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Conditions at the NWDC: COVID-19 and Health Standards

Graphic depicting fenced in yard at NWDC, with drawing of virus particles. Photo courtesy La Resistencia, logo created by Wan HD from Noun Project
Photo courtesy La Resistencia, logo by Wan HD from Noun Project

December 16, 2020

This report is part of a series regarding Human Rights Conditions at the Northwest Detention Center in Tacoma, Washington, based on ongoing research efforts and released to highlight initial findings in the urgent context of the COVID-19 pandemic.

Contents:

Introduction
Background, Methodology, & Human Rights Standards
Sanitation of Food & Laundry
Allegations of Medical Neglect
Use of Solitary Confinement
COVID-19 & Health Standards

← Previous section: Use of Solitary Confinement

COVID-19 and Health Standards at the Northwest Detention Center

Since 2017, the University of Washington Center for Human Rights (UWCHR) has conducted research on the human rights consequences of federal immigration enforcement in our state. As part of that work, we have examined conditions at the Northwest Detention Center[1] (NWDC) and human rights concerns related to other detention facilities across the state.[2] This research draws on the analysis of documents obtained under the Freedom of Information Act (FOIA) from the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP) and GEO Group; court documents; the records of state and local agencies that interface with the NWDC; as well as interviews with employees of relevant government agencies and advocates in the immigrant community.[3] It also draws on a partnership with faculty and law students at the University of Washington School of Law Immigration Clinic, who reviewed the legal issues involved in efforts to regulate health and safety at the NWDC. (See the appendix, “Missed Opportunities: State and Local Authority to Regulate the Northwest Detention Center”, for the full analysis.)

While we have yet to obtain answers to all our questions about the facility,[4] given the urgency of this topic in light of the COVID-19 pandemic, we have chosen to share some findings now in an effort to inform the public about health and safety issues at the NWDC. Specifically, this report is also intended to respond to a July 2020 request from Washington State Rep. Lillian Ortiz-Self, who asked UWCHR for information pertaining to conditions at the NWDC.

In this report, we emphasize three key findings:

  1. It is clear that there are endemic health and safety concerns at the Northwest Detention Center, although the full dimension of their gravity remains unknown due to a lack of transparency on the part of ICE and GEO.
  2. It is clear that DHS and ICE’s oversight mechanisms have failed to correct abuses.
  3. It is clear that local and state authorities have chosen not to exercise their regulatory authority to ensure the health and safety of all Washingtonians.

As a result, despite ample evidence of abuses at the facility, the privately-run NWDC operates with no meaningful oversight from the federal, state, or local governments. Unfortunately, we conclude that there is little reason to believe that is amenable to change.

Background

The Northwest Detention Center first opened on Tacoma’s tideflats in 2004, and expanded in 2006 and 2008; today, with a 1575-bed capacity, it is one of the largest immigration detention centers in the nation.[5] The facility is owned and operated by GEO Group under a contract for ICE which guarantees to pay GEO, at minimum, to incarcerate 800 people per night.[6] The NWDC exclusively holds people detained for ICE on suspected civil violations of immigration law.[7]

Health care services at the NWDC are provided by U.S. Public Health Service personnel employed by ICE Health Service Corps (IHSC), or subcontractors hired by IHSC, and governed by the standards established in the Performance Based National Detention Standards (PBNDS) 2011 (last revised in 2016).[8] As of December 1, 2020, ICE reports that the facility employs 58 medical/mental health personnel[9] in its clinic staffed 24 hours a day, 7 days a week;[10] its physical infrastructure includes six examination rooms, an urgent care room, and a Short Stay Unit with one double occupancy room and seven single occupancy rooms, four of which are equipped with negative pressure rooms for respiratory isolation.[11]

Despite the existence of this onsite medical clinic, however, the NWDC has been repeatedly accused of compromising the health and safety of those it detains.[12] In previous research reports, UWCHR has investigated charges of inadequate food and sanitation, finding frequent complaints of spoiled food and unclean laundry; and allegations of medical neglect, including denied or excessively delayed access to medical care and the mismanagement of mental health care.

UWCHR’s recent investigation into the use of solitary confinement further showed that the NWDC detains people longer, on average, in solitary confinement than any other dedicated ICE facility[13] in the nation, based on solitary placements reported to ICE, even while some long solitary placements may go unreported.

The facility has also experienced a significant, if under-reported, number of suicide attempts. UWCHR’s review of internal documents obtained through FOIA litigation revealed that from January 1, 2015 to September 1, 2019, ICE personnel notified headquarters of 23 suicide attempts at the NWDC, one of which resulted in the death of Amar Mergansana in November 2018. In addition, UWCHR researchers reviewed a log of all 911 calls placed at the facility during the same period and noted 9 additional calls for emergency aid for suicide attempts which were not reflected in ICE records, for unknown reasons.[14]

Many of these problems may ultimately have their root in a business model that prioritizes profit over human health. GEO’s Chief Financial Officer Brian Evans, on an August 6, 2020 earnings call with investors, reported that constricted access to health care during the pandemic had contributed to “favorable cost trends that resulted in better-than-expected financial performance.” When asked to explain, he responded, “Some of the areas that we saw cost savings were… some lower medical costs. As you’re aware, during the pandemic, there was at least a period where most hospitals shut down their elective procedures and they weren’t taking those types of appointments and so forth. So, that had some near—short-term beneficial impact on our facilities because our residents need those types of services as well. And those have been delayed or deferred, so that’s where we saw some of those savings.” In the same call, GEO leaders underscored their ongoing commitment to pursuing health care cost savings in future quarters.

COVID-19 concerns

Longstanding concerns about health conditions at the facility take on a greater urgency in light of the COVID-19 pandemic.

Across the country, ICE’s recommendations to prevent the spread of COVID-19 in immigrant detention have shifted over time. The agency began providing guidance to its facilities regarding COVID-19 in January 2020,[15] and issued its first set of Pandemic Response Requirements (PRR) in April, described as a set of minimum precautionary practices to be implemented consistently across all facilities. The agency touts the fact that these guidelines were developed in consultation with the U.S. Centers for Disease Control (CDC);[16] indeed, version 5.0 of the PRR, current as of this writing,[17] largely mirrors the CDC’s recommendations for jails and prisons.[18]

At the same time, concerns remain. First of all, both sets of guidelines—ICE’s and CDC’s—are based on the assumption that certain protections recommended for those outside carceral settings are not possible for those within jails and prisons. From a human rights point of view, this is a dangerously problematic assumption, for it naturalizes the “need” for civil detention of immigrants, despite the strong condemnation of such practices in international human rights law,[19] and further suggests that once detained, people have a less robust right to health than members of the general population. This contradicts the UN Standards of Rules for the Treatment of Prisoners, which stipulate that “prisoners should enjoy the same standards of health care that are available in the community, and should have access to necessary health-care services free of charge without discrimination on the grounds of their legal status.”[20]

Second, even if one takes adherence to the CDC’s standards for correctional facilities to be the arbiter of appropriate precautions, it is unclear whether ICE’s practices are truly in compliance with these standards; a growing number of journalists, immigrant justice organizations, and federal judges have argued that they are not. Below, we summarize five areas of concern at the NWDC in particular:

1)  Social distancing

In the absence of a vaccine or treatment for the novel coronavirus, social distancing is the primary public health tool available to reduce the virus’ spread. As a group of 19 medical, public health, and constitutional law experts wrote in an amicus brief presented to the Ninth Circuit Court of Appeals in a case involving the health of detained people at GEO Group’s Adelanto facility, “among experts, it is widely recognized that social distancing is the single most important measure—by far—to prevent the spread of the coronavirus.”[21] Yet at that facility and throughout ICE’s network, the ability to comply with social distancing guidelines is hampered by facilities’ physical infrastructure, much of which is unalterable, as people are detained in dorm-style “pods” with beds and tables typically bolted to the floors. In this context, social distancing is only possible if the population of facilities is dramatically reduced and steps are taken to limit the concentration of people inside.

ICE has, in fact, significantly reduced the number of people in detention through several mechanisms.[22] On March 18, 2020, in response to the pandemic, the agency adopted new guidance to reduce the overall number of arrests.[23] It has also complied with court orders to release people in specific cases involving medically vulnerable individuals, including at the NWDC,[24] and may have released others at its discretion.[25] While ICE refused to disclose the NWDC’s current population to UWCHR researchers, ICE claimed the facility was at 45% capacity in April,[26] and immigrant rights organizations recognize that it continues to operate with a population that appears significantly lower than historical averages. Despite this, detained people report that some pods at the NWDC have been vacated, but others continue to house detainees in close proximity to one another. “We are head to head,” one detained person reported of sleeping arrangements.[27] Others emphasize that throughout the day people are still required to congregate when exercising, using the bathrooms, accessing medical care, or attending immigration court proceedings.[28]

Furthermore, ICE has reportedly begun to loosen its restrictions on ongoing enforcement action,[29] suggesting that the NWDC and other facilities may begin to fill up again.

