Oversight of Immigration Detention: An Overview

At any given time, U.S. Immigration and Customs Enforcement (ICE) detains tens of thousands of people in the nearly two hundred detention centers it has at its disposal across the United States. Individuals in ICE custody, their attorneys, and immigrant advocates frequently allege inhumane conditions, violations of due process, medical neglect, and various types of abuse in these facilities. The responsibility of holding ICE accountable for such violations is spread across various offices within the Department of Homeland Security (DHS). Congress also has detention oversight responsibilities and procedures, which are beyond the scope of this fact sheet.

The first section of this fact sheet briefly describes the organizational structure of the detention oversight offices within DHS and the standards by which detention centers are governed. The second section describes the various offices to which detained individuals, their attorneys, or advocates can file complaints regarding ICE detention. It describes each office’s oversight responsibility, its organizational structure, the scope of the complaints it receives, the complaint submission process, the process by which the office responds to complaints submitted, and how the office reports to Congress and the public. The third and fourth sections provide information, respectively, on offices that conduct inspections of ICE detention centers and offices that manage the related detention contracts. Some offices are featured in multiple sections because they have separate suboffices for the investigation of complaints and regular facility inspections. It is important to note that while this fact sheet describes the oversight responsibilities officially assigned to each office, these offices often fail to hold ICE accountable in a meaningful way.

Organizational Structure and Detention Standards

Some of the offices with oversight over immigration detention are independent of ICE, while others are located within the agency. There is no oversight body for immigration detention that is independent of DHS as a whole. The partial DHS organizational chart below shows the offices discussed in this fact sheet.

These offices oversee the compliance of immigration detention with federal law and with ICE policy, but most oversight is focused primarily on compliance with ICE’s detention standards. Each detention center is governed by one of four sets of detention standards: the Performance-Based National Detention Standards 2008 (PBNDS 2008), the Performance-Based National Detention Standards 2011 (PBNDS 2011), the National Detention Standards 2019 (NDS 2019), or the Family Residential Standards (FRS).  ICE is not legally bound to these standards, given that they are not law, but the standards are included as a requirement in each detention center’s contract with ICE.

Figure 1: DHS Offices with Oversight Over U.S. Immigration and Customs Enforcement (ICE) Detention

Administrative Complaints and Investigations

Office of Inspector General: Office of Investigations

Oversight Responsibilities: The DHS Office of Inspector General (OIG) Office of Investigations “investigates allegations of criminal, civil, and administrative misconduct involving DHS employees, grantees, and programs,” generally summarized as “waste, fraud, or abuse.”

Organizational Structure: OIG is one of two independent oversight agencies that investigate violations of law and policy and inform policy changes within the 22 other agencies of DHS. The DHS OIG, including its Office of Investigations, is independent of the agencies that it oversees, but it is not independent of DHS. OIG reports to both the Secretary of Homeland Security and Congress. In May 2021, the Integrity Committee of the Council of Inspectors General on Integrity and Efficiency opened an investigation into DHS Inspector General Joseph Cuffari regarding whether he retaliated against high-ranking staff.

Scope of Complaints: Detention-related allegations that DHS states should be reported to OIG include but are not limited to corruption, financial crimes, custodial deaths, denial of rights, profiling, use of force, ethics violations, and retaliation. Investigations that OIG has conducted in recent years in response to complaints have included allegations of ICE’s failure to implement the agency’s COVID-19 guidance, verbal abuse, and prolonged solitary confinement.

How to Submit a Complaint: Reports can be made to OIG by calling 1 (800) 323-8603, using its online form, by fax, by mail, or by email to [email protected]. Facilities covered by ICE’s Performance-Based National Detention Standards 2011 (PBNDS 2011) or National Detention Standards 2019 (NDS 2019) are required to provide detained individuals with free calls to OIG. Individuals may file a complaint anonymously, but doing so “may hinder the OIG’s ability to thoroughly pursue their complaint.”

Response Process: OIG has the right of first refusal for certain categories of serious misconduct, meaning that upon receiving these complaints, other agencies within DHS must refer them to OIG. Only if OIG decides it will not investigate an allegation may another oversight agency within DHS do so. OIG will not provide the results of the investigation to the complainant other than through a Freedom of Information Act (FOIA) request.

Reporting: OIG is required by statute to provide semi-annual reports to Congress, which are published on the office’s website.

