In July, the National Archives and Records Administration (NARA)—the agency charged with maintaining records produced by the federal government—published a request made by Immigrations and Customs Enforcement (ICE) to begin destroying detainee records, including those related to in-custody deaths, sexual assault, and the use of solitary confinement. The request has been preliminarily approved.
The petition to destroy records comes at a time when ICE has been tasked with increasing its enforcement operations, widening its apprehension net to include groups of previously protected people, even those benefiting from Deferred Action for Childhood Arrivals (DACA), a program that was rescinded on September 5. Unless Congress passes some version of the Dream Act, DACA recipients will see their protection begin to expire next March. ICE petitioned to begin destroying some types of records as quickly as three years after they are created, 20 years for others.
Some ICE records, however, will be maintained by NARA in perpetuity. Laurence Brewer, chief records officer for the US government, explained to me in an e-mail that federal records are kept permanently for one of three possible reasons: They document (1) the rights of citizens, (2) the actions of federal officials essential to understanding and evaluating federal actions, or (3) “the national experience.” Examples of documents that NARA will permanently keep are ICE’s Internal Affairs Significant Misconduct Investigative Case Files and the Department of Homeland Security’s Civil Rights and Civil Liberties annual report.
Immigration advocates worry that ICE’s request, made public at a time of expanding operations (the original request, which went through multiple revisions, was made in 2015), is a further turn towards obfuscation for the notoriously opaque agency. Royce Bernstein Murray, policy director of the American Immigration Council, argues that ICE’s power is already set to increase dramatically: According to the Los Angeles Times, a January memo from Trump’s “immigration policy experts” proposed raising the so-called “bed quota,” a congressional mandate that currently requires ICE to keep at least 34,000 inmates in ICE custody at all times (in practice that number has at points risen to over 40,000) to as high as 80,000 per day; the Trump administration has given the agency free rein to pursue increased levels of enforcement; and Trump himself has decided to end the DACA program that shielded 800,000 young people from deportation. Altogether, as Murray points out, we are seeing ever more people being rounded up, held in detention, and deported.
“We have long had concerns about ICE being transparent with its data, especially how it relates to the detention of immigrants. Even more specifically as it pertains to the detention of vulnerable immigrants,” Murray said. “The data is really important for us to understand what’s happening to the tens of thousands of people in custody every day.”
Attempts to detain and deport such a broad swath of the US population have been made in the past, with Operation Wetback in the 1950s, and the Mexican Repatriation in the 1930s. The results were, by all accounts, heinous—racial targeting, extensive abuse, and death.
On January 25, President Trump, just five days into office, signed an executive order instructing government agencies to employ “all lawful means” to enforce immigration laws. In February, then Secretary of Department of Homeland Security John Kelly (currently Trump’s chief of staff) issued a memo implementing Trump’s order, removing priority enforcement so that the agency would “no longer exempt classes or categories of removable aliens.” The memo also calls for ICE to “hire 10,000 officers and agents expeditiously.”
The moves have all been part of President Trump’s desire, as then–White House Press Secretary Sean Spicer explained, “to take the shackles off” enforcement agencies. But while the Border Patrol and ICE have both been set loose, the shackles have only tightened around immigrants. The emboldened agency made 75,045 arrests from January to June, nearly a 40 percent increase over the same period in 2016.
“We’re in an unprecedented time of immigration enforcement,” Murray told me. “I think the academics, and the advocates, and the policy makers will always want to know what happened during this time. Who knows where we’ll be 20 years from now, but I’m not ready to say that these records will ever be irrelevant.” Amada Armenta, assistant professor of sociology at the University of Pennsylvania, and author of Protect, Serve, and Deport: The Rise of Policing as Immigration Enforcement, told me, “If ICE truly cared about providing a safe environment for immigrants in their custody, they would invite scrutiny, rather than seek to destroy their records.”
