSTOMS ENFORCEMENT (ICE ) H AS OPER ATED A TOTAL OF FIVE FAMI LY DET ENTION CENTERS I N T H E UNIT ED STATES. These family prisons are for noncitizen families detained in civil custody during the adjudication of their immigration cases.

The first family detention center that ICE opened was the Berks County Residential Center, opened in 2001 in Pennsylvania.

The Berks family prison remains open today, although ICE is not currently using it to detain families. The government has expressed plans to repurpose Berks for adult detention.

The T. Don Hutto Family Residential Center was opened in Taylor, Texas in 2006. ICE detained families there until 2009 and has since used the prison to detain adults, making purported plans to convert Berks to an adult prison all the more troubling.

The Artesia Family Residential Center in New Mexico, Karnes County Family Residential Center in Karnes City, Texas, and the South Texas Family Residential Center in Dilley, Texas all opened in 2014. While the Artesia facility closed in the same year it was opened, both the Karnes and Dilley prisons remain open today. At the time of this report, ICE detains families at the Dilley family prison and will detain adult women at Karnes.

two-parent and one-parent families at Karnes and subjected them to Title 42 rapid expulsions. These families were predominantly from Haiti and countries on the African continent including Burkina Faso, Cameroon, Cape Verde, Congo, The DRC, Ghana, Nigeria, Sierra Leone, and South Africa. Around the same time that ICE began detaining primarily Black families at Karnes, ICE notably departed from prior policy and began to detain a significant number of pregnant mothers and infant children.8 Thus far in 2021, ICE has detained both two-parent and one-parent families at Karnes, as well as adults. The conditions at Karnes change frequently and dramatically, and what is true of the detained population at the time of publication of this report could change at any moment.

In addition to a long history of abrupt policy changes, there is also a long history of detained people organizing themselves within Karnes detention center. In 2015, detained mothers striked to demand freedom for themselves and their children.9,10 In response, ICE and GEO placed a number of mothers in solitary confinement.11,12 In 2018, fathers and sons formerly separated by the Zero Tolerance policy protested for their freedom in response

8. For more information on Black maternal health in Karnes, see Black, Pregnant, and Detained 9. Ranjana Natarajan, Detainees Strike for Freedom, Austin Chron., Apr. 17, 2015, https://www.austinchronicle.com/news/2015-04-17/detaineesstrike-for-freedom/ 10. Ryan Loyd, Songs of Protest and Symbols of Hope, as Protestors Rally at Under-Fire Detention Center, Tex. Pub. Radio, Oct. 13, 2014, https://www. tpr.org/border-immigration/2014-10-13/songs-of-protest-and-symbolsof-hope-as-protestors-rally-at-under-fire-detention-center 11. Roque Planas, Some Hunger-Striking Mothers Were Put in Isolation at Karnes Immigrant Detention Center, Lawyers Say, Apr. 2, 2015, https:// www.huffpost.com/entry/karnes-hunger-strike_n_6994436 12. Roque Planas, Private Prison Company Sued For Allegedly Putting Hunger-Striking Mothers In Solitary Confinement, Apr. 24, 2015, https:// www.huffpost.com/entry/karnes-lawsuit-_n_7138456

K ARNES IS NAMED AFTER HENRY WAX K ARNES, A COLO NI Z ER WHO FOUGHT IN SUPPORT OF SL AVERY and participated in the slaughter of Comanche people. Karnes family prison itself is built on occupied land once cared for by the Coahuiltecan, Karankawan, Tonkawan, Comanche, and Lipan Apache peoples. The land was also once part of the state of Mexico. Coahuiltecan land stretches from present day mid-Mexico up to mid-Texas. Even though Coahuiltecan people are among the original occupants of the land Karnes is built upon, a Coahuiltecan person could potentially find themselves detained on their ancestral lands at Karnes if they were born on the Mexican side of the border and had to seek asylum in the United States.

WOMEN’S DETENTION REPORT 2021

to indefinite detention after reunification.13,14 Over the years, RAICES has continuously encountered detained people advocating for other detained people’s access to legal services and a just immigration process, medical and mental healthcare, and ultimately, freedom.

Impacted people have played a pivotal role in spreading the word within the detention center regarding impact litigation and public advocacy campaigns, as well as informing RAICES of critical situations of mistreatment, family separation, and/or mental and medical health emergencies in Karnes.

RAICES is also aware of detained people filling out request forms within Karnes detention center to flag issues for people who do not read or write in Spanish or English. Additionally, RAICES has received numerous referrals from other detained people assisting one another in calling or leaving voicemails on the legal services hotline. RAICES is also aware of formerly detained people speaking out in their communities in the U.S. and assisting others in moving forward after surviving detention.

RAICES

P R O C E S S OF S EEKIN G ASY LU M AND LE GA L P R OTECTION IN EXP EDIT ED R E M OVAL P R OC EED IN G S U.S. Immigration Law prohibits the return of a noncitizen to a country in which the noncitizen fears persecution or torture under a principle known as non-refoulement.15 This obligation stems from the refugee crisis of World War II, after which nations agreed that refugees should not be returned to countries where they would face harm on account of characteristics

they cannot change.16 In practice, the United States falls short of these lofty goals, and the interests of so-called national and border security frequently outweigh moral and legal obligations to offer safe haven for refugees.

For instance, asylum seekers, who must establish that they meet all elements of the legal definition of a refugee in order to access lawful status in the U.S., often face expedited deportation processes based on policy decisions of the executive branch. Typically, immigrants fighting deportation are subject to removal proceedings under Section 240 of the Immigration and Nationality Act (INA).17 Section 240 proceedings provide their own challenges, but nonetheless contain certain due process safeguards including the opportunity to appear before an immigration judge (“IJ”), the opportunity to appeal their case, and the right to representation by an attorney. However, the Department of Homeland Security (“DHS”) has the discretion to place a noncitizen without lawful entry documents encountered within 100 miles of the border or a port of entry and 14 days after arrival, including most recently arrived asylum seekers, into either removal proceedings or expedited removal proceedings.18 The Obama and Trump administrations employed expedited removal as a means to deter family and adult migration, and the Biden administration continues to apply expedited removal and other deterrent strategies to asylum seekers.

During the time period covered in this report, nearly all individuals detained at Karnes were initially subject to expedited removal. Expedited removal results in

13. Araceli Cruz, As Immigration Officers Trick People to Sign Deportation Orders, These Detainees Are Peacefully Fighting Back, We Are Mitú, Aug. 2, 2018, https://wearemitu.com/wearemitu/things-that-matter/migrant-dads-sons-hunger-strike/ 14. Amanda Holpuch, 500 Detained Fathers And Sons To Go On Strike After Being Separated, The Guardian, Aug. 1, 2018, https:// www.theguardian.com/us-news/2018/aug/01/detained-migrant-fathers-and-sons-separated-hunger-strike 15. 8 U.S. Code § 1158 (XXX); 1465 U.N.T.S. 85, 113; S. Treaty Doc. No. 100-20 (1988) 16. 189 U.N.T.S. 150 17. INA §§ 235, 240; Designating Aliens for Expedited Removal, 69 Fed. Reg. 48,877, 48,880 (Aug. 11, 2004) 18. 69 Fed. Reg. 48877-48881 (August 11, 2004).

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summary deportation of asylum-seekers, unless they are able to pass an interview with the Asylum Office of U.S. Citizenship and Immigration Services (“USCIS”), generally within days after entering DHS custody.19 If the individual does successfully pass the screening interview, they are then subject to 240 removal proceedings. Therefore, expedited removal grants no immigration benefit but merely acts as a screening process to exclude asylum seekers and other migrants from access to a full hearing.

Practically speaking, individuals at Karnes typically have made some attempt to demonstrate a fear of return to their home country to CBP when apprehended at the border or at a port of entry at the southern international land border. It is often the CBP officer who makes the decision to place an asylum seeker in expedited removal rather than section 240 removal proceedings. The individual then arrives at Karnes, and USCIS conducts either a Credible Fear Interview or Reasonable Fear Interview depending on which standard applies to their circumstances. Interviews consist of questions related to a person’s fear of returning to their home country and provide a limited opportunity for legal consultation.

At times, an interviewing officer will allow a statement from a legal consultant or representative. At Karnes in 2019, credible and reasonable fear interviews were typically conducted in a small room with an asylum officer physically or telephonically present and a contract interpreter present telephonically. If an individual had an attorney to consult with for the interview, that attorney would also be present by telephone. Within the next week or two following an interview, USCIS would issue their decision.

If an asylum seeker receives a positive credible fear decision,

IN E XPE DIT ED REMOVAL PROCEEDINGS Immigrants are screened in a credible fear interview for possible relief in the form of asylum, withholding of removal, or protection under the Convention Against Torture (“CAT”).

Those subject to a reinstated removal order are not eligible for asylum and undergo a reasonable fear interview rather than a credible fear interview. In order to successfully pass a credible fear interview, an asylum seeker must meet the legal standard of demonstrating a “significant possibility that he or she could establish in a full hearing before an Immigration Judge that he or she has been persecuted or has a well-founded fear of persecution or harm on account of his or her race, religion, nationality, membership in a particular social group, or political opinion if returned to his or her country.” In reinstatement proceedings, that legal burden of proof is heightened to a “reasonable fear,” or “reasonable possibility” rather than a “credible fear” or “significant possibility.”

19. Individuals who had previously entered the United States and were ordered removed, then entered again without authorization, are typically placed into reinstatement of removal proceedings, which consists of a similar process as expedited removal but a higher legal burden and more limited form of relief and immigration benefits. 8 CFR § 135.3. (b)Reinstatement and expedited removal proceedings are functionally similar, but those with prior removal orders are held to higher standards in their interviews. The two processes are often jointly referred to as “expedited removal” in terms of policy application because of their truncated processes and the imminent risk of deportation. Unless denoted otherwise, for the purposes of this report, “expedited removal” will refer to the policy choice to swiftly deport recently arrived migrants under both expedited removal and reinstatement of removal proceedings.

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WOMEN’S DETENTION REPORT 2021 RAICES

USCIS issues a Notice to Appear in immigration court for Section 240 proceedings, and the individual may have the opportunity for release from ICE custody. If USCIS issues a negative interview decision, an individual has an opportunity to request an appearance before an immigration judge, who decides whether they agree with the asylum office’s determination. This is not a typical “appeal” process and is merely a cursory review and adjudication that can last minutes and does not always include an interpreter nor an opportunity for the asylum seeker to provide testimony. At Karnes and many other detention centers in South Texas, the asylum seeker typically “appears” via televideo from detention while the judge sits in court in San Antonio. If the judge vacates the USCIS negative decision, they will issue a Notice to Appear in immigration court for Section 240 proceedings. Before the COVID-19 pandemic, attorneys could be present either in person at the court or with an individual at the detention center, with a very limited opportunity to consult or provide supporting legal arguments, depending mainly on the judge’s preference. If the judge affirms the USCIS negative decision, there is an opportunity to file a Request for Reconsideration (“RFR”) with USCIS, to which USCIS can respond by either granting a new interview, issuing a Notice to Appear in immigration court for Section 240 proceedings, or denying. As will be discussed in further detail, the entire process from expressing fear of return to receiving a positive credible fear determination or a final deportation order can take weeks or months.

The adjudication of expedited removal proceedings is quick, inconsistent, and subject to the whims of rapidly changing and incredibly burdensome immigration policies. Most notably, during the time period covered under this report, the Trump administration’s “Asylum Ban” made it nearly impossible to gain a positive decision in a credible fear screening if someone entered at

the southern land border, and policy changes affecting notice requirements for interviews severely limited the opportunity for legal consultation. The first asylum ban was introduced in July 2019, barring refugees who transit through other countries from obtaining asylum even if they have well-founded fears of persecution. As such, anyone who transited through a country other than their home country to reach the U.S. and apply for asylum was ineligible. Consequently, they were often ordered deported unless they could demonstrate that they applied for and were denied asylum in at least one other country through which they traveled.20 Necessarily, this barred anyone from obtaining asylum except those from Mexico, those who knew to apply for asylum elsewhere, or those who simply happened to—as long as they had proof. The Trump administration continued to implement policies that eroded access to asylum and compounded the barriers for those placed in expedited removal in the following years, which are outside the scope of this report. The Biden administration has also maintained expedited removal and, as the proposed asylum rule indicates, an increased reliance on on expedited removal. The proposed asylum rules state that any positive credible fear determination will replace the asylum application itself. 21 Meaning that the inadaquecies of the credible fear interview would reach beyond the interview itself and into indiviual’s merit applications. 22

OVERVIE W OF VISITATION Legal visitation at Karnes is permitted from 8AM until 8 PM, though sometimes these hours are limited by GEO or ICE on the ground. In 2019 the RAICES Family Detention Services team typically visited women detained at Karnes at least five days a week, from Monday to Friday typically 9:00 AM - 8:00 PM. Each day, a different team of attorneys, legal assistants, and occasionally volunteers would meet with prospective and current clients.