Office for Civil Rights and Civil Liberties

Oversight Responsibilities: The DHS Office for Civil Rights and Civil Liberties (CRCL) “investigat[es] civil rights and civil liberties complaints regarding Department policies or activities, or actions taken by Department personnel.” CRCL also has enforcement authority regarding discrimination on account of disability pursuant to Section 504 of the Rehabilitation Act of 1973. CRCL can also refer complaints alleging inadequate medical treatment to the ICE Health Service Corps (IHSC), which should report back to CRCL on the case.

Organizational Structure: Like OIG, CRCL is an oversight office that is independent of the other oversight bodies within DHS but is not independent of the Department. CRCL reports directly to the Secretary of Homeland Security.

Scope of Complaints: Frequent subjects of CRCL complaints include discrimination, violation of due process rights, abuse, and language access. Out of the 393 investigations CRCL opened in the first half of Fiscal Year (FY) 2020, 63.6% (250) were directed at ICE, and 97.6% (244) of those involved detention. Most of these investigations involved the denial of medical or mental health care, but others involved allegations of poor conditions of detention, due process violations, use of excessive force, sexual assault/abuse, retaliation, abuse of authority, lack of legal or language access, or failure to accommodate either disability or religion.. From FY 2017 to FY 2019, CRCL sent 1,153 medical referrals to IHSC.

How to Submit a Complaint: Complaints can be submitted by mail, by fax, or by email to [email protected]. Complaints should include the optional complaint form or include the information requested on the form. Complaints regarding discrimination on account of disability pursuant to Section 504 of the Rehabilitation Act of 1973 must be “filed…within 180 days of the last alleged act of discrimination, unless good cause is shown,” must describe the nature of the discrimination in detail, and must be signed. CRCL may request additional information after receiving a complaint. CRCL may share information in a complaint with employees or contractors of government agencies within or outside DHS as needed for investigation. Individuals may make a complaint anonymously or request that identifying information not be shared with government agencies outside CRCL. However, this may “make it very difficult or impossible for [CRCL] to investigate the allegations [the anonymous person] raise[s].”

Response Process: If CRCL determines that a complaint warrants investigation, it refers the complaint to OIG, which has the right of first refusal and retains a small percentage of complaints for its own investigation. If OIG does not choose to investigate the complaint, CRCL may investigate, or guide another DHS office in doing so. If a problem is identified, CRCL will issue a final report to the relevant DHS office, make recommendations, and monitor implementation. In some cases, CRCL conducts on-site investigations, which it coordinates in advance with ICE.  In FY 2019, CRCL conducted nine such visits. Whether or not CRCL opens an investigation for a specific complaint, it records the complaint and tracks potential patterns of civil rights or civil liberties violations that it may later investigate. In most cases, CRCL does not request specific outcomes for individuals. Instead, it uses its findings to make policy recommendations. Since 2019, Congress has required CRCL to provide the complainant with information regarding the outcome of an investigation within 30 days of its completion.

CRCL has significant limitations in its oversight abilities. Other than in cases of discrimination on account of disability, the office does not have enforcement authority for its recommendations. There are no mandatory timelines requiring agencies to respond to requests or recommendations from CRCL. There is no process to require other DHS agencies to disclose upcoming policy decisions to CRCL, nor one to resolve disagreements between CRCL and another agency.

Reporting: CRCL is required by statute to submit annual and semiannual reports to Congress, which are available on the DHS website. Some of CRCL’s Onsite Investigation Memos also are available on the DHS website.

Office of the Immigration Detention Ombudsman: Case Management Division

Oversight responsibility: The Office of the Immigration Detention Ombudsman (OIDO) was created by Congress in the Consolidated Appropriations Act of 2020 to “independently and impartially review complaints submitted by, or on behalf of, individuals who are or were in immigration detention.”

Organizational Structure: OIDO has oversight over ICE and U.S. Customs and Border Protection (CBP) detention facilities and is independent of both agencies. The Immigration Detention Ombudsman reports directly to the Secretary of Homeland Security. The OIDO Case Management Division is divided into eight geographical regions.

Scope of Complaints: OIDO has stated that it can offer assistance with complaints involving “misconduct, excessive force, violation of an individual detainee’s rights, and/or violations of law, standards of professional conduct, contract terms, or policy related to immigration detention” committed by employees or contractors of DHS. In its 2021 Annual Report, OIDO categorized the complaints actually filed in 2021 as involving “quality of life/living conditions,” “medical issues,” “abuse & assault,” “legal access,” “property,” and “disability accommodations.” OIDO “does not have the authority to address release and parole decisions or whether a person should be detained, but may refer those cases to other DHS offices.”