2)  Sanitation and masking

To limit transmission of the virus, CDC and ICE standards also mandate increased attention to sanitation inside detention facilities. Yet at the NWDC, detained people have reported that hand soap is not always promptly restocked,[30] forcing detained people to either purchase soap at their own expense from the facility commissary or go without. Others have complained that the increased use of industrial disinfectants in enclosed spaces without adequate ventilation or protection has caused rashes and symptoms of respiratory irritation for many.[31] Physicians for Human Rights[32] and Freedom for Immigrants have denounced this practice, the latter organization expressing “particular concern that use of toxic disinfectants could exacerbate risk of complications due to COVID-19 by increasing coughing and weakening the respiratory systems of those exposed.”[33] To make matters worse, one detained man reported that chemicals were sprayed directly into his eyes by an NWDC guard.[34]

Almost all cleaning at the facility is carried out by detained people themselves, some of whom report that exposure to the new disinfectants has caused them sickness but that they have no choice. Others report that due to the reduced population, fewer workers are available to clean, causing a greater workload and increased stress for each one—without increased compensation.[35]

CDC and ICE standards also recommend the wearing of masks, though the facility has been slow to implement mandatory mask use for staff outside the medical clinic. On April 6, ERO requested that officers who have contact with detainees in any area of the facility voluntarily wear masks.[36] On May 11, ICE headquarters reportedly informed ICE leadership in Seattle that GEO Corporate had agreed to implement a mandatory mask-wearing policy,[37] but it was not until October 16, 2020, that GEO issued a memorandum requiring all personnel to wear masks any time they interacted with others.[38] Well into the fall, detained people and their advocates continued to report that some GEO officers did not consistently wear face masks.[39]

Advocates report that the facility does provide disposable (single-use) masks to detained people, but requires them to reuse them for many days.[40]

3)  Facility transfers

For the first eight months of the pandemic, critics assailed ICE’s practice of shuttling detained people from one detention center to another, in overt defiance of CDC recommendations.[41] Outbreaks of COVID-19 affecting hundreds of detained people in Virginia were traced to this practice,[42] to which a federal judge eventually reacted by banning further transfers.[43] Finally, after internal documents leaked in early October showing that the agency itself recognized that its practice of transferring detained people between ICE facilities had caused outbreaks,[44] ICE committed to discontinuing internal transfers “except in certain circumstances” or when necessary for deportation purposes.[45]

An ICE spokesperson refused to share data with UWCHR about the number of transfers between the NWDC and other facilities, but a Reuters review of immigration court data noted a “May 6 transfer from New Mexico’s Otero County Processing Center, which at the time had 10 confirmed cases, to the Northwest Detention Center in Tacoma, Washington, which had no known cases until two weeks later on May 19.”

Community observers from the Yakima Immigrant Response Network (YIRN) have recorded declining numbers of NWDC-bound passengers arriving at Yakima Air Field since late 2019, even before the onset of the pandemic. Although a March 1 flight appeared to unload 133 passengers bound for the NWDC—the largest number since observations began in May 2019—from March 2 to December 1, only 23 incoming transfers have been noted by YIRN observers.[46]

Outgoing transfers also risk spreading the virus. In one early December case, a person transferred from NWDC to Arizona tested positive for COVID-19 upon arrival in Arizona. ICE personnel claimed he had been tested, and found negative, using an Abbott rapid test prior to departure from NWDC,[47] but some scientists have claimed such tests produce worrisome numbers of false negative results.[48] It is unclear whether this person was contagious for COVID-19 while at NWDC.

Unfortunately, however, ICE’s new rules have done nothing to stem the flow of people transferred into the facility from jails and prisons serving criminal justice systems. On average, Washington state’s Department of Corrections (DOC) transfers 16 people per month to NWDC.[49] According to data provided to UWCHR by the DOC, between Gov. Inslee’s declaration of a statewide state of emergency on February 29, 2020, and September 30, 51 people were transferred from DOC facilities to the NWDC. Seventeen of these came from Coyote Ridge Correctional Center, despite an outbreak there that sickened hundreds and claimed the lives of two people.[50] Unknown numbers have also arrived at the NWDC transferred from jails, federal prisons, and correctional facilities in other states. Indeed, in recent weeks, advocates reported that arrivals to NWDC from correctional facilities in Oregon and Idaho included those with confirmed cases of COVID-19.[51]

Advocates argue that the NWDC’s knowing acceptance of people who are confirmed positive for COVID-19 into the facility violates CDC standards.[52] On this point, the CDC’s guidelines read: “Where possible, put plans in place with other jurisdictions to prevent individuals with confirmed or suspected COVID-19 and their close contacts from being transferred between jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, release, or to prevent overcrowding.”[53] No such plan appears to have been made between the NWDC and the correctional facilities with which it does business.

4)  Testing

Since the earliest days of the pandemic, ICE has resisted offering widespread testing in its facilities. Under pressure to contain the virus, the agency has gradually moved from “screening” (via temperature and symptom checks) to testing all new arrivals into (some) ICE facilities,[54] but once inside, individuals within detention centers are still not able to access testing unless one of ICE’s medical providers recommends it.[55] The NWDC’s Clinical Director, Dr. Sheri Malakhova, explained in federal court that “clinicians… use their judgment in determining if a patient has signs and symptoms consistent with COVID-19.”[56] Some have objected to this practice, arguing that testing should be available for everyone exhibiting symptoms of COVID-19 “regardless of their age or health status,” as recommended by the Tacoma-Pierce County Department of Health[57]—in other words, advocates argue that requiring an additional clinical judgment creates an unnecessary barrier. Yet in court, ICE has defended denying tests to people who report symptoms by arguing that the detained individuals misrepresented their symptoms.[58]

It is unclear why ICE has resisted testing. CDC guidelines recommend that facilities “consider” broader screening of detained persons after positive cases are detected in a detention setting, but add, “Practical considerations for implementing a broader testing strategy should include the availability of resources and the ability to act on results of testing.”[59] Yet ICE does not appear to lack the resources:[60] NWDC personnel told the federal court they had the resources to move forward immediately with testing of all detainees and employees at the facility,[61] yet when asked by the judge why they had not done so, the agency’s attorney responded, “I am unaware of a reason at this time.”[62] The agency’s reluctance may therefore come from the perception that testing results could impede the pursuit of other agency priorities, as emails released through litigation regarding GEO’s Mesa Verde facility have revealed.[63] A federal judge in Northern California concluded that ICE and GEO had engaged in the “conscious avoidance of widespread testing for fear that positive tests would require them to take measures to protect the safety of detainees that they preferred not to take.”[64]

As regards the NWDC, on May 28, Judge James L. Robart issued an Order to Show Cause obligating the facility to test all detained persons who consented to the procedure, or show why they could not, within five days.[65] The facility complied, administering 450 tests,[66] but since then has returned to its previous practice of only testing those for whom staff authorize the measure.[67] Detained people have reported being refused testing, with NWDC personnel telling them “now is not a good time to ask about testing.”[68]

Public health experts continue to exhort the agency to institute broader testing. In the Journal of the American Medical Association, Erfani and colleagues report that since COVID-19 is spreading more rapidly in immigration detention centers than among the general population, “Strategies that have proven effective in other congregate facilities, such as mass asymptomatic testing and changes in dormitory-style housing, should be considered.”[69] In Emerging Infectious Diseases, health scientists from Seattle’s Fred Hutchinson Cancer Research Center warn that “Social distancing interventions need to occur in tandem with testing and contact tracing to minimize the burden of COVID-19.”[70]

5)  Transparency

In a recent article in The Lancet, two health scientists write, “The effectiveness and societal impact of quarantine and social distancing will depend on the credibility of public health authorities, political leaders, and institutions. It is important that policy makers maintain the public’s trust through use of evidence-based interventions and fully transparent, fact-based communication.”[71] Yet here, too, ICE’s approach has been lacking.

ICE does publish some information on its website about the spread of COVID-19 in its detention facilities. Nationally, the agency reports the overall number of people detained; the number of positive cases currently in custody; and the number of detained people who have been tested. It shares facility-specific information on the number of detained people currently in isolation or being monitored as confirmed cases; the number of COVID-19 deaths; and the cumulative total of positive cases per facility.

Yet this leaves out key elements necessary to understand the extent of the virus’ impact on detained immigrants and their communities. For example, outbreaks, by definition, are bounded in time and space, so it is important to know not only where people tested positive, but when; and to judge the extent of an outbreak, it is important to know not only how many positive cases were detected at a given facility, but how many people were tested. As researchers from the Vera Institute of Justice wrote in June, ICE’s “method of reporting makes it impossible to answer basic questions of critical public interest such as how many currently detained people have been tested nationally and per facility, how many people have been released to hospitals or the community, or how many people with positive cases have been deported.”[72]

Furthermore, ICE has refused to share information about testing regimens or test results administered to NWDC guards, arguing that they are employees of a private company, GEO, rather than the agency itself, and while it initially posted information on its website about infected ICE personnel on site, it has subsequently removed this information. This is particularly worrisome given that NWDC staff routinely travel back and forth between the prison and their homes and communities, and could therefore be a vector for the virus’ spread. At the NWDC, the media has reported 7 personnel have reportedly tested positive to date,[73] though it is not clear whether these were ICE or GEO staff. We were unable to corroborate this with either ICE or Tacoma-Pierce County Health Department, the latter of which claimed to have no knowledge of any positive tests among facility guards[74] although this directly contradicts sworn testimony in federal court.[75]

The lack of transparency surrounding COVID-19 at the NWDC appears to be characteristic of the facility’s care as a whole. When investigating allegations of medical neglect at the NWDC, UWCHR researchers noted repeated complaints about delayed or denied treatment and mismanagement of chronic conditions, including mental illness. In response to our report, an ICE spokesperson noted (correctly) that it is impossible to assess the quality of medical care received without a full review of patients’ medical histories, and suggested that we request copies of patients’ complete medical records, with their consent. In August, with authorization from 22 detained people concerned about COVID treatment, we filed FOIA requests for their medical records from ICE; four months later, we have only received the medical records for one of the 22 cases. This is the same process ICE expects detained people to go through to access their own medical records in order to make informed decisions regarding their health care.[76] A delay of this length reveals an unacceptable resistance to transparency on ICE’s part, and can only be addressed by a change in processes at the national level by ICE itself.

