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California Advocacy Group Sues ICE, Judge Orders Release of All Immigration Policies

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A chain-link fence with barbed wire at the top of a detention facility. An American flag waves in the distance.
Layers of security fencing at Otay Mesa immigration Detention Facility just east of San Diego, in a photo from 2020. (Erin Siegal McIntyre/KQED)

Federal immigration authorities will soon be required to release a trove of documents that have until now been shielded from public view. In a lawsuit brought by a San Diego-based immigrant rights group, a federal judge in Washington, D.C., has given U.S. Immigration and Customs Enforcement until the end of February to begin releasing its policy documents.

At a time when immigration enforcement is emerging as a key issue in this year’s presidential election, the ruling has the potential to bring greater transparency to the sprawling agency responsible for immigration detention and deportation.

Al Otro Lado filed the complaint in May after ICE failed to respond to requests for public records. Last month, U.S. District Judge Jia Cobb ordered ICE to release (PDF) all of the agency’s 339 active policies, as many as 5,627 pages, according to court documents. She gave the agency until Oct. 31 to produce all documents and required that ICE regularly update its website with current policies.

Andrew Fels, an attorney for Al Otro Lado, called the ruling “fantastic.”

“For us, it’s just this idea of trying to stop ICE from, intentionally or not, functioning as a secret police force,” Fels said. “We don’t know what they’re doing. We don’t know how they’re doing it. And that’s not what the law allows.”

Public agencies are required to make their policies available online, according to the Freedom of Information Act (FOIA). ICE is “wildly out of compliance” with this requirement, Fels said.

An ICE spokesperson said in an email that the agency does not comment on pending litigation.

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Fels said ICE has been more cooperative with the process than he would have expected. “They have not fought this as much as they could,” he said. “There are aspects of ICE’s job that are made easier by having all of these policies public. And certainly, it makes life easier for their FOIA officers.”

Accountability for mistreatment in ICE detention

For advocates representing people who have reported mistreatment in ICE detention centers, the release of these policies could be a game-changer.

“People are really at a loss of why they’ve been treated so cruelly and inhumanely. People are really living in the dark,” said Niketa Kumar, a spokesperson for the San Francisco-based Asian Law Caucus, a civil rights group that has represented immigrants in detention. “Sunlight is the best disinfectant.”

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Jose Ruben Hernandez Gomez was one of several detainees at the Mesa Verde ICE Processing Center in Bakersfield who went on a hunger strike in May to protest conditions in the facility. ICE agents then allegedly dragged him and three others and transferred them to a facility in Texas, where he said he was threatened with force-feeding and experienced medical neglect. Attorneys with the Asian Law Caucus helped him file a complaint against ICE, a precursor to a potential lawsuit.

Kumar said she hopes that the documents that ICE must make public under the judge’s order will “affirm and underscore what Jose Ruben and others have been saying.”

“I think we can expect that this will bring to light practices that have been in the shadows,” Kumar said. “A lot of people who have gone on hunger strike, they’ve put their lives on the line to bring attention to the conditions” in detention centers.

ICE policies often only come to light after litigation, Kumar said.

In a statement submitted to the court on Jan. 12, Fernando Pineiro, director of ICE’s FOIA office, said that as of January, the office was “handling 168 active FOIA litigations” and, on average, “producing approximately 18,000 pages of responsive records each month.”

Making ICE policies publicly available could also make it harder for private contractors to skirt responsibility. In California, GEO Group is contracted to run several ICE detention centers. Kumar said the lack of transparency around policies can lead to a lack of accountability.

“When GEO engages in misconduct — such as sexually abusive patdowns — the corporation claims that they are doing so pursuant to ICE policy and instructions,” Kumar wrote in an email. But without knowing these policies, it is hard to hold anyone accountable for the alleged mistreatment.

For example, when people try to raise grievances with ICE, “ICE often replies that they do not have control over GEO staff,” Kumar wrote.

GEO Group did not respond to a request for comment.

Shedding light on family separation

Among the 339 active ICE policies, advocates expect to see documentation governing ICE’s role in the widely condemned practice of separating migrant families at the border. On ICE’s FOIA “reading room,” the webpage where the agency is required to make many of its public records available, the only document related to the policy of family separation is a half-page memo from 2008 (PDF).

Family separations intensified under former President Donald Trump’s administration. Yet, details of the policies implemented under his administration are still largely unknown, according to Fels.

The November presidential election is one reason that the Oct. 31 deadline for ICE to make all the documents public is important, Fels said.

“Making sure that we know, before there are any radical shifts in policy, what the current policy actually is — that seems of paramount importance,” he said.

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