20. https://www.humanrightsfirst.org/sites/default/files/Third-Country-Transit-Ban.pdf.

21. N/A, Fact Sheet: Implementation of the Credible Fear and Asylum Processing Interim Final Rule, Department of Homeland Security, May 26, 2022, https://www.dhs.gov/news/2022/05/26/fact-sheet-implementation-credible-fear-and-asylum-processing-interim-final-rule 22. Id.

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The visitation room is a large open rectangular room filled with tables and chairs where detained people may meet with their legal service provider and with any family members in the U.S. who have means and legal status to visit them. The graphic below provides an illustration of the visitation room. There are five small private rooms along the far side of the visitation room where private legal visits can take place. Four of these rooms have access to landlines which RAICES generally uses to dial in interpreters. As the only phones to access interpretation services are located inside private rooms, non-Spanish speaking clients can face added barriers in meeting with attorneys due to the limited number of rooms and space in legal visitation. On the one side of the visitation room is a desk where a GEO employee sits and manages the logistics of visitation. Behind the desk is a waiting room for detained persons and a door to a courtyard of the prison.

In typical operations, the RAICES Family Detention Program conducts a variety of client meetings, including: initial intake, Credible/Reasonable Fear Interview (“CFI/RFI”) preparation, a status check (to follow up on case processing as there is rarely notice given to attorneys about outcomes in expedited removal), a know your rights presentation to prepare clients for the legal process following release, and meetings regarding a clients’ negative CFI decision. An initial intake meeting (“intake”) is typically the first contact with a potential new client, and they are often completed in groups. At times, significant information regarding urgent matters including client’s medical needs, mistreatment by government officers in detention, separation from their family, or severe persecution is discussed in the initial meeting and requires additional, individual follow-up.

The Family Detention Services program intentionally operates in a shared work model in order to minimize burnout and maximize legal services. In this model, cases are not assigned to individual attorneys. Instead, legal assistants and attorneys work together and

specific tasks are assigned daily which are divided amongst the team on the ground at Karnes on a given day. Though client work may be scheduled by urgency, emergencies often arise with no notice—such as court hearings—and the team must triage priorities throughout the day.

The restrictive environment of an immigration prison inherently limits the provision of legal services therefore rendering it impossible for every detained person’s legal needs to be met, even under the most

5

V I S I TAT I O N

4

BREAK ROOM

GEO GUARD P R I VAT E R O O M BAT H R O O M LOCKED DOOR

3

1

2

WA I T I N G AREA

optimal of circumstances. The RAICES Family Detention team offered a robust team of staff at Karnes for over ten hours, five days a week, and utilized all available visitation space, even then, it was impossible for there was no way that the team could offer meaningful representation to every adult woman detained. This became more challenging as the summer wore on and ICE and GEO began to implement significant rule changes. This report will cover more details on issues regarding access to counsel in a later section and will illustrate that even with changes to improve access to legal services, the inherently restrictive nature of detention cannot be resolved.

16

TIMELINE OF A TYPICAL DAY F O R R A I C E S LEGAL TEAM

VOLUNTEER MANAGEMENT

Legal Assistants and Attorneys must supervise volunteers, assign client work, and provide any additional training as needed throughout

with ICE and G issues regardi prison policies

INTAKE Staff/volunteers meet with new clients to collect biographical information, basic case information, and to provide an overview of the asylum process.

8AM Staff carpools from San Antonio to Karnes, prepping for client work on the way.

7:30AM

8AM

9AM

9AM Arrival at Karnes Family Immigration Prison.

Staff goes through metal detector and signs in at front desk.

COORDINATI GEO RAICES m

COMMUNICATIONS WITH SPONSORS RAICES often coordinates with Sponsors to avoid client’s paying for costly phone calls.

ELEVEN HOURS OF DIRECT LEGA

COMMUNICATING WITH INTERPRETERS RAICES must coordinate calls with interpreters throughout the day to accommodate client needs.

DEPORT ADVISALS RAICES informs all clients of the consequences of their case outcome and their rights in the deportation process.

7:30AM Staff meets at the office to pack up supplies.

PROVIDING COMFORT Given the context and isolation of detention, it is impossible to provide quality legal services without emotional trauma which clients are subjected to.

RFR If a client’s n affirmed at their a Request for Re attorney typically legal declaration

ING WITH ICE &

must coordinate GEO to address ing clients cases, s, etc.

FINISHING CASE WORK Checking consent forms, making the next day’s visitation list etc.

ADVOCACY RE: MISTREATMENT Advocacy regarding mistreatment suffered in detention may take many forms such as legal/media action or advocating for some immediate improvement.

AL SERVICES

PREPARING FOR THE REVIEW OF A NEGATIVE CFI DECISION Clients who receive a negative CFI decision may request review by an immigration judge, this process requires extensive preparation.

negative CFI decision is r hearing, they may submit econsideration in which an y submits a new n.

8PM

8PM

Visitation Ends Staff leaves Karnes and continues to work in the car

OVERNIGHT (9PM-5AM)

PA RT II

RAICES

WOMEN’S DETENTION REPORT 2021

EXPERIENCES OF WO M E N D E TA I N E D AT K A R N E S This section of the report will provide context to illuminate how both the circumstances of the population change from families to single adult women at Karnes, and the experiences of women in CBP custody prior to their arrival at Karnes exacerbated access to counsel concerns and negative case outcomes for the adult women population.

P O P U L AT ION C H A N G E AT K A RNE S A ND AC C OMPA N YIN G D E M O G R A P HIC S HIFTS Karnes is managed by a division of Immigration and Customs Enforcement (ICE) called Enforcement and Removal Operations (ERO). Under the guise of national security concerns, ICE-ERO rarely gives notice of transfers, removals, or changes in the population of those detained, and provided no public notice or notice to RAICES that ICE would shift from detaining families to adults at Karnes. Instead, in March of 2019, RAICES staff began to hear rumors from families who stated that GEO guards or ICE officers told them that Karnes would soon be empty.

By April 1, 2019, the Family Detention Services team learned that ICE had begun to detain adult women in Karnes. Despite the presence of the new population, ICE continued to detain a few families with ongoing cases. During this transition period, ICE restricted

the hours during which staff could meet with families versus when they could meet with adult women, regardless of the client’s needs, legal or otherwise.

As such, access to counsel for newly detained women was limited. As of April 10, 2019, all families were released from Karnes.

From April 1, 2019 to September 30, 2019, RAICES met with approximately 2,891 women detained in Karnes.

On any given day, RAICES’ caseload on any given day could be as high as 1,200 individuals. Where families detained at Karnes from 2014-2019 were primarily from the so-called “Northern Triangle” countries of El Salvador, Guatemala, and Honduras, with occasional groups of Brazilian and Haitian families, the adult women population was from a more diverse group of countries.22 Though the majority of clients reported Spanish as their primary language (94%), with the remaining 6%

22. RAICES did not meet with every person detained during this period, therefore some nationalities may be underrepresented or missing entirely from this data set.

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COUNTRY OF ORIGIN

LANGUAGE

Cuba, 38%

Spanish, 94%

Honduras, 25%

Other, 6% Achi, Creole,English, French,Galician,Garifuna, Kaqchikel,Lingala, Macedonian, Man, Portuguese, Qanjobal, Qeqchi, Quiche, Swahili

El Salvador, 10% Guatemala, 8% Venezuela, 7% Nicaragua, 3% Mexico, 2% Haiti, 2% Other, 5% Angola,Belize,Brazil,Cambodia, Cameroon,China,Colombia,the Congo,Côte D’ivoire,the Democratic Republic of the Congo,Ecuador,Guinea, Kenya,Peru,Sierra Leone, Spain, and Uganda

reporting primary languages such as Haitian Creole, English, and Garifuna, the actual number of non-Spanish speakers is likely higher due to the stigma associated with being Indigenous or, generally, a non-Spanish speaker. Non-Spanish speakers reported fearing additional persecution, bias from the government and medical professionals, and isolation. Language access and its impacts on meaningful access to counsel and medical care will be discussed in greater detail in later sections.

On average, adult women clients were older than adults detained as parents in a family unit. The average age of adult women clients was 31, but clients ranged in age from 18 to 74. At the time of detention, at least 955 women were under the age of 25 and at least 103 women were over 55.

With ICE’s shift to the detention of adult women, RAICES saw a shift towards asylum claims based on sexual and domestic violence. In terms of medical

20

RAICES

WOMEN’S DETENTION REPORT 2021

needs, women and the elderly tend to be at particular risk of mental distress compared to other migrants.23 Elderly people are also more likely to develop multiple health conditions at once, as well as geriatric syndromes significantly impacting functioning and quality of life.24 In addition to changes in country of origin and age, there was a notable spike in reports of family separation among the detained women. This is a reflection of the mass scale of family separation that occurs regularly for people in adult immigrant detention.25 Family separation is typically thought of as the separation of a young child from their parents and became notorious with Trump’s Zero Tolerance policy. However, RAICES saw high instances of women separated from their adult children, grandparents separated from their grandchildren, siblings separated from their minor siblings and more. In total, 839 women reported to RAICES that they were separated from family members. Of these women, 225 were separated from their partner, 164 from their sibling(s), 93 from their adult child(ren), 89 from their parent(s), 125 from other family members (i.e. nieces, nephews, cousins, etc.), and 30 from their grandchildren. Some women had proof of custody for children they traveled with from their country of origin which went unrecognized

by ICE who then separated the family. Even for families who are not separated in the long term, DHS often still imprisons families separately from one another while in CBP custody, and by gender in the same prison when two-parent families are detained. Family separation is not a one-time policy, but a daily feature of the immigrant detention apparatus. Additionally, all forms

of detention inherently produce family separation by removing individuals from their families, their loved ones, and their communities.

CONDIT IONS IN T HE CUSTODY O F CPB: “I THOUGHT I WAS GOING TO DIE .”

Whether by force or by choice, people come to the U.S. from all over the world, often because it is “the land of the free,” or because of the myth of the American dream, or because of the long history of migration since the inception of the United States as a colony and prior. Yet, the abuses of CBP are the “welcome” the U.S. gives to asylum seekers and other migrants.

The chaos of inconsistent procedures and flagrant mistreatment in CBP custody normalizes abuse and a culture of fear, intimidation, and retaliation for migrants in the custody of the U.S. government.

Multiple women reported to RAICES that CBP officers 26 explicitly told them they have no rights in the U.S., and CBP officers intimidated women with the outright violation of their rights. Because CBP custody is usually the first experience migrants have in the U.S. immigration prison system, it can paint their expectations for the rest of their immigration experience and can prime people to believe they have no rights as immigrants.

Colloquially, CBP prisons have come to be known as the “hielera” (Spanish for “freezer” or “ice box”) and the “perrera” (Spanish for “dog pound”) due to the harsh, cold temperatures and the cage-like structures in

23. Stephen A. Matlin, et al., Migrants’ And Refugees’ Health: Towards An Agenda Of Solutions, Pub. Health Rev., Sep. 24, 2018, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6182765/ 24. N/A, Ageing And Health, World Health Org., Feb. 5, 2018, https://www.who.int/news-room/fact-sheets/detail/ageing-andhealth; See also Sharon K. Inouye, M.D. et al. Geriatric Syndromes: Clinical, Research and Policy Implications of a Core Geriatric Concept, J Am Geriatr Soc. June 3, 2008, 25. Andrea Meza, Why The Biden Administration Must End Family Immigration Detention, The Appeal, Jan. 28, 2021, https://theappeal.org/why-the-biden-administration-must-end-family-immigration-detention/

21

which CBP incarcerates migrants. Mistreatment in CBP custody is rampant and includes deprivation of food, water, and medical care, and physical and verbal abuse by officers, among other issues.27

839

women reported to RAICES that they were separated from family members

Beyond blatant mistreatment, CBP also acts with relative impunity in terms of how it processes arriving migrants for their next steps—either immediate deportation or moving on to the next step in immigration proceedings. Multiple women with whom RAICES spoke reported witnessing CBP process people for deportation even after they had asserted their right to seek asylum. Some women even reported having undergone this experience in past entries to the United States, imploring officers to let them seek asylum and ultimately being ignored and deported.