How to Submit a Complaint: In October 2021, OIDO announced that it would begin phasing in its intake process, starting with four pilot programs in late 2021. Individuals detained at detention centers already being served by OIDO case managers can submit complaints in person. Currently or formerly detained individuals (or someone acting on their behalf) can file complaints with or without the OIDO Case Intake Form (DHS Form 405) by email to [email protected], by fax to (202) 282-8482, or by mail. Complaints filed by mail or without the case intake form may be delayed. Attorneys and accredited representatives filing on behalf of a client must include a signed Form G-28. Other individuals submitting complaints on behalf of someone else, including family members, must include a signed privacy waiver (ICE Form 60-001). Complaints can be filed anonymously. Complainants who include a valid email address will receive a confirmation email with their OIDO case number. OIDO states that “the amount of information provided…will be up to the [detained individual] and/or their representative” and that “OIDO case managers will only share information with detention staff and contractors to the extent it is necessary to resolve the issue at hand.”

Investigation Process: OIDO’s process for responding to complaints includes assessing jurisdiction, confirming consent, conducting research, working with ICE for resolution, and communicating the result to the complainant. Unlike OIG and CRCL, OIDO aims to resolve problems at the individual level in addition to tracking systemic concerns and informing policy. If necessary, OIDO will conduct an investigation, but first will confirm that no other office, such as OIG or CRCL, is already investigating the same issue. OIDO also has a Policy and Standards Division to “develop policy recommendations, training, and technical assistance solutions in response to OIDO’s findings” and an External Relations Division to engage with stakeholders.

Reporting: OIDO is required by statute to submit annual reports to Congress, which are available on the DHS website.

ICE Office of Professional Responsibility: Investigations Division

Oversight Responsibility: The ICE Office of Professional Responsibility (OPR) Investigations Division investigates “allegations of serious employee and contractor misconduct.”

Organizational Structure: Unlike the independent offices discussed above, OPR lies within ICE. Within OPR, the Joint Intake Center (JIC) accepts complaints and refers them to the appropriate office.

Scope of Complaints: The most common detention-related reasons for complaints to the JIC include sexual or physical assault by another detained individual, employee use of force, and medical negligence.

How to Submit a Complaint: Allegations can be reported 24 hours a day to the JIC at 1-877-246-8253, [email protected], or [email protected]. Facilities covered by the PBNDS 2011 or NDS 2019 are required to provide detained individuals with free calls to the JIC.

Investigation Process: The JIC refers all allegations of serious employee or contractor misconduct to OIG. If OIG chooses not to investigate, the complaint is returned to OPR for review. The Investigations Division will investigate any allegations of criminal or serious misconduct by ICE employees or contractors. OPR assigns less serious allegations to the relevant office within ICE. Investigations generally take months, and sometimes years. In 2018, OIG reported that in the sample of investigations it reviewed, OPR cases remained open on average for 246 days.

Reporting: OPR reports on the number of misconduct allegations it receives and investigates in ICE’s annual report.

ICE Enforcement and Removal Operations: Custody Management Division

Oversight Responsibility:  In addition to the offices described above, detention-related complaints can also be filed with the ICE Enforcement and Removal Operations (ERO) Custody Management Division.

Scope of Complaints: Common reasons for complaints to ERO include medical negligence, a facility’s failure to return a detained individual’s personal property or funds, family separation, and telephone access.

Organizational Structure: Within ICE, ERO manages the apprehension, detention, supervision, and removal of immigrants. Within ERO, the Custody Management Division oversees ICE detention and Alternatives to Detention.

How to Submit a Complaint: Detained individuals and members of the public with complaints, requests, or questions can contact the ERO Contact Center of Operations (ECCO), which will redirect the communication to the proper office. ECCO can be contacted through [email protected], the online ERO Contact Form, or the Detention Reporting and Information Line (DRIL) at 1-888-351-4024. Facilities covered by ICE’s NDS 2019 are required to provide detained individuals with free calls to DRIL.

Response Process: ECCO will attempt to answer questions or resolve concerns itself but can also refer complaints to another ICE office or DHS agency. For example, complaints regarding serious misconduct by ICE employees or contractors will be redirected to the JIC.