As a collection of infectious disease scholars warned in The Lancet, addressing COVID-19 in U.S. immigrant detention, “The combination of a captive population exposed to a highly infectious disease and substandard care has the potential to increase the incidence of infection and case-fatality rates among detained individuals, put the public at greater risk, and consume substantial medical and financial resources.”[77]

Oversight and regulation of the NWDC

In light of the increasing urgency of health concerns at the NWDC, many have called for inspections and investigations. Yet the facility is in fact already subject to a dizzying array of standards and certifications,[78] each of which requires periodic evaluation by a different body. These monitoring processes have multiplied over the years, yet UWCHR has seen no evidence they have produced improved conditions for individuals incarcerated at the NWDC. In the section below, we explain the many inspections, audits, and accreditations conducted regularly at the facility, and offer some insights as to why they fail to produce meaningful results.

The NWDC is subject to a proliferation of inspections and audits, including the following:

  • NWDC holds accreditation from the American Correctional Association (ACA), which requires a series of “series of reviews, evaluations, audits, and hearings,”[79] to ensure compliance with ACA standards. NWDC was initially accredited in 2006 and passed subsequent 3-year re-accreditations in 2009, 2012, 2015, and 2018, with a score of 100%.[80] The results, but not the internal reports, of these processes are public.
  • The National Commission on Correctional Health Care (NCCHC) has also certified health care provided at NWDC based on its own set of benchmarks.[81] Following a self-study and site visit in 2005, NWDC was found in compliance with NCCHC’s standards, and subsequently re-accredited in 2011.[82] These accreditation reports are not published.
  • The Nakamoto Group contracts with ICE’s Division of Custody Management to provide annual inspections of the NWDC; the most recent took place in May 2019.[83] Announced in advance, these inspections involve a review of facility records and three-day visit to the facility, during which time auditors complete a checklist and prepare a narrative to measure compliance with 39-42 indicators derived from the PBNDS 2011. Of 115 ICE facilities inspected in fiscal year 2019, eight were rated as deficient.[84]
  • Every three years, the US Department of Justice also sends auditors to visit the NWDC to monitor compliance with the National Standards to Prevent, Detect, and Respond to Prison Rape under the Prison Rape Elimination Act of 2003 (PREA).[85] In 2017, Nakamoto Group performed the NWDC’s PREA Audit.
  • ICE’s Office of Detention Oversight (ODO), located within ICE’s Office of Professional Responsibility (OPR), conducts inspections of all ICE detention facilities that hold people for longer than 72 hours every 3 years, on average.[86] Announced in advance, inspections involve teams of ODO personnel, supported by staff from a private consulting firm contracted by ICE for this purpose,[87] who review facility records, interview staff and detained people, and assess compliance with 16 core standards derived from the PBDNS. The most recent ODO audit of the NWDC took place in 2014 and was made public pursuant to a FOIA request.[88]
  • Since 2016, DHS’ Office of the Inspector General has conducted unannounced inspections of select ICE detention facilities. In 2019, the NWDC was one of four facilities inspected through this process,[89] which surfaced concerns about practices in segregation and the facility’s handling of grievances. DHS OIG findings are published and presented to ICE as recommendations for improvement.[90] In response to the OIG’s 2019 report, ICE committed to making changes at the NWDC, and to monitoring them through a new audit, called a Special Assessment Review (SAR), to be carried out before December 31, 2020. It is not clear who will conduct the SAR or if it has already occurred, though many follow-up audits are conducted by the Nakamoto Group.

In addition to regular facility audits, however, additional mechanisms exist that can be activated to ensure compliance with health and safety standards in detention. These include:

  • DHS’ OIG also investigates the efficiency and integrity of DHS components and publishes its findings. In fact, in 2018, one report examined the ineffectiveness of the above-named inspections processes themselves for ensuring health and safety in ICE detention.[91]
  • DHS’ Office for Civil Rights and Civil Liberties (CRCL) reviews and investigates civil rights and civil liberties complaints filed by the public about DHS operations, including detention. In recent years, CRCL has conducted investigations of civil rights complaints at numerous ICE detention facilities,[92] though not the NWDC. CRCL investigations are not typically made public[93] though some have been released through FOIA litigation,[94] and because the office has no enforcement power, ICE and its contractors are free to disregard its findings.[95]
  • In addition, according to the U.S. Government Accountability Office, “ICE uses various other oversight mechanisms, like Field Medical Coordinator (FMC) site visits and on-site Detention Service Managers (DSM), to assess compliance with detention standards in more detail. For example, FMC site visits and IHSC quality improvement audits look at the quality of medical care at facilities in relation to detention standards by reviewing medical care processes in more detail than the CMD inspections.”[96]

ICE also relies on centralized offices within the agency to review records from individual facilities and detect any deficiencies; these include the Medical Quality Management Unit (MQMU), which “evaluates and reviews the quality of health care delivery” in specific facilities,[97] and the Detention Monitoring Council, which with the ERO Custody Management Division, is responsible for reviewing data on segregation placements from individual facilities.[98] In response to concerns about compliance with COVID-19 protocols, ICE’s national leadership has announced plans to institute biweekly “spot checks” of facilities; though it is not clear what these consist of, facilities will reportedly be informed in writing of any deficiencies and required to submit a corrective action plan to ICE in response.[99]

Moreover, to ensure that ongoing concerns can be brought to light by detainees and their advocates, GEO, ICE, and DHS have set up several structures for the communication of complaints. For example:

Finally, Congress itself has oversight authority over ICE detention. Hearings in both the House and Senate have been held on this topic for years.[103] In 2019, the Committee on Oversight and Reform of the U.S. House of Representatives initiated an investigation of for-profit detention, visiting “nearly two dozen” facilities, including the center in Irwin, Georgia, where accusations of forced hysterectomies emerged in 2020; and “pressi[ing] for aggressive action” in repeated letters to DHS.[104] On September 20, 2020, the staff of the House Committee on Oversight and Reform and the Subcommittee on Civil Rights and Civil Liberties published a report detailing numerous cases in which they found detained people had died after receiving substandard medical care in ICE detention.[105] The report recommends “more robust oversight by the DHS Inspector General and the ICE Office of Professional Responsibility.”[106]

Members of Washington’s Congressional delegation have also expressed their grave concerns about conditions at the NWDC in repeated public letters. For example, Senators Patty Murray and Maria Cantwell and Reps. Adam Smith and Pramila Jayapal asserted that “a broader atmosphere of abuse and mistreatment exists at the NWDC” in a 2018 letter to the DHS Inspector General.[107] On May 12, 2020, Sens. Murray and Cantwell, as well as Reps. Smith, Jayapal, Heck, Kilmer, and Larsen sent a letter expressing their concerns about the potential spread of COVID-19 at the NWDC and urging more information about the precautions being taken there.[108] More recently, on December 3, 2020, Reps. Smith, Heck, Jayapal, Kilmer, and Smith were joined by Sens. Cantwell and Murray in a letter decrying insufficient action in response to previous investigations, and demanding another investigation.[109]

Reps. Jayapal and Smith are also sponsors of the Dignity for Detained Immigrants Act, first introduced in the House in the 2017-18 legislative session, to dramatically restrict the use of immigrant detention and impose new inspection and reporting requirements for remaining facilities.[110] At the same time, despite their leadership in pushing for change, both have joined the vast majority of their party in voting in support of increased funding packages for DHS.[111]

Given the proliferation of inspections and investigations, audits and certifications at the NWDC, coupled with the persistence of the same problems over time, instead of allocating more money or time to repeating failed processes, the question should be asked why such efforts have failed in the first place. UWCHR researchers’ review of DHS/ICE oversight mechanisms has surfaced at least four fatal flaws:

1) Incentives to overlook

Many—not all—of the facilities inspections are conducted by private corporations that have a commercial incentive to produce inspections that please ICE.[112] ICE employees themselves have described inspections by the Nakamoto Group as “useless” and “very, very, very difficult to fail.”[113] The tiny company, apparently run out of its founder’s home, has netted more than $55 million for its inspections of hundreds of detention facilities each year; critics allege its financial interest in continuing its relationship with ICE makes it eager to help the agency meet its announced goal of ensuring all facilities pass inspections.[114]