Not only can people simply be ignored and processed for deportation against their legal rights and will, but the inconsistency with which CBP processes people can also have hugely detrimental impacts on people who are allowed to proceed with their immigration cases in the U.S. as opposed to being immediately deported. CBP screenings are faulty and the records of their interactions with migrants are notoriously inaccurate.28 For example, RAICES clients at Karnes often discovered that CBP’s notes of their initial screening did not at all match the conversation they had with the CBP officer.

With RAICES staff able to read and translate the English language notes, women were alarmed to discover that offi-

225

were separated from their partner

164

from their sibling

93

from their adult child(ren)

89

from their parent(s)

125

from other family members (i.e. nieces, nephews, cousins, etc.)

30

from their grandchildren

26. References to CBP Officers could include officers from both the Office of Field Operations who function as “customs” at ports of entry and officers from the notorious Border Patrol division who operate both at and between ports of entry.

27. N/A, In The Freezer, Hum. Rts. Watch, Feb. 2018, https://www. hrw.org/report/2018/02/28/freezer/abusive-conditions-women-and-children-us-immigration-holding-cells 28.John Washington, Bad Information: Border Patrol Arrest Reports Are Full of Lies That Can Sabotage Asylum Claims, The Intercept, Aug. 11, 2019, https://theintercept.com/2019/08/11/border-patrolasylum-claim/

22

M IG R AT I ON IS A N ATUR A L H U M A N P HEN OM EN ON The border breaks up Indigenous land and peoples, and enforcement of the U.S. border is often taken wholly out of context from the ongoing legacy of U.S. government and private corporate intervention and exploitation around the globe that pushes people to migrate in the first place.

For more information about the white supremacist and colonizer history of Border Patrol, please see “Migra! A History of the U.S. Border Patrol” by Kelly Lytle Hernandez.

Migrants walk on a dirt road after crossing the U.S.-Mexico border, Tuesday, March 23, 2021, in Mission, Texas. (AP Photo/Julio Cortez)

23

24

CI ND E R B LO C K C ELLS IN CB P FAC IL IT IE S were built for temporary detention of Mexican men who would be quickly sent back across the border after apprehension. Thus, they were designed to be harsh and minimal.

When CBP began to hold families in these facilities, overcrowding quickly occurred and they became known as the “hieleras.” Historically, most asylum seekers who are detained at Karnes entered the U.S. along the Texas border, primarily through the Rio Grande Valley (RGV) region. In 2014, the Obama Administration created secondary holding facilities which came to be known as the “perreras” in the RGV. Since that time, CBP has created new “improved” facilities for temporary detention at the border, and asylum seekers at Karnes have arrived from various regions along the border and may have experienced different locations and modes of CBP detention.

One of the authors recently visited the “state of the art” CBP detention facility in El Paso, Texas and was struck by its structural similarity to the hieleras, albeit with newer materials and covering a larger space. The same hallmarks of the hieleras, including 24 hour overhead lights, a lack of windows, open toilets in large shared rooms, and rooms situated along hallways with viewing windows for supervision, replicate many of the features asylum seekers report as contributing to the inhumane experience of CBP custody. No matter where along the border or in what grade of a facility a migrant person is detained, the primary contributing factor to abuse in CBP custody is the flagrant lack of oversight at all CBP holding locations. Along with ICE prisons, CBP detention must be abolished in order to create a humane reception process for asylum seekers and other migrants. https://www.elpasotimes.com/story/ news/2021/05/25/el-paso-border-patrol-cbp-migrant-central-processing-center-site/5167763001/.

cers failed to record that they had come to the U.S. seeking safety, the details of the persecution they had disclosed, and had instead recorded that they came to the U.S. “to work.”29 The systematic inaccuracy of CBP notes has severe consequences. Unfortunately, it is commonplace for judges to raise the CBP notes as a credibility issue for asylum seekers, and credibility issues can be the deciding factor in a judge ultimately ordering deportation in the final asylum hearing.

Considering the prevalence of mistreatment in CBP custody, it is of little surprise that people are not processed in a fair, humane, and accurate manner despite the fact that wrongful deportation of an asylum seeker can be deadly.

In addition to mistreatment and wrongful processing, CBP also detained women beyond the lawful time limit. According to CBP’s National Standards,30 people “should generally not be held for longer than 72 hours in CBP hold rooms or holding facilities. Every effort must be made to hold detainees for the least amount of time required for their processing, transfer, release, or repatriation as appropriate and as operationally feasible.” The realities women reported differed drastically from this standard. Of the approximately 1,900 women who reported their length of stay in CBP custody to RAICES, at least 1,453 reported imprisonment over 3 days. At least 54 women reported that CBP detained them for 30 days or more.

At least 7 women remained in CBP custody for 40 days or more, and at least 2 women survived over 50 days in CBP custody.

It is crucial to remember that during this lengthy detention, women often were not provided with changes of clothes and were held in either the hielera or perrera for the entirety of their detention, both facilities that offer no privacy. Some women, including those detained for over 30 days, reported that they were not provided menstrual hygiene products in CBP custody, and several reported developing urinary tract infections from the lack of access to sanitation and the denial of treatment.

29. Id. 30. CBP, National Standards on Transport, Escort, Detention, and Search, Oct. 2015, https://www.cbp.gov/sites/default/files/assets/ documents/2020-Feb/cbp-teds-policy-october2015.pdf

CBP and ICE standards for detention length and treatment are aspirational at best, and this is one more reason why abolition is necessary. The standards employ language that leaves room for exceptions that the government rarely justifies or publicly discloses.

The lack of enforcement of the 72 hours or less rule is consistent with what RAICES has observed at the Karnes family prison in 2021, in that the government has stated it shall make efforts to detain families for 3 days or less yet RAICES consistently encounters families who have been imprisoned for longer.

Though many women reported a length of imprisonment in violation of policy, any amount of time in CBP custody is harmful. The next section illuminates some

of these inherent harms. In response to open-ended questions about conditions of CBP custody, women reported deplorable experiences, with at least 633 women disclosing that they suffered mistreatment at the hands of CBP officers.

Multiple women reported that even the officers who did not directly engage in abusive behavior nonetheless allowed the abuse to happen without intervention.31 The data on mistreatment included here is from collected anecdotes, but the experiences are representative of the systemic human rights abuses people experience in incarceration generally.

31. This occurrence is recognized in abolitionist theory wherein systems of policing and incarceration, which are inherently related to immigration detention, are upheld by both “good” and ``bad faith’’ actors. See generally Derecka Purnell, How I Became a Police Abolitionist, The Atl., July 6, 2020, https://www.theatlantic.com/ideas/archive/2020/07/how-i-became-police-abolitionist/613540/ (“The police officers who are doing the “right thing” maintain the systems of inequality and ableism in black communities. The right thing is wrong.”).

26

DATA O N M I S T R E AT M E N T

HYGIENE ACCESS ISSUE

• vs

373

• No toothbrush or paste for entire stay

REPORTS

• No soap for entire stay • Ticks and/or fleas on the floor

WOMEN’S DETENTION REPORT 2021

• Denied clean clothes • Denied dry clothes after crossing river • Denied towels • Denied menstrual products • Vomit and other waste left on floor (imprisoned people attempted to clean but had no materials)

FOOD ISSUE

• No food

259

• Too little food (ex: only a bread roll and bologna once a day, only one taco or cracker per day, etc.)

REPORTS

• Rotten or moldy food • Frozen food • Food with worms in it • Officers threw food or plate of food at person or on ground instead of serving it

RAICES

• Specific people denied food at mealtime because of asking officers about food

SLEEPING CONDITIONS ISSUE

158

REPORTS

COLD TEMPER ATURES

1 03

REPORTS

27

• Woken in the middle of the night by officers without explanation • Slept on the floor, slept in the bathroom, slept in cramped space, etc.

• Forced to share sleeping space or materials with someone

• Cold temperatures • No blankets, flimsy blankets, confiscated blankets, etc.

VERBAL ABUSE BY OFFICERS (ANY INTIMIDATION OTHER TH AN YELLING TH AT ISN’T PHYSICAL ABUSE)

214

REPORTS

• Called an “animal,” a “ fucking bitch,” or “damn bitch,” (many variations of bitch reported), “shit,” “damned immigrant,” “fucking illegals,” “garbage,” “criminals,” “dumb asses,” “liars,” “dirty”, “pigs,” “ungrateful,” • Discrimination or insult on the basis of race and/or skin color (ex: called the n-word), discrimination or insult on the basis of sexual orientation (for being queer), discrimination or insult on the basis of national origin (“damn Hondurans,” “Honduran pigs,” “dirty Cubans,” etc.), discrimination or insult on the basis of ethnicity (for being Latina), etc.

• Told “you have no rights,” told “this is the treatment you deserve for coming to this country,” told to “go back to your country,” told “you are nobody,” told “it’s not our responsibility to feed you,” told “you aren’t wanted here,” told “you stink” while being denied a bath, told “you will fuck up this country,” told “you don’t have the right to ask for anything because you are a nobody,” told “the more you complain the longer you’ll be here,” told “we are going to deport you all,” told “you must sign” on documents, told “we don’t care why you’re here” while trying to seek asylum, told “we can do whatever we want” regarding CBP officers’ power, told “we can throw you on the ground” regarding CBP officers’ power, told “why did you even bother to cross [the border]?” told “do you guys think any of you could be my neighbor? No, you all are shits and shits belong with shits,” told “don’t say that” regarding disclosures about asylum claim, told “we can arrest you, hit you, and we want to make you disappear,” told “in this country, you have no rights as a woman,” told not to continue in the asylum process, told “you don’t qualify for asylum,” told “if you don’t like it here, you should sign for your deportation,” told “don’t try anything, I have a gun,” told “get up, dogs!” at 1 AM for no reason, told “I’m not going to lose my job for a rat,” told “the only pills or medicine we have are rat poison which we can bring y’all if y’all want,” • Threatened with being shot for not remaining in line during processing, threatened with being shot for running • Insulted and/or threatened with deportation or a longer stay in CBP custody for asking for basic necessities like food, medical care, help with pregnancy, water, a towel or sanitary wipe, etc.

• Shown the middle finger, officers covered noses/mouth in disgust when near migrants, officers refused to look at migrants, laughed at for struggling with the inhumane conditions, laughed at for crying, pointed at with a gun while being taken into custody, officers threw things (food, water, personal belongings, immigration paperwork), when sweeping officers swept rocks at asylum seekers, migrants made to beg in order to access menstrual products and blankets • Witnessed officers insulting children

28

MEDICAL ISSUE/ NEGLECT

63

REPORTS

• No medical care for cancer, seizure, pregnancy, rape, pain from preexisting conditions/injuries, fainting, sprained or broken bones and joints, gastrointestinal distress (such as vomiting, diarrhea, and nausea), cold and flu, chicken pox, urinary tract infections, etc.

WOMEN’S DETENTION REPORT 2021

• People fainted and were left on the floor by officers, people vomited and were left on the floor by officers • Told not to request medical care, told “no” when requesting medical care, threatened with longer detention stay if requesting medical care (including for pregnancy) • Waiting for days before even receiving a response from officers (if any) when requesting care, forced to wait hours to speak to a medical official after requesting care, told the delay in receiving medical care (3 days no care for fever) was because they crossed the border illegally, forced to show where bleeding on the stomach in order to receive care (not believed until then)

WATER ACCESS ISSUE

• No water, too little water

61

• Bad water (ex: water tasting of chlorine, extremely brown water, water with cockroaches and mosquitoes in it, etc.), only accessible water in the toilet

REPORTS

RAICES

• Officers threw water on the ground or at a detained person instead of serving it, etc.

YELLED AT BY OFFICERS

55

REPORTS

29

• Screamed at by officers, yelled at by officers • Yelled at for not knowing the answer to a question, yelled at or screamed at in the middle of the night, yelled at or screamed at for asking for basic needs like food, medical care, water, a towel or sanitary wipe, a piece of paper, a phone call, etc.

