Six Things Congress Should do to Reform ICE

The draconian policies and practices of the Trump administration have increasingly put the US Immigration Customs Enforcement agency, commonly known as ICE, at the forefront of the national conversation. As more horrifying stories of abuse and neglect at the hands of ICE continue to come to light, a handful of policymakers have even called for action to “abolish” the agency. There is no doubt that a serious reform effort is needed, given reports of systematic problems including deceptive and overly aggressive enforcement tactics, detainee mistreatment, unaccounted for and rapid growth of inadequate detention facilities, and more recently, the separation of immigrant families.

However, simply eliminating the organization could just transfer these issues rather than address them. Instead, there are at least six concrete things Congress should do immediately to reform the organization and ensure that American immigration enforcement reflects our values as a nation.

Increase Effective Oversight

Every law enforcement agency needs oversight. Yet ICE lacks effective and transparent reporting and inspection measures that would remedy problems with their detention and enforcement actions. To make matters worse, the oversight mechanisms that have been in place in the past are being ignored by the Trump Administration.¹  Since early 2018, ICE has been required by Congress to report every in-custody death no later than 90 days after a detainee has died.² Yet, the agency regularly fails to comply with this Congressional requirement – in fact, it missed every single deadline in 2018.³ Even worse than the ones that were late, by the end of December 2018, some reports had still not been published at all.⁴

In addition to stymieing Congressional oversight, ICE’s internal inspection processes within its detention facilities are also woefully insufficient. The agency is required under the 2010 DHS Appropriations Act to cancel contracts with any detention facility that fails “two consecutive inspections.”⁵ Yet ICE has been lax with its inspections, primarily relying on internal inspectors to conduct what have been described as “sham assessments.” The agency has not failed a single facility since 2009.⁶ It is clear these internal inspections and self-reviews are insufficient to safeguard against abuses and rapidly deteriorating conditions that are abhorrently evident to anyone who picks up a newspaper. While the Office of Inspector General (OIG) is tasked with internal oversight of the agency, it lacks any power to require changes in practices or policies. And although OIG does submit semi-annual reports to Congress, these reports only provide broad overviews of issues within the agency. Similarly, the Office of Civil Rights and Civil Liberties and the Office of Professional Responsibility have oversight roles generally with DHS, including ICE, but also lack significant authority to implement much-needed policy changes within the agency.

Congress should require annual, comprehensive, public reporting of the agency’s activities pertaining to enforcement, detention, and personnel. These reports should provide a comprehensive understanding of all the cases regarding in-custody deaths and reported abuses during that year—the number of cases reported to the agency, all agency personnel involved, immediate and subsequent actions taken, and final resolutions. The complete report should also provide disclosures in other areas such as raids conducted, individuals arrested and/or detained (including citizens), contracts made with local law enforcement, detention facility populations, medical care access, and employee demographics.

Congress should also require both regular and unannounced independent inspections of detention facilities. Inspectors should work independent of the agency and report to Congress directly. Inspections should take place for any detention facility run or contracted by ICE, making note of any agency actions that would (or have the potential to) violate federal laws or agency policy or contribute to an unsafe or unhealthy environment. Each inspection should be followed with a detailed report to Congress on the inspectors’ findings and recommendations for remedial actions implemented by ICE itself, legislative mandates, or resources needed to address shortcomings and abuses. With the use of public reporting and independent inspections, Congress would not only increase the efficiency of their oversight measures, but can use the information to identify how to grow resources and empower existing oversight offices.

Congress should increase resources for existing oversight offices with jurisdiction over ICE. A lack of resources and empowerment within DHS oversight offices continues to hamstring accountability within ICE. As such, Congress should continue to prioritize increased appropriations for key offices within DHS that fulfill an oversight role for ICE, including the Office of the Inspector General, Office of Civil Rights and Civil Liberties, and the Office of Professional Responsibility.