2) Inaccurate information

In addition to facility visits, most of which are announced in advance, inspections draw on data produced by the facilities themselves to illustrate their performance in key areas. Yet UWCHR reviews of this data show it is often deeply inaccurate. For example, our review of ICE and GEO records on the use of solitary confinement at the NWDC suggested numerous inconsistencies between GEO records, ICE records, and information presented in inspection reports; in at least one case, an individual whom ICE has acknowledged spent 20 days in solitary confinement at the NWDC did not appear in GEO or ICE logs, suggesting that some detentions in solitary are never recorded at all.[115]

As the above example illustrates, some of these inaccuracies may result from inter-institutional coordination issues, in turn facilitating blame-shifting between ICE and GEO. For example, UWCHR’s review of records of suicide attempts at the NWDC found that during the year covered by the Nakamoto Group’s most recent inspection, inspectors only noted the one suicide attempt that resulted in death (and was therefore publicly known) while ICE’s internal records, apparently overlooked by inspectors, documented 6 additional attempts,[116] and 911 calls placed at the facility during the same period included 9 others. UWCHR has not been able to ask ICE to explain these apparent discrepancies, because ICE has recently told us they will no longer answer our questions, but researchers who noted a similar problem at GEO’s Adelanto facility were told by ICE that GEO uses an unusually narrow definition of what constitues a suicide attempt, rather than the standard set by the CDC.[117]

3) Flawed responses to complaints

As a nod towards taking seriously the concerns expressed by detained people and facility critics, inspectors also typically review grievances filed within facilities and calls to complaint hotlines. Yet these mechanisms for voicing concern are so flawed as to discourage their use. UWCHR researchers reviewed almost 4000 pages of NWDC grievances, finding many went ignored and others handily dismissed as “not a grievance,” whereby GEO staff attributed grievances to ICE’s area of responsibility and ICE staff attributed them to GEO’s. The DHS OIG reported similar findings from its 2019 inspection of the facility.[118] At the NWDC, detained people and their advocates have reported that the grievance system not only fails to reliably generate responses, but exposes the person filing the complaint to possible retaliation. Indeed, several complaints about threats against those who filed complaints at the NWDC were reported to DHS’ CRCL, but these were apparently never referred for investigation.[119]

Given these repeated complaints about the grievance system, it is particularly disturbing to see the relative absence of grievances about COVID-19 precautions at the NWDC invoked in court to dismiss advocates’ complaints about facility safety.[120]

4) No consequence for failure

ICE’s PBNDS standards are guidelines, not laws; the agency says it expects facilities like the NWDC to adhere to these standards, but there is no legal requirement that they do so. When violations are identified, ICE independently decides what, if anything, to do in response.[121] In a systematic review of the inspections process, DHS OIG found that in most cases, no follow-up is undertaken to ensure that corrective actions were taken, or that they generated the desired response. In fact, the agency watchdog found that in a majority of facility inspection reports, inspectors repeatedly documented the same problems year after year:[122] as a result, “even well documented deficiencies that facilities commit to fixing routinely remain uncorrected for years”.[123]

In 2010, Congress attempted to remedy this by passing a law mandating that ICE not pay detention contractors who fail two successive inspections. Yet instead of leading to more accountability for failed inspections, the inspections process itself became a sham, in which facilities passed inspections easily despite documentation of egregious deficiencies.[124] Nine years later, a DHS OIG investigation found that ICE typically does not even attempt to apply financial penalties to contractors who fail to adhere to the terms of their contracts. “Instead of holding facilities accountable through financial penalties,” the OIG wrote, “ICE issued waivers to facilities with deficient conditions, seeking to exempt them from complying with certain standards.”[125]

As a result, there is little reason to believe that ICE’s extensive regime of inspections, audits, and reviews has improved conditions in detention: any calls for its expansion should be greeted with deep skepticism.

Prospcts for state and local oversight of the NWDC

Against this backdrop of woefully ineffective federal oversight, many in Washington state have asked whether state and local authorities might exercise a more meaningful role in ensuring adequate health and safety conditions at the NWDC. Indeed, this was among the questions posed to UWCHR by Rep. Ortiz-Self in requesting this report. To gauge the prospects for a real improvement in oversight through the involvement of local institutions, UWCHR researchers reviewed the efforts undertaken by state and local health agencies to date, interviewed staff from key offices, and collaborated with faculty and law students at the University of Washington School of Law Immigration Clinic to conduct an analysis of the statutory authority in question. (Please see the appendix to this report, “Missed Opportunities: State and Local Authority to Regulate the Northwest Detention Center”, to read the Clinic’s full legal reasoning on this point.)

We conclude that in Washington state, a number of government agencies could exercise regulatory oversight over health and safety conditions at the NWDC, but have historically chosen not to. During a state of emergency, in particular, the office of the Governor holds broad authority to take action to “preserve and maintain life, health, property or the public peace,”[126] and to control emergency management functions to “mitigate, prepare for, respond to, and recover from” emergencies beyond local control.[127] Governor Inslee has already successfully invoked these provisions to respond to COVID-19 in Washington state, prevailing in court against attempts to challenge this authority.[128]

However, the governor’s office has chosen not to exert any regulatory authority over the NWDC, believing it lacks the legal authority to do so. In an interview with UWCHR researchers, Alejandro Sanchez, Special Assistant to Governor Inslee, indicated that his office was closely following ICE and GEO’s efforts to draw down the facility population, promote social distancing within the facility and implement safety precautions, but that the governor’s office ultimately has taken NWDC personnel at their word about what happens inside the facility[129] because efforts to intervene directly in the functioning of the facility would likely trigger legal challenges. In particular, he noted, such challenges were probable if the state were to attempt to demand public health standards at NWDC that were more rigorous than those it implements in its own Department of Corrections facilities.[130] For this reason, the governor’s office has limited its action to facilitating collaboration between the Department of Health and NWDC, and monitoring specific cases of detained individuals at the facility.[131]

The role taken by the Tacoma-Pierce County Department of Health (TPCHD) is more puzzling. Like the governor’s office, the TPCHD has taken the position that it lacks any authority whatsoever to regulate the NWDC,[132] despite the fact that the agency defines its mission as to “protect and improve the health of all people and places in Pierce County” and defines its top priorities as including “equitable opportunities to health,” through—among many other things—controlling communicable diseases by investigating and limiting disease outbreaks.[133]

In fact, ICE grants more authority to local health departments like TPCHD than the TPCHD seems to want. For example, ICE’s PBNDS 2011—the set of standards that ICE mandates NWDC to follow—specifies that “facilities shall comply with current and future plans implemented by federal, state or local authorities addressing specific public health issues,”[134] affording space for local health authorities to shape a facility’s behavior. And ICE’s current Pandemic Response Requirements, Version 5.0, require “collaboration with local health departments in accordance with state and local laws and recommendations”—specifically recognizing a legitimate role for local health departments in setting standards that facilities must follow, even in cases where those standards are recommendations lacking the force of law.[135]

Despite this, however, TPCHD Director Anthony Chen denies any role for the department he leads: “Tacoma Pierce County Health Department has no jurisdiction over the Northwest Detention Center,” he recently told the News Tribune. “It’s a federal facility, their public health and their healthcare is managed by the National Public Health Service. They do consult with us. If there are cases, they let us know. […] They are doing what we feel is their job. They’ve got the procedures in place. They’re doing all the other things we’re expecting of businesses and hospitals and everyone else. I know that there’s a lot of suspicion about them, but from a public health standpoint, they seem to be doing what they need to do.”[136]

Similarly, TPCHD’s website rejects any role for the department in ensuring the safety of those detained in NWDC beyond consultation when approached by the NWDC: “Staff [at NWDC] consult with our disease control team when the center experiences a communicable disease concern. They are not required to do so.”[137]

Nigel Turner, Director of TPCHD’s Division of Communicable Disease and Emergency Preparedness, expanded on this point in an interview with UWCHR, insisting that TPCHD has no authority to investigate or demand information from the NWDC because it is a “federal facility,” akin to Joint Base Lewis-McChord (JBLM).[138] He further explained that although TPCHD’s website asserts that its “review of the facility’s infection control practices indicates they are following guidelines,” no substantive review has actually occurred; rather, the department reached this determination on the basis of information volunteered by the NWDC rather than any systematic collection or analysis of data. Nor is it clear which guidelines TPCHD is affirming that the NWDC follows; ICE’s standards afford the TPCHD the opportunity to set guidelines the facility would be obligated to follow, yet the TPCHD apparently renounces this standard-setting role for itself.

In the same conversation, Jeni Nybo, an epidemiologist nurse in the TPCHD department of Communicable Diseases, further explained that the health of the people detained in the facility was not the responsibility of Tacoma-Pierce County Health Department because those detained are not residents of Pierce County.[139]

When asked how the agency would determine whether reported cases among GEO and/or ICE staff constitute an outbreak at the facility, Nybo said that an outbreak relied on the existence of an epidemiological link between the cases, but that because the TPCHD does not conduct contact tracing at the NWDC, it would therefore not know if an outbreak had occurred there. In a follow-up email asking who conducts contact tracing for positive cases among NWDC personnel, Turner responded that “GEO Group investigates cases and conducts contact tracing of GEO staff. This information is then communicated to ICE/IHSC so that ICE can conduct testing and contact tracing for detainees and IHSC staff. This information was provided to me by Melissa Nitsch [of ICE], please connect with her if you need further clarification.”[140] (Melissa Nitsch, in turn, refused to answer any further questions, referring UWCHR to the information on ICE’s website.)