PHYSICAL MISTREATMENT/ABUSE

BY OFFICERS

24

REPORTS

INTRUSIVE CONDITIONS

22

REPORTS

• Kicked (ex: kicked in order to wake up while sleeping on the floor), slapped/hit/gloved, pushed, pinned against a wall, grabbed by the throat, underwent violating and/or rough personal searches, etc.

• Witnessed officers beating immigrant men with nightsticks and saying “like in baseball!” as if it were a joke during the abuse, witnessed an officer hit a child whose leg had been operated on and the wound then became swollen, witnessed an officer push a pregnant woman who had fainted up against a wall, etc.

• Lights on 24/7 • Officers blaring loud metal or rock music in the middle of the night

PRIVACY VIOL ATION

15

• Had to use the toilet in front of others, had to clean self in front of others

REPORTS

30

volumes to the abysmal conditions in CBP custody that, despite valid fears of reprisal--that could lead to potentially fatal deportation as asylum seekers-women recounted mistreatment with such prevalence. Furthermore, these reports of mistreatment are consistent with what other migrants, medical professionals, attorneys, and advocates have been decrying for years.32 Mistreatment is not an outlier; in CBP custody, it is the norm.

with instances of literal physical aggression by CBP officers. It is notable that despite the differences in location along the border and the time when women were detained in CBP custody, data collected consistently reflects similar accounts of mistreatment.

it is beyond reform. 33 While CBP continues to detain people, the first “welcome” migrants receive when arriving at the U.S. southern border will continue to be abuse and/or will prime them to expect violation of their rights as an inherent part of their interactions with immigration enforcement throughout the immigration process. CBP, like ICE, must be abolished, and community based solutions for a welcoming border that center human needs should be embraced.

In spite of the brutality of CBP conditions, at least one woman acknowledged that people are afraid to speak out due to fear of deportation. This speaks

The evidence of systemic abuse inherent to the way CBP operates is overwhelming, despite the lack of transparency in its operations. CBP’s racist origins as a militarized police apparatus make it clear that

RAICES

WOMEN’S DETENTION REPORT 2021

In its totality, the abuse women reported in CBP custody is overwhelming. At least 633 out of approximately 1,900 women reported experiencing mistreatment inflicted by CBP officers while in custody, despite the fear of retaliation and the open-ended nature of RAICES intake questions. The totals in the table on the preceding pages note how many instances were reported of each type of mistreatment, as many women reported multiple types of mistreatment. Due to the many different forms of verbal abuse reported, RAICES includes a category solely on yelling or screaming as a spotlight issue separate from specific instances of verbal abuse. Gestures, although not verbal, are included in the verbal abuse section to limit confusion

32. Advocates have noted an uptick in deaths in immigrant detention in recent years. See for the proposition that some statistics on death in custody fail to account for those who die after getting out of custody due to complications that arose while in custody.

Katy Murzda, M.A. and Walter Ewing, Ph.D., The Legacy of Racism Within The U.S. Border Patrol, Am. Immigr. Council, Feb. 2021, https://www.americanimmigrationcouncil.org/sites/default/files/research/the_legacy_of_racism_within_the_u.s._border_patrol. pdf See also Additional Reading section of this report.

33.Harsha Walia, Confronting The Long Arc of U.S. Border Policy, The Intercept, Feb. 7, 2021, https://theintercept.com/2021/02/07/ border-and-rule-biden-immigration-policy/

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PA R T I I I

ACCESS TO COUNSEL It is well documented that detention impedes access to counsel in both criminal and immigrant prison settings.

Migrants may be released to continue fighting their deportation in the community or they may face potentially indefinite detention in ICE custody.34 In ICE prisons, people encounter a number of indignities as they fight their deportations, including extremely limited access to counsel. Many cannot access an attorney at all. Programs which provide universal legal aid in detention centers are rare. Unlike in criminal legal proceedings, there is no government-provided representation for those who cannot afford or cannot access an attorney, though a government-funded attorney is present arguing for their deportation.35 Detention exacerbates many of the existing barriers to representation, with only 14% of detained immigrants fighting removal securing legal representation, compared to 66% of those released or never detained.36

Most detention centers are remote, far away from larger cities where there are more attorneys.37 If someone is able to find an attorney and the attorney is able to travel to the prison, attorneys are faced with long wait times and complicated visitation policies that vary from prison to prison.38 If detained people choose to meet with their attorney by phone, they are faced with the high price of phone calls, reportedly ranging from 10 cents to three dollars to as high as eight dollars a minute for domestic calls.39 In addition to the minute rate, there are other reported fees such as “connection charges.”40 While detained people can work to earn phone minutes or commissary money, they may earn only one to three dollars a day. They are not paid for the cleaning that GEO obligates detained people to perform in their own cells and bathrooms. Further, people may be transferred to different prisons with no notice to their attorney on record, and there is little that an attorney can do to prevent or undo a transfer.41

34. In RAICES’ experience and as alluded to in the former section, CBP seems to act arbitrarily in terms of who is released to continue their case in freedom as opposed to transferred to ICE detention to continue their case while imprisoned.

35. N/A. Access to Counsel, Natl. Immigrant Justice Ctr., https://immigrantjustice.org/issues/access-counsel; Some cities have moved to allocate funds toward providing immigration court defense in the model of public defenders, but this is not the norm. See, e.g. https://www.vera.org/projects/new-york-immigrant-family-unity-project 36. N/A, The Right To Be Heard From Immigration Prisons: Locating a Right Of Access To Counsel For Immigration Detainees In The Right Of Access To Courts, 132, Harv. L. Rev., 726 (Dec. 2018) 37. Yuki Noguchi, Unequal Outcomes: Most ICE Detainees Held In Rural Areas Where Deportation Risks Soar, NPR, Aug. 15, 2019, https://www.npr.org/2019/08/15/748764322/unequal-outcomes-most-ice-detainees-held-in-rural-areas-where-deportation-risks 38. Id. 39. Shannon Najmabadi, Detained Migrant Parents Have To Pay To Call Their Family Members. Some Can’t Afford To. The Tex. Tribunal.

July 3, 2018, https://www.texastribune.org/2018/07/03/separated-migrant-families-charged-phone-calls-ice/# 40. Miriam Valverde, Bill Nelson Claims Detained Immigrant Parents Charged $8/Minute To Call Their Children. Is It True? https:// www.politifact.com/factchecks/2018/jul/26/bill-nelson/bill-nelson-claims-detained-immigrant-parents-char/ AND https://www. imwong.com/immigration-news/our-immigration-blog-cost-calling-detention-center/ 41. N/A, The Right To Be Heard From Immigration Prisons: Locating a Right Of Access To Counsel For Immigration Detainees In The Right Of Access To Courts, 132, Harv. L. Rev., 726 (Dec. 2018)

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RAICES

WOMEN’S DETENTION REPORT 2021

Access to counsel, in addition to being a detained person’s right, is also significantly beneficial in proceedings. Detained people with representation face shorter detention time than those without. Of detained people with attorneys who secure custody hearings, 44% are released, compared to the 14% who go through custody hearings without representation. Further, detained migrants with representation obtained some sort of relief 21% of the time while only 2% of those without representation obtained relief.42 Immigration proceedings are high stakes, with the outcomes including family separation through deportation, and, for asylum-seekers, deportation can be a death sentence. Even when someone has legal representation, detention produces worse outcomes for immigrants in removal proceedings when compared with those who fight their deportation from outside of detention.43 The government’s alleged purpose in detaining immigrants is to ensure that immigration claims are adjudicated fully and that applicants attend court hearings. However, it is clear that detention-even in a “model” prison--fails to facilitate any meaningful access to counsel or fair adjudication process, instead causing a number of harms.

RAICES’ visitation operations at Karnes stemmed from years of advocacy beginning in 2014 when the Obama administration, despite choosing to detain families under the guise of national security concerns, worked with legal advocates to establish access to counsel protocols to maintain appearances of justice and due process. As mentioned previously, the legal services

scheme at Karnes and the other family prisons, though imperfect and incapable of providing free representation to every detained individual, is extraordinary compared to legal access at other immigration prisons. Even when spending 50 hours per week or more at the prison, legal service providers were unable to provide meaningful access to counsel. This deterioration of access to counsel at Karnes shows that even the more permissive family detention standards fail to provide adequate access to counsel, and allow ICE significant discretion to restrict access. The stricter adult standards, which are the standards ICE implements at every prison that is not one of the three family prisons, thus impose restrictions that even further prevent any meaningful access to counsel.

RU LE CH A N G ES I N V I OLATIO N OF I CE’S OW N STA N DA RD S While detained immigrants have legal rights independent of ICE standards, ICE produces detention standards that govern procedures in ICE detention.

At Karnes, the relevant standards are the Family Residential Standards (“FRS”) and the Performance Based National Detention Standards (“PBNDS”), the latter of which applies only in adult detention. For approximately the first month and a half after the population change, the Family Residential Standards were still in place at Karnes. On May 23, 2019 the head of ICE-ERO at Karnes, the Assistant Field Office Director (“AFOD”), informed RAICES that ICE had shifted to operating Karnes under the PBNDS. Throughout the time period when ICE detained adult women, ICE and GEO insti-

42. Id 43. N/A. Access to Counsel, Natl. Immigrant Justice Ctr., https://immigrantjustice.org/issues/access-counsel (“While detainees with representation are more likely to obtain relief, the percentage of people who obtain relief with representation outside of detention is even higher.”).

33

tuted a series of rules in violation of the respective detention standards in place, as well as other rule changes that, though not in explicit violation of the standards, limited access to counsel to a degree that severely disadvantaged detained women. The rule changes were so numerous that GEO staff frequently remarked to RAICES that they were confused. The following is just a small selection of the many changes that impeded access to counsel during this time.

LIM ITAT IO NS ON G R OUP MEETINGS The ICE Family Residential Standards state “Upon the request of a legal representative or assistant, the facility administrator may permit a confidential meeting (with no staff present) involving the requester and two or more residents. This may be for various purposes: pre-representational, representational, removal-related, etc. The facility should grant such requests to the greatest extent practicable” 44 However, in April, 2019, ICE changed the rule regarding how RAICES meets with groups of detained people. Previously, RAICES could request to meet with multiple groups of up to 25 people at a time, only limited by the number of group meetings that could be scheduled during visitation hours, and multiple RAICES staff could participate in each group meeting. Pre-representational group meetings were the primary way that RAICES was able to meet with a high volume of people, provide general “know your rights” legal information, and screen individuals for their legal needs. The rule change permitted only one group meeting per day to be led by a single staff member. This rule change not only drastically limited how many people RAICES staff could meet within a day, but also impacted staff’s ability to triage legal needs based on urgency. Additionally, it prevented teams of

RAICES staff from working together to communicate with individuals who spoke multiple languages. Thus, the group meeting rule change devastated RAICES’ ability to provide timely legal services in a universal representation model, a crucial necessity for a detained population subject to expedited removal.

REQUIREMENT TO PRESE NT FOR M G-28 NOTICE OF REPRE SE NTATIO N FOR AL L L E GAL MEET INGS The form G-28, Notice of Entry of Appearance as Attorney or Qualified Representative, is a form to identify a noncitizen’s legal representative to the Department of Homeland Security. This form, as its name indicates, is meant for a legal representative who will formally engage in representation before the DHS, not for a legal worker who has not established a formal relationship with a noncitizen, such as someone assisting a noncitizen to represent themselves pro se.

Indeed, both the Family Residential Standards and the PBNDS for adult prisons recognize several instances in which a legal worker may meet with a detained person outside of a formal representational relationship.

Specifically, the standards state: “In visits referred to as ‘legal visitation’ each resident may meet privately with current or prospective legal representatives and their legal assistants.” 45 “Residents subject to Expedited Removal who have been referred to Asylum Officers are entitled by statute and regulation to consult with persons of the resident’s choosing, both prior to the interview, and while the Asylum Staff’s decision is under review.”46

44. Section V, subpoint 10.l, pg. 10 https://www.ice.gov/doclib/dro/family-residential/pdf/rs_visitation.pdf 45. Section V, subpoint 10.a, pg. 6, supra note 46. (Section V, subpoint 11.a, pg. 11)

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WOMEN’S DETENTION REPORT 2021

“Visitors are not required to file a Form G-28 to participate in a consultation visit or provide consultation during an Asylum staff interview or immigration judge’s review of a negative credible fear determination. This applies even if the visitor is an attorney or legal representative.”47 Yet, in April of 2019, GEO began to ask RAICES to present a G-28 in order to meet with any detained person.