Create Independent Ombudsmen for Detained Immigrants

Mistreatment of people and families detained in ICE detention facilities is pervasive, but actual documentation of scope and frequency of these acts is extremely hard to come by, in part because those in ICE custody lack avenues to report abuses. Theoretically, they can report mistreatment through ICE’s internal grievance program, but many forego this option in fear of retaliation. The agency is also not forthcoming with the number or types of grievances reported. For example, DHS regulations have required annual public reports of “all aggregated sexual abuse and assault data” since 2014, but the agency has never complied with these requirements.⁷ Without the use of time-intensive and piecemeal approaches such as FOIA requests, there is no way of knowing how the agency resolves reports of abuse or even the measures taken to use the information that is reported to improve its own policies and detention standards.

Congress should mandate that independent ombudsmen be available to all detained individuals and agency personnel. Such an addition would provide an accessible and anonymous way to address issues regarding arrests, treatment within detention facilities, unmet medical needs, and other concerns that might arise for those in custody—or for whistleblowers who witness abuses by colleagues. Ombudsmen should also provide Congress a quarterly report on their findings, with recommendations for remedial action.

Some states have successfully implemented similar programs in their correctional facilities.  Texas created the Office of Independent Ombudsmen (OIO) in 2007 to better safeguard the rights of children committed to the Texas Juvenile Justice Department (TJJD).⁸ Through this office, juveniles in state detention can either report their grievance to an OIO facility representative or they can submit their grievance anonymously in a locked grievance box. OIO operates independently from the TJJD and is overseen directly by the state legislature and governor. They release quarterly reports on data received from grievances and independent investigations, and these reforms have garnered positive results in the state. After seeing an increase in grievances filed, Texas has taken important steps to use these quarterly reports to improve the effectiveness of their department.⁹

Since implementing anonymous reporting, TJJD has seen a decrease in use of force, use of restraints, facility assaults, and even overall complaints. At the end of 2018, they reported an 89% decrease of complaints from 2017 and a 100% decrease of complaints related to staff conduct. The office was also able to identify a staffing shortage and potential areas within the department that could be affected if staffing numbers were not addressed in the future.¹⁰ Based on the success of the program, advocates have called for its expansion to the adult prison system in that state.¹¹

By enhancing complaint reporting mechanisms that operate independently of ICE and which have strong safeguards for anonymity, Congress can reduce blind spots in oversight and directly address the most pressing deficiencies within the agency.

Expand Safeguards for Citizens

ICE continues to arrest and, in a few of the most troubling cases, even deport American citizens. While the exact number of citizens ensnared in ICE enforcement is unknown, some reports estimate the agency has lodged detainers against roughly 20,000 US citizens over the last decade.¹² These detainers serve as an official request for local law enforcement to hold an individual in their custody for an additional 48 hours, while ICE assesses the individual’s immigration status. And if formally detained by the agency, citizens can find themselves left in an ICE facility for weeks or months before getting any relief, and in some cases, even forcibly deported from their home country. The legislative branch must establish greater safeguards to protect Americans from being swept up in ICE’s enforcement efforts.

Congress should mandate improvements to the databases ICE relies upon to determine citizenship. When a person detained by ICE claims US citizenship, the agency relies upon a network of databases, including ones operated by other DHS agencies, to determine the validity of their claim.¹³  These databases, however, often hold erroneous or incomplete information which is then relied upon to make citizenship determinations. In fact, agents are often advised to check multiple databases when determining a person’s status in the country.¹⁴ With aging systems, growing demand, and increased data complexity, the databases are only becoming even more unreliable.¹⁵ One class-action lawsuit, challenging ICE action against citizens, asserts the data systems on which ICE relies are inaccurate roughly 30% of the time.¹⁶

To deal with these egregious mistaken arrests and detainments of US citizens, Congress should require that controllers of any DHS data system used by ICE rely on the most accurate data and correct any conflicting information as quickly as possible. Audits of these data systems should be conducted on an annual basis to ensure optimal accuracy. The findings of these audits should be reported to Congress, including the rates of inaccuracy for each system, as well as steps being taken by the agencies to ensure erroneous or conflicting data is corrected before it leads to US citizens being held illegally by their own government.

Congress should also enforce speedy resolution of all citizenship claims. Current ICE policy states that once a detainee claims citizenship, the agency has no more than one business day to submit a memorandum to agency headquarters, assessing the claim and the likelihood of the individual’s citizenship. Headquarters must then make a final determination of US citizenship within one additional business day.¹⁷ Under these internal guidelines, all claims should, therefore, be resolved within 48 hours of detainment. However, in many instances, citizens are left in ICE detention for much longer and with little recourse.

