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ABA Commission on Immigration, Dec. 9, 2022
This resource was envisioned and drafted to help inform practitioners who work with individuals in ICE detention centers about ICE detention standards.
Here is the “overview” of the guide:
“The Eighth Amendment, which applies to persons convicted of criminal offenses, allows
punishment as long as it is not cruel and unusual; whereas the Fifth Amendment’s Due
Process protections for pre-trial prisoners do not allow punishment at all. Detained
immigrants are civil detainees held pursuant to civil immigration laws thus their
protection from conditions that amount to punishment are derived from the Fifth
Amendment. And still, nearly all the facilities that Immigration and Customs
Enforcement (ICE) uses to hold people in its custody are repurposed jails, prisons, and
privately-owned detention centers. These facilities operate as if detained immigrants
were inmates even though individuals in immigration detention are in civil, and not
criminal, proceedings. As such, persons in immigration detention must be treated the
same as, or better than, those serving a sentence or awaiting trial in the criminal legal
system.
This guide was written to offer practitioners an overview of the rights of individuals in
immigration detention and the responsibilities that ICE shares with the facilities to which
it assigns them, and to suggest resources for redressing violations of those rights and
standards. This discussion of detained individuals’ rights and the standards upon which
they rely draws primarily on ICE’s 2016 revision of its 2011 Performance Based National
Detention Standards (PBNDS rev. 2016). This version of ICE detention standards
(discussed further below) is the most comprehensive of five sets of detention standards
for adults in its custody, all of which are still in use.”
KJ
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