Yet in sworn testimony on October 22, Drew Bostock, ICE Officer in Charge at the NWDC, told the court that GEO had learned of a guard’s positive test result from county health officials the day before[141]. Similarly, in a December 7 declaration before the court, Bostock reported that consulted with TPCHD regarding the recent positive test of a man transferred out of the NWDC.[142] It is unclear why TPCHD officials describe themselves as largely uninvolved in the process of handling COVID-19 concerns when ICE describes them as active partners.

Conclusion

Despite repeated expressions of concern from detained people,[143] the general public,[144] locally elected officials,[145] Governor Inslee,[146] and members of Washington’s Congressional delegation,[147] the NWDC continues to operate today without meaningful oversight. In reacting to reports of hunger strikes, suicides, and allegations of abuse and neglect at the facility, many have called for investigations of the facility. But in fact, for years the facility has been subjected to a system of regular inspections, certifications, and audits by an array of federal agencies, private contractors, and professional associations. While these audits vary in regularity and rigor, and some have undoubtedly produced useful information, they have failed to generate the changes that are necessary to ensure the rights of people detained at the NWDC.

In the context of the current pandemic, leaders could do considerably more to protect the health and safety of those Washingtonians detained or employed at the NWDC. To be sure, complex legal doctrines govern the relationship between state and local actors and privately-run businesses operating under contract for the federal government; it is not unreasonable for elected officials to consider legal challenges to actions they might take in the interest of public health and safety at the NWDC. But fear of litigation should not excuse inaction when lives are at risk, particularly given the broad authority granted our institutions under state law—and the success California has shown in defending its similar actions against challenges in court.[148]

What should Washington state do?

We must acknowledge the urgency of the threats to health and safety reported by detained people and their advocates at the facility, and commit to taking decisive action, rather than demanding further federal investigations with limited prospects of producing change, or again proposing federal legislation with little possibilities of passage. Detained people need safety now.

We must stop entrusting ICE, a federal agency that has repeatedly lied to courts,[149] Congress,[150] and the public,[151] and its private business partners who don’t even respond to inquiries from our elected officials,[152] to ensure the adequacy of conditions within its own facilities. If Washington state needs further information to guide action, our authorities should demand access to the facility and its records and conduct an investigation themselves, assisted by independent professionals with expertise in this area. Washington could conduct its own systematic investigation of facilities in our state, though we should be prepared for the same resistance encountered in California from ICE and its contractors.[153] Ultimately, however, we should ask ourselves what further information we truly need, and what decisions we are prepared to make on the basis of that information once obtained, to ensure that further research does not substitute for action.

 

 

Notes

[1] In 2019, GEO and ICE began referring to the facility as the Northwest ICE Processing Center (NWIPC), and/or the Tacoma ICE Processing Center. To avoid confusion, we refer here to the facility under the name it has been most consistently called.

[2] We have published three previous reports on human rights conditions at the NWDC; all are available here. We have also published reports on ICE’s detention of migrant youth at the juvenile jail in Cowlitz County, Washington, and Pierce County’s differential treatment of migrants receiving ICE detainers.

[3] These include formerly detained individuals, immigrant rights advocates, employees of state and local agencies with direct knowledge of NWDC operations. Our requests for interviews with representatives of ICE and GEO have been declined, although we did obtain written answers to some questions posed to ICE spokesperson Melissa Nitsch.

[4] As of this writing, the UWCHR has 31 outstanding FOIA requests for information regarding the NWDC, the oldest of which was filed in December 2018; two have yet to receive a tracking number, despite being filed over 20 business days ago, the period during which the agency is statutorily obligated to respond. (This is not counting other requests currently in litigation.)

[5] Sara Bernard, “Tacoma Takes a Harder Line Against Immigrant Detention. Too Little, Too Late, Say Activists,” Seattle Weekly, May 11, 2017.

[6] Known as a “bed quota,” this means that when the actual population of the facility dips below 800—as it has in recent months—GEO will continue to receive payment for occupancy at the 800 person per night level. For more on this practice, which is common but not universal in ICE facilities across the country, see Detention Watch Network and the Center for Constitutional Rights, Banking on Detention: Local Lockup Quotas and the Immigration Dragnet, 2015.

[7] ICE only has authority to hold people for civil (also known as administrative) violations of immigration law: while some individuals at the NWDC may have been convicted of crimes in the past, they served any resulting sentence in jails or prisons, not in immigration detention. Relatedly, some violations of immigration law have been criminalized by federal statute, including 8 U.S. Code § 1325 “Improper entry by alien,” and 8 U.S. Code § 1326 “Reentry of removed aliens.” Individuals convicted of these offenses serve their sentences in federal prison, not the NWDC; they are typically then sent to the NWDC for additional civil detention after completion of their criminal sentence.

[8] These standards, in turn, were based on the American Correctional Association (ACA) pre-trial detention standards for jails and prisons; they incorporate many practices from the criminal justice system which many view as unnecessarily restrictive for civil detention, and insufficiently protective of the distinct threats to civil rights that arise in the immigration system, given its relatively fewer procedural guarantees. See Mark Noferi (2014), “Making Civil Immigration Detention ‘Civil,’ and Examining the Emerging U.S. Civil Detention Paradigm,” Journal of Civil Rights and Economic Development 27(3): 533-585.

[9] This number seems to fluctuate quite a bit. The figure is drawn from ICE’s Authorized Dedicated Facility List posted on ICE’s website at: https://www.ice.gov/facility-inspections; in March, ICE reported 36 medical/mental health personnel employed at NWDC.

[10] Although ICE reports that the clinic is staffed on weekends, detained people insist no medical attention is available on weekends, stating “you’re only allowed to get sick between Monday and Friday.” (Conversation between Angelina Godoy and La Resistencia, December 7, 2020.)

[11] U.S. Department of Homeland Security Immigration and Customs Enforcement Office of Detention Oversight Compliance Inspection. Enforcement and Removal Operations, Seattle Field Office, Northwest Detention Center. June 24-26, 2014.

[12] See for example: Pilar Marrero, “Sin tratamiento tras ser diagnosticado con cáncer,” La Opinión, April 21, 2016; Ansel Herz, “Fighting Cancer and Deportation at the Same Time”, The Stranger, February 24, 2016; Ansel Herz, “Angel Padilla, Still Fighting Cancer and Deportation, Is Now Eligible for Release from Tacoma Detention Center”, The Stranger, April 21, 2016; Melissa Hellmann, “Incarcerated and Infirmed: How Northwest Detention Center Is Failing Sick Inmates”, Seattle Weekly, October 10, 2018; Lilly Fowler, “New details of a death at Tacoma ICE facility raise questions over care,” Crosscut December 3, 2020.

[13] Dedicated ICE facilities are facilities that house only ICE detainees. They include both privately and publicly owned and run detention centers.

[14] These additional calls were noted on CAD Logs provided by South Sound 911 to the UW Center for Human Rights for the period from January 1, 2015 to September 1, 2019. Because we lack any information about how the calls were resolved, it is possible they were false alarms, or that GEO/ICE personnel chose not to report them to their superiors for legitimate reasons.

[15] DHS Office of the Inspector General, “Early Experiences with COVID-19 in ICE Detention,” p. 14.

[16] See, for example, the sworn declaration of Drew Bostock, Officer in Charge of ICE Enforcement and Removal Operations in the Seattle Field Office, submitted to federal court as part of Castañeda Juarez v. Asher, available here.

[17] U.S. Immigration and Customs Enforcement Enforcement and Removal Operations (ICE ERO), COVID-19 Pandemic Response Requirements Version 5.0 October 27, 2020, downloadable from https://www.ice.gov/coronavirus/prr.

[18] See Centers for Disease Control, “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities,” published October 21, 2020.

[19] Under international human rights law, civil detention should be a measure of last resort, rather than a routine practice of border enforcement. (See UN Working Group on Arbitrary Detention (UNWGAD), Country report visit to the United States of America, A/HRC/36/37/Add.2, ¶ 21) In addition, the United Nations Standards of Rules for the Treatment of Prisoners, also known as the “Nelson Mandela Rules,” raise concerns about such elements as the use of solitary confinement, particularly for prolonged periods. (See The United Nations Standards of rules for the treatment of prisoners (“Nelson Mandela Rules”). Rule 24, paragraph 1).

[20] Ibid.

[21] See, for example, Brief of Nikolas Bowie, Erwin Chemerinsky, Michael Dorf, Leah Litman, Pamela S. Karlan, Amanda Shanor, David Strauss, Laurence H. Tribe, Stephen I. Vladeck, Ten Experts in Medicine and Public Health, and Physicians for Human Rights as Amici Curiae in Opposition to Defendants-Appellant’s Motion for a Stay, Kelvin Hernandez Roman v. Wolf, No. 20-55436 (9th Cir. Apr. 29, 2020) downloadable here.

