IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

SAULE BUNIKYTE, by and through her )

next friend and mother, Rasa Bunikiene, )

)

Plaintiff

)

)

v.

)

)

MICHAEL CHERTOFF, Secretary of

)

U.S. Department of Homeland Security )

(DHS); JULIE L. MYERS, Assistant

)

Secretary, U.S. Immigration and Customs )

Enforcement (ICE); JOHN P. TORRES, )

Director, Office of Detention and Removal )

Operations, ICE; MARC MOORE,

)

ICE Field Office Director; GARY MEAD, )

Assistant Director of Detention and Removal)

Operations at ICE, SIMONA COLON, ICE )

Officer in Charge; JOHN POGASH, ICE )

National Juvenile Coordinator,

)

)

Defendants.

)

___________________________________ )

Civil Action No.:
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION 1. This is an action on behalf of a nine-year-old child, Saule Bunikyte, who has been unlawfully imprisoned by U.S. Immigration and Customs Enforcement (“ICE”), part of the U.S. Department of Homeland Security (“DHS”), for the past 82 days. Saule is being held at a converted medium-security prison, the T. Don Hutto Family Residential Center (“Hutto”) in Taylor, Texas, in violation of the Settlement Agreement in Flores v. Meese, No. 85-cv-4544 (C.D. Cal.) (hereinafter “Flores Settlement” or “Settlement”). The United States Department of Justice entered into the Flores Settlement in January 1997, and ICE remains bound by the Settlement today. This action seeks to enforce the Flores Settlement on Saule’s behalf, to secure her release, and to ensure that she is not separated from her mother and her sister.
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2. The Flores Settlement established minimum standards and conditions for the housing and release of all minors in federal immigration custody. Recognizing the particular vulnerability of children in detention, the Settlement regulates ICE’s release and treatment of minors in three fundamental areas: First, it contemplates that children will generally be released promptly to their parents or designated family members, or, if necessary, to shelters and unrelated custodians. Second, those class members who remain in ICE’s custody must be placed in the least restrictive setting possible, generally a facility or home licensed for the care of dependent, non-delinquent minors. Third, regardless of where they are housed, detained minors are guaranteed a range of basic educational, health, social, and other benefits and rights.
3. Notwithstanding the Settlement, and despite wide recognition that for juveniles “even the most minimal experience of incarceration [can be] extremely injurious,” Lanes v. State, 767 S.W.2d 789, 796 (Tex. Crim. App. 1989), defendants have been imprisoning minor children at Hutto in clear violation of the Settlement. ICE fails to consider these children for release to their parents under reasonable conditions of supervision, fails to place them in the least restrictive custodial setting, and fails to detain them in conditions that meet Flores standards. As a result of defendants’ refusal to comply with the dictates of Flores, the children detained at Hutto suffer prolonged imprisonment, needless frustration, acute anxiety, fear and depression.
4. Defendants’ use of the Hutto facility to detain children and families also directly contravenes the expressed intent of Congress. In 2005 and 2006, Congress directed DHS to keep immigrant families together, and either to release such families altogether or use alternatives to detention. Congress noted that if detention is necessary, immigrant families should be housed in non-penal, homelike environments. In 2005, the House Committee on Appropriations, when making appropriations to DHS, directed, “The Committee expects DHS to release families or use
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alternatives to detention such as the Intensive Supervision Appearance Program whenever possible.” Department of Homeland Security Appropriations Bill, H.R. 79, 109th Cong. (2005). The following year, the House Committee on Appropriations, when making appropriations to DHS, reiterated its position that, where possible, family units should be released under conditions of supervision, and “if detention is necessary, [ICE should] house these families together in non-penal, homelike environments until the conclusion of their immigration proceedings.” Department of Homeland Security Appropriations Bill, H.R. 476, 109th Cong. (2006). In 2007, Congress again reaffirmed this position. Department of Homeland Security Appropriations Bill, 2007, H.R. 476, 109th Cong., 2d Session (2007).
5. ICE has stated that it opened Hutto in May 2006 to keep families together, pursuant to Congress’s recommendation. However, while ICE calls Hutto a “Family Residential Center,” the facility itself used to be a medium-security prison and, until recently, razor wire surrounded much of its perimeter. Indeed, far from providing a “non-penal homelike environment[],” Hutto is structurally and functionally a prison. Children are required to wear prison garb. Until two weeks ago, they received only one hour of recreation a day, Monday through Friday, and were rarely allowed outdoors in the fresh air. Despite recent changes, they still do not receive the amount of recreation that thriving children require. They are detained in small cells for about 11 or 12 hours each day, prohibited from keeping food, writing implements, and toys in their cells, and hardly have any privacy. Moreover, despite their urgent needs, they lack access to adequate medical, dental, and mental health treatment, and are denied adequate educational opportunities. Guards frequently discipline children by threatening to separate them permanently from their parents, and children are prohibited from having contact visits with nondetained family members.
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6. There is no question that family unity is of paramount concern. However, ICE’s use of this objective to justify imprisoning immigrant children wholly perverts congressional intent. As clearly recognized by Congress in its directive to DHS, the choice is not between enforcement of the immigration laws and humane treatment of immigrant families. Rather, ICE has alternatives to detention that would satisfy both these objectives and be more cost-effective as well. These include the Intensive Supervision Assistance Program (“ISAP”), a program that utilizes electronic monitoring as a way to supervise immigrants released into the community, and for which Congress specifically allocated funding. Moreover, in the event that greater supervision is deemed necessary, there are “non-penal homelike environments” where such families can be held. For example, the U.S. Marshals Service in San Diego has a contract with a 24-hour care facility run by Catholic Charities, Casa San Juan. A similar facility, Casa Marianella, houses refugee families in Austin, Texas. Either of these options could bring DHS into compliance with the Flores Settlement.
7. There is simply no justification for imprisoning children, many of whom are seeking asylum and have been found by a trained asylum officer to possess a credible fear of persecution, in a converted medium-security prison that does not provide proper services or comport with existing federal standards on the detention of immigrant children. Because defendants have failed to comply with their clear obligations under Flores, Saule seeks declaratory and injunctive relief to remedy the serious and ongoing violations of her rights.
JURISDICTION AND VENUE 8. This Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1346(a)(2).
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9. This Court has authority to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202, and Rule 57 of the Federal Rules of Civil Procedure.
10. This Court has authority to grant injunctive relief in this action pursuant to 5 U.S.C. § 702, and Rule 65 of the Federal Rules of Civil Procedure.
11. Venue properly lies in the Western District of Texas pursuant to 28 U.S.C. §§ 1391(b)(2) and (e)(2) because a substantial part of the events and omissions giving rise to Saule’s claims occurred, and continues to occur, in this district.
PARTIES A. Plaintiff 12. Saule appears by and through her next friend and mother, Rasa Bunikiene. Rasa Bunikiene also is currently detained at Hutto with Saule. Saule’s sister, Egle Baubonyte, age sixteen, is also detained at Hutto. 13. Saule was born on August 14, 1997 in Lithuania. She arrived in the United States on March 8, 2005. She was in the third grade at West Elementary in Crystal Lake, Illinois until December 15, 2006 when she was picked up by ICE with her sister and her mother and sent to Hutto. 14. There has never been any suggestion that Saule or her mother or sister poses any danger that would require their detention. 15. Saule has been detained at Hutto from December 15, 2006 to the present. She is in the custody of the defendant officials at DHS, under the direction of the Secretary of DHS, Michael Chertoff, and ICE, under the direction of Julie L. Myers, the Assistant Secretary of Homeland Security for ICE.
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16. Since arriving at Hutto, Saule has suffered and continues to suffer actual injury because defendants have failed to consider her for release, place her in the least restrictive setting, or provide her with essential rights and services.
B. Defendants 17. Defendant Michael Chertoff is the Secretary of DHS, the agency charged with enforcement of the nation’s immigration laws. As such, Chertoff has ultimate authority over the administration and operation of all U.S. immigration laws, including the care and treatment of persons detained pursuant to those laws. Chertoff has ultimate control and oversight over all DHS employees, and is responsible for setting policy and establishing regulations for DHS. Chertoff is specifically authorized to allocate funds to provide necessary clothing, medical care, housing, and security for immigration detainees, and to enter into agreements necessary to establish acceptable conditions of confinement and detention services. See inter alia 8 U.S.C. § 1103; 6 U.S.C. §§ 112, 251 and 557. Chertoff is legally required to enforce and comply with all provisions of the Flores Settlement, a true and correct copy of which is attached as Exhibit A ("Ex. A"). 18. Defendant Julie L. Myers is Assistant Secretary for ICE, the arm of DHS charged with detaining and removing non-citizens pursuant to federal immigration law. As the top official at ICE, Myers sets detention and removal priorities and has ultimate responsibility for the safety and well-being of children detained in ICE custody. The Office of Detention and Removal Operations (“DRO”), a division of ICE, manages the daily detention of immigration detainees. Myers supervises the official conduct of all DRO officials and may appoint and remove subordinate defendants named herein. As Assistant Secretary (under Secretary Chertoff) in charge of immigration detention, Myers controls the allocation of monies in the DHS-ICE budget
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for detention and removal operations and, specifically, the care and treatment of ICE detainees. Myers is legally required to enforce and comply with all provisions of the Flores Settlement.
19. Defendant John P. Torres is the Director of DRO for ICE and is responsible for the safe, secure, and humane housing of immigration detainees in ICE custody. The primary responsibility of DRO is to provide adequate and appropriate custody management of immigration detainees until a decision is rendered regarding their removal. ICE-DRO headquarters staff conduct annual inspections of each facility used to house immigration detainees, and assess them for compliance with ICE Detention Standards. Torres oversees the DRO workforce, including ICE field officers, deportation officials, compliance review officers, and officers assigned to detention facilities. Torres is responsible for setting DRO policy with respect to the detention of foreign nationals, and for the administration and operation of DRO. Torres is legally required to enforce and comply with all provisions of the Flores Settlement.
20. Defendant Gary Mead is the Assistant Director of DRO for ICE. As such, he assists Torres in overseeing the DRO workforce, including ICE field officers, deportation officials, compliance review officers, and officers assigned to detention facilities. Mead also assists in setting and enforcing DRO policy with respect to the detention of foreign nationals, and for the administration and operation of DRO. Mead is legally required to enforce and comply with all provisions of the Flores Settlement.
21. Defendant Marc Moore is the Director of the ICE San Antonio Field Office, which has jurisdiction over Hutto and official control over detention and removal operations at the facility. Moore oversees transfers of immigration detainees into and out of Hutto and formally approves all placements of detainees at Hutto. Moore supervises and oversees all ICE
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staff at the San Antonio Field Office. Moore is legally required to enforce and comply with all provisions of the Flores Settlement.
22. Defendant Simona Colon is the ICE Officer-in-Charge at Hutto. As the Officerin-Charge at the facility, Colon is the immediate legal custodian of the ICE detainees at Hutto and is directly responsible for their care and treatment while in detention there. Colon has authority to transfer detainees into and out of the facility and supervises all ICE employees at Hutto. On information and belief, Colon also has significant oversight over the actions of Corrections Corporation of America, Inc. (“CCA”) employees at Hutto, including the Warden, pursuant to the DHS-ICE contractual agreement with CCA to house immigration detainees at the facility. Colon is legally required to enforce and comply with all provisions of the Flores Settlement.
23. Defendant John Pogash is the National Juvenile Coordinator for ICE. As the National Juvenile Coordinator, Pogash has direct authority over DHS field personnel in decisions relating to the proper handling of juveniles, including the placement of juveniles in DHS-funded facilities, the transfer of juveniles to other facilities, or their release from DHS custody. Pogash is legally required to enforce and comply with all provisions of the Flores Settlement and has numerous specific obligations under the Settlement, including the obligation to “monitor compliance with the terms of the Agreement” and the obligation to “collect information regarding the reasons for every placement of a minor in a detention facility or medium security facility.” Ex. A, at ¶ 28(A).
24. All defendants are sued in their official capacities.
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25. At all relevant times, all defendants were acting under color of federal law, pursuant to their authority as officials, agents, contractors, or employees of U.S. governmental agencies or entities.
THE FLORES SETTLEMENT 26. On January 28, 1997, the United States District Court for the Central District of California approved the Stipulated Settlement Agreement in Flores v. Meese, which established a “nationwide policy for the detention, release, and treatment of minors” in ICE’s custody. 1 See Ex. A, at ¶ 9. The Settlement remains in effect today. 27. The Flores Settlement was the result of years of litigation initiated by the Center for Human Rights & Constitutional Law, the National Center for Youth Law, and the law firm of Latham & Watkins, LLP. The Flores certified class action began in 1985. On November 30, 1987, the federal district court for the Central District of California approved a settlement in which the Immigration and Naturalization Service (“INS”) pledged to remedy the “deplorable conditions” affecting minors in its custody in the Western Region. See Memorandum of Understanding Re: Compromise of Class Action: Conditions of Confinement (Nov. 30, 1987) (“MOU”). Although the MOU nominally resolved the majority of plaintiffs’ complaints over the treatment of minors in its custody, the INS refused to discontinue its practice of strip-searching minors when they were admitted or re-admitted to detention facilities or after visiting with relatives or counsel. In 1988, the Central District of California entered summary judgment in plaintiffs’ favor specifically prohibiting defendants from strip-searching minors absent a
1 Created in March 2003, ICE combines the law enforcement arms of the former INS and the former U.S. Customs Service. The Flores Settlement binds ICE, since ICE is the successor of the INS. Ex. A, at ¶ 1 (“The term ‘party’ or ‘parties’ shall apply to Defendants and Plaintiffs. As the term applies to Defendants, it shall include their . . . successors . . . .”).
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reasonable suspicion that strip-searching a particular juvenile could yield weapons or contraband. Flores v. Meese, 681 F. Supp. 665, 669 (C.D. Cal. 1988).
28. As for defendants’ release policy, in 1993 the U.S. Supreme Court reversed the en banc opinion of the Ninth Circuit Court of Appeals, which had affirmed the Central District of California’s order requiring the INS to determine whether individual minors should be released to reputable caregivers in addition to their parents and guardians. The Supreme Court held that the INS had discretion to adopt a blanket policy against releasing minors to unrelated caregivers if the treatment and conditions children experienced in defendants’ custody measured up to the requirements of the MOU. Reno v. Flores, 507 U.S. 292, 305 (1993).
29. Upon remand from the Supreme Court, plaintiffs filed voluminous evidence showing that the INS was not, in fact, in compliance with the MOU. Rather than contest plaintiffs’ evidence, defendants agreed to the terms of the Settlement, which was approved by the Central District of California in January 1997. The original termination provision of the 1997 Flores Settlement was modified by a December 2001 Stipulation and Order, which states: “All terms of this Agreement shall terminate 45 days following defendants’ publication of final regulations implementing this Agreement. Notwithstanding the foregoing, the INS shall continue to house the general population of minors in INS custody in facilities that are statelicensed for the care of dependent minors.” Defendants have never issued final regulations implementing the terms of the Flores Settlement, so the terms of the Settlement remain binding and enforceable.
30. The certified class in Flores is defined as: “All minors who are detained in the legal custody of the INS.” Ex. A, at ¶ 10. The Settlement defines the term “minor” as “any person under the age of eighteen (18) years who is detained in the legal custody of the INS.” Id.
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¶ 4. Saule is a member of the Flores Class and is entitled to all the protections derived from the Settlement.
31. Paragraph 24(B) of the Flores Settlement permits any minor who disagrees with her placement in a particular type of facility, or who asserts that the facility does not comply with the standards set forth in the Settlement to “seek judicial review in any United States District Court with jurisdiction and venue over the matter to challenge that placement determination or to allege noncompliance with the standards set forth in Exhibit 1.”
32. Paragraph 24(C) of the Flores Settlement requires ICE to provide Saule with “a notice of the reasons for housing the minor in a detention or medium security facility.” Ex. A, at ¶ 24(C). Defendants have never provided such a notice to her.
33. Prior to initiating this action, Saule’s attorneys sent letters on February 21 and March 1, 2007 providing notice of the violation of her rights at Hutto to the United States Attorney’s office in the Western District of Texas in an effort to informally resolve the matter pursuant to paragraph 24(E) of the Flores Settlement. Ex. A, at ¶ 24(E). Neither the United States Attorney’s office for the Western District of Texas nor the Office of Immigration Litigation, to which the letters were forwarded, has responded to the substance of the faxed letters from Saule’s attorneys.
FACTUAL ALLEGATIONS 34. As of February 10, 2007, ICE was housing 400 immigration detainees at Hutto, approximately 200 of whom are children. A significant percentage of the families detained at Hutto are seeking asylum in the United States. Most of these families were found by a trained asylum officer to have a credible fear of persecution, and have pending asylum applications. The children at Hutto have committed no crimes and are being detained as a result of the actions of
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one or both of their parents. Some of the children at Hutto will ultimately remain in the United States legally because the government will determine that they have not violated immigration laws or they qualify for asylum. Since the facility opened, families have been detained for periods of time ranging from a couple of weeks to over 200 days and counting.
35. Saule is being detained at Hutto in violation of virtually every provision of the Flores Settlement. She brings this suit to enforce her rights pursuant to the Flores Settlement, to seek the release of her, her sister, and her mother from Hutto, and to ensure that she is not separated from her mother and her sister.
A. The ICE-CCA Partnership 36. Hutto is a contract detention facility in Taylor, Texas operated by CCA. CCA is not in the business of running licensed child-care facilities; it is the largest private, for-profit provider of detention and corrections services for adults in the nation. On its website, the CCA’s statement of vision reads: “To be the best full service adult corrections company in the United States” (emphasis added). 37. ICE pays CCA over $2.8 million per month to run the Hutto facility for up to 512 detainees and an additional $79 per day for each detainee over 512. Despite this highly lucrative contract, children at Hutto receive inadequate services that fail to meet the requirements of the Flores Settlement. B. Defendants’ Violation of Policy Favoring Release 38. The first fundamental obligation of the Flores Settlement is that ICE actively and continuously seek to release minors from its custody. Section VI of the Settlement (“General Policy Favoring Release”) memorializes ICE’s obligation to decrease the frequency and length of detention of minors, whenever possible. Stipulating that detention is generally detrimental to
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minors, ICE has agreed to release a minor “without unnecessary delay” once it determines that “detention of the minor is not required either to secure his or her timely appearance before the INS or the immigration court, or to ensure the minor’s safety or that of others.” Ex. A, at ¶ 14. The Settlement makes clear that as a general matter, ICE must actively and continuously attempt to locate appropriate custodians for detained minors and release minors who have qualified custodians available to care for them: “Upon taking a minor into custody, the INS, or the licensed program in which the minor is placed, shall make and record the prompt and continuous efforts on its part toward family reunification and the release of the minor pursuant to Paragraph 14 above. Such efforts at family reunification shall continue so long as the minor is in INS custody.” Ex. A, at ¶ 18. The agreement also stipulates that detaining minors should be only a temporary solution. Ex. A, at ¶ 19. The Settlement provides that release to a parent is the highest priority preference among release options. Ex. A, at ¶ 14.
39. Defendants have failed and continue to fail to consider Saule for release to and with her mother under reasonable conditions of supervision. On information and belief, defendants have made no meaningful effort to explore or develop release alternatives to family detention.
40. Defendants have failed and are continuing to fail to provide family reunification services designed to identify Saule’s relatives in the United States.
C. Defendants’ Violation of Requirement to Place Minors in the Least Restrictive Setting
41. The Settlement’s second fundamental obligation is that the limited number of minors who remain in ICE’s custody must be placed in “the least restrictive setting appropriate to the minor’s age and special needs….” Ex. A, at ¶ 11. The Settlement allows ICE to transfer a minor to a secure lock-down, such as a juvenile hall, only when it can show that the child is
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charged or chargeable with a delinquent act (except for isolated, non-violent, or petty offenses), has committed or threatened to commit a violent act, has proven to be unacceptably disruptive of a licensed program, is a serious “escape risk,” or needs secure confinement for protection from smugglers. Ex. A, at ¶ 21. Before resorting to secure confinement, however, ICE must, if practicable, transfer the minor to another licensed program or to a “medium secure” youth facility. Ex. A, at ¶ 23.
42. Defendants have failed and are continuing to fail to place Saule in the least restrictive setting appropriate to her age and needs. She has committed no delinquent acts, is not a danger to herself or others, and has not been shown to be an escape risk. Indeed, Hutto is among the most restrictive settings in which she could be detained. The Hutto facility is a prison and is managed and operated by CCA employees trained to run adult correctional facilities. At Hutto, Saule’s freedom of movement and daily activities are entirely circumscribed. For example, she is confined to a small cell for 11 to 12 hours a day, is permitted very limited outdoor and recreation time, and must finish eating each meal in 20 minutes or less, or risk going hungry.
D. Defendants’ Failure to Provide the Essential Rights and Services 43. ICE’s third fundamental obligation is to treat children in their custody “with dignity, respect, and special concern for their vulnerability as minors.” Ex. A, at ¶ 11. Paragraphs 19, 6 and 24(B), and Exhibit 1 of the Flores Settlement, titled “Minimum Standards for Licensed Programs,” (“Ex. 1 to Ex. A”), accordingly guarantee children the following benefits and services: (a) placement in a licensed facility; (b) individualized needs assessment; (c) special needs assessment; (d) suitable living conditions; (e) suitable food; (f) right to wear their own clothing; (g) appropriate medical care; (h) mental health care, counseling, acculturation
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and adaptation services; (i) appropriate educational services; (j) adequate recreation and leisure; (k) access to religious services; (l) contact visits with non-detained family members; (m) right to privacy; and (n) disciplinary methods that do not have adverse psychological consequences. Ex. 1 to Ex. A; see also Ex. A, at ¶ 6 (“A licensed program must . . . meet those standards for licensed programs set forth in Exhibit 1 . . . .”). Defendants have failed to provide Saule with these essential rights and services.
(a) Placement in Licensed Facility 44. Hutto is not a licensed program within the meaning of the Flores Settlement. Ex. A, at ¶ 6 (defining a licensed program as “any program, agency or organization that is licensed by an appropriate State agency to provide residential, group, or foster care services for dependent children, including a program operating group homes, foster homes, or facilities for special needs minors. A licensed program must also meet those standards for licensed programs set forth in Exhibit 1 attached hereto. . . .”). Defendants must provide a notice of reasons for housing a minor in a detention or medium security facility. Ex. A, at ¶ 24(C). 45. Defendants have failed and are continuing to fail to place Saule in a licensed facility. Defendants have failed to provide a notice of reasons for housing Saule in a detention or medium security facility.
(b) Individualized Needs Assessment 46. The Flores Settlement requires defendants to conduct an individualized needs assessment for Saule. Ex. 1 to Ex. A, ¶ A(3). (“An individualized needs assessment . . . shall include: (a) various initial intake forms; (b) essential data relating to the identification and history of the minor and family; (c) identification of the minor’s special needs including any specific problem(s) which appear to require immediate intervention; (d) an educational
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assessment and plan; (e) an assessment of family relationships and interaction with adults, peers and authority figures; (f) a statement of religious preference and practice; (g) an assessment of the minor's personal goals, strengths and weaknesses; and (h) identifying information regarding immediate family members, other relatives, godparents or friends who may be residing in the United States and may be able to assist in family reunification.”).
47. Defendants have failed and are continuing to fail to conduct an individualized needs assessment for Saule.
(c) Special Needs Assessment 48. The Flores Settlement requires defendants to conduct a special needs assessment for Saule. Paragraph 7 of the Flores Settlement requires, “The INS shall assess minors to determine if they have special needs and if so, shall place such minors, whenever possible, in licensed programs in which the INS places children without special needs, but which provide services and treatment for such special needs.” Ex. A, at ¶ 7; see also Ex. 1 to Ex. A, at ¶ A(3)(c). 49. Defendants have failed and are continuing to fail to conduct a special needs assessment for Saule.
(d) Suitable Living Conditions 50. The Flores Settlement requires defendants to provide Saule with “suitable living conditions.” Ex. 1 to Ex. A, at ¶ A(1). 51. Defendants have failed and are continuing to fail to provide Saule with suitable living accommodations. She is forced to live in a small cell with two bunk beds, a toilet, and a sink. She must share this small space with her mother and her sister. Because there is no divider separating the sleeping area from the toilet area, Saule is not afforded any privacy when using
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the toilet. The bunk bed has a metal frame, and no padding to protect her from getting cut by its sharp edges. The mattress on the bed is exceedingly thin. The cell is often cold and damp with water leakage. The showers often have only cold water.
52. Cell doors must remain open except during the “count” periods each day, including after “lights out.” Although the cell doors are not locked during these times, the cell doors are closed. Laser sensors are tripped when a cell door opens more than four inches, which functionally confines Saule to the cell for a total of about 11 or 12 hours each day.
(e) Suitable Food 53. The Flores Settlement requires defendants to provide Saule with “suitable . . . food” and “special diets” if medical circumstances so require. Ex. 1 to Ex. A, at ¶¶ A(1), A(2). 54. Defendants have failed and are continuing to fail to provide Saule with suitable food. The food often is inedible and consists of unrecognizable substances, mostly starches. Meat and fresh vegetables are rarely served. At many meals, Saule cannot bear to eat the food. She has had serious stomach pain following meals on a number of occasions. She is typically afforded 20 minutes to eat and sometimes only 5 minutes. On the occasions where she has attempted to eat the food, the guards have rushed her through meals and pushed her out of the cafeteria without allowing her to finish her food. Although Saule becomes hungry at times other than meal times, she is prohibited from taking food or drinks out of the cafeteria. Her hunger often causes her to cry. Since arriving at Hutto, Saule has lost significant weight.
(f) Clothing 55. The Flores Settlement requires defendants to allow Saule to wear “appropriate clothing,” including “the right to wear his or her own clothes when available.” Ex. 1 to Ex. A, at ¶¶ A(1), A(12). According to Physicians for Human Rights, detained migrants should be able to
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wear their own clothing as a simple yet important way “to identify themselves as individuals and not criminals.”2
56. Defendants have prohibited and continue to prohibit Saule from wearing her own clothes, and have required and continue to require her to wear inappropriate clothing. Although she arrived at Hutto with her own clothing, she is forced to wear prison garb, which consists of one-colored scrubs, prison-issued underwear, socks, and soft-bottom shoes. Saule has three sets of these prison clothes. These three sets are not enough clothing to accommodate the laundry schedule. One day per week, she is forced to wear dirty clothing. She wears this same clothing to sleep and during recreation.
57. Saule’s prison-issued clothing is inadequate to keep her warm. She often shivers due to the cold.
(g) Medical Care 58. The Flores Settlement requires defendants to provide Saule with “appropriate routine medical . . . care, . . . and emergency health care services, including a complete medical examination (including screening for infectious disease) within 48 hours of admission, excluding weekends and holidays, unless the minor was recently examined at another facility; appropriate immunizations in accordance with the U.S. Public Health Service (PHS), Center for Disease Control; [and the] administration of prescribed medication . . . .” Ex. 1 to Ex. A, ¶ A(2). 59. Defendants have failed and are continuing to fail to provide Saule with appropriate routine medical care and emergency health services. When she developed a fever soon after her arrival at Hutto, her mother repeatedly asked for medical treatment for her. These
2 Physicians for Human Rights and Bellevue/NYU Program for Survivors of Torture, From Persecution to Prison: The Health Consequences of Detention on Asylum Seekers, (Boston and New York City, June 2003), p. 191.
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requests were made orally to the guards and in writing via sick call slips. However, she was not treated appropriately.
60. Defendants failed to perform a complete medical examination within 48 hours of Saule’s admission at Hutto. She has received no screening for infectious diseases, blood tests, or immunizations during her detention at Hutto.
(h) Mental Health Care, Counseling, Acculturation and Adaptation Services 61. The Flores Settlement requires defendants to provide Saule with “appropriate mental health interventions when necessary.” Ex. 1 to Ex. A, at ¶ 2. It also requires defendants to provide her with “at least one (1) individual counseling session per week,” “[g]roup counseling sessions at least twice a week,” and “[a]cculturation and adaptation services which include information regarding the development of social and inter-personal skills.” Ex. 1 to Ex. A, at ¶¶ A(6), A(7), A(8). 62. Defendants have failed and are continuing to fail to offer Saule mental health treatment, individualized and group counseling, and acculturation and adaptation services. The mental health coordinator at Hutto has stated that, ideally, detainees at Hutto would be scheduled for weekly counseling visits, as well as group counseling sessions but that such treatment is not provided. Saule often cries, and feels sad, frustrated, and angry by the trauma she has suffered and by her detention at Hutto. Her depression is undiagnosed and untreated. There are no opportunities for her to receive the individualized and group counseling sessions or the acculturation and adaptation services that she needs to understand and cope with her detention.
(i) Education 63. The Flores Settlement requires defendants to provide Saule with adequate educational opportunities. Specifically, the Settlement states: “Educational services [shall be]
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appropriate to the minor's level of development, and communication skills in a structured classroom setting, Monday through Friday, which concentrates primarily on the development of basic academic competencies and secondarily on English Language Training (“ELT”). The educational program shall include instruction and educational and other reading materials in such languages as needed. Basic academic areas should include Science, Social Studies, Math, Reading, Writing and Physical Education. The program shall provide minors with appropriate reading materials in languages other than English for use during the minor's leisure time.” Ex. 1 to Ex. A, at ¶ A(4).
64. Defendants have failed and are continuing to fail to provide adequate educational services appropriate for Saule’s level of development. Until mid-December 2006, she received one hour of instruction each day in a class with approximately 70 students, ages 5 to 11. From mid-December to early January 2007, she received no instruction. Starting in early January, instructional time increased to four hours from Monday to Friday. Many of the subjects covered in Saule’s class are too elementary for her grade level. She often colors during class time, sometimes watches movies, and is not learning a sufficient amount. Her mother has no contact with her instructor. The instruction at Hutto falls far short of Texas educational standards.
65. Defendants have not given Saule access to appropriate reading materials for use during her leisure time. She was allowed in the library only during her orientation to the facility. She cannot find enough appropriate books to read for her age and language skills.
66. While infrequent, when Saule actually does get some homework, she must ask for a pencil from a guard, complete it in the common area of the pod and immediately return the pencil back to the guard. Saule, like all children at Hutto, is not otherwise permitted writing implements in her pod.
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(j) Recreation and Leisure 67. The Flores Settlement requires defendants to provide Saule with adequate recreation and leisure time. That recreation and leisure time “shall include daily outdoor activity, weather permitting, at least one hour per day of large muscle activity and one hour per day of structured leisure time activities (this should not include time spent watching television). Activities should be increased to a total of three hours on days when school is not in session.” Ex. 1 to Ex. A, at ¶ A(5). 68. Defendants have failed and are continuing to fail to provide Saule with adequate recreation and leisure time. Until two weeks ago, she had been outside in the fresh air only a handful of times during her detention at Hutto. She was not permitted to go outside even once during the month of December 2006. She continues to be unable to have sufficient recreation time for a thriving child. 69. Recreation is typically one hour each day and takes place indoors. On days when school is not in session, the hour of recreation is not increased to three hours. In the latter half of December, for example, Saule did not go outside at all despite school not being in session. 70. Defendants have prohibited and continue to prohibit Saule from having her own toys. Saule cannot have crayons, pens, or pencils in her cell. In order to use them in her pod, she must borrow them and then return them to the guards. She is only permitted this temporary use of a writing implement in her pod if she is in the common area and not in her cell.
(k) Contact Visits With Non-Detained Family Members 71. The Flores Settlement requires defendants to allow Saule to have contact visits with non-detained family members. Ex. 1 to Ex. A, at ¶ A(11).
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72. Defendants have barred and continue to bar Saule from having contact visits with non-detained family members. Although Saule has relatives who would like to visit her, she, her sister, and her mother have dissuaded him from visiting Hutto because everyone at Hutto is told that all family visits are non-contact visits. If Saule were to receive a family visitor, that visitor would have to sit separated from her by a Plexiglas wall and communicate with her through a telephone handset on the wall. Because detainees and visitors must each speak through a single handset, only one visitor may speak to one detainee at any given time, further limiting communications.
73. The public information officer at Hutto has explained that visits are non-contact to eliminate the need for strip searches following visitation. The district court in Flores ruled that routine strip searches of minors may not be conducted and that such searches may only occur if there is “a reasonable suspicion that a strip search of a particular juvenile will yield weapons or contraband.” Flores v. Meese, 681 F. Supp. 665, 667069 (C.D. Cal. 1988). Thus, the public information officer’s explanation for why Saule is not permitted to have contact visits with her non-detained relatives is inadequate.
(m) Right to Privacy 74. The Flores Settlement requires defendants to afford Saule a “reasonable right to privacy,” which includes the right to “talk privately on the phone” and “receive and send uncensored mail.” Ex. 1 to Ex. A, at ¶ A(12). 75. Defendants have intruded and continue to intrude on Saule’s privacy. Although she is given a sheet to cover the window in her cell door at times, guards have banged on her cell door demanding that she remove the window covering even when she is using the toilet. She is
22