This requirement was endorsed by the ICE AFOD in charge of operations at Karnes at the time. As RAICES offers both pro bono and pro se assistance at Karnes, RAICES legal representatives do not always enter an appearance for people who receive services. Moreover, detained people have the right to consult with prospective legal service providers, and a requirement that any legal professional must submit an appearance on behalf of someone who has not yet received a consultation impinges upon that right.

The unnecessary G-28 requirement also resulted in interference with attorney client relationships and undue delay in legal meetings. It is not uncommon for families of detained persons to contact an attorney and ask the attorney to meet with their detained family member, sometimes without having had the opportunity to communicate the arrangement to the detained individual. At times, the family seeks attorney assistance to locate their detained loved one, or their family member may not have regular access to a phone to communicate with family. Multiple times, the G-28 requirement of 2019 resulted in both a privately contracted attorney and a RAICES attorney having a G-28 on file for the same individual. The ICE AFOD

informed RAICES that she would call these private attorneys and ask for their consent for RAICES to meet with the individual. This practice was antithetical to the basic principle that an individual has the right to meet with a legal representative of their own choosing.

The G-28 requirement is a stark illustration of the impact that the unchecked power of ICE has on daily operations and on detained persons’ access to legal representation. Clearly, the G-28 requirement has no basis in ICE’s own standards and plainly contravenes the language of the standards. Yet, the ICE officer in charge at Karnes wielded her authority to implement this onerous requirement.

DE FACTO PRIVATE AT TORNEY PRIVIL EGE Neither the FRS (2007) nor the PBNDS (2011) make any distinction between private attorneys and other legal representatives. The only two times that the term “private attorney” appears in the PBNDS is as part of the term “private attorneys and other legal representatives.”48 The term does not appear at all in the legal visitation section of the 2007 FRS.49 Nevertheless, following the population change, GEO began to privilege private attorneys over the RAICES team in implementation of often-changing and arbitrary rules. The following anecdotes are just a portion of the ways in which GEO disadvantaged RAICES clients compared to private attorney clients, especially in terms of language access50 for non-Spanish speaking clients in need of private rooms to connect with interpreters via phone. The preference for private attorneys had the

47. (Section v, subpoint 11.g, pg. 12) 48. https://www.ice.gov/doclib/detention-standards/2011/pbnds2011r2016.pdf pg. 360, pg. 474 49. https://www.ice.gov/doclib/dro/family-residential/pdf/rs_visitation.pdf 50. Cristobol Ramón and Lucas Reyes, Language Access in the Immigration System: A Primer, Bipartisan Policy Ctr. Sep. 18, 2020, https://bipartisanpolicy.org/blog/language-access-in-the-immigration-system-a-primer/ (“Within the immigration context, language access refers to the ability of non-citizens to engage in immigration processes in their primary language.”)

35

effect of disadvantaging detained persons who could not afford to pay a lawyer and detained people who did not have family in the United States, as is the case for many asylum seekers, as well as detained persons who needed interpretation.

For instance, on July 17th, several private attorneys were at Karnes. At one point, three private attorneys occupied private rooms with telephone access but were not meeting with clients nor were any of their clients waiting to meet with them. Yet, when a RAICES staff member asked a GEO guard for access to one of the occupied rooms in order to use a phone for interpretation, she was denied because private attorneys were in those rooms. During this same time period, RAICES staff were barred from occupying a private room when not meeting with a client or when waiting for a client, but the same rule was not applied to private attorneys. Later that day, four Haitian women arrived to meet with RAICES for the first time as part of a group meeting. These women also had to wait for a private attorney to finish their legal visits and vacate a room in order to access a space with a phone to call a Haitian Creole interpreter. In the interest of efficiency and screening for urgency, best practice would be to initially speak to these women together to share general information and ascertain basic facts about their legal needs. However, that day a GEO “Sergeant” informed the RAICES team that in the future, detained persons would have to use private rooms one at a time, even if they were called into visitation as part of a group meeting. Later that same day, a RAICES staff member complained that a private attorney was again occupying a private room without a client present when the RAICES legal assistant needed to access a phone in that room. The GEO guard informed RAICES staff

that private attorneys are given priority and that it did not matter that this rule inhibited access to counsel because the RAICES staff person was a legal assistant, not an attorney. When staff cited ICE’s own detention standards and noted that they made no distinction between detained persons meeting with legal assistants versus attorneys, the GEO guard simply stated “Well I don’t know about that,” and staff was required to wait until the private attorney left to access the telephone line.

At some point GEO began to limit the amount of time a detained person could meet with a legal representative in one of the five private rooms that contain a phone, frequently used to call interpreters. In one example of disparate treatment, on May 8, 2019, GEO informed RAICES that if private attorneys came to visitation, RAICES staff would be required to vacate the private rooms to accommodate them. That day, a private attorney used a private room continuously from 9:40 AM to 12:00 PM despite the one hour time limit. On June 10, a few minutes before the 8:00 PM end of legal visitation hours, GEO entered a private room to ask a RAICES legal assistant to finish her client meeting. There was a private attorney in a private room at the same time, and he was permitted to continue visitation until he ended his own meeting a few minutes after eight. At no point was he interrupted.

In another example, GEO began to refuse to call more than one RAICES client at a time into the visitation area, which resulted in increased time spent waiting for clients. Yet, on July 10, staff overheard a GEO guard inform a private attorney that she called five of his clients at once.

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WOMEN’S DETENTION REPORT 2021 RAICES

These disparately applied rules illustrate the arbitrary and often-changing nature of GEO employees’ management of legal visitation at Karnes, and there are parallel experiences at all ICE prisons. When individual GEO officers apply their narrow interpretation of a directive from ICE or their superiors, there is often no recourse available to correct inconsistency. For instance, in the evening, most supervisors and ICE officers have left the premises, so superiors are not available to correct errant rule applications. Further, GEO guards fear retaliation from their supervisors if they permit an exception to a rule and thus err towards the most stringent application of a new directive.

OT HER CH AN G E S I MPACT I N G AC C ES S TO CO U N S E L In addition to the rule changes in explicit violation of the detention standards, ICE and GEO made a number of other changes that impeded detained women’s access to counsel.

IN A B ILIT Y OF G EO TO LOCATE D E TAINE D P ER S ON S Exceedingly long wait times for each client also accompanied the population change. For years prior, GEO would provide clients with buzzers to alert them to when the RAICES team was ready to meet with them, a helpful system created by a past AFOD. With the removal of this system, GEO employees had to walk around the detention center and search the entire premises for each individual client. As the prison had a capacity of about 1,000 when detaining single adults, wait times became exceedingly long, and GEO often explained to RAICES that they “could not find” a detained person within the prison. On April 16, a RAICES attorney recommended to the AFOD that GEO could utilize the public announcement system to notify detained persons of a scheduled legal visit, as was the

37

case for notification of medical appointments and as had been employed at times previously for legal visitation. Inexplicably, the Karnes AFOD told RAICES it would be “fiscally irresponsible” to do so. In the same conversation, the AFOD requested RAICES be patient with GEO staff, noting the difficulty and impossibility at times of finding detained people within the prison.

The increase in wait times likely contributed to women undergoing interviews or hearings without being able to meet with RAICES staff for preparation beforehand.

The increased wait times would have doubly prejudiced non-Spanish speakers who also had to contend with GEO privileging private attorneys’ access to rooms with telephones for interpretation.

GEO’s inability to locate detained persons could have life-changing effects. For example, on April 22, 2019, RAICES staff were told two clients were released. After further investigation by RAICES, it was discovered that these women were, in fact, still detained. It was not uncommon for women to be moved around the prison into different cell blocks. Sometimes, when transferring people internally, the system GEO used to monitor detained women’s location would indicate release instead of relocation to a new cell. At best, this creates delays in access to counsel. At worst, falsely reporting someone’s release could directly contribute to their deportation, because GEO’s reporting leads an attorney to believe that the person is no longer in detention and no longer in need of legal services. Unfortunately, the April 22, 2019 incident of misreporting was not an isolated incident.

REMOVAL OF THE “WAL K-IN L IST ” TO SCREEN FOR L E GAL EMERGENCIE S The “walk-in list” was another innovation from a past AFOD in collaboration with RAICES. A clipboard was posted in the waiting room so detained persons could write their names to request a meeting with

RAICES.” RAICES would collect that list from GEO at regular intervals throughout the day to call in and screen women for emergency legal needs. On April 11, 2019, RAICES was informed that the list would no longer be provided throughout the day or posted in the visitation waiting area and instead would be faxed once a day. This rule change - with no prior notice made it difficult for RAICES to inform clients where they could sign up to meet with the team but also to accommodate emergency requests to prepare clients for last-minute deportations, Credible/Reasonable Fear interviews, or court hearings. Again, considering that the vast majority of people in Karnes were in expedited removal, a delay of just a few hours could result in deportation. Interviews and court hearings often come with less than a day’s notice, if any, so allowing detained people multiple avenues to request RAICES’ services is crucial.

R E M OVAL OF P R OVIS ION S FOR AT TO R NE YS Over the course of adult women’s detention at Karnes, ICE and GEO also imposed a number of rule changes that made working conditions markedly more difficult for the RAICES team who spent upwards of ten hours a day at the prison. In April, 2019, ICE informed RAICES that they could no longer use the “pro bono room,” a small office in which RAICES stored paperwork, a printer and scanner, tissues for clients, writing utensils, and other materials pivotal to provide legal services for those in expedited removal. In the weeks following, RAICES staff saw the room utilized to give GEO employees massages as well as to host visiting insurance advertisers there to meet with prospective GEO clients. Additionally, the refrigerator and microwave in the break room outside of legal visitation were removed, eliminating the ability of the RAICES team to store food in order to maximize time with detained persons at the prison. To add insult to injury, in May 2019 RAICES was barred from even eating in the break

room, though the space was not used for any alternative purpose. RAICES staff had to eat on a bench without a table outside the facility or in the prison lobby.

Additionally, attorneys and volunteers were required to bring their materials in transparent bags, a rule imposed in addition to passing through a metal detector and searches of personal items. Without explanation or notice, for a time ICE forced RAICES staff to carry all items in their hands. In September 2019, ICE removed RAICES access to lockers in the lobby for storage of cell phones, and the team had to instead leave their phones in parked cars in the Texas heat. At one point, an ICE officer prohibited a RAICES attorney from using a cell phone for a representation-related call in the lobby and the staff person had to take the call in a parked car in the sweltering summer.

Ultimately, the impact of these changes is most important to the people detained. It should also be noted that many of the so-called accommodations or amenities cited are exceedingly rare at immigration prisons. These changes are significant, not only because ICE and GEO targeted attorneys and created an environment in which it is more difficult for detained people to access regular legal services, but also to illustrate the swiftness with which ICE authority can undo years of past collaboration with advocates to erase conditions that favored robust attorney presence.

ACCESS TO COU N SEL BY T H E N U M BERS The rule changes had a significant negative impact on detained women’s access to counsel during this period, especially RAICES’ clients. There were an average of 196 women with whom RAICES scheduled a legal visit each day, but some days there were as many as 565. RAICES was, on average, able to meet with only 64 women per day. This is a distinct departure from

38

BE FORE RUL E CH ANGES

WOMEN’S DETENTION REPORT 2021

the daily average prior to the population shift, in which RAICES regularly met with over 100 families a day, and often exceeded that number, meeting with 200 families or more. From the time a meeting was originally requested, women waited an average of 8 days to be seen by RAICES, in contrast with a typical wait of 0-2 days prior to the rule changes.

During the six month period in which women were detained at Karnes, a total of 206 women requesting legal counsel were never able to meet with RAICES. This compares to only 67 families who requested legal counsel from RAICES with whom RAICES was unable to meet in the six months prior to the population change.

The fact that ICE detained more people at Karnes at the time produced inadequate counsel in itself--for example, the visitation room capacity did not increase in tandem with the population increase. As previously mentioned, access to counsel can significantly increase the chances of halting a deportation. Any delay or restriction in accessing attorneys, especially for people in expedited removal proceedings, can have life-altering consequences.