Congress should mandate that ICE adhere to its own official policy and resolve questions of citizenship within 48 hours of a claim. Furthermore, while ICE is reconciling a citizenship claim, the individual should be released into one of ICE’s alternative to detention programs, unless there is clear evidence he or she poses a flight risk or public safety risk. These programs allow an individual to return home, while their cases are being adjudicated and would ensure that mistaken citizenship claims are resolved in the least disruptive way possible. Any claim which is not resolved within that timeframe should require a confidential report to Congress on a weekly basis until the matter is resolved. Such reports should include information on the detainee, why the claim was not resolved, and actions the agency is taking to resolve the claim. Congress should also require the agency to allow any detained individuals claiming citizenship to have access to an attorney in order to assist the individual in presenting documentation and information supporting his or her citizenship status.

Update Agency Standards and Make Them Enforceable

 ICE is also in dire need of updated policy standards to ensure their enforcement duties are conducted in a humane and responsible manner. Many of their current standards have not been updated in years, and most have no mechanisms for enforcement to ensure compliance.

Take the 2011 Performance-Based National Detention Standards (PBNDS), which outlines detention standards for the agency and are meant to protect both staff and those detained. Although the detention population has sharply risen from just over a daily average of 34,000 in 2016 to almost 45,000 in 2018, their policies have remained largely the same since 2011.¹⁸ The PBNDS still fails to address issues such as overcrowding and population limits or inconsistent standards across different detention facilities.

Even with existing policies set in place, many do not include any measures to ensure they are complied with. For instance, under the PBNDS, ICE must "adhere to a written zero-tolerance policy for sexual abuse or assault."¹⁹ They are also subject to the provisions of the Prison Rape Elimination Act, which was enacted in 2003 to protect individuals from sexual abuse within detention facilities.²⁰ Even with this policy measure set, many people have noted a chronic problem of sexual abuse in detention facilities. From 2010-2017, at least 1,224 complaints of sexual and physical abuse were filed with OIG and of these reported incidents 59% identified ICE personnel as the offender. With no compliance measures in place, violations of agency standards frequently go unaddressed. Many of the agency’s current policies in other areas such as worksite enforcement, US citizen detention, use of segregation, and parent/child separations also suffer from similarly infrequent updates.

Congress should thus mandate regular internal policy reviews and updated standards. These days, the manner in which ICE operates is continuously changing, and it is crucial for both our country’s security and full adherence to our values that the standards of the agency adapt to meet its evolving needs. All agency policies should be reviewed and/or updated by ICE’s Office of Policy at least every four years, taking into consideration any changes within the agency and needs for improvement. These policy updates should be published on the agency’s website regularly. Congress should also require that all policy standards contain directives for remedial action when policies are violated.

Improve Professionalism through Training and Leadership Development Opportunities

ICE currently has over 23,000 employees with nearly 7,000 serving in deportation and enforcement removal operations.²¹ With such a large workforce, the agency must implement measures that not only continue to reinforce the policies of the agency, but enhance the integrity and professionalism of their enforcement efforts as well.

Congress should require on-going personnel training, mandating that all agents and officers complete a minimum number of hours per year. Continuous, on-going training programs are the norm across other federal and state law enforcement agencies. Many state police departments require their officers to dedicate a minimum number of hours per year towards additional training in areas like use of force, civil and constitutional rights, cultural competency, threats in the work environment, and first aid.²² There’s no reason ICE shouldn’t improve trainings in these areas. Requiring these for ICE agents would increase professionalism, ensure greater adherence to the policies of ICE, and improve operational efficiency.

The availability of trainings, geared towards career growth and leadership development, can also be helpful in improving the professionalism and morale of the agency. In 2018, only 41% of employees surveyed felt rewarded and appreciated for their work efforts and a little over half felt they were adequately trained to do their job effectively. Nearly the same number of employees believed the agency’s overall leadership was effective in creating a motivating work environment, while promoting professional growth.²³  In a working environment where a significant number of agents are feeling devalued and overworked, and in a position with limited room for growth and opportunity, retaining quality immigration officers will continue to be a difficult task.