forced to shower and dress in front of many other children. She is not given enough time to bathe properly.
76. Defendants have prohibited and continue to prohibit Saule from talking privately on the phone; during orientation, she was told that her calls would be monitored by defendants. There are also no dividers separating phones in the common areas, thereby assuring a lack of privacy among the detainees.
77. Saule does not have access to uncensored mail; all mail must be opened in front of Hutto guards. Saule’s stepfather has mailed her books tailored to her stage of development, since appropriate books at Hutto are difficult, if not impossible, to find. However, Saule was not permitted to receive those books; the books were returned to her stepfather. Guards explained that all books must be sent directly from the publisher, a rule derived from the correctional setting.
78. Cameras have recorded and continue to record Saule’s behavior 24 hours a day. These cameras have the ability to zoom close enough to be able to read what a detained child is writing on a piece of paper.
(n) Discipline 79. The Flores Settlement prohibits defendants from subjecting Saule to “mental abuse,” or any sanctions that “adversely affect . . . psychological well-being . . . .” Ex. 1 to Ex. A, at ¶ C. 80. Defendants have subjected and continue to subject Saule to discipline that amounts to mental abuse and that adversely affects her psychological well-being. Guards at Hutto threaten children, like Saule, in a variety of ways for typical child behavior such as running around, making noise, and climbing on furniture. The guards have repeatedly threatened
23

that if a child acts inappropriately, she will be separated permanently from her parents. They have threatened that if a child has three incidents that are written up, the child will be reported to ICE. Guards also have threatened that if a parent behaves inappropriately by, for example, taking food out of the cafeteria to feed her child, the parent will be separated permanently from her child. Saule has heard these threats, which terrify her. On a number of occasions, this type of threat has been specifically directed at Saule. These threats amount to mental abuse and cause Saule severe anxiety.
CLAIMS FOR RELIEF 81. Defendants’ policies, practices, acts, and omissions with respect to the children detained at Hutto deprive Saule of her rights under the Flores Settlement. 82. Defendants’ policies, practices, acts, and omissions show a pattern of officially sanctioned behavior that violates Saule’s rights, and establish a credible threat of future injury to her. 83. As a proximate result of defendants’ policies, practices, acts, and omissions, Saule has suffered and will continue to suffer immediate and irreparable injury, including physical, psychological, and emotional injury. She has no plain, adequate or complete remedy at law to address the wrongs described herein. The injunctive relief sought by Saule is necessary to prevent continued and further injury.
COUNT I: Release 84. Saule repeats and realleges paragraphs 1- 80, as if set forth fully herein. 85. Defendants’ failure to consider her for release with her family under reasonable conditions of supervision violates paragraph 14 of the Flores Settlement. Ex. A, at ¶ 14.
COUNT II: Family Reunification
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86. Saule repeats and realleges paragraphs 1- 80, as if set forth fully herein. 87. Defendants’ failure to provide family reunification services designed to identify Saule’s relatives in the United States violates paragraph 18 and Exhibit 1, paragraph A(13) of the Flores Settlement. Ex. A, at ¶ 18; Ex. 1 to Ex. A, at ¶ 13.
COUNT III: Least Restrictive Setting 88. Saule repeats and realleges paragraphs 1- 80, as if set forth fully herein. 89. Defendants’ failure to place Saule in the least restrictive setting violates paragraph 11 of the Flores Settlement. Ex. A, at ¶ 11. Defendants' failure to provide a notice of reasons for housing Saule in a detention or medium security facility violates paragraph 24(C) of the Flores Settlement. Ex. A, at ¶ 24(C).
COUNT IV: Licensing 90. Saule repeats and realleges paragraphs 1- 80, as if set forth fully herein. 91. Defendants’ failure to require Hutto to meet licensing requirements violates paragraphs 19, 6, and 24(B), and Exhibit 1 of the Flores Settlement. Ex. A, at ¶¶ 19, 6, 24(B); Ex. 1 to Ex. A.
COUNT V: Individualized Needs Assessment 92. Saule repeats and realleges paragraphs 1- 80, as if set forth fully herein. 93. Defendants’ failure to conduct an individualized needs assessment for Saule violates paragraphs 19, 6, and 24(B), and Exhibit 1, paragraph A(3) of the Flores Settlement. Ex. A, at ¶¶ 19, 6, 24(B); Ex. 1 to Ex. A, at ¶ A(3).
COUNT VI: Special Needs Assessment 94. Saule repeats and realleges paragraphs 1- 80, as if set forth fully herein.
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95. Defendants’ failure to conduct a special needs assessment for Saule violates paragraph 7 of the Flores Settlement. Ex. A, at ¶ 7.
COUNT VII: Suitable Living Accommodations 96. Saule repeats and realleges paragraphs 1- 80, as if set forth fully herein. 97. Defendants’ failure to provide Saule with “suitable living accommodations” violates paragraphs 19, 6, and 24(B), and Exhibit 1, paragraph A(1) of the Flores Settlement. Ex. A, at ¶¶ 19, 6, 24(B); Ex. 1 to Ex. A, at ¶ A(1).
COUNT VIII: Food and Special Diets 98. Saule repeats and realleges paragraphs 1- 80, as if set forth fully herein. 99. Defendants’ failure to provide Saule with suitable food violates Paragraphs 19, 6, and 24(B), and Exhibit 1, paragraph A(1) of the Flores Settlement. Ex. A, at ¶¶ 19, 6, 24(B); Ex. 1 to Ex. A, at ¶ A(1). 100. Defendants’ failure to provide Saule with “special diets” that account for her youth violates paragraphs 19, 6, and 24(B), and Exhibit 1, paragraph A(2) of the Flores Settlement. Ex. A, at ¶¶ 19, 6, 24(B); Ex. 1 to Ex. A, at ¶ A(2).
COUNT IX:Clothing 101. Saule repeats and realleges paragraphs 1- 80, as if set forth fully herein. 102. Defendants’ failure to allow Saule to wear her own clothes violates paragraphs 19, 6, and 24(B), and Exhibit 1, paragraph A(12)(a) of the Flores Settlement. Ex. A, at ¶¶ 19, 6, 24(B); Ex. 1 to Ex. A, at ¶ A(12)(a).
COUNT X: Medical Care 103. Saule repeats and realleges paragraphs 1- 80, as if set forth fully herein.
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104. Defendants’ failure to provide Saule with appropriate medical care violates paragraphs 19, 6, and 24(B), and Exhibit 1, paragraph A(2) of the Flores Settlement. Ex. A, Settlement at ¶¶ 19, 6, 24(B); Ex. 1 to Ex. A, at ¶ A(2).
COUNT XI: Mental Health Treatment and Counseling 105. Saule repeats and realleges paragraphs 1- 80, as if set forth fully herein. 106. Defendants’ failure to offer Saule mental health treatment and individualized and group counseling violates paragraphs 19, 6, and 24(B), and Ex. 1, paragraphs A(2), A(6) and A(7) of the Flores Settlement. Ex. A, at ¶¶ 19, 6, 24(B); Ex. 1 to Ex. A, at ¶¶ A(2), A(6), A(7).
COUNT XII: Acculturation and Adaptation Services 107. Saule repeats and realleges paragraphs 1- 80, as if set forth fully herein. 108. Defendants’ failure to provide Saule with acculturation and adaptation services violates paragraphs 19, 6, and 24(B), and Ex. 1, paragraph A(8) of the Flores Settlement. Ex. A, Settlement at ¶¶ 19, 6, 24(B); Ex. 1, at ¶ A(8).
COUNT XIII: Educational Services 109. Saule repeats and realleges paragraphs 1- 80, as if set forth fully herein. 110. Defendants’ failure to provide Saule with adequate educational services appropriate for her level of development violates paragraphs 19, 6, and 24(B), and Exhibit 1, paragraph A(4) of the Flores Settlement. Ex. A, at ¶¶ 19, 6, 24(B); Ex. 1 to Ex. A, at ¶ A(4).
COUNT XIV: Recreation and Leisure Time 111. Saule repeats and realleges paragraphs 1- 80, as if set forth fully herein. 112. Defendants’ failure to provide Saule with appropriate recreation and leisure time violates paragraphs 19, 6, and 24(B), and Exhibit 1, paragraph A(5) of the Flores Settlement. Ex. A, at ¶¶ 19, 6, 24(B); Ex. 1 to Ex. A, at ¶ A(5).
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COUNT XV: Contact Visits with Non-Detained Family Members 113. Saule repeats and realleges paragraphs 1- 80, as if set forth fully herein. 114. Defendants’ failure to allow Saule to have contact visits with non-detained family members violates paragraphs 19, 6, and 24(B), and Exhibit 1, paragraph A(11) of the Flores Settlement. Ex. A, at ¶¶ 19, 6, 24(B); Ex. 1 to Ex. A, at ¶ A.11.
COUNT XVI: Right to Privacy 115. Saule repeats and realleges paragraphs 1- 80, as if set forth fully herein. 116. Defendants’ failure to respect Saule’s reasonable right to privacy violates paragraphs 19, 6, and 24(B), and Exhibit 1, paragraph A(12) of the Flores Settlement. Ex. A, at ¶¶ 19, 6, 24(B); Ex. 1, ¶ A(12).
COUNT XVII: Discipline 117. Saule repeats and realleges paragraphs 1- 80, as if set forth fully herein. 118. Defendants’ have subjected Saule to disciplinary measures that have caused her humiliation and mental abuse, and that have had an adverse effect on her psychological wellbeing, in violation of paragraphs 19, 6, and 24(B), and Exhibit 1, paragraph 1(C) of the Flores Settlement. Ex. A, at ¶¶ 19, 6, 24(B); Ex. 1 to Ex. A, at ¶ 1(C).
PRAYER FOR RELIEF 1. WHEREFORE, Saule requests that this Court:
(a) Issue a judgment declaring that the Flores Settlement is binding and enforceable and that defendants are violating Saule’s rights under the Flores Settlement.
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(b) Enter a permanent injunction requiring defendants to comply with all provisions of
the Flores Settlement with regard to Saule, including but not limited to releasing her
to and with her mother and her sister under reasonable conditions of supervision.
(c) Enter a restraining order prohibiting the government from separating Saule from her
mother and sister.
(d) Enter a preliminary injunction directing Defendants to release Saule, her sister, and
her mother under reasonable conditions of supervision.
(e) Award Saule reasonable attorneys’ fees and costs pursuant to 28 U.S.C. § 2412, and
other applicable law.
(f) Award such other relief as the Court deems appropriate and just.
Respectfully submitted,
_______________________________ Barbara Hines Texas State Bar No. 09690800 Director – Immigration Clinic THE UNIVERSITY OF TEXAS SCHOOL OF LAW 727 E. Dean Keeton Street Austin, TX 78705 (512) 232-1310
Lisa Graybill* AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS P.O. Box 12905 Austin, TX 78711 (512) 478-7300
Vanita Gupta* Elora Mukherjee* Dennis Parker* 29

AMERICAN CIVIL LIBERTIES UNION FOUNDATION – Racial Justice Program 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500
Gouri Bhat* Tom-Tsvi M. Jawetz* AMERICAN CIVIL LIBERTIES UNION FOUNDATION – National Prison Project 915 15th Street, NW, 7th Floor Washington, DC 20005 (202) 393-4930
Judy Rabinovitz* AMERICAN CIVIL LIBERTIES UNION FOUNDATION – Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500
Sean Gorman LEBOEUF, LAMB, GREENE & MACRAE, LLP Reliant Energy Plaza 1000 Main Street, Suite 2550 Houston, TX 77002 (713) 287-2000
* indicates pro hac vice motion pending
30

 
 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

SAULE BUNIKYTE, by and through her )

next friend and mother, Rasa Bunikiene, )

)

Plaintiff,

)

)

v.