[22] For example, a study published in the Journal of the American Medical Association found that from February to August ICE reduced the overall population of its detention centers by 45%. Parsa Erfani, Nishant Uppal, and Caroline H. Lee, “COVID-19 Testing and Cases in Immigration Detention Centers, April-August 2020.” JAMA. Published online October 29, 2020. doi:10.1001/jama.2020.21473

[23] Declaration of Drew H. Bostock, Case No. 20-cv-700-JLR-MLP, May 20, 2020, downloadable here.

[24] See, for example, this April court order mandating the release of a medically vulnerable man detained at the NWDC.

[25] In a Congressional briefing in April, for example, ICE claimed to have released 16 people from the Northwest Detention Center, but the specific circumstances triggering their release have not been made public. ICE declined to provide information to UWCHR about this. See Representative Smith, Senator Murray, Members of Washington State Delegation Push for More Information on COVID-19 Relief Efforts at Northwest Detention Center, May 12, 2020.

[26] Ibid.

[27] La Resistencia, video April 8, 2020: https://www.facebook.com/671796032881280/videos/2494729964175832.

[28] See, for example, Petitioners’ Reply in Support of a Motion for a Temporary Restraining Order, Castañeda Juarez v. Asher ,Case No. 20-cv-700-JLR-MLP (W.D. Wa. May 20, 2020), downloadable here.

[29] Andrea Castillo, “As coronavirus cases surge again, ICE leaders push to detain more immigrants,” Los Angeles Times, November 23, 2020.

[30] La Resistencia, video April 8, 2020: https://www.facebook.com/671796032881280/videos/2494729964175832

[31] See, for example, this video shared by La Resistencia on July 7, in which a detained woman who works as a cleaner in the facility reports irritation as a result of the chemicals, or this video from July 11 about the same problems.

[32] Blecher et al., “In COVID-19 Response, ICE May be Misusing a Common Disinfectant in Detention Facilities,” August 10, 2020.

[33] Freedom for Immigrants, “COVID-19 in ICE Jails & Prisons,” June 18, 2020.

[34] See testimony shared by La Resistencia at https://www.facebook.com/watch/?v=371104914091958, September 28, 2020.

[35] Conversation between Angelina Godoy and La Resistencia, December 7, 2020.

[36] Declaration of Drew H. Bostock, Castañeda Juarez v. Asher, Case No. 20-cv-700-JLR-MLP (W.D. Wa. May 20, 2020), downloadable here.

[37] Ibid.

[38] Declaration of Drew H. Bostock, c, Case No. 20-cv-700-JLR-MLP (W.D. Wa. Oct. 22, 2020), downloadable here.

[39] La Resistencia, August 6, 2020: https://www.facebook.com/671796032881280/videos/2664061343868085.

[40] Conversation between Angelina Godoy and La Resistencia, December 7, 2020

[41] Yeganeh Torbati, Dara Lind and Jack Gillum, “In a 10-Day Span, ICE Flew This Detainee Across the Country — Nine Times,” ProPublica, March 27, 2020; Lisa Riordan Seville and Hannah Rappleye, “ICE keeps transferring detainees around the country, leading to COVID-19 outbreaks,” NBC News, May 31, 2020.

[42] Antonio Olivo and Nick Miroff, “ICE flew detainees to Virginia so the planes could transport agents to D.C. protests. A huge coronavirus outbreak followed,” Washington Post, September 11, 2020; Sabrina Moreno, “Farmville’s ICE Facility Accepted 74 Transfers in June. It Became the Largest COVID-19 Outbreak in an Immigrant Detention Center,” Richmond Times-Dispatch, August 11, 2020.

[43] Antonio Olivo, “Judge orders ICE to stop transfers into Virginia facility hit hard by coronavirus,” Washington Post August 11, 2020.

[44] Hamed Aleaziz, “Federal Officials Now Say that Transferring Detainees Between Jails Holding Immigrants Contributed to Coronavirus Outbreaks,” Buzzfeed News, October 6, 2020

[45] See U.S. Immigration and Customs Enforcement Enforcement and Removal Operations (ICE ERO), COVID-19 Pandemic Response Requirements Version 5.0 October 27, 2020, downloadable from https://www.ice.gov/coronavirus/prr.

[46] These numbers are also consistent with data from ICE’s ARTS database, received by UWCHR via FOIA.

[47] Supplemental declaration of Drew H. Bostock, Case No. 20-cv-700-JLR-MLP (W.D. Wa., Dec. 7, 2020), on file with author.

[48] See, for example, Atreyee Basu et al.,(2020). “Performance of Abbott ID Now COVID-19 Rapid Nucleic Acid Amplification Test Using Nasopharyngeal Swabs Transported in Viral Transport Media and Dry Nasal Swabs in a New York City Academic Institution.” Journal of Clinical Microbiology, 58(8), e01136-20. https://doi.org/10.1128/JCM.01136-20

[49] Calculated using data for the past year (June 2019-May 2020) for which data was made available to the UWCHR by the Washington Department of Corrections.

[50] Mike Reicher and Joseph O’ Sullivan, “Report: Washington prisons officials botched response to COVID-19 outbreak at Coyote Ridge Corrections Center,Seattle Times, November 30, 2020.

[51] La Resistencia, November 12, 2020: https://www.instagram.com/p/CHg5vGopeyL/?igshid=13fn4ebmyr73x

[52]See, for example, Petitioners’ Reply in Support of Motion for a Temporary Restraining Order (Dkt #68), Castañeda v. Asher, Case No. 20-cv-700-JLR-MLP, May 20, 2020, available here.

[53] See Centers for Disease Control, “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities,” published October 21, 2020.

[54] ICE states that this is its policy in all cases, yet some lawyers have reported their clients were not tested at intake. For example, see https://twitter.com/matthewhoppock/status/1331177299203469313?s=21. NWDC personnel declared in federal court that as of June 4, 2020, all consenting individuals arriving to be detained at the NWDC would begin to be tested at intake; ICE spokesperson Melissa Nitsch affirmed to UWCHR that this is indeed happening, and UWCHR is not aware of any claims to the contrary.

[55] In a small number of cases nationwide, federal courts have ordered the testing of detainees in specific facilities, but this remains unusual. The NWDC was subject to such an order in early June. See, for example, ACLU of Northern California, “Judge Orders ICE to Provide COVID-19 Testing to Detained Immigrants After Emails Reveal ICE’s Refusal to Test People in their Care,” August 6, 2020.

[56]Quoted in Order to Show Cause, Dkt #78, Castañeda v. Asher, Case No. 20-cv-700-JLR-MLP, May 28, 2020, available here.

[57] See Reply in Support of Motion for a Temporary Restraining Order, Dkt# 68, Castañeda v. Asher, Case No. 20-cv-700-JLR-MLP, May 20, 2020, available here. The specific Tacoma-Pierce County Department of Health recommendation quoted is from the agency’s website here (COVID-19 FAQ, accessed December 5, 2020).

[58] See, for example, Supplemental Declaration of Dr. Sheri Malakhova in Case No. C20-0409-JLR-MAT, Dawson v. Asher, April 6, 2020, available here.

[59] ICE cites this language from the CDC directly in its own guidelines on p. 34. See U.S. Immigration and Customs Enforcement Enforcement and Removal Operations (ICE ERO), COVID-19 Pandemic Response Requirements Version 5.0 October 27, 2020, downloadable from https://www.ice.gov/coronavirus/prr, p. 34.

[60] In other states, the agency has refused testing even in cases where the cost of the tests was to be borne by state officials rather than ICE. In New Mexico, for example, the state’s Department of Health officials offered to provide tests at state expense for all those detained at ICE’s Otero facility and were rebuffed. See Patrick Michels and Laura Morel. “‘We sent 500 tests. They don’t answer calls’: Inside ICE’s coronavirus testing disaster,” Reveal, September 10, 2020.

[61] Case No. C20-700-JLR-MLP, Order to Show Cause, May 28, 2020, downloadable here.

[62] Ibid p. 5.

[63] Andrea Castillo, “ICE deliberately limited testing at Bakersfield immigration facility with COVID-19 outbreak,” Los Angeles Times, August 6, 2020.

[64] See Zepeda Rivas v. Jennings, Case No. 20-cv-02731-VC, Order Granting Motion for Second Preliminary Injunction, December 3, 2020.

[65] Case No. 20-cv-700-JLR-MLP, Order to Show Cause, May 28, 2020, downloadable here.

[66] Nina Shapiro, “All but one coronavirus test at Northwest detention center come back negative.” Seattle Times, June 8, 2020.

[67] See Case No. 20-cv-700-JLR-MLP, Government’s Return Memorandum and Motion to Dismiss the Petition (dkt#102), 20-700-102, downloadable here.