Congress should ensure that professional support and development programs be made available to ICE personnel, in order to sustain a professional workforce. Many federal government agencies like the Department of Justice (DOJ) have created leadership programs within their agencies for all levels of employees. Programs like the Leadership Excellence and Achievement Program and the Office of Justice Programs Fellows Program aim to develop the leadership qualities of DOJ personnel by providing opportunities such as on-the-job training, individual development plans, mentoring and networking opportunities, feedback assessments, and additional developmental coursework.²⁴

Developing and sustaining increased professionalism within the agency requires an investment of time and programming. And although DHS runs some leadership programs within the Department at large, none have been created specifically to ensure the development of ICE personnel.²⁵ Programs such as this should be supported to increase personnel retention, job satisfaction, and overall professionalism. Legislative efforts should also be made towards assessing current leadership practices, mentorship opportunities, and allocating resources geared towards officer support.

Prioritize Targeted Resources

Although ICE requested $8.8 billion for its fiscal year 2019 budget, the agency is still lacking in resources geared towards quality assurance within their daily operations.²⁶ This is especially seen in detention operations, where facilities are often failing to provide basic resources such as adequate medical care, language assistance, and hygienic supplies. With average daily detentions expected to rise as high as 52,000 this year, the situation will only worsen.²⁷ Rather than prioritizing resources, the agency’s current dragnet policies are growing detention populations rapidly. ICE has spent far past its appropriated funding levels for detention beds each year Trump has been in office.²⁸ This is due in part to ICE’s increased targeting of long term undocumented populations lacking criminal records or security threats. Rather than prioritizing resources, the agency’s current dragnet policies are growing detention populations rapidly.

This overreach is detrimentally impacting already thinly spread resources for detainees. In fiscal year 2018, the Enforcement and Removal Operations (ERO) sector of ICE, which oversees detention operations for the agency, requested just 3.6% its total operations budget for medical care resources to serve a population of almost 45,000.²⁹ The effects of such limited resources can already be seen. Between Trump’s first day in office and January 2019, 22 immigrants died while being held in ICE detention facilities.³⁰ If the same percentage is allocated to ERO for medical care in 2019, with an expected daily population increase of 8,000, medical resources will become even scarcer. This situation will likely be the case for other limited resources throughout the agency.

Congress should codify enforcement priorities to ensure ICE stays within appropriated detention capacities. ICE in recent years increasingly operates without clear enforcement priorities. More and more the agency targets those without serious criminal records or national security threats for detention and removal.³¹ This unstrategic approach to immigration enforcement only stretches already thin resources and is contributing to dramatic increases in detention populations.³² Congress should therefore codify the clear enforcement priorities implemented by the Obama administration in 2014, laying out clear priority tiers for enforcement with those with felony convictions, national security threats, or gang affiliation being highest. Doing so will balance effective immigration enforcement by ensuring clear threats are subject to removal, while also ensuring the agency does not simply expand detention capacity in disregard of funding allocations.

Congress should reallocate funds restricted to improving detention facility conditions. Reallocating funds would provide the agency with targeted resources to improve conditions and safeguards for detained immigrants, such as added language interpreters, medical staff, medical and hygienic supplies for detained individuals. Critically, policymakers should ensure that certain funds are not enabling increased detention capacity or allowing for the transfer of funds to enforcement operations. Instead, clear priorities should be set on for immigration enforcement by Congress and ICE should conduct its mission within those priorities to ensure they spend within appropriated levels. Congress should include explicit limitations on using these funds for any purpose that would expand detention or immigration enforcement capacity. The sole purpose of reallocated funding should be to address the lack of basic resources for those in ICE custody. And to ensure effective and proper utilization, funding for the resources should require annual expenditure reporting to Congress, specifically documenting how the funds were spent.  

Conclusion

The manner in which ICE is currently operating cannot continue. Yet simply eliminating an agency tasked to enforce our country’s laws will not resolve these systemic problems. Instead, Congress should act swiftly to improve oversight and transparency at the agency, while also providing more targeted support to improve the efficiency—and humanity—of its work. Taken together, these reform efforts could greatly improve conditions within ICE for both those who work there and everyone who comes into contact with the agency.