)

)

MICHAEL CHERTOFF, et al.,

)

)

Defendants.

)

___________________________________ )

Civil Action No.:

PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT SEPARATION FROM HER MOTHER Introduction
Plaintiff Saule Bunikyte is a nine-year-old child in the custody of the Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE). Plaintiff files this motion for a temporary restraining order pursuant to Fed. R. Civ. P. 65, to prevent ICE from separating her from her mother, Rasa Bunikiene, in retaliation for or in response to the filing of this lawsuit on March 6, 2007. Both plaintiff and her mother are civil immigration detainees currently incarcerated at the T. Don Hutto Family Residential Center (“Hutto”) in Taylor, Texas, a converted medium-security prison. This action and the motion for a preliminary injunction filed herewith assert plaintiff’s rights as a minor child under the Flores Settlement and request her immediate release from the Hutto facility. Plaintiff and her mother realistically fear that defendant ICE officials may respond to this lawsuit by ordering the release of plaintiff without her mother. To guard against this substantial threat, which would be inconceivably traumatic for both mother and child, plaintiff seeks a restraining order barring defendants from physically
1

separating plaintiff from her mother or, in the alternative, from doing so without at least 10 days advance notice to plaintiff’s counsel.
Since January 1997, the detention and release of all minors in federal immigration custody has been governed by the terms of the Stipulated Settlement Agreement in Flores v. Meese, No. 85-cv-4544 (C.D. Cal.) (“Flores Settlement”), attached hereto as Exhibit A. Plaintiff’s Complaint alleges that defendant ICE officials are in flagrant violation of the terms of the Flores Settlement with respect to her detention at Hutto. Specifically, plaintiff alleges that defendants have failed to consider her for release to and with her mother under reasonable conditions of supervision, as required by Flores; have failed to place her in the least restrictive setting appropriate to her age and needs, as required by Flores; have failed to detain her in a licensed child-care facility, as required by Flores; and have detained her in conditions that fail to meet virtually every specific environmental, education, medical, recreation and other child care standard set forth in the Flores Settlement. Plaintiff ultimately seeks a declaratory judgment that Flores is binding and enforceable, and a permanent injunction requiring defendants to comply with its provisions on her behalf. In conjunction with this filing, plaintiff has also filed a separate motion for a preliminary injunction seeking her immediate release from Hutto with her mother pending a final determination on the merits of her claims.
This motion for a restraining order, however, seeks a more limited form of relief—merely to preserve the status quo until plaintiff can be released from Hutto with her mother under either a preliminary or permanent injunction. Until that time, plaintiff asks that defendants be specifically enjoined from separating her from her mother. As discussed below, plaintiff’s counsel have asked counsel for defendant ICE officials to provide written assurance that no action will be taken to separate plaintiff from her mother. Defendants’ counsel has declined to
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provide such assurance. In light of that fact, plaintiff is compelled to ask this Court to protect her interests by issuing a restraining order against defendants to prevent separation.
Argument The function of a temporary restraining order or preliminary injunction is to preserve the status quo and prevent irreparable loss of rights pending a trial on the merits. Collum v. Edwards, 578 F.2d 110, 113 (5th Cir. 1978). To obtain preliminary relief, plaintiff must show (1) a substantial likelihood of success on the merits of her underlying claims; (2) a substantial threat that she will suffer irreparable injury if the injunction is not granted; (3) that the threatened injury outweighs any damage the injunction might cause the defendants; and (4) that the injunction will not disserve the public interest. Planned Parenthood of Houston & Southeast Tex. v. Sanchez, 403 F.3d 324, 329 (5th Cir. 2005). While each factor must be shown, their relative importance will vary in each case—i.e., they should be applied on a “sliding-scale basis.” See Knights of the Ku Klux Klan, Realm of La. v. East Baton Rouge Parish Sch. Bd., 578 F.2d 1122, 1125 (5th Cir. 1978). “Where one or more of the factors is very strongly established, this will ordinarily be seen as compensating for a weaker showing as to another or others.” Id. A. Plaintiff Is Likely to Succeed on Her Claim That Defendants Are in Violation of
the Flores Settlement. Plaintiff’s Complaint alleges more than fifteen distinct violations of the terms of the Flores Settlement by defendants in this action. Several of these violations can be remedied only by the immediate release of plaintiff from the Hutto facility. Even without the benefit of discovery or expert tours, plaintiff can show a likelihood of success on most if not all of her
3

claims.1 In particular, the merits of Counts I, II, and III of the Complaint compel the immediate release of plaintiff to and with her mother.
1. The Flores Settlement remains binding and enforceable, and plaintiff is a Flores class member.
The Flores Settlement was the result of years of class action litigation on behalf of minors detained by federal immigration authorities in often deplorable conditions.2 Upon remand from the Supreme Court in Reno v. Flores, 507 U.S. 292, 305 (1993), class counsel for the Flores plaintiffs filed voluminous evidence showing that the INS was still not in compliance with a 1987 Memorandum of Understanding compelling the agency to improve the conditions affecting minors in its custody. Rather than contest plaintiffs’ evidence, defendants agreed to the terms of the Flores Settlement, which was approved by the Central District of California in January 1997. The Settlement binds ICE and defendant ICE officials, as the successors of the INS. See Ex. A ¶ 1. Created in March 2003, ICE combines the law enforcement arms of the former INS and the former U.S. Customs Service.
The original termination provision of the 1997 Flores Settlement, see Ex. A ¶ 40, was modified by a December 12, 2001 Stipulation and Order extending the terms of the Settlement. The 2001 Stipulation and Order, attached hereto as Exhibit B, states:
All terms of this Agreement shall terminate 45 days following defendants’ publication of final regulations implementing this Agreement. Notwithstanding the foregoing, the INS shall continue to house the general population of minors in INS custody in facilities that are state-licensed for the care of dependent minors.

1

Filed herewith, plaintiff also submits a motion for a preliminary injunction requesting inter alia that

plaintiff’s counsel and her experts be permitted to tour Hutto and speak with plaintiff and her mother.

2

See Complaint section entitled “The Flores Settlement” at 9-10, summarizing history of the Flores

litigation.

4

Ex. B ¶ 1. The INS, and now ICE, has never issued final regulations implementing the terms of the Flores Settlement. Thus, by the plain language of the Settlement, its terms remain binding and enforceable on defendants.
Until a judicial determination that ICE is in substantial compliance with the requirements of the Flores Settlement—a determination that has never been made or requested by defendants in Flores—Judge Robert J. Kelleher of the Central District of California retains jurisdiction over the Settlement. Ex. A ¶ 35. While classwide enforcement actions should be filed before Judge Kelleher under the terms of the Settlement, id. ¶ 37, the Settlement clearly contemplates and provides for the filing of individual enforcement actions by Flores class members to protect their right under the Settlement, id. ¶ 24. Specifically, the Settlement provides that:
Any minor who disagrees with the INS’s determination to place that minor in a particular type of facility, or who asserts that the licensed program in which he or she has been placed does not comply with the standards set forth in Exhibit 1 attached hereto, may seek judicial review in any United States District Court with jurisdiction and venue over the matter to challenge that placement determination or to allege noncompliance with the standards set forth in Exhibit 1. In such an action, the United States District Court shall be limited to entering an order solely affecting the individual claims of the minor bringing the action. Id. ¶ 24B. The certified class in Flores is defined as: “All minors who are detained in the legal custody of the INS.” Ex. A ¶ 10. The Settlement defines the term “minor” as “any person under the age of eighteen (18) years who is detained in the legal custody of the INS.” Id. ¶ 4. Thus, plaintiff is a member of the Flores Class and is entitled to all the protections derived from the Settlement, including the right to enforce her rights before this Court.
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2. Plaintiff has raised serious questions about defendants’ compliance with the Flores Settlement.
Plaintiff is not required to prove her case to show a likelihood of success on the merits. Lakedreams v. Taylor, 932 F.2d 1103, 1109 n.11 (5th Cir. 1991). “It is enough that the movant has raised questions going to the merits so substantial as to make them a fair ground for litigation and thus for more deliberate investigation.” Finlan v. City of Dallas, 888 F.Supp. 779, 791 (N.D. Tex. 1995) (citing Lakedreams at 1109). Plaintiff clearly raises serious questions about defendants’ compliance with Flores that require further litigation and investigation in this case.
Count I of the Complaint alleges that defendants have violated the most fundamental obligation of the Flores Settlement—to actively and continuously seek to release minors from ICE custody. See Ex. A ¶¶ 14, 18. The Settlement provides that release to a parent is the highest priority preference among release options. Id. ¶ 14. Count II of the Complaint alleges that plaintiff’s placement in a converted medium-security prison managed by a for-profit adult corrections company violates defendants’ obligation under Flores to place plaintiff in “the least restrictive setting appropriate to the minor’s age and special needs.” Id. ¶ 11. Count III of the Complaint alleges that defendants have similarly failed to place plaintiff in a licensed child-care facility as required by the Settlement, because Hutto is unlicensed by any appropriate state agency and fails to meet many of the additional Flores requirements for a “licensed program.” Id. ¶¶ 6, 19 and Exhibit 1 to the Settlement. Finally, plaintiff’s many additional claims raise serious questions about violations of specific environmental, education, medical, recreation and other standards set forth in the Flores Settlement.
The declarations of plaintiff and other children at Hutto, and some of their parents, attached hereto as Exhibits G through P, attest to the depressing, prison-like environment at the facility, and to the correctional model of prison management that is imposed by staff. More
6

declarations and testimony from current and former Hutto detainees can bolster this record at the requested hearing on plaintiff’s separate motion for a preliminary injunction seeking her immediate release from Hutto. In addition, a recently released report entitled Locking up Family Values: The Detention of Immigrant Families, produced by the Women’s Commission for Refugee Women and Children and Lutheran Immigration and Refugee Service (“Women’s Commission Report”), includes extensive information on the Hutto facility based on numerous interviews with detained children and families, conversations with facility staff, and interviews with local and national ICE staff, including defendant John Pogash, the ICE National Juvenile Coordinator. (See Attachment 1 to the Declaration of Vanita Gupta, attached hereto as Exhibit C, at 48.) The Women’s Commission Report confirms many of the specific factual assertions made by plaintiff, including that Hutto is not licensed, id. at 36-37; and that ICE has made no effort to develop release alternatives to family detention, id. at 36—and thus no effort to actively and continuously seek the release of plaintiff as required by Flores. The report as a whole, in conjunction with the declarations from Hutto detainees, strongly suggests that plaintiff will be able to gather evidence establishing that, far from being the “least restrictive setting” appropriate to her age and needs, Hutto is among the most restrictive settings in which plaintiff could be detained. Based on this showing, plaintiff has demonstrated that there is a substantial likelihood she will prevail on at least one, if not several, of her ultimate claims that defendants are in violation of the Flores Settlement.
B. There Is a Substantial Danger That Plaintiff Will Suffer Irreparable Psychological Trauma If the Injunction Is Not Granted.
To show irreparable injury in a preliminary injunction context, it is not necessary to demonstrate that the harm is inevitable. Humana, Inc. v. Jacobson, 804 F.2d 1390, 1394 (5th Cir. 1986). Plaintiff need only show “a significant threat of injury from the impending action, that
7

the injury is imminent, and that money damages would not fully repair the harm.” Id.; see also Cohen v. Coahoma County, Miss., 805 F.Supp. 398, 405 (N.D. Miss. 1992) (to establish the existence of a real, immediate danger from defendants’ official conduct, prisoner did not have to show that defendants were presently engaging in the conduct, only that there was “a genuine threat of enforcement”). In this instance, plaintiff can show both a significant threat that defendants will respond to this lawsuit by separating her from her mother, and a near certainty that she would suffer significant psychological harm as a result.
1. There is a significant chance that defendants will respond to this lawsuit by releasing plaintiff without her mother.
Defendants have not agreed to stipulate in writing that they will not separate plaintiff from her mother in retaliation for or in response to plaintiff’s assertion of rights under the Flores Settlement. Plaintiff’s counsel faxed two letters to counsel for defendant ICE officials, pursuant to ¶ 24E of the Settlement, notifying such counsel that plaintiff and a number of other minor detainees at Hutto were asserting their rights under Flores, and asking for their immediate release to and with their parent(s) under reasonable conditions of supervision.3 (See 2/21/07 Letter to Johnny Sutton and 3/1/07 Letter to Victor Lawrence, Ex. C, Attachments 2 and 3.) In the March 1, 2007 letter, plaintiff’s counsel explicitly requested “an assurance in writing that ICE will not retaliate against our clients by separating them from their parents, or attempt to comply with Flores by releasing them from Hutto without their parents’ consent.” Ex. C, Attach. 3. Plaintiff’s counsel has received no substantive response to either of these letters. Recent experience confirms the concern among plaintiff’s counsel that ICE may transfer or release plaintiff immediately after the filing of her lawsuit. Several of plaintiff’s counsel

3

These letters also constituted an attempt to confer in good-faith prior to the filing of this motion for

preliminary relief, consistent with Local Rule CV-7(h).

8

recently filed an amended complaint against ICE officials—including two officials named as defendants in this action—on behalf of immigration detainees at a facility in Otay Mesa, California, alleging chronic and severe overcrowding. See Kiniti v. Myers, Case No. 05-cv-1013 (S.D. Cal.). Within one week of that filing, four out of the five named plaintiffs in the amended class action complaint were transferred out of the San Diego facility by ICE officials. (See Declaration of Gouri Bhat, attached hereto as Exhibit D ¶¶ 2-4.) Finally, many families detained at Hutto report that separation is used as a constant threat by facility staff to control their behavior and frighten the children. See, e.g., Ex. J ¶ 9; Ex. K ¶¶ 3-5; Ex. L ¶ 6; Ex. M ¶¶ 6-7; Ex. G ¶¶ 4, 6; Ex. H ¶ 7. For these reasons, in an abundance of caution, plaintiff files this motion for a restraining order to prevent a similar precipitous transfer or release of plaintiff without her mother in response to this lawsuit.
2. Plaintiff will suffer irreparable psychological harm if separated from her mother.
Plaintiff submits two declarations from experts in the psychological effects of trauma on children and adolescents. (See Declaration John Sargent, M.D. and Declaration of David R. Blackburn, Ph.D., attached hereto as Exhibits E and F.) Both experts concur that the involuntary removal of children from their parents can cause them to suffer long-lasting psychological harm, particularly when those children have already experienced adversity, trauma and disruption during their young lives. Dr. David R. Blackburn states that “children who are detained in a prison-like setting will very likely suffer psychological harm and trauma from that event” and this trauma “might later contribute to childhood depression, anxiety, and/or stress.” Ex. F ¶ 4. Dr. John Sargent states that “[t]he experience of being detained in a prison-like environment, for even relatively short periods, is extremely stressful for children and families and may represent retraumatization and reenactment for these children.” Ex. E ¶ 3. Both experts similarly concur
9

that the child’s relationship with her parent(s) in this context is crucial to psychological healing and that forced separation would undoubtedly exacerbate the experience of trauma for these children. Dr. Blackburn states that “[i]f these children are involuntarily removed from their parents, they will most likely suffer severe and long-lasting psychological trauma.” Ex. F ¶ 5. Dr. Sargent states that “the key element identified to be necessary for the healing of children after trauma is the child’s caring relationship with his [or her] mother and/or father,” and that children at Hutto are “uniquely vulnerable to serious psychological ill effects of separation from their mothers or fathers.” Ex. E ¶ 3.
The declaration of plaintiff’s mother underscores plaintiff’s unique vulnerability and the likelihood that she will suffer emotional and psychological trauma if involuntarily removed from her mother. Plaintiff is a nine-year-old girl who has been detained at the Hutto facility for 82 days. Compl. ¶ 1. She is originally from Lithuania and is detained with her mother and her older sister. Id. ¶¶ 12-13. On one occasion, plaintiff witnessed a guard at Hutto threaten to take away the children of an Iraqi woman when she entered her husband’s cell to provide him with cleaning products. Declaration of Rasa Bunikiene ¶ 4 (attached hereto as Exhibit G). Plaintiff would be extremely traumatized if she were separated from her mother, and both she and her mother live in fear of this possibility. Id. ¶ 6. Thus, plaintiff’s individual history and emotional state establish that separation could be extremely harmful.
Plaintiff’s factual submissions more than satisfy the requirement to show irreparable harm if the restraining order is not issued.
C. Defendants Will Suffer No Harm by Maintaining the Status Quo, and the Public Interest Will Not Be Disserved.
When preliminary injunctive relief is sought “against public institutions and against public servants charged with the enforcement of the law,” it is appropriate to consider the third
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and fourth prerequisites to relief together. Spiegel v. City of Houston, 636 F.2d 997, 1002 (5th Cir. 1981). This is because the public always has an interest in ensuring that public officials act within the bounds of the law and respect the rights of individuals, regardless of any specific harm that defendant officials may suffer from the requested injunction. See Finlan, 888 F. Supp. at 791. In this instance, the balancing of equities is straightforward because defendants will not be injured in any respect by an order barring the separation of plaintiff from her mother. Indeed, the requested restraining order merely preserves the status quo until a determination on the merits of plaintiff’s claims for immediate release from Hutto to and with her mother. Thus, plaintiff’s compelling interest in avoiding irreparable psychological harm is the overriding consideration in this balance of equities, and is only intensified by the considerable public interest in ensuring the safety and well-being of children detained by ICE in this district. Plaintiff thus satisfies the third and fourth requirements for preliminary injunctive relief.
D. Defendant Will Incur No Costs, and No Bond Is Needed. Although Fed. R. Civ. P. 65(c) requires security to be posted before a restraining order is
granted, district courts have discretion to require no security. Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996). Defendant will incur no costs in maintaining the status quo and in not separating plaintiff from her mother. No bond is necessary.
Relief Requested Plaintiff requests expedited consideration of her motion for a restraining order, but does not specifically request a hearing on the motion. The motion and all supporting papers have been served on all individual defendants, the U.S. Attorney for Western District of Texas, and Department of Justice attorneys representing defendant ICE officials. Plaintiff will withdraw
11

this motion if defendants stipulate in writing that plaintiff will not be physically separated from
her mother during the pendency of this litigation.
Assuming that such stipulation is not forthcoming, plaintiff requests that the Court enter a
restraining order barring defendants from physically separating plaintiff from her mother or, in
the alternative, from doing so without at least 10 days advance notice to plaintiff’s counsel.
Conclusion
For the reasons set forth above, plaintiff’s Motion for a Temporary Restraining Order to
Prevent Separation from Her Mother should be granted.
Dated: March 6, 2007.
Respectfully submitted,
_______________________________ Barbara Hines Texas State Bar No. 09690800 Director – Immigration Clinic THE UNIVERSITY OF TEXAS SCHOOL OF LAW 727 E. Dean Keeton Street Austin, TX 78705 (512) 232-1310
Lisa Graybill* AMERICAN CIVIL LIBERTIES UNION OF TEXAS P.O. Box 12905 Austin, TX 78711 (512) 478-7300
Vanita Gupta* Elora Mukherjee* Dennis Parker* AMERICAN CIVIL LIBERTIES UNION FOUNDATION – Racial Justice Program 125 Broad Street, 18th Floor New York, NY 10004
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(212) 549-2500 Gouri Bhat* Tom-Tsvi M. Jawetz* AMERICAN CIVIL LIBERTIES UNION FOUNDATION – National Prison Project 915 15th Street, NW, 7th Floor Washington, DC 20005 (202) 393-4930 Judy Rabinovitz* AMERICAN CIVIL LIBERTIES UNION FOUNDATION – Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500 Sean Gorman LEBOEUF, LAMB, GREENE & MACRAE, LLP Reliant Energy Plaza 1000 Main Street, Suite 2550 Houston, TX 77002 (713) 287-2000 * indicates pro hac vice motion pending
13

 
 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

SAULE BUNIKYTE, by and through her )

next friend and mother, Rasa Bunikiene, )

)

Plaintiff,

)

)

v.

