Think Immigration: A Small Window Into Immigration Detention: The Office of the Immigration Detention Ombudsman 2023 Annual Report

The U.S. facilities used to detain migrants for immigration violations are shrouded in secrecy. For example, a review of the current Immigration and Customs Enforcement (ICE) facilities page lists a total of 92 facilities. However, according to research by the Vera Institute of Justice, ICE excludes other sites at which they hold migrants in government custody from public reporting. In Customs and Border Protection (CBP) detention, immigration attorneys are never permitted to enter CBP facilities, even with the advent of asylum screenings in CBP custody. As such, the public is often left in the dark about what happens in these facilities. Recently, the Office of the Immigration Detention Ombudsman (OIDO) released their 2023 Annual Report to Congress providing some insights into their work, what they are finding, and what is in the pipeline for the agency.

Who Is OIDO?

OIDO is an oversight agency with a congressional mandate to provide for case management of individual complaints, complete inspections of facilities, and to provide for system-wide policy and standards recommendations. For example, in response to Congressional requests, OIDO did an analysis of the availability of menstrual hygiene products in detention. It found that while availability is not generally a concern, there was a limited variety of free products and that policies limiting access to these products should be reconsidered as detained individuals do not regularly misuse these products.

In addition to releasing this report detailing their work, OIDO also recently announced new permanent leadership in Ombudsman Michelle Brané, recent Executive Director for the Department of Homeland Security’s Family Reunification Taskforce.

What Did They Document?

A core part of OIDO’s work is to provide remedial relief to people in detention via complaints submitted to their agency. In 2023, the top three categories for complaints filed with OIDO are: problems with medical treatment, facility environment, and contact and communication. It is unsurprising that these are top three categories given the well-documented examples of detained people being denied basic care and living conditions while in custody. Some examples documented in the report include:

• A facility failed to provide a detained person with a diabetic diet. This person filed a complaint with OIDO and the case manager discovered that while the food service staff had a record that a diabetic diet was needed, they could not explain why it had not been provided. After a 3-month delay, the detained person received their first diabetic meal.
• A group of detained people went two weeks without clean clothing because of the lack of laundry service. Following an OIDO visit along with the facility staff, they identified the breakdown in communication which had led to the lack of laundry service.
• A detained person had been denied crutches despite having had their leg amputated. The lack of crutches meant this individual could not shower or perform daily tasks without the help of other detained people. The OIDO case manager tracked down the crutches, which had been ordered, but had been withheld by a facility nurse because of “security concerns.” The OIDO case manager escalated to facility leadership and secured the provision of the crutches.

Currently, OIDO has a regular presence in 137 ICE and CBP facilities. A complaint can be filed regardless of whether OIDO has a presence in the detained person’s location, and they can receive complaints from people who have since been released from custody or on their behalf.

What Is Coming in 2024

During a webinar covering the release of the Annual Report, OIDO shared that there are several forthcoming reports that may be of interest to immigration practitioners. These include:

• Solitary Confinement: Over a period of one month in 2023, OIDO conducted targeted observations of “special management units (SMUs)” at ICE immigration detention facilities routinely visited by case managers. ICE uses these units to impose solitary confinement on detained people. In December 2023, OIDO presented a report detailing its observations to ICE with more information on this project slated to become available later this year.
• Contracts: In 2023, OIDO reviewed facility contracts in four areas, including electronic tablets and medical staffing, medical credentialing, and training in ICE facilities. Given the reliance on private immigration detention in the U.S., contracts are a critical piece of accountability. The results of these reviews are also forthcoming.
• Tablets: OIDO also reviewed the use of advanced communication services (i.e. tablets) in facilities. They identified the lack of consistent policies and practices in the way they are offered and used in detention. Given the tablets serve as a tool to communicate with counsel and family, they can be a lifeline to people in detention. OIDO shared their initial factual findings with ICE and has undertaken the writing of a draft proposed detention standard to cover the use of tablets for ICE’s consideration.

AILA continues to recommend a reduction and phasing out of detention in immigration enforcement. Unfortunately, Congress also recently authorized funding for 41,500 average daily detention beds and the number of deaths in ICE custody is already double what it was last year. The reality is that detention continues to be part of our immigration system. An agency like OIDO, while not advancing the work of ending the use of detention, is in a unique position to step in on behalf of detained individuals who are being overlooked or abused while in custody.

AILA members joining in person for Annual Conference 2024 in Chicago should make sure to attend the OIDO panel scheduled for Thursday, June 13 at 8 a.m. for a conversation with the new Ombudsman and guest panelists.