100

families on averag e met with RAICES each day

200

maximum families on averag e that met with RAICES each day

0-2 DAYS

ty pical wait to be seen by RAICES

AFT ER RUL E CH ANGES

296

women on averag e requesting a leg al visit with RAICES each day

111

maximum women on averag e that met with RAICES each day

RAICES

565

the most leg al visit requests RACIES received for a single day

63

women on averag e that RAICES was able to meet with each day

8 DAYS

39

ty pical wait to be seen by RAICES

PA RT IV

OUTCOMES The impact of the conditions women experienced prior to and during their detention at Karnes, coupled with changes in access to counsel that limited RAICES’ ability to operate its legal services operations at full capacity, resulted in a higher rate of deportations. In addition, the change from a family population where—on the whole—detention of more than a few weeks was relatively rare, to an adult women population experiencing prolonged detention, exposed how ill-equipped services at Karnes are to provide appropriate medical and mental health care. This section provides an overview of the legal and health-related outcomes for the women detained in 2019.

O U TC O M E S IN EXP ED ITED R EMOVAL A ND D E T E N TION Asylum protections were not intended to be wildly unattainable. Yet, as the cases of the women detained in 2019 illustrate, success in accessing asylum protection is rare and deportations of refugees are rampant.

Furthermore, even with access to counsel, asylum seekers who receive a negative decision from the Asylum Office in their Credible or Reasonable fear interview face nearly insurmountable hurdles to appeal that decision, and the facade of legal safeguards in place often serve to rubber-stamp the initial decision. These challenges also result in many individuals choosing to accept a deportation order after issuance of a negative interview decision rather than suffer more detention during a futile appeal. Furthermore, many of the Trump Administration’s draconian anti-asylum rules placed additional barriers to women overcoming expedited removal and having the opportunity to seek asylum before an immigration judge. Though many of Trump’s policies were challenged in court, they had devastating effects on many people before they were overturned or altered. RAICES data and client experiences from 2019 demonstrate not only that the intended carve

outs to expedited removal do not effectively protect asylum seekers, but also that without meaningful and secure change to the legal scheme for recently arrived migrants, policy whims of varying administrations will continue to have abysmal results.

CREDIBL E FE AR INT ERVIE WS The total number of adult women at Karnes who received any type of service from RAICES was 2,891.

This number includes not only individuals who received representation from a RAICES attorney in court, but also women who completed an intake screening, attended a “know your rights” presentation, or were prepared by the RAICES team for their interview. It is important to note that the level of services each woman received was inconsistent due to the access to counsel issues outlined in Part III. Of the 2,891 women served, at least 472 received negative decisions in their credible or reasonable fear interviews. This number is likely much higher due to issues of access to counsel, women agreeing to be deported without having the opportunity to consult with RAICES, and women retaining the services of private attorneys after initially meeting with RAICES prior to their interview.

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WOMEN’S DETENTION REPORT 2021

Yet, the scale of the increase in negative interview results was remarkable; from January to March of 2019, RAICES provided services to a total of 42 families who received negative interview results, but with the new population, that number increased to working with an average of 44 negative cases each day.

Only 157 of those 472 women served with negative decisions had an opportunity to prepare with RAICES before their credible or reasonable fear interview. As mentioned in Part III, women waited an average of 8 days for their initial intake meeting with RAICES as opposed to 0-2 days prior to the rule changes. By that time, many had already completed their interview.

While there is limited data surrounding the effectiveness of representation in the credible fear interview, access to counsel prior to an interview is critical, as many persons who receive negative decisions express that they had little to no understanding of the purpose or gravity of the interview. Data regarding representation for asylum seekers in court proceedings demonstrates the usefulness of counsel. In 2020, the odds of success in an asylum claim without representation was 17.7% compared to 31.1% with a lawyer.51

Women detained at Karnes in 2019 had slightly better than a 50% chance of success on appeal of a negative decision if they had access to a RAICES lawyer, and if the judge affirmed their negative decision, a positive outcome on further appeal was all but impossible. Of the 472 women who reported negative interview decisions to RAICES, only 310 received preparation for their hearings in which a judge reviewed and could overturn the negative decision. Of those 472 women, immigration judges affirmed 217 negative decisions. The negative outcomes at this stage fell along lines of race and nationality, with Haitian women being the highest percentage of those who received negative decisions, followed by women from the so-called “Northern Triangle” countries of El Salvador, Guatemala, and Honduras. Cuban women were the least likely to receive a negative credible fear decision.

Of the 217 women whose negative decisions were upheld by the immigration court, RAICES filed at least 138 Requests for Reconsideration with the Asylum Office outlining reasons why their initial decision was faulty and should be overturned. All but ten of those requests were denied. The ten women whose negative

P E R C E N TAG E O F P O P U L AT I O N TO R E C E I V E A N E G AT I V E D E C I S I O N

RAICES

CUBA, 9% HONDURAS, 29%

G UAT E M A L A , 3 1 %

E L S A LVA D O R , 3 5 %

HAITI, 44%

51. N/A, Asylum Denial Rates Continue to Climb, TRAC Immigration, Oct. 28, 2020, https://trac.syr.edu/immigration/reports/630/

41

decisions were changed by the Asylum Office were from Honduras (5), Cuba (2), El Salvador (2), and only one from Haiti.

The following charts break down the demographics of women who received negative decisions. Though Cuban women made up the largest percentage of the population RAICES served, women from Honduras, Guatemala, El Salvador and Haiti made up larger

COUNTRY OF ORIGIN

percentages of the population with negative interview results. Of those who received negatives, Haitian women made up the largest percentage compared to their percentage of the overall population and thus appeared to have the most disparate outcomes. While Haitian women made up only 2% of the population, they accounted for about 4.45% of the negative fear determinations.

NEGAT I V E O U TC O M E BY COUNTRY OF ORIGIN

Cuba, 38%

Honduras, 36%

Honduras, 25%

El Salvador, 21%

El Salvador, 10%

Cuba, 17%

Guatemala, 8%

Guatemala, 13%

Venezuela, 7%

Haiti, 5%

Nicaragua, 3%

Venezuela, 3%

Mexico, 2%

Other, 5% Ecuador, Columbia, The Congo, The Democratic Republic of the Congo, Kenya, Mexico, and Nicaragua,

Haiti, 2% Other, 5% Angola, Belize, Brazil, Cambodia, Cameroon, China, Colombia, The Congo, Côte D’ivoire,The Democratic Republic of the Congo, Ecuador, Guinea, Kenya, Peru, Sierra Leone, Spain, and Uganda

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WOMEN’S DETENTION REPORT 2021

The following charts illustrate the decisions of each judge during the six-month period.52

Outcomes in review of negative credible or reasonable fear interview determinations often depend on the “luck of the draw” as to which judge is assigned to hear an individual case. During the period of detention of women at Karnes, there were six known judges who heard appeals from RAICES clients. The difference between judges’ rates of vacating or affirming a negative decision is striking. One judge, in particular, was notorious for affirming every negative case before him.

Judge Adams, who heard 26 appeals, vacated only one case. RAICES data indicates that Judge Adams’ outlier results cannot be based on the merits of the types of cases he heard; the breakdown in nationality of the cases Judge Adams reviewed mirrors his colleagues.

The following graphic shows the cases each judge heard, broken down by country and whether the decisions were vacated or affirmed.

RAICES

D IS C R E PAN C IES IN A DJUD ICATION B E T WE E N IM MIG R ATION JUDGE S

52. See also N/A, Immigration Judge Reports - Asylum, TRAC Immigration, https://trac.syr.edu/immigration/reports/judgereports/

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CUBA

ADAMS

CROSSAN

AFFIRMED,6

AFFIRMED,0

VA C AT E D , 0

VA C AT E D , 1 2

MARTINEZ

N E WA Z

AFFIRMED,0

AFFIRMED,2

VA C AT E D , 2

VA C AT E D , 5

TI JERINA

TYRAKOSKI

AFFIRMED,1

AFFIRMED,9

VA C AT E D , 6

VA C AT E D , 2 8

E L S A LVA D O R ADAMS

CROSSAN

AFFIRMED,4

AFFIRMED,4

VA C AT E D , 0

VA C AT E D , 9

MARTINEZ

N E WA Z

AFFIRMED,0

AFFIRMED,9

VA C AT E D , 3

VA C AT E D , 6

TI JERINA

TYRAKOSKI

AFFIRMED,4

AFFIRMED,18

VA C AT E D , 2

VA C AT E D , 1 2

AFFIRMED THE JUDGE HELD UP THE NEGAT I V E D E C I S I ON

VA C AT E D THE JUDGE REVERSED THE NEGATIVE DECISION

44

RAICES

WOMEN’S DETENTION REPORT 2021

HAITI

ADAMS

CROSSAN

AFFIRMED,2

AFFIRMED,2

VA C AT E D , 0

VA C AT E D , 0

MARTINEZ

N E WA Z

AFFIRMED,0

AFFIRMED,7

VA C AT E D , 0

VA C AT E D , 2

TI JERINA

TYRAKOSKI

AFFIRMED,0

AFFIRMED, 2

VA C AT E D , 0

VA C AT E D , 0

HONDURAS ADAMS

CROSSAN

AFFIRMED,12

AFFIRMED,18

VA C AT E D , 0

VA C AT E D , 2 0

MARTINEZ

N E WA Z

AFFIRMED,2

AFFIRMED,9

VA C AT E D , 8

VA C AT E D , 6

TI JERINA

TYRAKOSKI

AFFIRMED,8

AFFIRMED,46

VA C AT E D , 9

VA C AT E D , 2 1

45

G UAT E M A L A

ADAMS

CROSSAN

AFFIRMED,2

AFFIRMED,5

VA C AT E D , 0

VA C AT E D , 5

MARTINEZ

N E WA Z

AFFIRMED,0

AFFIRMED,5

VA C AT E D , 2

VA C AT E D , 6

TI JERINA

TYRAKOSKI

AFFIRMED,5

AFFIRMED,9

VA C AT E D , 4

VA C AT E D , 1 3

OTHER ADAMS

CROSSAN

AFFIRMED,3

AFFIRMED,3

VA C AT E D , 1

VA C AT E D , 6

MARTINEZ

N E WA Z

AFFIRMED, 5

AFFIRMED,10

VA C AT E D , 5

VA C AT E D , 1 1

TI JERINA

TYRAKOSKI

AFFIRMED,3

AFFIRMED,11

VA C AT E D , 9 VA C AT E D , 1 8

AFFIRMED THE JUDGE HELD UP THE NEGAT I V E D E C I S I ON

VA C AT E D THE JUDGE REVERSED THE NEGATIVE DECISION

46

MEDICAL OUTCOME S

“ T H E R E H AS NE VER B E E N A FULL-TIME P E D IATR IC IA N ON S ITE WOMEN’S DETENTION REPORT 2021

AT K A RNES N OR IS T H E R E OBSTETR IC S CAR E AVA IL A BLE.”

Medical care at Karnes is provided by GEO medical staff. For years, spanning multiple administrations, RAICES has heard complaints about the paltry medical care at Karnes from detained families and individuals. After federal Judge Dolly Gee in 2015 ordered that ICE must aim to release families after 20 days, lengths of detention hovered between a few weeks to a few months, but were relatively short. This circumstance resulted in an apparent culture of indifference among the medical staff at Karnes and a failure to invest in robust medical services. Families often reported that medical staff dismissed their complaints or flippantly told them that the Karnes medical services could not treat their ailment and that they would have to wait for release or deportation to seek care. For example, there has never been a full-time pediatrician on site at Karnes nor is there obstetrics care available. In 2019, ICE detained women in Karnes for an average of 51 days. Some, however, were detained for the entire six months that single adult women were in Karnes. Complaints about a lack of medical care only compounded with the population of adult women who on average were detained much longer than families.

The obligations of ICE to provide medical care are established by constitutional standards, federal law, state law, ICE standards and guidance, as well as the policies and procedures of individual prisons. Medical care is a fundamental constitutional right for incarcerated persons.53

RAICES

ICE creates its own standards and procedures for the operation of its prisons. As mentioned previously, ICE implemented the 2011 Performance Based Detention Standards (“PBNDS”) in Karnes.