)

)

MICHAEL CHERTOFF, et al.,

)

)

Defendants.

)

____________________________________)

Civil Action No. 1:07-cv-164-SS

PLAINTIFF’S REPLY IN SUPPORT OF HER MOTION FOR A PRELIMINARY INJUNCTION ORDERING HER IMMEDIATE RELEASE FROM HUTTO WITH HER MOTHER

Introduction

The two fundamental imperatives of the Flores Settlement are that family unity should be

preserved, and that children should be housed in the least restrictive setting appropriate to their

age and needs. Plaintiff’s evidence powerfully demonstrates that the Hutto facility is not the

least restrictive setting for plaintiff, and that conditions at Hutto violate the Settlement in

numerous specific ways. Because plaintiff is detained with her mother and Flores prioritizes

family unity and release to a parent whenever possible, the only way for plaintiff to be afforded

her full rights under the Settlement is for her to be removed from Hutto with her mother—either

released from custody under reasonable conditions of supervision, or transferred to a less

restrictive, home-like environment that complies with Flores standards. In responding to

plaintiff’s motion requesting such preliminary relief, defendants force an artificial choice upon

this Court. Defendants suggest that under Flores the Court may order plaintiff’s release without

her mother—an action that all parties agree would be indelibly traumatic and against the best

interests of plaintiff; or the Court must leave plaintiff at Hutto with her mother, despite clear 1

indications that the facility is not Flores-compliant and that plaintiff may be irreparably harmed by the experience of being detained there.
The Hobson’s choice advanced by defendants mischaracterizes plaintiff’s claims and, if accepted, would eviscerate her rights under the Flores Settlement. Plaintiff does not contend that the Settlement protects adults in ICE custody or compels the release of her mother based on her claims under the Settlement, as defendants suggest. See Defs.’ Resp. at 11-12. Rather, plaintiff seeks to enforce her own rights under the Settlement, and argues that her release from custody with her mother is compelled by the Settlement’s fundamental imperatives to promote family unity and to house minors in the least restrictive setting. This Court has explicit authority under Settlement to enter an order “affecting the individual claims of the minor bringing the action.” Stipulated Settlement Agreement, Ex. A, March 6, 2007 App. of Exs. (hereinafter “March 6 App.”), ¶ 24(B).1 As plaintiff will argue more fully below, her individual claims under the Settlement are directly affected by her ability to remain in close proximity to her mother—an outcome that is clearly favored by the general policy favoring release to a parent under Flores. Ex. A ¶ 14. Therefore, it is within this Court’s equitable power to order the simultaneous release of the parent in enforcing the child’s rights under the Flores Settlement.
The artificial choice presented by defendants is also misleading because it assumes that there are no feasible alternatives to detention that would ensure plaintiff’s and her mother’s timely appearance at immigration proceedings. In fact, plaintiff’s stepfather, a U.S. citizen, has executed an Affidavit of Support (Form I-134) pursuant to the Flores Settlement, Ex. A ¶ 15, guaranteeing that he is willing and able to support plaintiff and her mother and sister in his home

1

Although the docket reflects that plaintiff’s March 6, 2007 Appendix of Exhibits is attached only to

Plaintiff’s Motion for a Temporary Restraining Order, the Appendix was also filed in support of Plaintiff’s Motion

for a Preliminary Injunction, filed the same day. To avoid any confusion, plaintiff hereby incorporates and attaches

by reference Exhibits A through P of the March 6, 2007 Appendix, and will cite those documents by their original

exhibit numbers.

2

in Chicago, and to ensure that they appear for all required court dates. See infra Part V.A.1. Finally, the choice between separating plaintiff from her mother on the one hand, and her continued detention at Hutto on the other, should be rejected by this Court because it effectively nullifies plaintiff’s rights under the Flores Settlement. If plaintiff cannot assert her rights under Flores without being separated from her mother—including but not limited to her right to release from Hutto, if necessary—then key provisions of the Settlement are rendered virtually meaningless for her.
In response to plaintiffs’ motion for preliminary relief, defendants raise various objections, arguing principally that plaintiff has not satisfied Flores exhaustion requirements, that the Settlement is not applicable to the family detention context, and that the Court has no authority to grant the requested relief. All of these arguments are without merit, as discussed below. Moreover, what defendants do not argue also speaks volumes. Nowhere do defendants identify their “prompt and continuous efforts” to release plaintiff, as required by the Settlement, Ex. A ¶ 18; nowhere do they argue that Hutto is the “least restrictive setting” in which plaintiff could be detained, id. ¶ 11; nowhere do they contend that the facility is properly licensed to provide child care services, id. ¶ 6. Defendants’ silence on these issues underscores plaintiff’s likelihood of success on her claims that her confinement at Hutto violates her rights under the Flores Settlement. In addition, plaintiff’s evidence that she suffers a significant risk of irreparable harm from her continued confinement—based on declarations from three experts in child psychology, and the anticipated testimony of Dr. Andrew Clark at the March 20, 2007 preliminary injunction hearing—is incontrovertible. Plaintiff more than satisfies the requirements for preliminary relief, and her request to be removed from Hutto with her mother should be granted.
3

Factual Background
Defendants’ lengthy “Facts” section misrepresents the reality of conditions at Hutto and
the options available to defendants in lieu of detaining children in a prison-like environment, and
advances other myths that are easily debunked by common sense.
Hutto is not good for families. Defendants’ brief and the declarations offered in support
of it seem to portray Hutto as an ideal family residential environment. In defendants’
presentation, small prison cells become private family living areas; detainees in ICE custody
become residents; and professional correctional officers who are not licensed child care
providers become specially trained individuals who shepherd the mental, emotional, and social
growth of the residents. See, e.g., Decl. Marc J. Moore ¶¶ 7-8, 14-17. The mothers of the
plaintiffs in these related actions reviewed the declarations submitted by defendants. One
representative reaction comes from Masomeh Alibegi, Kevin Yourdkhani’s mother, who
declares:
I read the statements Mr. Marc Moore and Mr. Tim Perry made to the court. When I realized how many of the things they said are not true I became very upset. For example, Mr. Moore’s statement says this is a family shelter and interior doors remain unlocked, facilitating maximum freedom of movement. [Moore Declaration at ¶ 8]. That is just not true. We cannot leave our pod ever except to eat and go to rec and then we are lined up like inmates and escorted by a guard, we are not even allowed to touch the door, much less open it ourselves and at night we cannot leave our cell. The doors to our cells are not locked but no one is allowed to come out of their cells even for a second at night. Family members who go into other family member’s cells get in trouble. That is not “freedom of movement,” that is no freedom at all.
Decl. of Masomeh Alibegi, attached hereto as Ex. T ¶ 23.
There are cost-effective alternatives to detaining families at Hutto. Defendants
unfortunately perpetuate the myth that detaining families at Hutto is the only cost-effective
4

means of ensuring that such families will appear at their court hearings. Defs.’ Resp. at 7-8. In truth, DHS has available to it less expensive and more humane ways to ensure that families comply with immigration laws, and in 2006, Congress directed DHS to expand its use of such alternatives. The House Committee on Appropriations, when making appropriations to DHS, noted that “[p]rograms for electronic monitoring and telephonic reporting, and especially the Intensive Supervision Appearance Program (ISAP), contribute to more effective enforcement of immigration laws at far less cost ($22/night) than for detention ($95/night).” Department of Homeland Security Appropriations Bill, H.R. 476, 109th Cong. (2006).2 In addition to ISAP and electronic monitoring, other placements—such as refugee shelters like Casa Marianella and release to family members—provide defendants with additional alternatives to Hutto.
The ICE-DRO standards compliance process does not ensure that Hutto is an appropriate environment for children. Defendants discuss the ICE Detention Standards and its compliance review process to assure the Court that Hutto is an appropriate environment for children. See Defs.’ Resp. at 9-11. This is remarkable given that the ICE Detention Standards are entirely silent with respect to nearly every key provision of the Flores Settlement (e.g., education, clothing, and individualized and special needs assessments), and in fact make little mention of the special considerations that arise when detaining children. See generally ICE Detention Operations Manual (the “ICE Detention Standards”), at http://www.ice.gov/partners/dro/opsmanual/index.htm. By way of contrast, the Flores Settlement sets forth a “nationwide policy for the detention, release, and treatment of minors in the custody of the INS,” Ex. A ¶ 9, and yet defendants have failed to adopt formal standards or

2

In its first full year, ISAP’s overall success rate in eight cities—measured in terms of appearance at

immigration proceedings—was 94 percent. 2006 DHS Appropriations Bill. In one case, appearance rates were even

higher: 98 percent. Id. Based on these findings, Congress recommended an additional $5 million for “this

promising program” with the expectation that ISAP would be expanded to at least two more cities. Id.

5

publish final regulations implementing the agreement for nearly ten years. Moreover, defendants’ declarant Timothy L. Perry makes clear that Hutto was last inspected in accordance to this compliance regime in July 2006—approximately ten months ago.3
Deterring child smuggling is not dependent on imprisoning children who are clearly not victims of smuggling. Defendants provide absolutely no support for the assertion that detaining plaintiff is necessary to effectively combat child smuggling. Plaintiff does not argue that defendants do not have the right to detain minors and adults in suitable, Flores-compliant locations while making a determination about identity and familial relationship. But where, as here, there is no suggestion that child smuggling has occurred, defendants’ repeated mention of child smuggling appears to be little more than fear mongering.
Argument I. Defendants Do Not Contest That the Flores Settlement Is Binding and
Enforceable, and That Plaintiff Is a Class Member. Defendants do not seriously dispute that Flores remains binding, that they have ongoing obligations under the Settlement, and that plaintiff is a member of the certified Flores Class. Defendants’ discussion of the Supreme Court’s 1993 decision in Reno v. Flores, 507 U.S. 292 (1993), while interesting for context, is not relevant to the scope of the 1997 Settlement or the parties’ obligations under it.4 The 2001 Stipulation and Order clearly extends the terms of the

3

The Court has additional reason to be skeptical of ICE’s ability to properly monitor conditions inside of its

detention facilities. A recent audit of five ICE detention facilities by the DHS Office of Inspector General identified

at all five facilities “instances of non-compliance [with the ICE Detention Standards] regarding health care and

general conditions of confinement that were not identified during the ICE annual inspection of the detention

facilities.” DHS Office of Inspector General, Treatment of Immigration Detainees Housed at Immigration and

Customs Enforcement Facilities, Dec. 2006, OIG-07-01, 36, available at

http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_07-01_Dec06.pdf. It was this finding by the OIG that led to ICE’s

decision to incorporate the Office of Professional Responsibility into the agency’s detention standards compliance

regime. Id. at 36-37.

4

It is also worth noting that although the Supreme Court in Reno v. Flores upheld INS regulations

concerning the institutional custody of juveniles, the Court also emphasized throughout the decision that the

treatment and conditions that children experienced in INS custody must meet minimum constitutional standards and

6

Settlement until defendants have published final regulations implementing those terms. See Ex. B, March 6 App. Defendants did not, and cannot, claim to have done so. Finally, as noted by defendants, the withdrawal of the January 26, 2004 enforcement motion filed by the Flores plaintiffs ended litigation on that particular motion, but did not terminate the Flores Settlement or affect the ongoing enforceability of its provisions. Thus, there is no dispute that the Settlement remains binding on defendants.
While essentially conceding that the Settlement governs their actions with respect to the incarceration of children at Hutto, defendants suggest that its terms are not applicable to plaintiffs’ claims because family detention facilities did not exist at the time the Settlement took effect and because plaintiff is not an unaccompanied minor. See Defs.’ Resp. at 12. These observations do not alter the plain meaning of the Settlement provisions.5 The Flores Settlement covers “[a]ll minors who are detained in the legal custody of the INS.” Ex. A ¶ 10. Moreover, notwithstanding their arguments that the Settlement is not applicable to claims regarding Hutto, defendants acknowledge that they have made nominal efforts at compliance. See Defs.’ Resp. at 12 (“Nonetheless, ICE has worked to ensure that the Hutto facility is compliant with the relevant aspects of the FSA.”). Indeed, before the facility opened on May 1, 2006, ICE Contracting Officer Jan K. Wiser wrote to Judge John C. Doerfler of Williamson County,6 identifying numerous modifications that needed to be made to the Hutto facility and services “in accordance with the Flores v. Reno Settlement Agreement.” Decl. of Vanita Gupta, attached hereto as Ex.

the requirements of the 1987 Memorandum of Understanding already entered into by the Flores parties. See, e.g., 507 U.S. at 305 (“Minimum standards must be met, and the child’s fundamental rights must not be impaired . . . .”).

5

However, the fact that there were no designated “family detention facilities” in 1997 does not mean that the

INS was not detaining families with children at that time or that the Settlement was not intended to protect those

children, as well as unaccompanied minors. Whether or not the minors were accompanied by a parent was not

material to the conditions issues raised in the Flores litigation, or to the need for specific standards to protect minors

and ensure that the settings in which they are detained are appropriate to their age and special needs.

6

Williamson County owns the Hutto facility, which is operated by Corrections Corporation of America, Inc.

(CCA), pursuant to a contractual arrangement with ICE.

7

Q, Attach. 2 at 1. Many of these modifications were never made, but the letter reflects that from the outset defendants have been aware of their obligations toward plaintiff under the Settlement.
II. Plaintiff Adequately Exhausted the Alternative Remedy Provided in Paragraph 24(E) of the Flores Settlement.
Defendants argue that plaintiff failed to comply with the Settlement’s requirement that the parties confer telephonically or in person prior to filing any action in court. Defendants’ argument—that plaintiff’s counsel merely sent one letter to the United States Attorney’s office on February 21, 2007, and a second letter to the Department of Justice Office of Immigration Litigation on March 1, 2007—is disingenuous at best.
In fact, the February 21, 2007 letter faxed to Johnny K. Sutton, U.S. Attorney for the Western District of Texas, explicitly stated that it was sent in an attempt to informally confer pursuant to Paragraph 24(E) Settlement. See Ex. C, Attach. 2, March 6 App. At noon on February 22, plaintiff’s counsel attempted to reach Mr. Sutton by telephone. Ex. Q ¶ 3. Plaintiff’s counsel instead reached Mr. Sutton’s voicemail and left a message notifying him of the February 21 fax, and explaining that we represented several children detained at Hutto, that we believed their detention violated the Flores settlement, and that we were reaching out to him pursuant to a requirement in the settlement to see if we could resolve this matter without the need for federal court intervention. Id. Mr. Sutton never returned that telephone call. Id. ¶ 4.
Later that day, John Paniszczyn, Assistant U.S. Attorney for the Western District of Texas, sent by facsimile a letter to plaintiff’s counsel indicating that our February 21 letter had been forwarded to Victor Lawrence at the Department of Justice Office of Immigration Litigation. See Ex. Q, Attach. 2. The letter further stated that Mr. Lawrence would be handling all further inquiries in this matter. Id. Unfortunately, because of a clerical error at the ACLU, plaintiff’s counsel did not receive Mr. Paniszczyn’s facsimile until February 28. By that time,
8

plaintiff’s counsel had already called Mr. Sutton a second time—on February 27, 2007—in an effort to confer as required by Paragraph 24(E). See Ex. Q ¶ 5. Plaintiff’s counsel again reached only Mr. Sutton’s voicemail and again left a message. Id. Neither Mr. Sutton nor Mr. Lawrence returned that telephone message. Id. On March 1, plaintiff’s counsel sent a letter to Mr. Lawrence, a copy of which was sent to Mr. Sutton. See Ex. C, Attach. 3, March 6, 2007 App. This letter restated the substance of the February 21 facsimile, but added the names of several additional clients and requested written assurance from ICE that its officials would not retaliate against our clients for asserting their rights under Flores. Id. Plaintiff’s counsel received no response to the March 1 letter. Ex. Q ¶ 8. Far from making no serious effort at conciliation, plaintiff’s counsel repeatedly contacted Mr. Sutton and Mr. Lawrence, in writing and by telephone, over a period of eight days, and did not file any lawsuit under Flores until nearly two weeks passed without any substantive response whatsoever from opposing counsel.
In light of the failure of defendants’ counsel to respond to repeated attempts to confer about plaintiff’s claims under the Settlement, it was wholly reasonable for plaintiff’s counsel to assume that additional efforts would be futile. See Parham v. Carrier Corp., 9 F.3d 383, 390-91 (5th Cir. 1993) (noting that a party may ordinarily bring suit prior to exhausting remedies if exhaustion would be futile and the party at least attempted to exhaust). Indeed, the Court need look no further than defendants’ own response brief to find evidence of such futility. Defendants state clearly that had the parties conferred, defendants’ position would have been that (1) the Flores Settlement does not apply to family detention centers; (2) plaintiff is mistaken about many of her allegations regarding Hutto; and (3) defendants are making changes to the Hutto facility to improve the environment. See Defs.’ Resp at 17. Plaintiffs have satisfied the Flores exhaustion requirement.
9