In May, the Transactional Records Access Clearinghouse (TRAC), a project at Syracuse University that tracks and tabulates data on a number of federal agencies, and is an invaluable resource for journalists, academics, and historians, filed a lawsuit under the Freedom of Information Act alleging that ICE is “unlawfully withholding records related to ICE’s immigration enforcement actions.” Though the records TRAC seeks under the lawsuit aren’t specifically about deaths, sexual abuse, or solitary confinement, ICE’s unwillingness to share its policies and actions with the public is matter-of-course.
According to Community Initiatives for Visiting Immigrants in Confinement (CIVIC), there were 14,693 reported incidents of sexual and physical abuse in ICE detention centers from 2010 to 2016—and just over 1 percent of these complaints sparked an investigation. Among all DHS agencies, according to CIVIC, the number of complaints of sexual and physical abuse received by the Office of Inspector General in the same period was over 33,000. As the ACLU has documented, “sexual abuse allegations have come from nearly every state that houses an immigration detention center. The data crystallizes the urgent need for the government to admit just how pervasive a problem sexual abuse is in its immigration jails and to take immediate steps to ensure that all detainees are protected.”
A startling example of ICE’s lack of transparency, as Christina Fialho, co-executive director of CIVIC explained to me, is that not even all of ICE’s facilities are present on the agency’s detention facility-locator map, which lists 112 facilities, while CIVIC’s own count puts the number of facilities at 203.
Within these hundreds of facilities, just this fiscal year, there have been 12 confirmed detainee deaths. As reported by Splinter, when an inmate dies in custody, ICE conducts an internal investigation, which results in a substantial file of documents and records, all of which, pending NARA’s final approval, stand to be destroyed.
Though records on deaths and of sexual assault would not be destroyed for 20 years, records on the use of solitary confinement would be destroyed as soon as three years after they are filed. Inmates in ICE custody have been subjected to prolonged periods of isolation and segregation for mental-health reasons, for punishment, or because the inmate is transgender. Victoria Lopez, senior staff attorney at the ACLU’s National Prison Project, who wrote about ICE’s request to destroy records, told me the timeline for destroying solitary-confinement records is of particular concern, because the statute of limitations during which former detainees can file for legal redress can be longer than three years—which means that by the time a claimant tries to file suit, their records may have already been destroyed.
A 2016 Human Rights Watch report detailed that current ICE guidelines permit the “use of solitary confinement solely on the basis of an individual’s gender identity”—though the guidelines also state that segregation should be used only as a last resort. The report included cases of sexual assault by guards on transgender women in solitary confinement, and noted, “Transgender women placed in prolonged solitary confinement described particularly severe psychological impacts resulting from their isolation.” Lopez told me that documents recording such abuses “are important for painting an accurate picture [of detention conditions] and certainly can be valuable in litigation and policy reform.”
Under the Trump administration, both Customs and Border Enforcement and ICE have been given shots in the arm. The administration’s anti-immigrant, anti-Muslim, anti-Latino rhetoric paints with a broad brush millions of people, catalyzing abuses from both white nationalists—as in Charlottesville—and federal agents. Just since January, with ICE’s expanding charge, it has been accused of a host of ongoing and heightened abuses, including the stripping away of due process, contracting out detention services to increasingly deadly private companies, racially profiling as it collaborates with local police departments, targeting women suffering from domestic abuse, doctoring documents in order to arrest immigrants with protected status, and using children as bait to arrest immigrant parents.
As this violent history is under threat of deletion by the perpetrators, The Nation has submitted FOIA requests for the categories of record—sexual abuse and death in detention, as well as the use of solitary confinement—that ICE is petitioning NARA to destroy, though the ultimate response to those petitions remains, at the time of publication, undecided. As Fialho pointed out to me, CIVIC has filed “countless FOIAs that have never been responded to by ICE.”
The agency did not respond to repeated requests for comment.
As Dr. Doris Marie Provine, professor emerita at Arizona State University and co-author of Policing Immigration: Local Law Enforcement on the Front Lines, put it: “It is ironic that one of the least transparent agencies in federal law enforcement is attempting to make itself even less transparent and accountable.” She added: “A different kind of housecleaning is called for here, one that cleans up this agency’s too-frequent disdainful treatment of the individuals it encounters.”