The standards state that “Every facility shall directly or contractually provide its detainee population with … medically necessary and appropriate medical, dental and mental health care and pharmaceutical services.”54 Still, there is a growing amount of

53. Estelle v. Gamble, 429 U.S. 97 (1976) 54. Performance-Based National Detention Standards 2011, U.S. Department of Homeland Security (rev. Dec. 2016), at 260, sec. 4.3(V)(A), https://www. ice.gov/doclib/detention-standards/2011/pbnds2011r2016.pdf.

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scholarship concerning poor medical conditions in immigrant detention. 55, 56, 57 Detained people have cited language access barriers, delays in receiving medical treatment, inadequate treatment for acute pain, failure to manage chronic illness, denial of adequate exercise and nutrition, and more.58 For instance, long wait times in accessing medical care are a well-documented complaint among clients at Karnes and many other detention centers.59 The 2011 Performance Based Detention Standards state that “Detainees shall be able to request health services on a daily basis and shall receive timely follow-up” and further, that all sick call requests are received and triaged by appropriate medical personnel within 24 hours.60 These deficiencies in care were reflected in the experiences of women detained at Karnes in 2019. In their initial intake meeting with RAICES, detained persons are asked about any chronic medical conditions or any

medical conditions occurring as a result of detention.

Many individuals report colds and fevers of varying severity while others report chronic and/or serious ailments. However, detained persons often do not report medical conditions until subsequent meetings, particularly those that may be more serious or that carry some sort of social stigma such as miscarriage or HIV. Given the high volume of potential clients and access to counsel issues, RAICES was unable to consistently follow up with many women after they were prepared for their CFI. As such, data on medical conditions and their treatment is incomplete. Given the lack of follow up and possible fear of retaliation for requesting services, there were likely more unaccounted for medical conditions, including those that developed during detention. This section includes stories from clients which RAICES has obtained permission to share.

4 4 0 S E VER E M EDICAL CASES RE PORTED AT INTAKE

87

High Blood

74

OBGYN Issue

65

Mental Health

51

Asthma

P ressure

21

Diabetes

22

Major Org an Issues

18

Thyroid Issues

16 Pain

2

Cancer

84 Other

55. N/A, Systemic Indifference: Dangerous And Substandard Medical Care in US Immigration Detention, Human Rights Watch, May 8, 2017.

56. Sola Stamm, et al., Detained And Denied: Healthcare Access In Immigration Detention, The Immigr. Learning Ctr., Feb. 2017, https:// www.immigrationresearch.org/report/other/detained-and-denied-healthcare-access-immigration-detention 57. N/A, Southern Border: Conditions at Immigr. Detention Ctrs., Am. Med. Ass’n., https://www.ama-assn.org/delivering-care/ population-care/southern-border-conditions-immigrant-detention-centers 58. Stamm, Supra note 56 59. Id. 60. Immigration and Customs Enforcement, “2011 Performance-Based National Detention Standards, Part 4.3 § S, “Sick Call”

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INFO R M ED C ON S EN T

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WOMEN’S DETENTION REPORT 2021

“There is a long list of people to be seen. . . I’m not sure how long it will take to be seen, but someone might get tired of waiting.”

The ICE standards require that informed consent standards shall be observed and adequately documented and that staff shall make reasonable efforts to ensure that detained people understand their medical condition and care. ICE defines informed consent as “an agreement by a patient to treatment, examination,or procedure after the patient receives the material facts about the nature, consequences, and risks of the proposed treatment examination, or procedure; the alternatives to it; and the prognosis if the proposed action is not taken.” 61 Missing from the ICE standards are explicit affirmative obligations on the caretaker to assess the patient’s ability to understand as well as to document the informed consent conversation in the medical record. RAICES is aware of many instances in which medical staff at Karnes provided medication to detained women without explanation of the type of medication or its function.

Not only did this impede people’s ability to meaningfully consent to treatment, but could also inhibit future treatment of chronic medical illnesses.

Further, language access is often a severe barrier to fulfilling informed consent and accessing medical and mental health services in detention as the provision of medical services62 also requires interpretation and translation services.63 Notably, the 2011 Performance Based Detention Standards state that facilities shall provide appropriate interpretation and language services for detained people related to medical and mental health care. Where appropriate staff interpretation is not available, facilities will make use of professional interpretation services. Regarding the manner in which detained people request medical care, the standards require that paper slips to request care be provided in English and the most common languages spoken by the detainee population

61. ICE, Supra note 60 at Part 7.5, “Informed Consent”.

62. Stamm, Supra note 56 63. ICE, Supra note 60 at Part 6.1 § V(C), “Translations and Access for Limited English Proficient Detainees”

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T HE AME RICAN MEDI CAL ASSOCIAT ION’ S CO DE O F ET HICS 2.1.1 DEFI NES INFORMED CONS ENT AS T HE FOL LOWING: “In seeking a patient’s informed consent (or the consent of the patient’s surrogate if the patient lacks decision-making capacity or declines to participate in making decisions), physicians should: 1. Assess the patient’s ability to understand relevant medical information and the implications of treatment alternatives and to make an independent, voluntary decision.

2. Present relevant information accurately and sensitively, in keeping with the patient’s preferences for receiving medical information. The physician should include information about: • The diagnosis (when known) • The nature and purpose of recommended interventions • The burdens, risks, and expected benefits of all options, including forgoing treatment 3. Document the informed consent conversation and the patient’s (or surrogate’s) decision in the medical record in some manner. When the patient/surrogate has provided specific written consent, the consent form should be included in the record.”

of the facility.64 However, there is no apparent standard to determine what the “most common” languages are.

Furthermore, paper slips pose problems for individuals who do not speak a written language, are unable to read or write, or speak a language not considered “common.” Indeed, RAICES is not aware of any client receiving a medical request form in a language other than Spanish or English.

In practice, non-Spanish speaking clients commonly reported that GEO medical staff would attempt to triage medical issues without calling an interpretation service. In clients’ experiences, they describe that the medical staff acted inconvenienced when prospective patients did not speak Spanish. As aforementioned in the demographics section, about 7% of women did not speak Spanish. The next most common language was Creole, with about 46 speakers, followed by English (31 individuals), Garifuna (18 individuals), and French (15 individuals). As such, there were a minimum of 110 clients who potentially did not have access to the medical request process due to their language. This raises the question: What percentage of the population of non-Spanish speakers constitutes a significant enough portion to receive translation services so they are able to access medical care?

ICE and GEO’s refusal to provide medical interpretation has severe consequences. For instance, a RAICES client stated that the process of filling out the slip to request medical services was inadequate for people who spoke Creole as the Creole speaking women she knew could not read and write in English or Spanish.

She stated that GEO medical services refused to treat her friend because her friend’s form was not filled out properly; she was not offered interpretation. The indi-

vidual in question suffered from headaches, could not eat, and was experiencing weakness and dizziness that led to falling. Her symptoms had been ongoing for three weeks when her friend reported these conditions to RAICES. It is important to reiterate that the people ICE detains do not have freedom to choose their medical provider.

If medical providers in Karnes cannot meet the needs of the people they are intended to serve, then the people detained at Karnes have no option other than to endure. ICE’s inability to meet the medical needs of those it chooses to detain undercuts the integrity of every service it provides, medical or otherwise. Every human is entitled to quality medical care and that is only obtained through informed consent and language access. This is a burden ICE has placed upon themselves yet continually shirks.

DENTAL SERVICES “The dentist said that there was nothing they could do . . . The pain has been so grand that I have trouble eating.

I stopped eating for about two days because I couldn’t stand the pain.”

One client experienced pain so extreme from impacted wisdom teeth that it prevented her from eating. She underwent a dental screening when she first arrived that should have informed ICE/GEO of her condition, and she repeatedly sought care from the medical unit at Karnes, returning at least three times within her first week at the prison. Medical staff prescribed her ibuprofen and another unknown medication, which did nothing to relieve her pain. When she specifically inquired about tooth extraction, having gone days

64. ICE, supra note 60

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WOMEN’S DETENTION REPORT 2021 RAICES

without properly eating, Karnes medical staff told her that they would not be able to remove her teeth.

The care that this client needed was beyond what could be provided at Karnes, and ICE took no steps to ensure that she accessed that care elsewhere while she remained in ICE custody. Seven days after arriving at the prison, she was able to meet with a dentist. He told her they were unable to take out her wisdom teeth because they lacked the necessary equipment to do so and recommended she continue taking the pain medication prescribed and wash her mouth out with water. The client reported that every time she washed her mouth out, she would spit up blood.

The 2011 PBNDS states that Emergency Dental treatment will be provided for immediate relief of pain, trauma, and acute oral infection. However, a following provision states that: “Routine dental treatment may be provided to detainees in ICE custody for whom dental treatment is inaccessible for prolonged periods because of detention for over six months, including amalgam and composite restorations, prophylaxis, root canals, extractions, c rays, the repair and adjustment of prosthetic appliances and other procedures required to maintain the detainee’s health.” The use of may in the second provision demonstrates that there is no affirmative obligation to provide routine dental care, despite detention length of at least six months. It is further troubling that ICE lists treatments they may offer only when someone has experienced detention for over six months--this seems inconsistent with the earlier provision that states that routine dental treatments may be provided for relief of pain, trauma, and acute oral infection. It is unclear what level of pain,

trauma, or oral infection would be required to allow someone to access routine treatments.

CANCER “I am feeling very tired. I do not sleep well. I usually do not get to sleep until 2 a.m. Then we have to get up at 4 a.m. My arm is swollen so much that it is hard for me to dress and shower.”

In a screening at a border detention facility, a client was told she had high blood pressure and was transported to a nearby hospital for subsequent testing.

After an examination and several tests, she was told she had cancer in her uterus, in addition to high blood pressure. She was provided medication for her high blood pressure but told she would need to see an OB/ GYN for her cancer. A doctor stated she needed to be released so she could see a specialist. Her medical records were transferred to the ICE officer who had custody of her and she was returned to the border detention facility. This information was collected

by RAICES in September, two months after she was initially detained. At that time she had not yet been taken to a hospital nor examined by a doctor since her cancer diagnosis in July. This individual went to the medical center twice a day, every day, to take her blood pressure and pain medication until she was told there was no more blood pressure medication. She was not provided an explanation and was never asked about her stomach pain or her cancer diagnosis. As a non-Spanish and non-English speaker, she was unable to meaningfully communicate with medical staff. After speaking with an employee in the medical office who

65. Sarah Gardiner and Cynthia Galaz, Beyond Conditions: Immigration Detention is Psychological Torture, Freedom For Immigrations, Dec. 6, 2019, https://www.freedomforimmigrants.org/policy-updates/2019/12/6/beyond-conditions-immigration-detention-is-psychological-tortur 66. Angelina Chapin, “Women Are Being Denied Cancer Treatment, Psychiatric Help At ICE Detention Center,” HuffPost, Sept. 30, 2019, https://www.huffpost.com/entry/immigrant-women-denied-cancer-psychiatric-care-ice-detention-center_n_5d8d5880e4b0019647a5ebae

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spoke her native language, she described pain in her arms, back, and lower abdomen and was told she would be taken to a doctor. Two months later, there was still no follow-up. The pain and subsequent swelling in her arm made daily activities painful and difficult, such as sleeping, dressing, and showering. She reported getting only two hours of sleep a night.

P R E G N A NCY During this period, at least 23 pregnant women were detained in Karnes. On average, pregnant women were detained in Karnes for 32 days. Of these 23, eight were in their first trimester, seven in their second trimester, and one in her third trimester. The rest of the women did not report how far along they were. There is no on-site obstetrician available at Karnes. For more on pregnancy experiences at Karnes, see Black, Pregnant, and Detained.

M E N TA L H EA LTH As other advocates have noted, detention is psychological torture.65 In detention, people are dehumanized by being referred to by their bunk numbers and infantilized by being forced to wear sweatpant uniforms.

At least 1,200 women observed their birthdays while detained. Beyond this, people often have little to no access to information about the status of their cases, which can contribute greatly to anxiety. Additionally, people are woken up at frequent intervals throughout the night for so-called “safety checks.” These checks trigger fears of deportation as ICE regularly effectuates unannounced deportations by waking people and

removing them in the middle of the night. While these are a few of the compounding factors that can contribute to mental health difficulties in detention, they are only the tip of the iceberg.

Naturally, many women reported mental health illness worsening or developing for the first time while detained at Karnes, including suicidality.66 Women’s mental health conditions included PTSD, schizophrenia, depression, and anxiety, among others.