III. The Applicable Standard of Review by this Court For All Claims is De Novo. As contemplated by Paragraph 24(B) of the Settlement, plaintiff challenges both the
decision to place her in Hutto, and defendants’ failure to comply with the standards set forth in Exhibit 1 of the Flores Settlement. The standard of review for plaintiff’s challenges to conditions in Hutto and defendants’ failure to comply with Exhibit 1 of the Settlement is clearly de novo review. Ex. A ¶ 24(C). Defendants do not contest this. See Defs.’ Resp. at 11.
However, defendants mistakenly represent that the proper standard of review for plaintiff’s challenge to defendants’ placement decision is abuse of discretion. See id. at 18. Paragraph 24(C) of the Settlement requires defendants to “provide minors not placed in licensed programs with a notice of the reasons for housing the minor in a detention or medium security facility.” Ex. A ¶ 24(C). This notice of reasons provides an explanation of ICE’s exercise of discretion in making the placement decision, and the notice triggers judicial review under an abuse of discretion standard. Id. Without notice of the reasons for ICE’s exercise of discretion in this manner, the Court need not—or rather, cannot—review the placement decision simply for abuse. The proper standard of review is thus de novo in accordance with Paragraph 24(C).
Hutto is not a licensed program within the meaning of the Flores Settlement. See id. ¶ 6. Nevertheless, defendants have provided none of the plaintiffs in these related matters with notice of the reasons for detaining them in a detention or medium security facility, rather than a licensed program. See Decl. of Deka Warsame, attached hereto as Ex. R ¶ 5 (“Mohammed, Aisha, Bahja and I do not know why we are in jail. We never received any notice of reasons for why the children are imprisoned here. Mohammed tells me it is not fair for him to be in jail because he’s never done anything wrong.”); Decl. of Delourdes Verdieu, attached hereto as Ex. S ¶ 6 (“Neither my daughter nor I understand why we are in jail at Hutto. We never received any
10

notice of reasons for why Sherona is being detained here. Nobody told me or Sherona that this is a good place with a license for taking care of children. If someone told me that, I couldn’t believe it. This is a bad place for children and mothers like Sherona and me.”); Decl. of Masomeh Alibegi, Ex. T ¶ 6 (“None of us understand why we are in jail at Hutto. We never received any notice of reasons for why Kevin, a Canadian citizen, is being detained here. No one ever told me this place has permission or a license to care for children. I never saw a certificate or papers that said this is a place for kids.”); Decl. of Rasa Bunikiene, attached hereto as Ex. U ¶ 5 (“The girls and I do not know why we are in jail. We never got anything like a notice of reasons for why the children are imprisoned here. There was no real reason to detain them. It was absolute overexercising of power by ICE. This place is not a place for children. The guards are mean to kids. I don’t think this place has any license for taking care of kids, it is a prison.”); Decl. of Raouitee Pamela Puran, attached hereto as Ex. V ¶ 7 (“Neither my daughter nor I understand why we are in jail at Hutto. We never received any notice of reasons for why Wesleyann is being detained here. This is a terrible jail, it’s not for kids and parents.”).
IV. This Court Has Authority To Enforce Plaintiff’s Rights Under the Settlement By Ordering the Simultaneous Release of Both Plaintiff and Her Mother.
Defendants argue that Paragraph 24(B) of the Settlement does not authorize the Court to enter an order affecting the claims of the plaintiff’s adult relatives and therefore plaintiff’s request for simultaneous release with her mother must be denied. See Defs.’ Resp. at 12. Plaintiff’s mother, however, has not filed suit under Flores, and plaintiff brings no claims on her behalf. The only claims at issue here are plaintiff’s own claims, which the Court clearly has authority to address under Paragraph 24(B). Plaintiff seeks preliminary relief consistent with defendants’ two most fundamental obligations under Flores toward minors in their custody: (1) to preserve family unity through a general policy favoring release to a parent whenever possible,
11

see Ex. A ¶ 14; and (2) to house children in the least restrictive setting appropriate to their age and needs, id. ¶ 11. See also id. ¶ 18 (“[T]he INS . . . shall make and record the prompt and continuous efforts on its part toward family reunification and the release of the minor pursuant to Paragraph 14 above.”). Both obligations—to restore children to their families and to house them in the least restrictive environment—recognize the “particular vulnerability of minors” and reflect defendants’ commitment to treat all minors in their custody “with dignity, respect and special concern.” Id. ¶ 11. As a Flores class member, plaintiff is entitled to the benefits of both of these protections under the Settlement.
The Flores Stipulated Settlement is a court-approved contract, and plaintiff raises contract claims. See United States v. ITT Continental Baking Co., 420 U.S. 223, 236 (1975) (holding that consent decrees and orders should be construed in the same manner as contracts); Guidry v. Halliburton Geophysical Services, Inc., 976 F.2d 938, 940 (5th Cir. 1992). Federal common law principles govern the interpretation of contracts to which the United States is a party, as in this case. Boyle v. United Technologies Corp., 487 U.S. 500, 504 (1988). A fundamental principle of contract interpretation is that a contract “should be interpreted as to give meaning to all of its terms—presuming that every provision was intended to accomplish some purpose, and that none are deemed superfluous.” Transnat’l Learning Cmty. at Galveston, Inc. v. United States Office of Pers. Mgmt., 220 F.3d 427, 431 (5th Cir. 2000). Moreover, when interpreting a contract, courts are compelled to give effect to the parties’ intentions. Pennzoil Co. v. FERC, 645 F.2d 360, 388 (5th Cir. 1981). In light of these principles, the Flores Settlement must be interpreted to give meaning to both key protections afforded by and intended under the Settlement. For minors with detained parents, such as plaintiff, this means that the Flores Settlement must be interpreted to permit the court to order the release of the minor with his or her detained parent
12

from conditions that violate the Settlement, otherwise the minor’s right to be housed in Flores-
compliant conditions is nullified and rendered meaningless. Conversely, if the minor is released
from a non-compliant setting without his or her detained parent, then the minor’s right to be
unified with her parent is eviscerated.
The draconian choice presented by these alternatives is artificial and entirely unnecessary
given defendants’ clear statutory authority to release plaintiff’s mother. See 8 U.S.C. §
1182(d)(5)(A) (authorizing discretionary parole “for urgent humanitarian reasons or significant
public benefit” of non-citizens seeking admission); 8 U.S.C. § 1226 (authorizing release of
inadmissible and deportable non-citizens pending a determination of removability). Indeed, the
simultaneous release of minors such as plaintiff with their detained parents is explicitly
contemplated by regulations. See 8 C.F.R. § 212.5(b)(3)(ii) (authorizing the release from
detention of both a minor and the minor’s accompanying relative); 8 C.F.R. § 236.3(b)(2)
(same). Moreover, the authority to release a minor along with her detained parent—and even the
wisdom of doing so—is specifically noted in the opening paragraph of the Supreme Court’s
opinion in Reno v. Flores, where the Court writes:
The Board of Immigration Appeals has stated that “[a]n alien generally . . . should not be detained or required to post bond except on a finding that he is a threat to the national security . . . or that he is a poor bail risk.” In the case of arrested alien juveniles, however, the INS cannot simply send them off into the night on bond or recognizance. The parties to the present suit agree that the Service must assure itself that someone will care for those minors pending resolution of their deportation proceedings. That is easily done when the juvenile’s parents have also been detained and the family can be released together; it becomes complicated when the juvenile is arrested alone, i.e., unaccompanied by a parent, guardian, or other related adult.
507 U.S. 292, 295 (1993) (internal citations omitted) (emphasis added).
13

In sum, this Court has authority to issue an order protecting the rights of the child under the Settlement and giving effect to its terms—in this case, an order that plaintiff be released along with her mother. Paragraph 24(B) does not say that the district court cannot enter an order affecting anyone other than plaintiff; it says that the district court’s order must solely affect the “individual claims of the minor bringing the action.” Ex. A ¶ 24(B). Nothing whatsoever prevents the Court from ordering simultaneous release of the child with the parent, if necessary to resolve plaintiff’s individual claims under the Settlement. In the alternative, the Court certainly has authority to order defendants to show cause why plaintiff’s mother cannot be released with her under reasonable conditions of supervision or to a less restrictive, home-like environment, given defendants’ clear statutory authority to do so.
V. Plaintiff Satisfies the Requirements for a Preliminary Injunction. Plaintiff demonstrates in her motion that she meets each of the requirements for a
preliminary injunction. Defendants argue that plaintiff fails to meet even one of the four requirements. Defendants’ arguments fail for the following reasons.
A. Plaintiff is likely to succeed on her claims that defendants are in violation of the Flores settlement. 1. Hutto is not the least restrictive setting appropriate for plaintiff.
Defendants make countless claims about the conditions inside the Hutto facility, but one claim they never make is that Hutto is the least restrictive setting appropriate for plaintiff. Defendants concede that Hutto is “a former state prison,” but argue that “[t]here are no physical barriers to movement within the facility.” See Defs.’ Resp. at 23. The experiences of plaintiff and her mother and sister at Hutto belie defendants’ contentions.
Plaintiff’s mother, Rasa Bunikiene, describes the experience this way:
14

A jail is a jail no matter what. Barred doors were covered with drywall only a few weeks ago. There are long corridors without windows. Guards interrupt us when we use the bathroom. I can only see the sun shining through a window that is three inches wide. There are prison bars everywhere. Every step that we take is controlled by guards. We cannot open doors without the guards, we cannot enter a corridor without the guards. Each of our movements is monitored. We can’t leave our pod without supervision. This place is a prison.
Ex. U ¶ 21.
Plaintiff’s expert in child psychiatry, Dr. Andrew Clark, M.D., toured the Hutto facility
for three hours on March 15, 2007, pursuant to this Court’s Order dated March 13, 2007. In
addition to being an Instructor in Psychiatry at Harvard Medical School and the former Medical
Director of the Children and the Law Program at Massachusetts General Hospital, Dr. Clark
holds a part-time position as the Director of Psychiatric Services at the Suffolk County House of
Correction at South Bay. At the hearing scheduled for March 20, 2007, Dr. Clark will testify
that despite being named a family residential center, there is no question but that Hutto is a
correctional facility. In Dr. Clark’s opinion, Hutto is a correctional facility not only in
appearance, but also in the manner in which it is operated; families live in cells, the physical
plant itself is bleak, and prison officials retain control over all aspects of life within the facility.
Moreover, Hutto clearly is not the least restrictive setting in which plaintiff could be
housed because plaintiff has herself identified an alternative to detention that is currently
available to her. Plaintiff’s stepfather, Paul H. Velazquez, is a U.S. citizen and is eager to care
for and support his stepdaughters and his wife in his home in Chicago, Illinois. Mr. Velazquez is
prepared to ensure that they comply with all laws governing their immigration proceedings,
which are pending in Chicago immigration court. In accordance with Paragraph 15 of the Flores
Settlement, Mr. Velazquez has executed an Affidavit of Support (Form I-134) for plaintiff. See
15

Ex. W. In that affidavit, Mr. Velazquez guarantees that he is “willing and able to receive, maintain and support” plaintiff and that she will not “become a public charge during ... her stay in the United States.”
Neither plaintiff or her mother or sister poses any danger to society that would require them to be detained at Hutto. Defendants face no legal constraints that would encumber plaintiff’s release to her stepfather. The release of plaintiff with her mother and her sister in accordance with this plan would be consistent with the Flores policy favoring the release of minors to their family members in the United States. Moreover, plaintiff would be afforded care, comfort, and freedom of movement if released to her stepfather with her mother and her sister, making this the least restrictive setting appropriate for this nine-year-old child’s needs.
2. Hutto is not a licensed program. According to the Flores Settlement, when ICE chooses not to release a minor in accordance with Paragraph 14 of the Settlement, the minor “shall be placed” in a licensed program. Ex. A ¶ 19. A licensed program is “any program, agency or organization that is licensed by an appropriate State agency to provide residential, group, or foster care services for dependent children, including a program operating group homes, foster homes, or facilities for special needs minors.” Id. ¶ 6. Failure to place a minor in such a facility can be excused in only two types of extraordinary circumstances, neither of which pertains to the plaintiff. See id. ¶¶ 12, 21. Notwithstanding the clear requirements of the Flores Settlement, defendants essentially concede that Hutto is not a licensed program. Marc J. Moore, Field Office Director for ICE’s San Antonio DRO Field Office, refers to modifications that were made to the prison, describes Hutto as “a family shelter facility” and applauds its “family-friendly nature,” but he never affirms that the facility obtained a license by an appropriate State agency to provide residential,
16

group, or foster care services to the children detained at Hutto. See generally Decl. of Marc J. Moore ¶¶ 7-8.
Obtaining child-care licensing is important for many reasons. As just one example, because Hutto is not licensed, children must remain in the company of their parents at all times unless they are in class. This prevents parents from speaking with attorneys, medical personnel, and visitors without their children in the room. In some instances, this failure results in children being forced to listen to their parents’ accounts of torture and persecution, which can be unnecessarily traumatic. See Ex. T ¶ 16 (“When my husband and I met with our attorney, Kevin heard for the first time graphic details of how my husband and I were tortured in Iran. We had no choice because, at Hutto, all children must be with their parents, even during attorney-client interviews. Kevin was not allowed to play with toys or markers or anything during the interview; nothing distracted his attention from hearing the horrible things that Majid and I have suffered.”).
3. Hutto does not comply with the standards set forth in Exhibit 1 to the Flores Settlement.
Defendants appear to offer no defense to many of plaintiff’s claims that Hutto fails to comply with Exhibit 1 of the Flores Settlement. For instance, defendants do not claim to have conducted an individualized needs assessment of plaintiff as required by the Settlement. Ex. A, Ex. 1, ¶ A(3). They do not claim that plaintiff may wear her own clothing where available.7 Id. ¶ A(12). They do not contend that individual or group counseling sessions are provided for the children at Hutto, or that specific acculturation or adaptation services are provided to assist in

7

By way of contrast, children at the Berks County Detention Center are permitted to wear the clothing they

had with them when they were apprehended, they are able to purchase additional clothing during field trips to stores

such as Wal-Mart, and they receive additional clothing donated to the families at the facility. See Locking up Family

Values: The Detention of Immigrant Families, Women’s Commission for Refugee Women and Children and

Lutheran Immigration and Refugee Service, Decl. of Vanita Gupta, Ex. C, Attach. 1, March 6 App., at 15.

17

their development. See id. ¶¶ A(6)-A(8). Defendants also do not claim that plaintiff may have contact visits with non-detained family members, nor do they assure a reasonable right to privacy that includes the private use of the telephone and the right to receive and send uncensored mail. See id. ¶¶ A(11)-A(12).
Even in those areas in which defendants claim to be meeting the requirements of Exhibit 1 to the Flores Settlement, plaintiff’s evidence—without the benefit of discovery—demonstrates a likelihood of success on the merits. Defendants’ conclusory statements about the quality of medical and mental health care provided to children at Hutto are directly contradicted by the experiences of plaintiff and her family, and by the opinions of plaintiff’s experts who have reviewed the declarations of children and adults at Hutto. Dr. Jack Saul, Ph.D., a licensed psychologist with over 25 years experience practicing as a child and family psychotherapist and trauma specialist, found numerous examples in the declarations of “severe neglect and psychological maltreatment” of children at Hutto, including “lack of access to and delay in receiving adequate medical and dental care” and the failure to provide counseling. Decl. of Jack Saul, Ph.D., attached hereto as Ex. X ¶ 6. Dr. Clark not only toured Hutto, but he also spoke with several former detainees at the facility, including Elsa Carbajal and her two children, both of whom filed actions under Flores prior to being released from Hutto. On March 20, 2007, Dr. Clark will testify that Hutto is psychologically and emotionally devastating to the children detained there. Plaintiff is likely to demonstrate that defendants significantly fail to comply with the standards set forth in Exhibit 1 to the Settlement.
B. Plaintiff has already suffered and will continue to suffer irreparable harm from her detention at Hutto.
Based on his prodigious experience in the areas of child psychiatry and trauma, his years of working with juveniles in the criminal justice system, and his conversations with several
18

recently released Hutto detainees, Dr. Clark will testify on March 20 that even a brief
incarceration in Hutto can be expected to cause a high level of post-traumatic stress and
depressive psychopathology in children, and that many of the children with whom he met
showed signs of suffering harm that either will not soon be forgotten or that has already had a
permanent effect.
Dr. Saul similarly observes that:
[e]ven the most minimal experience of imprisonment may cause needless frustration, acute anxiety, fear and depression in children and adults. . . . The placing of children and adults who have endured severe traumatic events . . . in an environment that further disempowers them and prevents them from having a modicum of control over their daily lives is injurious and increases the risk factors for future mental health disorders.
Ex. X ¶ 3. After reviewing numerous declarations prepared in connection with this case and the
related cases, Dr. Saul identified many examples of “physical, educational and emotional neglect
on the part of prison authorities,” id. ¶ 6 (emphasis in original), and concluded that:
[a]s a mandated reporter of suspected cases of child abuse and maltreatment in the State of New York, if I were to receive statements by parents and children similar to those I have read from Hutto Prison, I would be legally required to report such an institution to Child Protective Services that would lead to an investigation of child abuse.
Id.
The opinions of Dr. Clark and Dr. Saul find further support in the Declaration of John
Sargent, M.D. and the Declaration of David R. Blackburn, Ph.D., which were offered at the time
plaintiff initially moved for a preliminary injunction. See Exs. E and F, March 6 App. Both Dr.
Sargent and Dr. Blackburn opined that being held in a prison-like setting such as Hutto, even for
a short period of time, can be psychologically traumatic to a child. See Ex. E ¶ 3; Ex. F ¶ 4.
Plaintiff has established irreparable harm. 19

C. The balance of harms and the public interest overwhelmingly favor plaintiff’s requested relief.
Defendants contend that granting plaintiff preliminary injunctive relief will effectively undermine ICE policies designed to protect children from the dangers of international smuggling operations. See Defs.’ Resp. at 24. Defendants’ argument is illogical and makes little sense. There has been no suggestion that defendants question the identity of plaintiff or her mother, or have reason to suspect that she is a victim of child smuggling. Defendants offer no explanation as to how the release of a child who is not suspected of being a smuggling victim could have any effect on the temporary detention of adults and minors who are suspected of being involved in smuggling. Given that defendants have failed to explain how their efforts to protect children from the dangers of smuggling operations is advanced by continuing to detain plaintiff in a medium-security prison where she is suffering very real and lasting injury each day, the balance of harms clearly favors plaintiff.8 Moreover, even assuming that the imprisonment of children who have not been smuggled into this country were an effective deterrent to smuggling and that deterrence is a legitimate goal, there is no legal or moral justification for violating the plaintiff’s rights under the Settlement to accomplish that goal.
VI. Plaintiff Is Entitled to Additional Discovery If the Court Finds She Has Not Met Her Evidentiary Burden.
Should the Court conclude that the evidence presented by plaintiff in her filed papers and at the March 20, 2007 hearing is insufficient to meet the burden of proof required for the Court to order the requested preliminary relief, plaintiff is entitled to additional discovery. While plaintiff has supplied an ample record that establishes a significant threat of irreparable harm due

8

Defendants also argue that the balance of harms favors continued family detention because the only

alternative for plaintiff is placement in an ORR facility and separation from her mother. See Defs.’ Resp. at 24-25.

Plaintiff has already demonstrated that simultaneous release of plaintiff and her mother is within ICE’s statutory

authority, is specifically permitted by the agency’s own regulations, and can be accomplished in a manner that will

ensure plaintiff and her family appear at all court hearings. See supra Parts IV and V.A.1.

20

to her ongoing detention at Hutto, she has not had the opportunity to be evaluated by a psychology expert or to have a conditions expert evaluate her living conditions. A psychological expert evaluation that is based on interviews with plaintiff and a review of her institutional records, such as medical and educational records, is critical to a full assessment of the irreparable harm that she may suffer at Hutto. Furthermore, the evaluation of a conditions expert who has been able to meet with plaintiff as well as tour the facility and speak to ICE and CCA officials operating the facility would provide vital information required to establish the likelihood of success on several of the claims in plaintiff’s Complaint. This evaluation would provide a full assessment of the “suitability” of her living conditions, see Ex. A, Ex. 1 ¶ A(1), and the “appropriateness” of medical, mental health, and educational services, among other conditions that are the subject of plaintiff’s complaint, id. at ¶¶ A(2), A(4). A lack of such individualized and relevant information may leave the Court without sufficient information to evaluate the merits of plaintiff’s request for preliminary relief; if so, plaintiff is entitled the additional discovery.
Conclusion For the reasons set forth above, plaintiff’s Motion for a Preliminary Injunction Ordering Her Immediate Release From Hutto With Her Mother should be granted. Dated: March 19, 2007.
Respectfully submitted, /s/ Lisa Graybill___________ Lisa Graybill Texas State Bar No. 24054454 AMERICAN CIVIL LIBERTIES UNION OF TEXAS P.O. Box 12905 Austin, TX 78711 21

Telephone: (512) 478-7300 Fax: (512) 478-7303 Email: lgraybill@aclutx.org
Barbara Hines Texas State Bar No. 09690800 Director – Immigration Clinic THE UNIVERSITY OF TEXAS SCHOOL OF LAW 727 E. Dean Keeton Street Austin, TX 78705 Telephone: (512) 232-1310 Fax: (512) 232-9171 Email: bhines@law.utexas.edu
Vanita Gupta* Elora Mukherjee* Dennis Parker* AMERICAN CIVIL LIBERTIES UNION FOUNDATION – Racial Justice Program 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2500
Gouri Bhat* Tom-Tsvi M. Jawetz* AMERICAN CIVIL LIBERTIES UNION FOUNDATION – National Prison Project 915 15th Street, NW, 7th Floor Washington, DC 20005 Telephone: (202) 393-4930
Judy Rabinovitz* AMERICAN CIVIL LIBERTIES UNION FOUNDATION – Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2500
Sean Gorman Stephen J. Lable* LEBOEUF, LAMB, GREENE & MACRAE, LLP
22

Reliant Energy Plaza 1000 Main Street, Suite 2550 Houston, TX 77002 Telephone: (713) 287-2000 * indicates pro hac vice motion pending
23

CERTIFICATE OF SERVICE
I hereby certify that on March 19, 2007, I electronically filed the foregoing document with the Clerk of the Court using the ECF system. The ECF system will send notification of this filing to the following person:
Victor M. Lawrence Office of Immigration Litigation U.S. Department of Justice, Civil Division P.O. Box 878, Ben Franklin Station Washington, DC 20044 Telephone: (202) 305-8708 Email: victor.lawrence@usdoj.gov
I further certify that on March 19, 2007, a copy of the foregoing document was delivered by electronic mail to the following person:
Edward E. Wiggers Trial Attorney Office of Immigration Litigation U.S. Department of Justice, Civil Division P.O. Box 878, Ben Franklin Station Washington, DC 20044 Telephone: (202) 616-1247 Email: edward.wiggers@usdoj.gov
/s/ Lisa Graybill___________
Lisa Graybill Texas State Bar No. 24054454 AMERICAN CIVIL LIBERTIES UNION OF TEXAS P.O. Box 12905 Austin, TX 78711 Telephone: (512) 478-7300 Fax: (512) 478-7303 Email: lgraybill@aclutx.org
24