[68] See, for example, this first-person account by a man detained within NWDC, shared with La Resistencia on October 27, 2020: https://www.facebook.com/LaResistenciaNW/videos/672357550087226/

[69] Parsa Erfani, Nishant Uppal, and Caroline H. Lee, “COVID-19 Testing and Cases in Immigration Detention Centers, April-August 2020,” JAMA. Published online October 29, 2020. doi:10.1001/jama.2020.21473

[70] Laura Matrajt and Tiffany Leung (2020). Evaluating the Effectiveness of Social Distancing Interventions to Delay or Flatten the Epidemic Curve of Coronavirus Disease. Emerging infectious diseases, 26(8), 1740–1748. https://doi.org/10.3201/eid2608.201093

[71] Joseph A. Lewnard and Nathan C. Lo. (2020). Scientific and ethical basis for social-distancing interventions against COVID-19. The Lancet. Infectious diseases, 20(6), 631–633. https://doi.org/10.1016/S1473-3099(20)30190-0

[72] For all of these reasons, Vera researchers predict that actual rates of COVID-19 in ICE detention may be 15 times higher than the agency has reported publicly. See Dennis Kuo, et al. “The Hidden Curve: Estimating the Spread of COVID-19 Among People in ICE Detention.” Vera Institute of Justice, June 2020.

[73] Lilly Fowler, “New details of a death at Tacoma ICE facility raise questions over care,” Crosscut, December 3, 2020; see also Esmy Jiménez, “3 staff test positive for COVID-19 at Tacoma’s immigrant detention center,” KUOW, October 26, 2020.

[74] Interview with Nigel Turner, Director, Division of Communicable Diseases, and Jeni Nybo, epidemiologist, both from Tacoma-Pierce County Department of Health, November 10, 2020.

[75] See Declaration of Drew H. Bostock, in which he affirms that the county health department informed GEO of the positive test results, Case No. 20-cv-700-JLR-MLP, October 22, 2020, downloadable here.

[76] Chapter 4.3. Section BB of the PBNDS 2011 stipulates that detainees can obtain access to their medical records by filing a request (see PBNDS p. 277) and ICE spokesperson Melissa Nitsch affirmed, in a April 16, 2020 email to Angelina Godoy, that this was a “very straightforward” process.

[77] Jaimie P Meyer, et. al “COVID-19 and the Coming Epidemic in US Immigration Detention Centers,The Lancet Infectious Diseases 20(6): 646-648

[78] In this regard, NWDC’s record is considerably better than that of the majority of ICE facilities. Detention Watch Network and the National Immigrant Justice Center reported in 2018 that “in an astounding 40 percent of known detention facilities… the only inspections conducted are performed by ICE field office or facility staff in a so-called ‘Organizational Review Self-Assessment’ that includes no independent monitoring or review.” Detention Watch Network and National Immigrant Justice Center, “ICE Lies: Public Deception, Private Profit,” February 2018, p. 6.

[79] See “FAQ: What is accreditation?” on the ACA website here.

[80] See “Our Locations: Northwest ICE Processing Center” on Geo Group’s website.

[81] For more on this accreditation, see the NCCHC’s website here.

[82] Ibid.

[83] The May 2019 Nakamoto inspection report for the NWDC is available here.

[84] U.S. Government Accountability Office, “Immigration Detention: ICE Should Enhance Its Use of Facility Oversight Data and Management of Detainee Complaints,” GAO-20-596. August 2020. P. 13-14.

[85] For more on PREA certification, see here; for a statement from GEO about its compliance with PREA, see here.

[86] The exact inspections schedule is determined based on staffing, priorities, and other decisions by ODO leadership, rather than rotating on a strict 3 year term.

[87] See Office of the DHS Inspector General (OIG), “Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements,” OIG-18-67, June 26, 2018, p. 3.

[88] See Office of Detention Oversight Compliance Inspection, Enforcement and Removal Operations Seattle Field Office Northwest Detention Center Tacoma, Washington, June 24–26, 2014, posted in ICE’s FOIA library at https://www.ice.gov/doclib/foia/odo-compliance-inspections/2014NorthwestDetentionCenterTacomaWaJune24-26.pdf

[89] DHS Office of the Inspector General “Capping Report: Observations of Unannounced Inspections of ICE Facilities in 2019,” OIG-20-45, July 1, 2020.

[90] Ibid.

[91] Office of the DHS Inspector General (OIG), “Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements,” OIG-18-67, June 26, 2018.

[92] For a list of the facilities inspected, see https://www.dhs.gov/publications-library/collections/crcl-onsite-investigation-memos?combine=&field_taxonomy_topics_tid=All&items_per_page=10&order=created&sort=desc&page=2.

[93] See https://www.dhs.gov/compliance-branch.

[94] See, for example, DHS Office for Civil Rights and Civil Liberties Review of Adelanto – Sent to ICE in April 2018.

[95] See Nick Schwellenbach, “Confidential Report Warned ICE of ‘Inhumane’ Use of Solitary Confinement,” POGO September 12, 2019.

[96] United States Government Accountability Office, Report to the Ranking Member, Committee on Homeland Security, House of Representatives. Immigration Detention: Additional Actions Needed to Strengthen Management and Oversight of Detainee Medical Care. February 2016. p. 22.

[97] See ICE Health Service Corps Annual Report, Fiscal Year 2020, p. 23.

[98] See ICE’s 2013 Segregation Management Directive.

[99] See, for example, See Case No. 20-cv-700-JLR-MLP, Government’s Return Memorandum and Motion to Dismiss the Petition (dkt#102), 20-700-102, downloadable here.

[100] PBNDS standards regarding grievances are explained here.

[101] For information about this hotline, see https://www.ice.gov/contact/detention-information-line.

[102] For details on how to submit a complaint, see https://www.dhs.gov/compliance-branch.

[103] To cite just a few recent examples, the Senate Judiciary committee held a hearing on “Oversight of Immigration Enforcement and Family Reunification Efforts” in July 2018; the House Oversight Subcommittee on Civil Rights and Human Services held a hearing on the treatment of migrant children at the U.S. southern border on July 10, 2019; the Subcommittee on Oversight, Management, and Accountability of the House Committee on Homeland Security held a hearing “Oversight of ICE Detention Facilities: Is DHS Doing Enough?” in September 2019.

[104] Staff Report, Committee on Oversight and Reform and the Subcommittee on Civil Rights and Civil Liberties, U.S. House of Representatives, “The Trump Administration’s Mistreatment of Detained Immigrants: Deaths and Deficient Medical Care by For-Profit Detention,” September 20, 2020.

[105] Ibid.

[106] Staff Report, Committee on Oversight and Reform and the Subcommittee on Civil Rights and Civil Liberties, U.S. House of Representatives, “The Trump Administration’s Mistreatment of Detained Immigrants: Deaths and Deficient Medical Care by For-Profit Detention,” September 20, 2020, p. 35.

[107] Letter from Senator Maria Cantwell to U.S. Department of Homeland Security Inspector General Dr. Joseph V. Cuffari, November 28, 2018.

[108] See “Representative Smith, Senator Murray, Members of Washington State Delegation Push for More Information on COVID-19 Relief Efforts at Northwest Detention Center,” May 12, 2020.

[109] See “Washington Members Send Letter to DHS Inspector General on Inhumane Treatment of Immigrants at the Northwest Detention Center,” December 3, 2020.

[110] The text of the bill is available here.

[111] See Aaron Cantú, “How Democrats Abetted Trump’s Bloated Border Regime.” The New Republic, January 7, 2020.

[112] See the ACA’s list of “benefits of accreditation,” which includes “Defense against lawsuits: Accredited agencies have a stronger defense against litigation through documentation and the demonstration of a “good faith” effort to improve conditions of confinement,” on the organization’s website here.

[113] See Office of the DHS Inspector General (OIG), “Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements,” OIG-18-67, June 26, 2018,

[114] Sarah Varney, “Private inspectors paint a rosy picture of U.S. immigrant detention centers. Audits find otherwise,” Los Angeles Times, July 26, 2019.

[115] See UWCHR, “Conditions at the NWDC: Solitary Confinement,” November 30, 2020.

[116] For example, the Nakamoto Group conducted an inspection of the NWDC in May 2019, covering operations for the 12 preceding months; it noted one death by suicide, but no suicide attempts; yet during this same period, ICE’s own Significant Incident Reports documented 7 suicide attempts (including Amar’s), and a list of 911 calls placed at the facility included two additional incidents in which emergency assistance was summoned due to an attempted suicide.

[117] Researchers explain, “When we raised this discrepancy [between data reported by ICE showing zero suicide attempts and specific cases with which the researchers were familiar], ICE noted that the data came from the facility and pointed to GEO Group’s definition of ‘suicide attempt.’ ICE informed us that ‘according to GEO’s corporate policy and procedures, a suicide attempt is defined as ‘serious self-harm intended to cause death.’ GEO Group’s definition, requiring that some kind of ‘serious self-harm’ occur, is inconsistent with – and far narrower than – the federal government’s definition of ‘suicide attempt.’ The Centers for Disease Control and Prevention defines ‘suicide attempt’ as a ‘nonfatal self-directed potentially injurious behavior with any intent to die as a result of the behavior.’ It explains that ‘a suicide attempt may or may not result in injury.’” See Disability Rights California, “There Is No Safety Here: The Dangers for People with Mental Illness and Other Disabilities in Immigration Detention at GEO Group’s Adelanto ICE Processing Center,” March 2019, p. 36.

