By Casey Lee, Advocacy Intern
On September 4, 2013, ICE Acting Director John Sandweg issued a memo establishing the agency’s policy and procedures for reviewing segregation placement decisions.
The memo first sets out important definitions:
- Administrative Segregation – non-punitive separation from the general population for administrative reasons, for example:
- Detainees in need of protective custody from others who might harm them
- Detainees awaiting an investigation for violating facility rules
- Detainees scheduled for release, removal, or transfer within 24 hours
- Detainees presenting a clear threat
- Disciplinary Segregation – punitive form of separation from the general population for disciplinary reasons
- Special Vulnerabilities include:
- Detainees suffering from mental illness or serious medical illness
- Disabled, elderly, pregnant, or nursing
- Detainees susceptible to harm due to their sexual orientation or gender identity
- Victims (in or out of ICE custody) of sexual assault, torture, trafficking, or abuse
Field Review of Detainee Segregation Status
Extended Segregation Placements
Whenever a detainee has been held continuously in segregation for 14 days, 30 days, and every 30-day interval thereafter, or has been held for 14 days out of any 21 day period, the Field Office Director (FOD) will be notified by the facility administrator or other ICE personnel.
Once notified, the FOD will immediately review the detainee’s segregation case and assess whether segregation is appropriate based on applicable detention standards and ICE policies, including:
- Whether segregation is based on a specified threat to the safety of the detainee or others, or to the security of the facility
- Whether a supervisory officer completed the administrative segregation order before the placement
- Whether documented reviews by a supervisor occurred within first 72 hours of placement and every week thereafter
- Whether the facility administrator provided written approval of continuing involuntary segregation for protective reasons
The FOD’s review of disciplinary segregation will assesses whether segregation is appropriate based on applicable detention standards and ICE policies, including authorization by the facility disciplinary panel that is consistent with ICE’s Disciplinary Severity Scale and documented reviews by a supervisor every week to make sure the detainee has received all services to which he is entitled. In addition, if the detainee is Limited English Proficient (LEP), the FOD will consider whether segregation is the result of insufficient interpretation.
After an individualized assessment of the case, the FOD must consider whether less restrictive options, including returning the detainee to the general population, additional out of cell time with participation in group activities, transfer to another facility, or release from custody may be appropriate.
Segregation Placements Related to Disability, Medical or Mental Illness, Suicide Risk, Hunger Strike, Status as a Victim of Sexual Assault, or other Special Vulnerability
The memo emphasizes that a detainee’s special vulnerability cannot be the sole basis for segregation. Additionally, the FOD must be notified no later than 72 hours after a detainee has been placed in administrative segregation on the basis of a special vulnerability, or when a detainee placed in segregation for any reason has a mental illness, serious medical illness, or serious physical disability. Once notified, the FOD must immediately notify ICE’s Custody Management Division (CMD) and the detainee’s legal representative.
CMD will notify the ICE Health Service Corps (IHSC), and IHSC will evaluate the appropriateness of the placement and review the detainee’s treatment plan. The FOD, in consultation with IHSC where appropriate, will take steps to ensure that detainees at risk for suicide are closely supervised, that administrative segregation due to a special vulnerability is only used as a last resort, and that detainees placed in administrative segregation after a sexual assault are not held on that basis for more than five days. They will also work together to consider whether less restrictive options may be appropriate.
Field Office Reports to ICE Headquarters
Field Office Directors will submit written reports to the Custody Management Division regarding detainees who have been held continuously in segregated housing for more than 30 days or who have been held continuously for more than 14 days or for 14 days out of a 21 day period and who have special vulnerabilities, or the FOD determines should have their placement reviewed by headquarters.
It is the Field Office Director’s responsibility to ensure that all facilities in his or her area of responsibility are aware of the notification requirements under this policy
ICE Headquarters Oversight and Reporting Regarding Use of Segregation
Several headquarters offices have responsibilities related to the use of segregation:
Enforcement and Removal Operations (ERO) Field Operations – assists FODs in carrying out their duties under this policy
Custody Management Division (CMD) – collects segregation reports and notifications; compiles relevant facility resources and capabilities
ICE Health Service Corps (IHSC) Coordination and Review – compiles info about facility medical resources and capabilities; reviews cases involving detainees with special vulnerabilities; determines appropriate treatment and accommodations for detainees with disabilities
Office of Detention Policy and Planning (ODPP) – reviews segregation placements; analyzes data; prepares reports; and develops remedial policy
Detention Monitoring Council (DMC) – ensures effective and timely review of segregation reports; reviews FOD segregation reports; designates facilities for heightened review; on a quarterly basis, a DMC subcommittee will review data, prepare a segregation report, and discuss national trends in order to recommend remedial plan