Many women additionally reported lack of appropriate mental healthcare when they sought assistance.

Lack of trust in services and lack of language access exacerbated these conditions. Many women reported that meeting with the counselors in detention did not help. Some women even shared that they requested medication for their mental health but were denied.

In particular, RAICES met with several women who were threatened with solitary confinement because they were crying or because they were perceived to be suicidal. GEO or ICE threatened to lock the women in solitary confinement if they did not stop crying. In some cases, women were locked in solitary confinement against their will because guards erroneously perceived them to have expressed suicidality. Unfortunately, locking suicidal people in solitary confinement without further care is a common practice in immigration prisons despite solitary confinement being a risk factor for suicide.67, 68 Multiple women commented to RAICES that this practice discouraged them from seeking mental health care out of fear of being locked in solitary confinement. It is of note that the use of

67. N/A, The Walls Are Closing In On Me, HALTsolitary Campaign, May, 2020, http://nycaic.org/wp-content/uploads/2020/05/ The-Walls-Are-Closing-In-On-Me_For-Distribution.pdf 68. N/A, What are the effects of solitary confinement on health?, Medical News Today, Aug. 6, 2020, https://www.medicalnewstoday. com/articles/solitary-confinement-effects

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solitary confinement is not an effective way of keeping suicidal people safe, as Karnes itself saw in 2020 when a father committed suicide when in solitary.69

It is common practice for ICE to transfer detained people from detention center to detention center, often with little warning or justification, effectively disrupting people’s ties to the community, legal advocates, and other resources.70 Unfortunately, time in detention was not limited to the Karnes prison for many women. By the end of September 2019, ICE began transferring women to various detention facilities throughout the country; those who were not transferred were either released or deported. RAICES often received no notice of where clients were transferred,

Transfer meant that women were separated from legal counsel at critical points in their cases with insufficient time to have final meetings with RAICES or receive documents related to their cases. This separation was further compounded by the remoteness of many detention centers, as mentioned above. Obtaining new legal counsel was not a realistic option for many. For more information on the women that were transferred to Adams County Correctional Center, see Stories From Natchez.

RAICES

WOMEN’S DETENTION REPORT 2021

T R AN S F ER S

although ICE has an obligation to report transfers to the attorney of record. Through RAICES’ staff efforts, some women were located, a large number of whom were transferred to Adams County Correctional Center in Natchez, Mississippi.

69. Hamed Aleaziz, An Immigrant Has Killed Himself In An ICE Family Detention Ctr., Buzzfeed News, Mar. 19, 2020, https://www. buzzfeednews.com/article/hamedaleaziz/immigrant-man-suicide-ice-detention 70. N/A, Locked Up Far Away: The Transfer of Immigrants to Remote Detention Ctrs. In The U.S., Human Rights Watch, Dec. 2, 2009, https://www.hrw.org/report/2009/12/02/locked-far-away/transfer-immigrants-remote-detention-centers-united-states

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PA RT V

R E C O M M E N DAT I O N S A N D ACTION ITEMS This report demonstrates that detention at Karnes produces inconsistent, inadequate, and discriminatory outcomes. ICE is either unwilling or unable to provide the minimum level of care required by its own standards. ICE is not equipped to provide meaningful access to counsel, even in the setting of Expedited Removal proceedings in which an attorney’s role is limited. These issues extend beyond the time period covered in this report and become evident in different ways with each change in the population that ICE detains at Karnes.

ICE must altogether end its use of Karnes as an immigrant detention facility, end the practice of imprisoning migrant families, and end the use of Expedited Removal.

ICE’s deficiencies are not due to a lack of funding or available expertise, but rather they are fundamental to the way in which the U.S. government approaches immigration policy.71 The conditions ICE subjects people to at detention facilities generally, and at Karnes in particular, cause life-altering harm, further compounded by the arbitrariness with which DHS decides who to imprison and who to leave free, even among people with the same type of case. The immigrant prison system is utterly unnecessary. Community-based alternatives to detention already exist and have been utilized for years, at far less human and financial cost.

RAICES believes in the abolition of ICE, CBP, and, ultimately, DHS. In the interim, the government must end the practice of Expedited Removal and Title 42 and end ALL detained immigration proceedings. Further, DHS must end contracts with private prison companies, such as the GEO Group.

RAICES recognizes that the fights to abolish ICE and the police are inherently intertwined. “...as we begin to turn our attention to immigrant populations, we find that the same racist policing that incarcerates Black people in America also affects Black immigrants, as well as immigrants of other ethnic backgrounds.”72

71. Hassan Kanu, Courts Are Beginning To Admit That Some Immigration Laws Are Racist, Reuters, Aug. 23, 2021, https://www. reuters.com/legal/litigation/courts-are-beginning-admit-that-some-immigration-laws-are-racist-2021-08-23/. See also Kavitha Surana, How Racial Profiling Goes Unchecked in Immigration Enforcement, Pro Publica, June 8, 2018. https://www.propublica. org/article/racial-profiling-ice-immigration-enforcement-pennsylvania 72. Tsion Gurmu, Rinku Sen & Sejal Zota, The Convergence of Movements to Abolish ICE and Defund the Police, Duke Law (2020).

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WOMEN’S DETENTION REPORT 2021

Advocates must fight for changes toward the end goal of abolition of these systems altogether, instead of compromising for reforms that in effect perpetuate these systems.73 Migrant detention is an extension of a larger carceral system that disappears people from society because of a perceived disposability, whether based on criminal records or immigration status, and so long as the system at large exists, families will be detained and separated. Furthermore, migrant liberation can only be achieved if there is also collective liberation-- like all humans, migrants live at the intersection of multiple identities. No one is disposable in this struggle-including those with criminal records.

RAICES also recommends that readers consider the ways the U.S. government can repair the harm caused by immigration prisons and the deportation complex beyond changing policy, while centering those impacted and their diverse visions of reparations. RAICES recognizes that changing policy, while preventing more people from being subjected to the same harm, does not repair the irreparable damage already wrought.

ACT IO N ITEMS

RAICES

Regardless of background, there are a variety of ways one can plug into the movement to end the imprisonment of migrants. People can volunteer, donate, spread the word, and more. The fight for abolition is not and should not be limited to those in the legal field.

RAICES recommends readers plug into their local community, as grassroots efforts for abolition already exist across the country. In order to find existing local efforts, social media can be a great place to start using search terms of local detention centers and/or cities and words like “shut down ___,” “abolition,” “close ___,” and “___ resistance” (___ = the name of a local detention center). To find nearby detention centers, see Free-

dom for Immigrants’ Detention Map. Additionally, one can look to search engines such as Immigration Law Help to find a list of immigration legal services organizations nearby based on either zip code or detention center. While not all legal services organizations engage in abolitionist advocacy, many do, especially those that offer removal defense services. For communities without existing spaces to link into, there are also larger coalitions that can inform the creation of a local chapter (such as Detention Watch Network). As always, it is critical to listen to and follow the lead of those most directly affected by the systems one aims to dismantle.

Particularly impactful financial contributions might go to mutual aid groups (such as Sueños Sin Fronteras) that help to invest in communities and provide support directly to incarcerated people through assistance like commissary funds or phone minutes. Bond and bail funds that directly contribute to getting people out of detention centers and prisons are another great place to direct financial capital. Any little bit helps, and that little bit can be amplified hugely when shared with one’s family, social connections, and larger community.

It is also advisable to make financial contributions a regular practice, integrated with one’s budget.

Beyond finances, people of any background can contribute to the struggle. The following is by no means an exhaustive list of how one can give one’s time. If impacted persons are looking for places to build community as well as take on these systems, they could reach out to groups like Detention Watch Network, or the Family Liberation and Abolitionist Network, and other organizing groups in their area but this is by no means the “only way” or the “right way” to participate. Advocates should continue to take cues from people impacted by these systems.

73. Mariama Kaba, Yes, We Literally Mean Defund the Police, New York Times, June 12, 2020. https://www.nytimes.com/2020/06/12/ opinion/sunday/floyd-abolish-defund-police.html; N/A, Reformist Reforms vs. Abolitionist Steps in Policing, Critical Resistance.

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FO R E VE RYONE

FOR TOPICAL EXPE RTS

•

•

• •

Involvement in advocacy campaigns (calling or emailing ICE and/or Congress, showing up to protests, spreading the word on social media and within one’s own circles, etc.)

Accompaniment at ICE check ins or Immigration Court Assist at community events with resources and/ or set up and take down (ex: at organizing events regarding specific calls to action, community support and/or connection events, Know Your Rights and other educational events, etc.)

FO R L E GA L P R OFES S ION A LS • • • • •

Volunteer with individual cases pro bono Volunteer with impact litigation cases pro bono Assist with legal research Assist with brief writing and/or editing also larger coalitions that can inform the creation of a local chapter (such as Detention Watch Network). As always, it is critical to listen to and follow the lead of those most directly affected by the systems one aims to dismantle.

FO R M U LTILIN G UA L P ER S ON S • •

Interpret telephonically or in person Translate documents

• •

Like medical or mental health professionals, experts on certain issues pertinent to detention and/or asylum can also offer their expertise with individual cases, impact litigation, and broader public advocacy efforts Topics can include country conditions, linguistics, public policy, organizing, politics, etc.

People with cultural competency regarding certain identities or experiences can also provide trainings to people working with that community

RAICES also recommends readers remain critical of how organizations represent themselves. In the non profit industrial complex, there is an inherent tension with the desire for abolition and the reality that service providers, if successful, will work themselves out of a job. Nonprofits ultimately make money off of the very communities and causes they serve. Some may have a vested interest in continuing to receive funding that they fear might disappear if abolitionists are successful. The immigration nonprofit industrial complex is also steeped in internalized white supremacy, white saviorism, and performative allyship that often coopts what it means to truly be an accomplice in this work. In order to plug into the abolitionist movement, one must remain aware and critical of this dynamic.

FO R M E D ICA L OR MEN TA L HEALT H P R O F E S S I ON A LS • •

•

Provide evaluations and letters of support on individual asylum claims and/or release requests Reach out to local groups about providing counseling to the immigrant community (if cultural competency for this) Consult with organizers, policy experts, and legal advocates

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A D D IT IO N A L R EA DIN G

• •

•

WOMEN’S DETENTION REPORT 2021

•

• •

• • • •

•

•

•

RAICES

•

The State of Black Immigrants - Black Alliance for Just Immigration More Reports from Black Alliance for Just Immigration Communities Not Cages-A Just Transition from Immigrant Detention Economies - Detention Watch Network DWN First Ten to Communities Not Cages - Detention Watch Network Violence and Violation: Medical Abuse of Immigrants Detained at the Irwin County Detention Center The U.S. Government Kidnapped My Son - RAICES Black, Pregnant, and Detained - RAICES Prison by Any Other Name - Southern Poverty Law Center Systemic Indifference: Dangerous & Substandard Medical Care in US Immigration Detention - Human Rights Watch Immigrant Detention is Psychological Torture: Strategies for Surviving in Our Fight for Freedom - Freedom for Immigrants Detained and Disappeared: Enforced Disappearances Perpetrated in Immigration Detention by the United States Decarceral Futures: Bridging Immigration and Prison Justice towards an Abolitionist Future The Convergence of Movements to Abolish ICE and Defund the Police

FURTHER READING ON THE HARMFULNESS OF CBP • Fatal Encounters With CBP Since 2010 - Southern Border Communities Coalition • Two Migrant Children Who Died In U.S. Custody Could’ve Been Saved, Says Doctor - NBC News • The Crises Of Children Dying In Custody At The Border, Explained - Vox • Inside The Cell Where a Sick 16-Year-Old Boy Died In Border Patrol Care - ProPublica

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•

US: FOIA Suit On Border Guards’ Rights Abuses Human Rights Watch “Kick Ass, Ask Questions Later”: A Border Patrol Whistleblower Speaks Out About Culture Of Abuse Against Migrants - The Intercept Whistleblowers Say CBP Knowingly Broke The Law As It Turned Back Asylum-Seekers - KPBS

GROUPS TO SUPPORT (BY NO MEANS AN E XH AUST IVE L IST ) • • • • • • •

Cameroon American Council Detention Watch Network Familia: Trans Queer Liberation Movement Family Liberation Abolitionist Network Haitian Bridge Alliance Sueños Sin Fronteras UndocuBlack Network