 
 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

WESLEYANN EMPTAGE, by and through )

her next friend and mother, Raouitee Pamela )

Puran,

)

Plaintiff,

)

)

-vs-

)

)

MICHAEL CHERTOFF, Secretary of

)

US Department of Homeland Security;

)

JULIE L MYERS, Assistant Secretary,

)

US Immigration and Customs

)

Enforcement (ICE); JOHN P TORRES,

)

Director, Office of Detention and Removal )

Operations, ICE; MARC MOORE, ICE

)

Field Office Director; GARY MEAD,

)

Assistant Director of Detention and

)

Removal Operations at ICE; SIMONA

)

COLON, ICE Officer in Charge; and

)

JOHN POGASH, ICE National Juvenile

)

Coordinator ,

)

Defendants

)

)

)

SAULE BUNIKYTE, by and tluough her )

next friend and mother, Rasa Bunikiene,

)

Plaintiff,

)

)

-vs-

)

)

MICHAEL CHERTOFF, Secretary of

)

US Department of Homeland Security; et )

al ,

)

Defendants

)

)

EGLE BAUBONYTE, by and tluough her )

next friend and mother, Rasa Bunikiene,

)

Plaintiff,

)

)

-vs-

)

Case No A-07-CA-158-SS
Case No. A-07-CA-164-SS Case No. A-07-CA-165-SS

1

MICHAEL CHERIOFF , Secretary of

)

U.S Department of Homeland Security; et )

~,

)

Defendants

)

)

SHERONA VERDIEU, by and through

)

her next fiiend and mother, Delourdes

)

Verdieu,

)

Plaintiff,

)

)

-vs-

)

)

MICHAEL CHERIOFF, Secretary of

)

US Department of Homeland Secwity; et )

~,

)

Defendants

)

)

Case No. A-07-CA-166-SS

PLAINTIFFS' SUPPLEMENTAL BRIEF IN SUPPORT OF THEIR MOTIONS FOR PRELIMINARY INJUNCTIONS
Introduction
On March 22,2007, this Cowt issued an Order requesting declarations and
supplemental briefing on several points that emerged dwing the March 20, 2007 hearing
on plaintiffs' motions fOi preliminary injunctions seeking relief based on the Flores
Stipulated Settlement, ("Settlement"), PI Ex. A, March 6,2007 Appendix of Exhibits
(hereinafter "March 6 App ") I Attached to this Brief are the following declarations,
pwsuant to the Cowt's Order: (a) Declaration of Vanita Gupta, attached hereto as PI. Ex.
DD, Attach l, describing plaintiffs' cOUlIsel's multiple attempts to comply with the
exhaustion requirements of Paragraph 24 of the Settlement; (b) Declaration of Griselda
I Plaintiffs filed this same supplemental brief in each of their respective cases to ensure that their respective docket reflects this latest filing. However, to minimize paper, plaintiffs have only filed one set of new exhibits, Exhibits DD - FF, in Wesleyann Emptage's case, Case No A-07-CA-158-SS. The supplemental briefs of Sherona Verdieu, Egle Baubonyte, and Saule Bunikyte hereby incorporate and attach by reference that set of exhibits Plaintiffs also hereby incorporate and attach by reference: Exhibits A-P that were filed on March 6, 2007 with each plaintiffs Motion for Temporary Restraining Order, and Exhibits P-CC that were filed on March 20,2007 with each plaintiffs Reply Brief
2

Ponce, attached hereto as PI. Ex. DD, Attach. 2, detailing what plOceedings regruding bond and pruole have been held with regrud to her clients ShelOna Verdieu and her mother, Delomdes Verdieu, and Wesleyann Emptage and her mother, Pamela Pman; (c) Declruation of Rasa Bunikiene, attached hereto as PI Ex DD, Attach. 3, detailing what proceedings regruding bond and pruole have been held with regrud to her and her children Egle Baubonyte and Saule Bunikyte.
Pwsuant to this Cowt's Order, plaintiffs now offer briefing on three issues that emerged dwing the Mruch 20 heruing.
I. The Florel Settlement Applies To All Minors in Federal Immigration Custody, Whether Accompanied or' Unaccompanied.
The 200 I Stipulation and Order cleruly extends the terms of the Settlement until defendants have published final regulations implementing those terms. See 2001 Stipulation and Order, PL Ex. B, Mruch 6 App Defi;mdants cannot claim to have done so and have admitted as much. See, e g, Victor Lawrence, Tr. of Mruch 20 Hrg. at 42 ("There's no escaping the fact that the regulations have not been written yet") Thus, ther e is no dispute that the Settlement remains binding on defendants
Defendants now claim that the Settlement applies only to unaccompanied minors. This claim is belied by the plain meaning of the text ofthe Settlement, the intent of its drafters, the Supreme Cowt's interpretation of the case, the historical context in which Flores was litigated, and defendants' own actions and admissions
First, the text of the Settlement makes cleru that the Flores class includes "All minors who rue detained in the legal custody of the INS" Settlement, PI Ex A, March 6 App , at '1[10 (emphasis added). The class definition makes no distinction between accompanied and unaccompanied minors. The phrase "[alII minors" necessruily includes
3

both In fact, multiple provisions of the Settlement account for the heightened vulnerability of unaccompanied minOls, as opposed to accompanied minors, in immigmtion custody. See, e g id at ~ 10 (" The INS will segregate unaccompanied minors from uruelated adults Where such segregation is not immediately possible, an unaccompanied minOl will not be detained with an uruelated adult for mOle than 24 hours "); id at ~ 25 ("Unaccompanied minors arrested 01 taken into custody by the INS should not be transpOlted by the INS in vehicles with detained adults ").. The extm protections afforded to unaccompanied minors and the class definition of "[a]ll minors" would be nonsensical if the Settlement applied to only unaccompanied minOls.
A fundamental principle in "the canon of contractual interpretation. reqUires WOlds and phrases in a contract to be given their plain meanings " Cleere Dr illing Co v Dominion Exploration & Production, Inc 351 F 3d 642, 650-51 (5th CiL 2003) Another cOle principle of contract interpretation requires that a contract "be interpreted as to give meaning to all of its terms-presuming that every provision was intended to accomplish some pUipose, and that none are deemed superfluous. " Trans nat 'l Learning Cmty at Galveston, Inc v United States Office oj Per s. Mgmt , 220 F 3d 427, 431 (5th Cir.. 2000).. The Settlement at issue in this case is a cOUit-approved contmct, and plaintiffs mise contract claims See United States v. ITT Continental Baking Co, 420 US 223,236 (1975) (holding that consent decrees and OIders should be construed in the same manner as contmcts); Guidry v. Halliburton Geophysical Services, Inc, 976 F 2d 938,940 (5th Cir 1992). Federal common law principles govern the interpretation of contmcts to which the United States is a party, as in this case Boyle v. United Technologies Corp., 487 U S 500,504 (1988) In light ofthese principles, the
4

Settlement must be interpreted to give meaning to its straightforward provisions, which
afford protections to all- not just some - minOls in federal immigration custody
The Flores Settlement reflects no intention by its drafters to diverge flom the
plain meaning of its provisions As Carlos Holguin, lead counsel for plaintiffs' in Flores
v Meese, No 85-cv-4544 (C D CaL), explains, the drafters ofthe Settlement sought to
protect both accompanied and unaccompanied minors:
Whether 01 not the minOls were accompanied by a parent was immaterial to claims raised in Flores regarding substandard conditions and treatment minors experienced dUling INS detention, or to the need for specific standards to protect minOl sand ensUle that the filCilities in which they wer e detained were appropriate to their age and special needs. The Flores Settlement was intended to protect all minors in ICE custody, whether accompanied 01 not
Decl of Carlos Holguin, attached PI Ex. DD, Attach 4, at ~ 3.. When interpreting a
contract, courts are compelled to give effect to the parties' intentions. Pennzoil Co. v.
FERC, 645 F 2d 360,388 (5th Cir 1981). COUltS may interpret contract provisions to
diverge from their "plain meanings" only where "the docUlllent demonstrates that the
parties intended for the terms to be employed in some special or technical sense. " Cleere
Drilling Co, 351 F 3d at 651 These principles require the Flores Settlement to be
intelpreted in light of its plain meaning and the drafters' intent to protect all minors.
Indeed, the Supreme COUlt itself recognized that the litigation giving rise to the
Settlement sought to protect both accompanied and unaccompanied minors In the
opening paragraph of its opinion in Reno v. Flores, the COUlt writes:
In the case of arrested alien juveniles the INS caUllot simply send them off into the night on bond 01 recognizance The parties to the present suit agree that the Service must assUle itself that someone will care for those minors pending resolution of their deportation proceedings.
5

Ihat is easily done when the juvenile's parents have also been detained and the family can be released together; it becomes complicated when the juvenile is arrested alone, ie, unaccompanied by a parent, guardian, or other related adult
507 U S. 292,295 (1993) (internal citations omitted). Ihe Supreme Court's language is
meaningful only in the context oflitigation intended to protect all minors in federal
immigration custody.
Furthermore, the historical context in which this case was litigated makes clear
that the parties to the Settlement understood that it would protect all children in
immigration custody, regardless of whether those children were detained with their
parents Although deftmdants claim that family detention facilities did not exist prior to
the late 1990s, and thus, plaintiffs are not entitled to the protections afforded by the
Settlement, Victor Lawrence, II.. of March 20 Hrg at 24-27, such claims are misleading
at best In fact, the federal government had detained immigrant children with their
parents long before Flores v Meese was filed in 1985 . Mr Holguin explains:
From before the Flores case was filed, through the signing of the Flores Settlement in 1997, families with children were commonly detained in INS custody, although there were no designated "family detention facilities." Before the Flores case was filed, unaccompanied minors and families that included minor s wer e typically detained by the INS in makeshift detention facilities, such as rented hotels with razor wire thrown up around them.
Decl of Carlos Holguin, PI Ex DD, Attach 4, at ~ 3 Ihis historical context made the
parties to the Settlement acutely aware of the needs of both accompanied and
unaccompanied children
Notwithstanding deftmdants' claim that the Settlement is not applicable to
plaintiffs' claims regarding Hutto, defendants acknowledge that they have made nominal
6

efforts at compliance Indeed, before the facility opened on May I, 2006, ICE Contracting Officer Jan K. Wiser Wlote to Judge John C Doerfler of Williamson County,2 identifYing numerous modifications that needed to be made to the Hutto facility and services "in accordance with the Flores v Reno Settlement Agreement." Decl of Vanita Gupta, PI. Ex. Q, Attach 2 at I Many of these modifications were never made, but the letter reflects that from the outset defendants have been aware of their obligations toward plaintiffs under the Settlement Moreover, at the hearing on March 20, 2007 before this Court, defendant Simona Colon, defense witness William Ault, and defense counsel Victor LaWlence admitted that defendants are aware oftheir obligations under the Settlement and that they are making efforts to comply with those obligations. See, e g , Simona Colon, I r of Mar ch 20 Hrg at 166 ("We are working on a plan of action to meet every element [of the Settlement] "); William Ault, II.. of March 20 Hrg at 201 ("[I]hey do have the documentation we wer e referencing for the license as far as trying to get compliance with Flores "); Victor LaWlence, Ir of March 20 Hrg at 24 (,,[Hutto] complies with the relevant aspects of Flores that are applicable to this population "); id at 235 (,,[I]he agency is in good faith making efforts to apply Flores to this facility."). It is disingenuous for defendants to claim otherwise
In sum, the text of the Settlement, the intent of its drafters, language from the Supreme Court, the historical context in which the case was litigated, and defendants' own actions and admissions make it clear that the Settlement protects all minors in ICE custody
II. Defendants Violated the Plain Language and Intent of the Flores Settlement By Failing to Place Plaintiffs in a Licensed Program.
2 Williamson County owns the Hutto facility, which is operated by Corrections Corporation of America, Inc. (CCA), pmsuant to a contractual anangement with ICE
7

When ICE does not expeditiously release a minOi in its custody, the Settlement
requires that the minor be placed "in a licensedprogram until such time as release can be
effected in accOidance with Paragraph 14 above or until the minor's immigmtion
proceedings are concluded, whichever occurs eaIiiel" Settlement, PI. Ex. A, March 6
App , at ~ 19 (emphasis added). Placement in a licensed pr ogmm is the most basic
protection affOided by the Settlement with respect to detention conditions, providing a
foundation that is supplemented by the additional standards set fOith in Exhibit 1 to the
Settlement See id, Exhibit 1 to Ex A ("Licensed programs shall comply with all
applicable state child welfare laws and regulations. and shall provide 01 anange for
the following services fOi each minOi in its care ") The Flores licensing requirement
is thus not merely an administmtive hUidle fOi ICE, but embodies substantive protections
for the child 3
While family detention on the scale of the Hutto facility is obviously new in
Texas, Department of Family and Protective Services (DFPS) regulations pertaining to
24-hour residential child care facilities do not suggest that relevant child protective
For example, among the many standaJds applicable to "General Residential Operations" licensed by Texas Department ofFamily and Protective Services are: • specific nutrition and hydration standaJds for school-age children, toddlers and infants (40 Tex
Admin Code § 748 1691 et seq); • physical site requirements, including standards for interior space, play equipment and safety
requirements (e g, 40 Tex Admin Code § 748 3351 and § 7483471); • recreational activities standards (40 Tex Admin Code § 7483701 et seq); • specific child privacy rights, protecting personal mail and telephone calls (40 Tex Admin Code §
748 1111); and • immunization and medical care requirements (40 Tex. Admin Code § 748 1531 et seq) A "General Residential Operation" is defined as "fa} residential child-care operation that provides child care for 13 or more children Of young adults The care may include treatment services and/or programmatic selvices. These operations include formerly titled emergency shelters, opefatiom pl0viding basic child Gare, operations serving children with mental retardation, and halfway houses, A residential treatment center is not a general residential operation" 40 Tex. Admin Code § 74843(22) (emphasis added)
8

standards are inapplicable in the family detention context4 And even if that were the case, it would not obviate defendants' obligation to comply with the Settlement and place children in a licensed facility. Both technically and as a matter of the substantive plOtections affOlded to children, placement in a licensed facility is not the same thing as placement in a plOgram that operates under an exemption fiom licensing requirements Operation of an exempted program may be considered legal under state law (assuming the exemption is properly granted), but the program is still not "licensed" and thus does not comply with Flores
A Hutto Is Clearly Ineligible for the Exemption Granted by DFPS, Which Was Based on Inaccurate Facts.
Defendants have conceded that Hutto is not licensed but argue that the facility is exempted flom licensing requirements. William Ault, Ir of March 20 Hrg. at 198-200 (testifYing about defendants' efforts to obtain license). As noted above, even if the exemption were legitimate, that would not satisfY Flores . Here defendants' noncompliance is all the more egregious because Hutto clearly does not qualifY for the exemption granted by DFPS, which was based on inaccurate facts Defendants' March 23,2007 "Status Report" to the Court includes copies of con espondence between Mickey Liles, the COIrections COIpOlation of America (CCA) Facility Administrator at Hutto, and the DFPS Child Care Licensing Division about CCA's application fOl an Exemption Determination for Hutto Dei Attach to Dec! of Marc J. Moore, Dei Status RepOlt, filed March 23, 2007. Ihe cOlJespondence indicates that DFPS granted the facility an exemption under 40 I ex. Admin Code § 745J 17(2), as a "program oflimited duration"

4

Indeed, 40 Tex Admin. Code Chapter 748 covering "General Residential Operations and

Residential Treatrnent Centers" includes Subchapter K, "Operations That Provide Care for Children and

Adults" See § 748 1901 ef seq

9

with "parents on the premises" Id, June 14,2006 Letter fiom Michele Adams to
Mickey Liles However, Hutto is manifestly not a program of limited duration and
satisfies none of the criteria for that exemption under the regulations 5 Moreover, the
exemption application submitted by Warden Liles inaccurately describes the services
offered at Hutto in several clUcial respects, and this information was clearly relied upon
by DFPS in making its exemption determination
In applying for the exemption, Warden Liles failed to identify Hutto as a facility
offering 24-hour residential care; failed to identify the number or age range of children
detained at the facility; indicated that Hutto provides 5 Y; hours of school each weekday
(which plaintiffs dispute even today and which was certainly not tlUe at the time of the
application); and failed to indicate the maximum number of continuous days a child may
remain at Hutto Id, Application for Exemption Determination at I, 2. Warden Liles
also specifically represented that Hutto would house family units "for up to 90 days until
their expedited removal fiom the country" Id, May 22, 2006 Letter from Mickey Liles
to Michele Adams The assertion of a de facto 90-day limit on detention at Hutto is
patently false, as shown by the experience of nine out of the ten plaintiffs in the Hutto
The criteria for exemption for a program oflimited duration with parents on the premises include the following:
(A) The program operates in association with a shopping center, business, or religious organization; (B) The parent or person responsible for the child attends or engages in some elective activity nearby, not including employment or education pursued in order to obtain a degree; (C) A child may only be in care:
(i) For up to four and one half hours per day; and (ii) For up to 12 hours per week; and (D) The parent or person responsible for the child can be contacted at all times 40 lex Admin Code § 745117(2)(1) As suggested by these criteria, this exemption was designed for child care programs at churches or workout facilities, when parents are in the building but doing other things during the short time that their children are in child care
10

related cases filed on Mmch 6, 2007 6 DFPS clearly relied upon the misinfOImation supplied by Wmden Liles in granting the exemption. See id, June 14,2006 Adams Letter (noting a 90-day or less average stay at the facility) Viewed as a whole, the Hutto exemption materials advance the fiction that the children at Hutto only need the protection of state licensing regulations when they me in class, because the rest of the time they are with their parents who can, presumably, attend to all of their needs. What is not acknowledged is that Hutto also disempowers the pments, who me not in control of their children's physical environment, daily schedules, food, medical cme, recreational activities, or virtually any other aspect of their lives. Texas child protective regulations impose minimum standmds in all of these meas, and thus me very much needed by the children and families at Hutto
The fact that DFPS granted the exemption to Hutto in spite of all this does not excuse defendants from their obligations under Flores. They were required to place children in a licensed program, but instead they placed them in an unlicensed program under an exemption that should never have been granted Indeed, the most notable omission in defendants' licensing submissions is that ICE is not copied anywhere on the correspondence Nor did defendants submit any evidence that they were awme of OI approved the application fOI a license exemption fOI Hutto. It appears that ICE essentially abdicated its responsibility to ensure compliance with the Settlement and delegated the purely administrative task of navigating state licensing ruIes to CCA CCA
Wesleyann Emptage has been impr isoned at Hutto 91 days; Sherona Verdieu has been impr isoned at Hutto more than 6 5 months; Egle Baubonyte has been imprisoned at Hutto 3 5 months; Saule Bunikyte has been imprisoned at Hutto 3 5 months; Aisha Ibrahim had been imprisoned at Hutto more than 3 5 months when she was released; Bahja Ibrahim had been imprisoned at Hutto over 3.5 months when she was released; Mohammed Ibrahim had been imprisoned at Hutto over 3 5 months when he was released; Angelina Carbajal had been imprisoned at Hutto for 5 months when she was released; and, Richard Carbajal had been imprisoned at Hutto for 5 months when he was released
II

in tum submitted a flawed application for a licensing exemption and removed the facility from state scrutiny
B Defendants Cannot Unilaterally Decide That the Licensing Requirement Is Impossible to Meet and Therefore Optional
Even if it were genuinely impossible for defendants to comply with the Flares licensing requirement, they were not entitled to ignore the Settlement, which has the force of a court order Jim Walter Resources, Inc v Int'l Union, U Mine War ken oj Am, 609 F 2d 165, 168 (5th Cir 1980) "All orders and jUdgments of courts must be complied with promptly " Id (quoting Maness v Meyers, 419 U.S 449,458 (1975)). The appropriate remedy would have been to ask the Flores Court for clarification of the licensing requirement or permission for an exemption Id (strict compliance with court orders is required regardless of circumstances, and the only remedy was to return to the district court for permission to not comply or to modify obligations)
The Fifth Circuit has made clear that the govemment cannot exercise its discretion in a marurer that would effectively subvert its obligations under a binding consent decree. In Police Ass'n oj New Orleans v City oj New Orleans, 100 F 3d 1159, 1162 (5th Cir 1996), the City of New Orleans entered into a consent decree that settled an action brought by a class of African-American police officers, who had contended that the promotion and hiring practices of the New Orleans Police Department ("NOPD") were discriminatory The decree expressly provided that police recruits could be considered for promotion so long as they resided in the Parish of New Orleans. Id. at 1164. After the entry ofthe decree, the City passed an ordinance which provided that no city employee could be considered for promotion unless the employee was domiciled in Orleans Parish. Id at 1167 The district court found that the ordinance conflicted with
12