Misconduct complaints that do not rise to the level of an OPR investigation because they are minor or noncriminal are referred to ERO’s Administrative Inquiry Unit. The Administrative Inquiry Unit sends two types of complaints to field offices. First, it can send a management inquiry, which requires the field office to collect evidence and document findings within 60 days. Examples of past management inquiries include allegations that a facility gave a detained individual’s funds to another person, that an officer used excessive force, and that officers retaliated against a detained individual for filing a grievance. Alternatively, the Administrative Inquiry Unit can also send a management notification, which field offices review and determine whether or not a management inquiry is warranted and feasible. Some cases are not investigated because of insufficient detail in the complaint.

Reporting: Neither ICE’s nor ERO’s annual reports include information on complaints made to ERO, such as through ECCO or DRIL.

Inspections and Monitoring

ICE Enforcement and Removal Operations: Custody Management Division

Several offices within ERO’s Custody Management Division conduct inspections of ICE detention centers. The Detention Monitoring Unit (DMU) runs the On-Site Detention Compliance Oversight Program, which places federal Detention Service Managers (DSMs) at large facilities to “continuously monitor compliance with ICE detention standards” and work with the local field office to address issues. As of November 2019, there were 39 DSMs covering 55 facilities which hold 67 percent of ICE’s average daily population. Some ICE field offices have established local detention standards compliance teams to attempt to resolve concerns locally in a manner similar to that of the DMU.

ERO Custody Management also hires a contractor to perform inspections on all facilities that hold detained individuals for more than 72 hours and have an average detained population of 10 or more. Since 2007, Nakamoto Group, Inc. has held this contract. Inspections occur annually, except in the case of facilities with an average daily population under 50 that have two consecutive years of overall passing inspection ratings, which can then switch to biennial inspections. The contractor’s employees visit the detention center and complete the inspections checklist, Form G-324A. As with ODO inspections, facilities are informed of the visit in advance. A 2019 OIG report found that “Nakamoto’s inspection scope is too broad; ICE does not provide clear guidance on procedures; and the Nakamoto inspectors are not always thorough.” In the report, ICE employees described the inspections as “very, very, very difficult to fail” and “useless.” In response to the report, ICE now requires that a member of its quality assurance team accompany the contractor during inspections and submit a separate report.

Facilities that hold individuals in ICE custody for less than 72 hours and have an average daily population of fewer than ten people do not receive ODO or ICE contractor inspections. Instead, field offices work with these facilities to complete an annual Operational Review Self-Assessment, a modified version of Form G-324 which focuses on key elements of the standards. A 2020 Government Accountability Office (GAO) report found that ICE does not track or analyze data from these self-assessments.

Family Residential Centers (FRCs) undergo a separate inspection process, under which the Juvenile and Family Residential Management Unit (JFRMU) contracts inspectors to do monthly inspections and an annual extended review of conditions at FRCs to check compliance with the FRS. JFRMU places a Field Office Juvenile Coordinator at each field office as a subject-matter expert on children and families. There is also a compliance officer on-site at each FRC to identify issues and work to resolve them. As of January 2022, ICE had stopped detaining families and was only detaining adults at FRCs, but the South Texas Family Residential Center and Karnes County Residential Center continued to be governed by the FRS. JFRMU also oversees ICE’s detention of a small number of children without their parents in juvenile facilities.

The Detention Standards Compliance Unit (DSCU) interprets the detention standards on which ODO and ERO inspections are based. A Contract Technical Representative at the DSCU reviews inspection reports and gives each facility a final rating. In instances of noncompliance, DSCU can issue waivers to exempt the facility from certain detention standards, or send a Uniform Corrective Action Plan (UCAP) for the field office to fill out with proposed corrective actions. However, in FY 2015 and FY 2016, field offices only responded to 20 of 45 ODO inspection UCAPs, and some responded as late as six months after the 55-day deadline. Even when UCAPs are correctly filled out and returned, ICE does not have an effective process to ensure implementation until the next inspection A 2020 GAO report found that ICE does not analyze inspection results data to identify potential trends.

Reporting: In May 2018, ICE began publicly posting third-party contractor inspections within 30 days. FOIA litigation has resulted in the release of additional inspections results. ICE began publicly posting FRC inspections in June 2019.  