[118] See DHS Office of the Inspector General “Capping Report: Observations of Unannounced Inspections of ICE Facilities in 2019,” OIG-20-45, July 1, 2020.

[119] UWCHR conducted a review of 101 complaints about conditions at NWDC submitted to CRCL from 2014 through 2019; they include many allegations of serious problems, including sexual assault, excessive use of force, retaliatory threats by guards, and medical neglect, but only three of the 101 are listed as having been referred for investigation. DHS’ response to this FOIA request is currently under administrative appeal because the records provided were incomplete. As a result, we cannot affirm that no action was taken in response to the remaining 98 cases, only that no action is noted in the log as having been taken. The cases are listed as closed; as noted above, CRCL has never conducted an investigation of the NWDC, although it is possible the office has brought these complaints to the attention of NWDC leadership for internal resolution.

[120] For example, in Castañeda Juarez v. Asher, ICE Officer in Charge Drew Bostock informed the court, “Detainees in the NWIPC can directly communicate with ICE officers through a digital messaging system (“kite” system) available in the housing units. ICE searched all detainee kites to ICE from March 6, 2020 to May 7, 2020 and did not find any complaints regarding lack of soap, sanitation or cleaning issues at the NWIPC. On May 12, 2020, ICE requested that GEO provide copies of all Detainee Request Forms, kites to GEO and/or grievances to GEO from March 1, 2020 to present concerning soap, paper towels and/or cleaning supplies. In response, GEO provided one grievance, dated March 6, 2020, specifically requesting bar soap for handwashing. The grievance was closed with a response to the detainee that liquid soap is already available in the housing unit.” Bostock implies that because only a single grievance was supposedly filed on this point, concerns about soap are not widespread at NWDC; it could, however, instead suggest that detained people lack faith ih ICE/GEO’s grievance system.

[121] See Office of the DHS Inspector General (OIG), “Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements,” OIG-18-67, June 26, 2018.

[122] The U.S. Government Accountability Office, in its 2020 report on Immigration Detention, found the same thing: “We also identified deficiencies that recurred in multiple years, including at least 242 that occurred in both 2018 and 2019. For instance, we identified one facility that was found to have a deficiency regarding contingency plans for emergency situations in each of the 3 years for which we had data. Another facility was cited in consecutive years for deficiencies related to religious practices, including access to religious services.” U.S. Government Accountability Office, “Immigrant Detention:ICE Should Enhance Its Use of Facility Oversight Data and Management of Detainee Complaints,” GAO-20-596, August 2020, p. 21.

[123] See Office of the DHS Inspector General (OIG), “Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements,” OIG-18-67, June 26, 2018. p.4.

[124] Sarah Varney, “Private inspectors paint a rosy picture of U.S. immigrant detention centers. Audits find otherwise,” Los Angeles Times, July 26, 2019.

[125] Office of the DHS Inspector General (OIG), “ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards,” OIG-19-18, January 29, 2019. p. 7.

[126] RCW § 43.06.220(1)(h), “State of emergency—Powers of governor pursuant to proclamation.”

[127] RCW § 38.52.010(8), “Emergency Management—Definitions.”

[128] To date, however, legal challenges to the Governor’s orders have not raised questions about their applicability in facilities providing services to the federal government; as a result, the court has yet to consider questions regarding preemption. See Joseph O’ Sullivan, “Federal judge rejects legal challenges to Inslee’s emergency orders to curb spread of COVID-19,” Seattle Times, July 24, 2020; Jim Camden, “Federal judge rejects 2 requests to halt Inslee’s emergency virus orders,” The Spokesman-Review, September 3, 2020.

[129] Interview with Alejandro Sanchez, conducted by Elena Orlando and Angelina Godoy of UWCHR, November 5, 2020.

[130] Ibid.

[131] Interview with Alejandro Sanchez, conducted by Elena Orlando and Angelina Godoy of UWCHR, November 5, 2020.

[132] The TPCHD does play a limited role regarding food safety and infectious waste, at the request of the NWDC itself. On this point, the TPCHD website reads “We play a limited role in regulating food safety and infectious waste at the Northwest Ice Processing Center in Tacoma. We also provide limited voluntary support for health services at the facility. As a federal facility, NWIPC can choose to ask us to advise and provide limited regulation over both programs. At any time, it could decide not to seek a food permit or participate in our local infectious waste management program.” (Last accessed December 5, 2020). Because food service and waste management fall outside the scope of this report, we do not delve into this matter here; UWCHR did address the TPCHD’s food service inspections at the NWDC in our earlier report on sanitation in food and laundry at the facility.

[133] See “Priorities” on the “About Us” page of TPCHD’s website. Accessed December 7, 2020.

[134] US Immigration and Customs Enforcement, Performance-Based National Detention Standards 2011 (PBNDS 2011), Revised 2016, p. 261.

[135] ERO COVID-19 Pandemic Response Requirements (Version 5.0, October 27, 2020), p.6.

[136] Josephine Peterson and Debbie Cockrell, “Q&A with Chen: Pierce County health director discusses plateau in cases, protests & more.” The News Tribune, August 11, 2020.

[137] Emphasis added. TPCHD web page “Northwest ICE Processing Center/Health Services” last accessed December 14, 2020.

[138] Interview with Nigel Turner and Jeni Nybo, TPCHD, conducted by Angelina Godoy and Paloma Vazquez, UWCHR, November 10, 2020.

[139] Reacting to a draft of this report, TPCHD said this was “not our recollection of the conversation.” Interview with Nigel Turner and Jeni Nybo, TPCHD, conducted by Angelina Godoy and Paloma Vazquez, UWCHR, November 10, 2020.

[140] Email communication from Nigel Turner to Angelina Godoy, November 13, 2020.

[141] Declaration of Drew H. Bostock, Case No. 20-cv-700-JLR-MLP (W.D. Wa., Oct. 22, 2020), downloadable here.

[142] Bostock declares, “After consultation with the Tacoma Pierce County Health Department, it has been concluded that no definitive determination can be made as to whether the former detainee was or was not COVID-19 positive at the time he was last at the NWIPC.” Supplemental declaration of Drew H. Bostock, Case No. 20-cv-700-JLR-MLP (W.D. Wa., Dec. 7, 2020), on file with author.

[143] Alex Garland, “New Hunger Strike Draws Attention to Health Conditions at Northwest Detention Center,South Seattle Emerald, March 31, 2020.

[144] Esmy Jiménez, “A Caravan Protests Outside the Tacoma Immigrant Detention Center,” KUOW April 1, 2020.

[145] Tacoma Mayor Victoria Woodards wrote a letter to GEO noting “breaches of health, safety, civil rights and human dignity in the detention center” (See Matt Driscoll, “Tacoma leaders look to Congress for help monitoring NWDC. They should look in the mirror, too”, The News Tribune, March 6, 2019).

[146] In 2018, Washington Gov. Jay Inslee wrote John Kelly, then-Director of DHS, that he was “deeply troubled” about the “safety and well-being of detainees at the NWDC,” (Letter from Gov. Jay Inslee to U.S. Department of Homeland Security Acting Inspector General John V. Kelley, November 28, 2018);

[147] Senators Patty Murray and Maria Cantwell and Reps. Adam Smith and Pramila Jayapal asserted that “a broader atmosphere of abuse and mistreatment exists at the NWDC” in a letter to DHS

(Letter from Senator Maria Cantwell to U.S. Department of Homeland Security Inspector General Dr. Joseph V. Cuffari, November 28, 2018).

[148] See Andrea Castillo, “Judge largely upholds California ban on private prisons in tentative ruling,” Los Angeles Times, July 6, 2020; Rebecca Plevin, “California ban on private prisons, immigration detention centers is largely constitutional, judge says,” Palm Springs Desert Sun, October 9, 2020; Nathan Solís, “Judge Largely Upholds California Law Banning Private Prisons,” Courthouse News, October 8, 2020.

[149] See, for example, Mark Joseph Stern, “Bad Liars: ICE Claimed a Dreamer was ‘Gang-Affiliated’ and then Tried to Deport Him. A Federal Judge Ruled that ICE Was Lying,” Slate, May 16, 2018. or the ruling of Judge Chhabria in Zepeda Rivas v. Jennings, Case No. 20-cv-02731-VC, U.S. District Court for the Northern District of California, December 4, 2020.

[150] John Nichols, “Kirstjen Nielsen Lied to Congress About Trump’s War on Migrant Children.” The Nation, January 18, 2019; Brad Heath, “U.S. misinformed Congress, public on immigrant release.USA Today, October 22, 2014.

[151] Jennie Neufeld, “Watch: former ICE spokesperson says he was asked to ‘flat-out lie.’Vox June 28, 2018.

[152] As mentioned in a 2019 Congressional hearing, the Nakamoto Group repeatedly refused to respond to inquiries from Congress. GEO has repeatedly ignored communications from the office of Governor Inslee. Interview with Alejandro Sanchez, Special Assistant to Governor Inslee, conducted by Elena Orlando and Angelina Godoy, November 5, 2020.

[153] See, for example, Office of Attorney General Xavier Becerra, “The California Department of Justice’s Review of Immigration Detention in California,” February 2019.

"Missed Opportunities: State and Local Authority to Regulate the Northwest Detention Center" (PDF)