the decree and its use to deny promotions was improper Id The Fifth Circuit affilmed, stating that "[t]he City cannot unilaterally amend the bargain shuck in the Decree through the passage of a municipal ordinance" Id Similarly, here ICE cannot unilaterally altel the telms of the consent decree-i. e , it cannot choose to detain minor children in a facility that cannot be properly licensed in an efIort to circumvent its obligations undel the Flor es Settlement
Finally, ICE's own experience with family detention demonstrates that impossibility is no defense to failure to comply with the Flores licensing lequirements Although Hutto is not a licensed proglam, ICE's only other family detention facility is licensed, thanks to the effolts of local oHicials in Belks County, Pennsylvania. The Berks Family Sheltel Care Facility houses families detained by ICE in a convelted nursing home owned by the county-a vastly mOle home-like setting than a privatelY-lun medium-security plison. AccOlding to the Women's Commission Report on family detention, the relevant state agency in Pennsylvania initially found that the Belks facility did not fit into any ofthe usual child-care licensing categOlies. See Women's Commission RepOlt, Locking Up Family Values The Detention oj Immigrant Families, PI Ex C, Attach. 1, March 6 App., at 36 Belks County officials asked the licensing board to create a categOlY 01 "box to check" even though none officially existed "because they refused to open without some fOlm oflicense" Id Apparently, the facility did receive a license and is now subject to appropriate state regulations 7
Here, defendants have submitted no evidence that ICE could not have complied with the licensing requilement in Flores, eithel by applying fOI a license rather than
The ACiU affiliate in Pennsylvania recently filed a state open records request to obtain copies of the licensing papers fOl the Berks facility
13

applying for an exemption, or by insisting that a special license be granted sUbjecting Hutto to meaningful regulation by the state Instead, defendants choose to operate outside ofany licensing requirements, just as they have operated outside of the requirements ofthe Flores Settlement
III. A Preliminary Injunction Is the Only Way to Ensure That Plaintiff's Will Not Continue to Suffer Irreparable Injury From Their Confinement at Hutto.
In its Order, the Court also asked Plaintiffs to address "the effect oflegal proceedings for release, including bond, parole, and habeas corpus proceedings, on Plaintiffs' request for equitable release" As set forth below, and in the accompanying Declarations of Griselda Ponce and Rasa Bunikiene, the plaintiffs and their mothers have availed themselves of the administrative mechanisms available to them to seek release from detention - to date with no success. While plaintiffs and their mothers can continue to pursue release through these administrative avenues, or challenge the denial of administrative release in petitions for habeas corpus, the availability of such proceedings in no way deprives this Court of its authority to grant equitable relief. "[I]t is a fundamental rule that a court of equity will exercise jurisdiction even when a plaintiff has another remedy, if that remedy is not as practicable and efficacious to the ends of justice and its proper administration as the remedy in equity" Vicksburg, S & P Ry Co v Schaff, S F 2d 610, 611 (Sth Cir.. 1925); see also Justin Industries, Inc v. Choctaw Securities, IP , 920 F 2d 262,269 (Sth Cir 1990) ("where a self~help remedy is not as complete, practical and efficient as that which equity could afford, courts will grant a preliminary injunction") (internal citations and quotations omitted). Moreover, in the instant case, none of the proceedings available to Plaintiffs can assure them the relief they
14

seek - namely immediate release from Hutto with their parents, either under reasonable conditions of supervision 01 to a detention facility that is Flores compliant A preliminary injunction is the only way to ensme that plaintiffs will not continue to suffer irreparable injruy flam their confinement at Hutto.
In the cases of plaintiffs Sherona Ver dieu and Wesleyan Emptage, their mother s' requests for release on par ole have been pending before defendant Marc Moore since March 16, 2007 Dec!. of Griselda Ponce, P! Ex DD, Attach 2, at ~~ 8, 22; Parole Applications of Delorudes and Shemna Verdieu, PI. Ex. Q, Attach 3, March 19,2007 Appendix of Exhibits (hereinafter "March 19 App."); Parole Applications of Raouitee Pamela Pruan and Wesleyann Emptage, PI. Ex. Q, Attach. 4, March 19 App. There is no determinate time fr arne in which defendants must adjudicate such requests.. Indeed, Shemna Verdieu's mother submitted a pamle request on October 3,2006 which was denied over one month later without explanation despite submission of ample documentation showing that a US citizen sister in Miami has the means to SUppOit her and her daughter, and is committed to ensming their timely appear ance at all immigration hearings. Dec! of Griselda Ponce, PL Ex DD, Attach 2, at ~ 8; Parole Applications of Delomdes and Shemna Verdieu, PI Ex Q, Attach. 3, March 19 App Fruthermore, there is no reason to believe that the pending requests will ultimately be decided in plaintiffs' favor Although ICE has a stated policy favOling parole for asylum seekers such as the mothers of Sherona and Wesleyarm who have been found to have a "credible fear" of persecution and are therefore no longer subject to "expedited removal," see, e.g INS Memorandum, Expedited Removal Additional Policy Guidance (Dec. 30,1997) from Michael A Pearson, Executive Associate Commissioner for Field Operations, Office of
15

Field Operations, to Regional Directors, District Directors, Asylum Office Directors, repIOduced in 75 Interpreter Releases 270 (Feb 23, 1998); see also INS Memorandum, Detention Guidelines Effective October 9, 1998 fIOm Michael A Pearson, Executive Associate Commissioner for Field Operations, Office offield Operations, to Regional Directors, District Directors, Asylum Office Directors, it appears that the ICE Field Office in San Antonio, Texas has a blanket policy of denying parole requests fIOm asylum seekers at Hutto Dec! of Griselda Ponce, PI Ex DD, Attach. 2, at '1l'1l12, 24 Moreover, because plaintiffs SheIOna and Wesleyann have been classified as "arriving aliens," they are not entitled to have their custody status reviewed by an immigration judge, see 8 CFR § 100319(h)(2)(i)(B), and thus have no way to challenge a denial of parole administratively 8
The only remaining avenue open to plaintiffs Sherona and Wesleyann is to file habeas corpus petitions with this Court, challenging the de facto denial of parole While this is an option that plaintiffs' counsel have considered, the standard for obtaining release under habeas corpus would be different, and arguably more demanding, than the standard plaintiffs must meet to obtain release pursuant to their Flores enforcement actions. Habeas courts traditionally give great deference to the government's parole decisions, upholding such decisions as long as the government can present "a facially legitimate and bona fide reason" for the denial of paIOle. See, e g , Kleindienst v Mandel, 408 U.S 753,770 (1972); Petrescu v. INS, 68 F 3d 481, 481 (9th Cir. 1995);
8 During OJal argument on March 20, Defendants represented that, "in two-thirds of cases where the individuals [at Huttol do request parole, they are paroled." Victor Lawrence, lr of March 20 Hrg. at 36 10 the extent that such statistics are accurate -- which is highly doubtful -- it is likely that they refer to detainees who, unlike plaintiffs Sherona and Wesleyann, were not classified as "aniving aliens" and were therefore entitled to have their parole denials reviewed in a custody hearing before an immigration judge See Matter of)(CK, 23 I&N Dec 731 (BIA 2005) (holding that aliens who were placed in expedited removal who were not "arriving aliens" were entitled to imrnigtation judge custody hearings)
16

Sidney v. Howerton, 777 F 2d 1490, 1491 (11th Cir 1985) Moreover, the filing of habeas corpus petitions would cause unnecessary delay
The situation ofplaintiffs Saule and Egle, and their mother Rasa Bunikiene, is different in that because they are not classified as "aniving aliens," they are entitled to seek review of their detention in a bond hearing before an immigrationjudge. 8 CF R § 1003.19(h)(2)(i)(B) Unfortunately, the immigration lawyer hired to represent these plaintiffs and their mother in their immigration proceedings, and to seek their release on bond, failed to file necessary papers with the result that all the requests were denied See Dec! of Rasa Bunikiene, PI Ex.. DD, Attach 3, at ~ 5 Plaintiffs' mother has been trying to reach her immigration lawyer since March 26, 2007 in order to fire her, and she is currently seeking new counsel to file new bond requests Id at ~ 4 While these requests may ultimately be successful, there is no way to know how long the process will take Until such time, Egle and Saule remain at Hutto where they continue to suffer irreparable harm
Plaintiffs do not seek release pursuant to the Flores Settlement as a way to circumvent other avenues by which they may obtain release No other potential avenue ofrelief exists that is as complete, practical, and efficient See Justin Industries, Inc, 920 F 2d at 269. Plaintiffs filed complaints and seek equitable reliefpursuant to the Settlement because their rights under this Settlement are being violated and they are suffering irreparable harm every further day that they are detained in a facility that is not in compliance with existing law 9 Once a palOle request, bond application, or habeas petition is filed, there are no time limits on the decision makers In contrast, the
9 Plaintiffs explain why the FlOles Settlement mandates the release of a parent or at least the transfer of a parent with his or her child into a facility that complies with the settlement in theil respective Reply Briefs filed on March 19,2007, at pages 11-14
17

Settlement requires that Plaintiffs be placed in the least restJictive setting appropriate to

their age and needs. Thus, in the absence of a compelling reason fOI denying plaintiffS

and their mothers release on parole, the Settlement compels plaintiffs' immediate release,

with their mothers, under reasonable conditions of supervision. In the event that

defendants have a compelling justification fOI denying such release, plaintiffs must be

detained in the next least restJictive setting, namely with their parents in a facility that is

Flor es-compliant.

In light of the ineparable injury that all plaintiffs continue to suffer fiom each day

they are held at Hutto, there is no justification fOI denying equitable relief merely because

release may be obtainable via one of these other avenues at some indefinite point in the

future . See Lewis v SS Baune, 534 F.2d I II 5, 1124 (5th Cir 1976) (stating that

irreparable injury to plaintiffs is "probably the majOI" basis for showing the inadequacy

of any legal remedy). Where, as here, the denial of immediate reliefmay result in

irreparable harm, it is well accepted that exhaustion of administrative remedies is not

necessary. See, e.g, McCarthy v Madigan, 503 US 140, 147 (1992) ("Even where the

administrative decisionmaking schedule is otherwise reasonable and definite, a particular

plaintiff may suffer ineparable harm ifunable to secure immediate judicial

consideration."). Thus, while it remains possible that defendants will decide to release

Wesleyann

and

ShelOna

and

their

mothers

on

par

ole

1 0

--

OI

that

a

renewed

request

to

an

immigration judge in the cases of Saule and Egle and their mother will result in their

10 Although grants of parole are unlikely, it is notable that since the commencement ofthis litigation, six of the ten plaintiffs have been released by defendants In conversation with defendants' counsel, plaintiffs counsel have repeatedly raised the pending parole requests and requested counsel's assistance in interceding with defendants to exercise their parole authOlity See Letter from Vanita Gupta to Victor Lawrence and Edward Wiggers dated March 23, 2007, a tme and conect copy of which is attached hereto as PI. Ex EE
18

release on bond -- the mele possibility ofrelease in some indetelminate time peIiod is not a basis fOI denying them the equitable relief to which they are othelwise entitled
Plaintiffs are children who seek pleliminary injunctive reliefto prevent further ineparable harm to theil well-being caused by detention in a facility that, by defendants' own admissions, is not compliant with existing law II As pleviously set fOlth, plaintiffs
face a substantial threat of ineparable harm unless they are released fiam Hutto with their parents . See PI PreliminalY Injunction Motions, filed March 6, 2007, at 7-9; PI Reply Briefs, filed March 19,2007, at 18-19 As defendants concede, Hutto "is not a licensed facility," VictOi Lawrence, I I. of March 20 Hlg. at 24; it is not the "least lestrictive" setting appropriate for plaintiffs' ages and needs, Simona Colon, II of March 20 Hlg at 160-165 (admitting that she has not considered ISAP, electronic monitoring bracelets, 01 refugee homes as release options for plaintiffs, although asylum seekers have an incentive to appear at theil immigration proceedings); Gustavo Ivan Cadavid, II of March 20 Hrg at 127 (admitting that children at Hutto could see themselves as criminals and perceive Hutto as a jail); and it is not in compliance with many ofthe standards set fOith in the Settlement Simona Colon, Tr of March 20 Hrg. at 158-84.
Mmeover, thele can be no question that the longer such confinement continues the greater the threat of significant harm Indeed, in obtaining an exemption fiam licensing requirements fOI the Hutto facility, the COirections COIpOiation ofAmeIica ("CCA") specifically represented that the facility would be used to house families "fOi up
liOn March 26, 2007, Defendants filed "Declaration DIMare Moore" ("Declaration") with attached exhibits that include each minor plaintiffs private and confidential medical records, As the COUlt is aware, PlaintiffS' counsel had requested plaintiffs' medical records in order to establish irreparable harm at the March 20 court hearing, but defendants denied that request, arguing that the records were not relevant to the preliminary injunction hearing Defendants then supplemented the record by publically filing the medical records after the hearing and without releases fiom our clients, without taking any steps to assure or protect plaintiffs privacy interests in their own medical inlormation. Plaintiffs have requested that defendants re-file the Declaration under seal but Defendants have thus far declined to do so
19

to 90 days," and would "operate in accordance with. ICE Juvenile Shelter Care Standards" May 22, 2006 Letter from Mickey Liles to Michele Adams, Def Attach. to Decl of Marc J Moore, Def Status Report, filed March 23, 2007. See also Reno v Flores, 507 U.S. 292, 310-11, 314 (upholding constitutionality of detention of alien juveniles in light of brief duration of detention, "an average of only 30 days," and fact that children would be held in "a government-supervised and state-licensed shelter-care facility [while fhe INS] continue[d] searching for a relative or guardian [for release purposes]"). Yet all four Plaintifts have been detained more fhan 90 days - and in one case mor e than six months - in a facility that, despite the most recent improvements, still fails to meet ICE Juvenile Care Standards and is in clear violation of Flores
"The most compelling reason in favor of (granting a preliminary injunction) is the need to prevent the judicial process fiom being rendered futile by defendant's action or refusal to act" Canal Authority v Callaway, 489 F 2d 567, 573 (5fh Cir 1974). In fhis case, absent a preliminary injunction, even ifplaintiffs ultimately prevail at trial, fhere is no relieffhis Court will be able to grant to repair the damage. Quite apart from any psychological harm that plaintiffs may suffer from continued detention at Hutto, the mere fact of their detention -- under conditions fhat clearly violate the Settlement -- constitutes "ineparable injury" See, e.g Studebaker Corporation v. Gittline, 360 F 2d 692, 698 (2d Cir 1966) ("[a]ll that 'irreparable injury' means . is that unless an injunction is granted, the plaintiffwill suffer harm which carmot be repaired "); see also Parks v Dunlop, 517 F 2d 785,787 (5th Cir 1975) ("[I]he central purpose ofa preliminary injunction is to prevent irreparable harm It is the threat of harm that cannot be undone which authorizes exercise of this equitable power to enjoin before the merits are
20

fully determined."}. For these reasons, a preliminalY injunction is the only way to ensure that plaintiffs will not continue to suffer inepalable injmy flom continued detention at Hutto.
IV. Plaintiffs' Proposed Scheduling Order for Expedited Disovery and Trial
Ihis Comt also ordered that palties plOvide a proposed scheduling order fOi expedited discovery and trial Plaintiffs contacted VictOi Lawrence on Ihmsday, Malch 22,2007 to begin the plOcess of devising such a joint proposed scheduling order Initially, plaintiffs' counsel plOposed a May 01 June trial date, and confirmed this proposal in a letter to defendants on MaIch 23,2007, PI Ex. EE. Mr. Lawrence, with cocounsel EdWald Wiggers, requested time to consult with their client On MaIch 27, the palties confened again by telephone Plaintiffs' counsel requested a trial date in June Defendants' counsel offered mid-November as the earliest date they could go to trial in this matter When plaintiffs' counsel suggested that we may be able to limit om case in Older to try to work out an eallier trial date than November, defendants' counsel stated that they could not accept an eallier trial date. Plaintiffs' counsel asked fOi time to confer with co-counsel about defendants' plOposed trial date. On Wednesday, Malch 28, plaintiffs' counsel infOimed opposing counsel that a November trial date was not expeditious enough, and asked defendants' counsel what we could do with regaIds to the presentation of om case at trial that would permit an eallier trial date. Defendants' counsel responded that there is nothing plaintiffs' counsel can do.
Plaintiffs' counsel do not agree that a trial date set fOi eight months after the Malch 20 healing is expeditious. In light ofthe fact that both palties ale unable to wOlk out a joint proposed scheduling order fOi expedited discovery and trial, plaintiffs' counsel
21

are filing OUi own proposed scheduling OJ der ftl! expedited discovery and trial, attached
hereto as PI Ex FF 12 Plaintiffs' counsel propose July 16,2007 as an expedited trial
date This is the latest date on which we believe the trial should be held in light of OUi
clients' serious claims of ineparable injUly caused by detention in a facility that
defendants themselves have admitted is not compliant with the Settlement
Conclusion
FOJ the reasons set forth above, plaintiffs Motion fOJ a Preliminary Injunction
Ordering Her Immediate Release From Hutto With Her Mother should be gIanted
Dated: March 29, 2007
Respectfully submitted,
/s/ Lisa Graybill_ _ _ __
Lisa Graybill Texas State Bar No 24054454 AMERICAN CIVIL LIBERTIES UNION OF TEXAS PO. Box 12905 Austin, TX 78711 Telephone: (512) 478-7300 Fax: (512) 478-7303 Email: Igraybill@aclutx.OJg
Barbara Hines Texas State Bar No 09690800 Director - Immigration Clinic THE UNIVERSITY OF TEXAS SCHOOL OF LAW
\2 PlaintiflS' counsel submit this proposed scheduling order for expedited discovery and trial with an acknowledgement ofthe possibility that am fom plaintiffs may be released between now and the trial date, and thus the concerns plesented in the complaints about Hutto's non-compliance with Flmes may evade review. Along with the fact that we believe our clients are suffering irreparable harm, this is why plaintiffS' counsel urge as early a trial date as logistically possible. 10 the extent that am current plaintiffs are released from Hutto, plaintiffs' counsel are prepared to add a limited number of plaintiffs on or before the same day that we submit am papers designating our testifYing experts, thereby preventing defendants from suffering prejudice and allowing both parties to retain the set trial date
22

727 E Dean Keeton Street Austin, TX 78705 Telephone: (512) 232-1310 Fax: (512) 232-9171 Email: bhines@law.utexas.edu
Vanita Gupta Elora Mukherjee Dennis Parker AMERICAN CIVIL LIBERTIES UNION FOUNDATION - Racial Justice Program 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2500
Gouri Bhat Tom-Tsvi M Jawetz AMERICAN CIVIL LIBERTIES UNION FOUNDATION - National Prison Project 915 15th Street, NW, 7th Floor Washington, DC 20005 Telephone: (202) 393-4930
Judy Rabinovitz AMERICAN CIVIL LIBERTIES UNION FOUNDATIONImmigrants' Rights Project 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2500
Sean Gorman Stephen J Lable LEBOEUF, LAMB, GREENE & MACRAE,LLP Reliant Ener gy Plaza 1000 Main Street, Suite 2550 Houston, TX 77002 Telephone: (713) 287-2000
23

CERTIFICATE OF SERVICE
I hereby certify that on March 29,2007, I electronically filed the foregoing document with the Clerk of the Cornt using the ECF system The ECF system will send notification of this filing to the following person:
Victor M. LaWience Office of Immigration Litigation U.S. Department ofJustice, Civil Division POBox 878, Ben Franklin Station Washington, DC 20044 Telephone: (202) 305-8708 Email: victor.laWience@usdoj.gov
I further certify that on March 29,2007, a copy ofthe foregoing document was delivered by electronic mail to the following person:
Edward E. Wiggers Trial Attorney Office ofImmigration Litigation US Department of Justice, Civil Division POBox 878, Ben Franklin Station Washingtcm,-DC 20044 Telephone: (202) 616-1247 Email: edward.wiggers@usdoj.gov
lsi Lisa Graybill_ _ _ __
Lisa Graybill Texas State Bar No 24054454 AMERICAN CIVIL LIBERTIES UNION OF TEXAS PO Box 12905 Austin, TX 78711 Telephone: (512) 478-7300 Fax: (512) 478-7303 Email: 19raybill@aclutx.org
24

 
 Case 1:07-cv-00164-SS Document 3 Filed 03/06/07 Page 1 of 18
FILED

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

MAR 0 6'2007

SAULE BUNIKYTE, by and through her )

next friend and mother, Rasa Bunikiene, )

)

Plaintiff,

)

)

v.