ICE Office of Professional Responsibility

OPR’s Office of Detention Oversight (ODO) was created in 2009 as part of a series of detention reforms announced by the Obama administration. Its goal is to provide ICE leadership with a second set of inspections independent from the preexisting ICE detention inspections process. ODO and its contractors inspect facilities that hold detained individuals for more than 72 hours and have an average daily population of more than ten to determine compliance with 15 or 16 “core standards” that have the greatest impact on the life, health, and safety of detained individuals. ODO conducts pre-announced inspections of facilities approximately every three years, depending on “perceived risk, ICE direction, or national interest.” ODO received additional funding through the Consolidated Appropriations Act of 2020, and is transitioning to biannual inspections for every facility that holds individuals for more than 72 hours.

Since 2017, OPR’s External Reviews and Analysis Unit (ERAU) has conducted audits regarding facility compliance with the DHS Prison Rape Elimination Act (PREA) Standards. ERAU also conducts reviews of the deaths of detained individuals to determine whether ICE and the facility complied with detention standards. IHSC also conducts a separate review of each death that occurs in custody.

Reporting: OPR reports on the number of inspections and audits it conducts in ICE’s annual report. ODO’s most recent inspections results are posted on ICE’s website. FOIA litigation by the National Immigrant Justice Center has resulted in the release of additional inspections results. Since 2018, Congress has required ICE to make all reports regarding in-custody deaths public within 90 days. Some previous detainee death reports are available in ICE’s FOIA library.

ICE Detention Monitoring Council

ICE’s Detention Monitoring Council is made up of senior leadership from all ICE programs with detention responsibility and meets quarterly to examine serious detention-related issues. Subcommittees meet monthly on topics such as sexual assault in ICE custody and solitary confinement. CRCL participates in the subcommittee on solitary confinement but is not permitted to “use information ICE shares with CRCL pursuant to such participation in any CRCL investigation or inquiry.”

Office of Inspector General

OIG’s Office of Special Reviews and Evaluations conducts unannounced inspections of detention centers to determine compliance with detention standards. In FY 2019, this office inspected four facilities, issuing a report and one recommendation. OIG also has an Office of Audits, which reviews whether programs, including those at immigration detention facilities, meet established goals and objectives and are financially accountable.

Reporting: OIG’s inspections, audits, and evaluations are available on its website, and include recommendations to the agency subject to investigation and that agency’s response.

The Office of the Immigration Detention Ombudsman

OIDO has a Detention Oversight Division, which conducts announced and unannounced visits to ICE and CBP detention facilities, assesses compliance with laws, detention standards, contract terms, and policy, and makes recommendations for improvement. Trial versions of these facility visits began in October 2020.

Reporting: OIDO publishes its annual report to Congress on the DHS website. In 2022, the office started to also post its inspections report on the DHS website.

Contracts

The Office of Acquisitions Management oversees ICE detention center contracts. Its contracting officer representatives (CORs) address facility noncompliance with detention contracts, including the set of detention standards agreed to in these contracts. ICE detention contracts can but often do not include a Quality Assurance Surveillance Plan, which is a “standard template that outlines detailed requirements for complying with applicable performance standards, including detention standards, and potential actions ICE can take when a contractor fails to meet those standards.”

If a facility is noncompliant with a standard, CORs can submit a Contract Discrepancy Report, and if the issue is not resolved, can recommend a deduction in or withholding of payment to the contractor. However, ICE rarely invokes these financial penalties, and frequently issues waivers exempting facilities from complying with certain standards despite limitations on modifications to federal government contracts. In 2019, almost 180 waivers were in effect, including many related to health and safety. For example, at least eight facilities received waivers of their responsibility to provide full medical records to people who left the facility. Local governments who contract jail beds to ICE are also permitted to adapt certain standards to create their own alternative standard. In 2009, Congress prohibited ICE from continuing contracts with a facility that has failed two consecutive annual inspections. Since that time, ICE has not failed any facility twice in a row.

ICE continues to sign contracts with previous versions of the ICE detention standards instead of the PBNDS 2011, ICE’s most stringent set of detention standards, with little justification.  For example, DHS’ only justification for continuing to use the NDS 2000 when extending its contract with Laredo Processing Center in 2018 was that the facility would charge more per detained individual under the stronger standards.

Reporting: Since 2017, Congress has required DHS to notify Congress 30 days in advance of signing new contracts or modifying existing contracts without requiring that the facility meet the PBNDS 2011. ICE does not make its contracts public, but FOIA litigation by the National Immigrant Justice Center has resulted in the release of some contracts.