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ICE's Destruction of Records Must Be Stopped

Back of an Immigrations and Customs Enforcement (ICE) officer's vest that reads "POLICE ICE." Taken in Portland, OR.
ICE just received the green light to destroy records — including those related to detention and civil rights violations — from as recently as three years ago.
Back of an Immigrations and Customs Enforcement (ICE) officer's vest that reads "POLICE ICE." Taken in Portland, OR.
Kate Oh,
Former Senior Policy Counsel,
ACLU National Political Advocacy Department
Eunice Hyunhye Cho,
Senior Staff Attorney,
ACLU National Prison Project
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February 18, 2020

Immigration and Customs Enforcement (ICE) is notorious for committing rampant unconstitutional and inhumane abuses in its detention system — something advocates, communities, and watchdog investigations have condemned for years. Public oversight of ICE detention is about to become even harder, further eroding accountability and endangering the health and safety of more than 50,000 people in ICE custody every day. That’s because the National Archives and Records Administration (NARA) recently gave a green light to ICE to destroy numerous types of records — including detention and civil rights complaint records from the first year of the Trump administration.

Today, the ACLU is filing a Freedom of Information Act (FOIA) request to obtain records at serious risk of destruction so that they may be preserved on behalf of the public. The American Immigration Council, National Immigrant Justice Center, and the National Immigration Law Center are filing nearly identical FOIA requests as well. Our shared purpose reflects a pillar of government accountability: Government agencies should not be allowed to destroy the paper trail of their incompetence and wrongdoing.

Specifically, we are seeking detention-related records from ICE that are scheduled to be deleted after short retention periods of only three to seven years. These records cover a wide range of ICE operations and activities, including ICE’s own on-site monitoring of detention facilities, the placement of detainees in solitary confinement, and complaints reported to the Department of Homeland Security’s (DHS) Office of Civil Rights and Civil Liberties. Alarmingly, the weekly monitoring reports of detention facilities — the same places infamous for their dehumanizing, grossly inadequate, and dangerous conditions — could soon be on the chopping block if they date to the earliest days of the Trump administration’s brutal anti-immigrant agenda.

Given their important role documenting decisions by government officials and offering proof of the harm that people suffer in detention, the destruction of these records in such a short period of time will further obscure important evidence. Three years is even shorter than the statute of limitations for some legal claims available to victims of abuse in detention, as well as the full duration of many FOIA claims. Destroying relevant ICE records on such short timetables could foreclose the chance of pursuing justice and accountability.

This development could not come at a worse time. Last December, ICE announced new facility standards that lower oversight requirements and weaken what paltry protections exist for people held in detention. Long before that announcement, ICE was already well known for conditions so atrocious they sparked hunger strikes among asylum seekers, instances of sexual assault committed by ICE facility employees, and substandard medical care so bad that it killed people. Even the DHS Civil Rights and Civil Liberties Office, whose own records are among those at risk of deletion, admitted that ICE has “systematically provided inadequate medical and mental health care and oversight to immigration detainees in facilities throughout the U.S.”

The Department of Homeland Security’s Office of Inspector General has also admitted that ICE’s own oversight system has failed to “ensure adequate oversight or systemic improvements in detention conditions, with some deficiencies remaining unaddressed for years.” As we warned several years ago, when ICE’s initial plans for the destruction of detention records first came to light, allowing ICE to operate with even less scrutiny will result in worse detention conditions, more violations of people’s constitutional rights, and more people subjected to life-threatening circumstances.

The ICE detention system needs further transparency, not even more cover as it commits human rights violations with impunity. Our FOIA request is intended to ensure that records critical to this oversight and accountability do not disappear at ICE’s convenience. But ultimately, we hope that Congress is watching — because it will take lawmakers’ intervention to fully protect ICE detention records in a systematic, lasting manner from an agency bent on brutalizing people in its custody and then getting away with it.

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