)

)

MICHAEL CHERTOFF, et al.,

)

)

____________D_e_fe_n_da_nt_s._____

)
)

Civil Action
No.:AQ7CA 164 SS

PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION ORDERING HER IMMEDIATE RELEASE FROM HUTTO WITH HER MOTHER UNDER CONDITIONS OF SUPERVISION, AND PERMITTING HER COUNSEL AND
EXPERTS TO INSPECT THE FACILITY AND EXAMINE PLAINTIFF Introduction
PlaintiffSaule Bunikyte is a nine-year-old child in the custody ofthe Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE). Plaintiff is detained with her mother at the T. Don Hutto Family Residential Center ("Hutto''), a converted mediumsecurity prison in Taylor, Texas. Plaintiff files this motion for a preliminary injunction pursuant to Fed. R. Civ. P. 65 seeking her immediate release from Hutto with her mother, subject to reasonable conditions of supervision. Plaintiff also asks that the Court order defendants to permit plaintiff's counsel and her experts in psychology and juvenile conditions of confinement to inspect Hutto and speak with plaintiff and her mother prior to any hearing on this motion.
Plaintiff's Complaint asserts her rights under the Stipulated Settlement Agreement in Flores v. Meese, No. 85-cv-4544 (C.D. Cal.) ("Flores Settlement"). Since January 1997, the detention and release of all minors in federal immigration custody has been governed by the
1

Case 1:07-cv-00164-SS Document 3 Filed 03/06/07 Page 2 of 18
tenns of the Flores Settlement, attached hereto as Exhibit A. Plaintiffs Complaint alleges that defendant ICE officials are in flagrant violation of Flores with respect to her detention at Hutto. Specifically, plaintiff alleges that defendants have failed to consider her for release to and with her parent under reasonable conditions of supervision, as required by Flores; have failed to place her in the least restrictive setting appropriate to her age and needs, as required by Flores; have failed to detain her in a licensed child-care facility, as required by Flores; and have detained her in conditions that fail to meet virtually every specific environmental, education, medical, recreation and other child care standard set forth in the Flores Settlement. Plaintiff ultimately seeks a declaratory judgment that Flores is binding and enforceable, and a pennanent injunction requiring defendants to comply with its provisions on her behalf.
In this motion, plaintiff seeks preliminary relief ordering her immediate release from Hutto with her mother, subject to reasonable conditions of supervision-including electronic monitoring if necessary-pending a final detennination on the merits of her claims. Such preliminary relief is warranted because plaintiff could suffer irreparable physical, psychological and developmental hann from her ongoing incarceration in the prison-like environment at Hutto; because plaintiff is significantly likely to prevail on her ultimate claims that her detention at Hutto violates her rights under the Flores Settlement; and because defendants' immigration enforcement concerns would be adequately addressed by releasing plaintiff and her mother under conditions of supervision.
Argument The function of a preliminary injunction is to prevent the irreparable loss of rights pending a trial on the merits. Collum v. Edwards, 578 F.2d 110, 113 (5th Cir. 1978). To obtain preliminary relief, plaintiff must show (1) a substantial likelihood of success on the merits of her
2

Case 1:07-cv-00164-SS Document 3 Filed 03/06/07 Page 3 of 18
underlying claims; (2) a substantial threat that she will suffer irreparable injury if the injunction is not granted; (3) that the threatened injury outweighs any damage the injunction might cause the defendants; and (4) that the injunction will not disserve the public interest. Planned Parenthood ofHouston & Southeast Tex. v. Sanchez, 403 FJd 324, 329 (5th Cir. 2005). While each factor must be shown, their relative importance will vary in each case-i.e., they should be applied on a "sliding-scale basis." See Knights ofthe Ku Klux Klan, Realm ofLa. v. East Baton Rouge Parish Sch. Bd., 578 F.2d 1122, 1125 (5th Cir. 1978). "Where one or more ofthe factors is very strongly established, this will ordinarily be seen as compensating for a weaker showing as to another or others." !d.
A. Plaintiff Is Likely to Succeed on Her Claim That Defendants Are in Violation of the Flores Settlement.
Plaintiffs Complaint alleges more than fifteen distinct violations of the terms of the Flores Settlement by defendants in this action. Several of these violations can be remedied only by the immediate release of plaintiff from the Hutto facility. Even without the benefit of discovery or expert tours, plaintiff can show a likelihood of success on most if not all of her claims. In particular, the merits of Counts I, II, and III of the Complaint compel the immediate release of plaintiff to and with her parent.
1. The Flores Settlement remains binding and enforceable, and plaintiff is a Flores class member.
The Flores Settlement was the result of years of class action litigation on behalf of minors detained by federal immigration authorities in often deplorable conditions.1 Upon remand from the Supreme Court in Reno v. Flores, 507 U.S. 292,305 (1993), class counsel for the Flores plaintiffs filed voluminous evidence showing that the INS was still not in compliance
See Complaint section entitled "The Flores Settlement" at 9-10, summarizing history ofthe Flores litigation.
3

Case 1:07-cv-00164-SS Document 3 Filed 03/06/07 Page 4 of 18
with a 1987 Memorandum of Understanding compelling the agency to improve the conditions affecting minors in its custody. Rather than contest plaintiffs' evidence, defendants agreed to the terms of the Flores Settlement, which was approved by the United States District Court for the Central District of California in January 1997. The Settlement binds ICE and defendantiCE officials, as the successors of the INS. See Ex. A~ 1. Created in March 2003, ICE combines the law enforcement arms of the former INS and the former U.S. Customs Service.
The original termination provision of the 1997 Flores Settlement, see Ex. A ~ 40, was modified by a December 12, 2001 Stipulation and Order extending the terms of the Settlement. The 2001 Stipulation and Order, attached hereto as Exhibit B, states:
All terms of this Agreement shall terminate 45 days following defendants' publication of final regulations implementing this Agreement. Notwithstanding the foregoing, the INS shall continue to house the general population of minors in INS custody in facilities that are state-licensed for the care of dependent minors. Ex. B ~ 1. The INS, and now ICE, has never issued final regulations implementing the terms of the Flores Settlement. Thus, by the plain language of the Settlement, its terms remain binding and enforceable on defendants. Until a judicial determination that ICE is in substantial compliance with the requirements of the Flores Settlement-a determination that has never been made or requested by defendants in Flares-Judge Robert J. Kelleher of the Central District of California retains jurisdiction over the Settlement. Ex. A~ 35. While classwide enforcement actions should be filed before Judge Kelleher under the terms of the Settlement, id ~ 37, the Settlement clearly contemplates and provides for the filing of individual enforcement actions by Flores class members to protect their right under the Settlement, id ~ 24. Specifically, the Settlement provides that:
Any minor who disagrees with the INS's determination to place that minor in a particular type of facility, or who asserts that the licensed program in which he or she has been placed does not comply with the standards set forth in Exhibit
4

Case 1:07-cv-00164-SS Document 3 Filed 03/06/07 Page 5 of 18
1 attached hereto, may seek judicial review in any United States District Court with jurisdiction and venue over the matter to challenge that placement determination or to allege noncompliance with the standards set forth in Exhibit 1. In such an action, the United States District Court shall be limited to entering an order solely affecting the individual claims of the minor bringing the action. Id ~24B. The certified class in Flores is defined as: "All minors who are detained in the legal custody of the INS." Ex. A~ 10. The Settlement defines the term "minor" as "any person under the age of eighteen (18) years who is detained in the legal custody ofthe INS." !d.~ 4. Thus, plaintiff is a member of the Flores Class and is entitled to all the protections derived from the Settlement, including the right to enforce her rights before this Court.
2. Defendants have failed to comply with Flores, including their obligation to release plaintiff with her mother under reasonable conditions of supervision.
Count I of the Complaint alleges that defendants have violated the most fundamental obligation of the Flores Settlement-to actively and continuously seek to release minors from ICE custody. See Ex. A~~ 14, 18. The Settlement provides that release to a parent is the highest priority preference among release options. Id ~ 14. Yet defendants have offered no explanation as to why plaintiff has not been released with her mother under reasonable conditions of supervision. Defendants have never suggested that plaintiff or her mother pose any danger that requires their confinement. Thus the only legitimate purpose their continued detention can serve is to assure their appearance at removal proceedings or for ultimate removal, if ordered. Given that plaintiff and her mother are prepared to agree to any reasonable conditions of supervision, including electronic monitoring if necessary, the Flores Settlement requires their release.
Count II ofthe Complaint alleges that plaintiffs placement in a converted mediumsecurity prison managed by a for-profit adult corrections company violates defendants'
5

Case 1:07-cv-00164-SS Document 3 Filed 03/06/07 Page 6 of 18
obligation under Flores to place plaintiff in "the least restrictive setting appropriate to the minor's age and special needs." ld. ~ 11. Count III of the Complaint alleges that defendants have similarly failed to place plaintiff in a licensed child-care facility as required by the Settlement, because Hutto is unlicensed by any appropriate state agency and fails to meet many of the additional Flores requirements for a "licensed program." Id. ~~ 6, 19 and Exhibit 1 to the Settlement. Finally, plaintiffs many additional claims raise serious questions about violations of specific environmental, education, medical, recreation and other standards set forth in the Flores Settlement.
The declarations of plaintiff and other children at Hutto and some of their parents, attached hereto as Exhibits G through P, attest to the depressing, prison-like environment at the facility, and to the correctional model ofprison management imposed by staff. More declarations and testimony from current and former Hutto detainees can bolster this record at the requested hearing on this motion. In addition, a recently released report entitled Locking up Family Values: The Detention ofImmigrant Families, produced by the Women's Commission for Refugee Women and Children and Lutheran Immigration and Refugee Service ("Women's Commission Report"), includes extensive information on the Hutto facility based on numerous interviews with detained children and families, conversations with facility staff, and interviews with local and national ICE staff, including defendant John Pogash, the ICE National Juvenile Coordinator. (See Attachment 1 to the Declaration ofVanita Gupta, attached hereto as Exhibit C, at 48.) The Women's Commission Report confirms many of the specific factual assertions made by plaintiff, including that Hutto is not licensed, id. at 36-37; and that ICE has made no effort to develop release alternatives to family detention, id. at 36--and thus no effort to actively and continuously seek the release of plaintiff as required by Flores. The report as a whole, in
6

Case 1:07-cv-00164-SS Document 3 Filed 03/06/07 Page 7 of 18
conjunction with the declarations from Hutto detainees, strongly suggests that plaintiff will be able to gather evidence establishing that, far from being the "least restrictive setting" appropriate to her age and needs, Hutto is among the most restrictive settings in which plaintiff could be detained.
Based on this showing, plaintiff has demonstrated that there is a substantial likelihood she will prevail on at least one, if not all, of her claims that defendants are in violation ofthe Flores Settlement. This is particularly true since plaintiff is not required to prove her case to show a likelihood of success on the merits. Lakedrearns v. Taylor, 932 F.2d 1103, 1109 n.11 (5th Cir. 1991 ). "It is enough that the movant has raised questions going to the merits so substantial as to make them a fair ground for litigation and thus for more deliberate investigation." Fin/an v. City ofDallas, 888 F.Supp. 779,791 (N.D. Tex. 1995) (citingLakedrearns at 1109). Plaintiff clearly satisfies this standard.
B. There Is a Significant Likelihood That Plaintiff Will Suffer Irreparable Injury From Her Ongoing Confinement at Hutto.
To show irreparable injury in a preliminary injunction context, it is not necessary to demonstrate that the harm is inevitable. Hurnana, Inc. v. Jacobson, 804 F.2d 1390, 1394 (5th Cir. 1986). Plaintiff need only show "a significant threat of injury from the impending action, that the injury is imminent, and that money damages would not fully repair the harm." !d. The longlasting consequences of psychological and emotional harm inflicted on young children cannot be quantified or repaired by monetary damages, which, in any event, plaintiff does not seek. Similarly, developmental harm caused by the denial of appropriate educational opportunities to children can constitute irreparable injury and has supported the entry of preliminary injunctive relief in this circuit. See Woods v. Wright, 334 F.2d 369,375 (5th Cir. 1964) (reversing the denial of preliminary injunctive relief to a child who was expelled from school in retaliation for
7

Case 1:07-cv-00164-SS Document 3 Filed 03/06/07 Page 8 of 18
participating in a public demonstration against segregation); Byrd v. Livingston Indep. Sch. Dist., 674 F.Supp. 225, 226 (E.D. Tex. 1987) (continuing a temporary restraining order by granting permanent injunctive relief to three children who were denied enrollment in public school because of purported residency requirements).
Plaintiff can establish that there is a strong chance she will suffer irreparable psychological harm and trauma because of her ongoing and indefinite detention in a prison-like environment. Plaintiff submits two declarations from experts in the psychological effects of trauma on children and adolescents. (See Declaration John Sargent, M.D. and Declaration of David R. Blackburn, Ph.D., attached hereto as Exhibits E and F.) Both experts concur that the experience of being detained at Hutto, even for relatively short periods, is likely to be traumatic and stressful for children, particularly those who have already experienced adversity and disruption in their young lives. Dr. David R. Blackburn states that "children who are detained in a prison-like setting will very likely suffer psychological harm and trauma from that event" and this trauma "might later contribute to childhood depression, anxiety, and/or stress." Ex. F ~ 4. Dr. John Sargent states that "[t]he experience of being detained in a prison-like environment, for even relatively short periods, is extremely stressful for children and families and may represent retraumatization and reenactment for these children." Ex. E ~ 3. Plaintiff plans to obtain additional expert testimony for the preliminary injunction hearing and specifically requests that her experts be permitted to inspect the facility and examine plaintiff and her mother before the hearing date. See Relief Requested section, infra.
The declaration of plaintiffs mother underscores plaintiffs unique vulnerability and the likelihood that she will suffer emotional and psychological trauma if she is not immediately released from Hutto with her mother. Plaintiff is a nine-year-old girl who has been detained at
8

Case 1:07-cv-00164-SS Document 3 Filed 03/06/07 Page 9 of 18
the Hutto facility for 82 days. Compl. ~ 1. She arrived in the United States on March 8, 2005, and was a student in the third grade at West Elementary in Crystal Lake, Illinois until the time of her detention. ld. ~ 13. At various times, plaintiff has received zero, one, and between three and four hours of education each day; the subjects covered in her class are too elementary for her grade level and she often colors during class time, watches movies, and rarely learns anything. Compl. ~ 64. Plaintiffs mother fears that even if she is released from detention she will not be permitted to graduate from the grade that she is now in. Declaration of Rasa Bunikiene ~ 3 (attached at Exhibit G). Plaintiff finds it difficult to eat the food provided at Hutto, often cries out of hunger, and has lost significant weight since her arrival at the facility. Compl. ~54. Plaintiff often cries, and feels sad, frustrated, and angry by the trauma she has suffered and by her detention at the Hutto; her anxiety is multiplied by her fear that she will be permanently separated from her mother and will be left with no one to help her or protect her. Compl. ~~ 62, 80; Ex. G ~~ 4, 6. Thus, plaintiff's individual history and emotional state establish a substantial risk of irreparable harm should plaintiff and her mother continue to be detained at Hutto.
At the preliminary injunction hearing, plaintiffs current factual submissions will be supported by additional detainee and expert testimony regarding the lack of adequate educational services, recreation time, medical care and palatable food-all critical services for the health and development of growing children. Plaintiff can satisfy the irreparable harm requirement.
C. The Balance of Equities Favors Plaintiff, and the Public Interest Will Not Be Disserved By Entry of the Requested Injunction.
When preliminary injunctive relief is sought "against public institutions and against public servants charged with the enforcement of the law," it is appropriate to consider the third and fourth prerequisites to relief together. Spiegel v. City ofHouston, 636 F.2d 997, 1002 (5th Cir. 1981 ). This is because the public always has an interest in ensuring that public officials act
9

Case 1:07-cv-00164-SS Document 3 Filed 03/06/07 Page 10 of 18
within the bounds of the law and respect the rights of individuals, regardless of any specific harm that defendant officials may suffer from the requested injunction. See Fin/an, 888 F. Supp. at 791.
In this instance, the balancing of equities is straightforward because defendants will not be injured in any respect by an order requiring the release of plaintiff with her mother under conditions of supervision. Indeed, defendants' use of the Hutto facility to detain children and families directly contravenes the expressed intent of Congress in repeatedly appropriating funds to DHS for the housing of families in non-penal, homelike environments. See, e.g., Department of Homeland Security Appropriations Bill, H.R. 79, 109th Cong. (2005) ("The Committee expects DHS to release families or use alternatives to detention such as the Intensive Supervision Appearance Program whenever possible."). Defendants have put forth no reason why plaintiffs release with her mother under reasonable conditions of supervision would not be feasible. Defendants have never alleged that plaintiff or her mother pose any danger to themselves or others; thus, presumably, the only basis for their continued confinement is to ensure their appearance at future immigration proceedings. Because this interest can be adequately addressed by imposing conditions of supervision-including electronic monitoring if necessary-no legitimate governmental interest will be affected by the granting of preliminary injunctive relief to plaintiff.
Plaintiff's compelling interest in avoiding irreparable physical, psychological and developmental harm is the overriding consideration in this balance of equities, and is only intensified by the considerable public interest in ensuring the safety and well-being of children and families detained by ICE in this district. Plaintiff thus satisfies the third and fourth requirements for preliminary relief.
10

Case 1:07-cv-00164-SS Document 3 Filed 03/06/07 Page 11 of 18
D. Defendant Will Incur No Costs, and No Bond Is Needed. Although Fed. R. Civ. P. 65(c) requires security to be posted before a restraining order is
granted, district courts have discretion to require no security. Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996). Defendant will incur no significant costs in releasing plaintiff with her mother under reasonable conditions of supervision, or in permitting plaintiffs counsel and her experts to tour Hutto. No bond is necessary.
Relief Requested Plaintiff requests that the Court enter a preliminary injunction pursuant to Fed. R. Civ. P. 65 ordering (1) that plaintiff be immediately released from the Hutto facility to and with her parent under reasonable conditions of supervision; and (2) that plaintiffs counsel and her experts in psychology and juvenile conditions of confinement be permitted to inspect Hutto and speak with plaintiff and her mother prior to any hearing on this motion. Plaintiff requests a hearing on this preliminary injunction motion as soon as practicable for the Court, ideally within the next three weeks. Plaintiff requests expedited consideration of her request that her experts be permitted to tour Hutto and meet with plaintiff, so that the expert visit may be conducted prior to the preliminary injunction hearing. This motion and all supporting papers have been served on all individual defendants, the U.S. Attorney for Western District of Texas, and Department of Justice attorneys representing defendant ICE officials.
Conclusion For the reasons set forth above, plaintiffs Motion for a Preliminary Injunction Ordering Her Immediate Release from Hutto with Her Mother Under Conditions of Supervision, and
11

Case 1:07-cv-00164-SS Document 3 Filed 03/06/07 Page 12 of 18
Permitting Her Counsel and Experts to Inspect the Facility and Examine Plaintiff should be
granted.
Dated: March 6, 2007.
Respectfully submitted,
Barbara Hines Texas State Bar No. 09690800 Director - Immigration Clinic THE UNIVERSITY OF TEXAS SCHOOL OF LAW 727 E. Dean Keeton Street Austin, TX 78705 (512) 232-1310
Lisa Graybill* AMERICAN CIVIL LIBERTIES UNION OF TEXAS P.O. Box 12905 Austin, TX 78711 (512) 478-7300
Vanita Gupta* Elora Mukherjee* Dennis Parker* AMERICAN CIVIL LIBERTIES UNION FOUNDATION Racial Justice Program 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500
Gouri Bhat* Tom-Tsvi M. Jawetz* AMERICAN CIVIL LIBERTIES UNION FOUNDATION National Prison Project 915 15th Street, NW, 7th Floor Washington, DC 20005 (202) 393-4930
Judy Rabinovitz* AMERICAN CIVIL LIBERTIES UNION
12

Case 1:07-cv-00164-SS Document 3 Filed 03/06/07 Page 13 of 18
FOUNDATION- Immigrants' Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500 Sean Gorman LEBOEUF, LAMB, GREENE & MACRAE,LLP Reliant Energy Plaza 1000 Main Street, Suite 2550 Houston, TX 77002 (713) 287-2000
* indicates pro hac vice motion pending
13

Case 1:07-cv-00164-SS Document 3 Filed 03/06/07 Page 14 of 18
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was served by first class U.S. mail, on Tuesday, March 6, 2007, on the following:
Victor Lawrence (via Federal Express overnight delivery) Department of Justice Office of Immigration Litigation National Press Building 529 141h St., NW Washington, D.C. 20045
Michael Chertoff, Secretary U.S. Department of Homeland Security Washington, D.C. 20528
Julie L. Myers, Assistant Secretary U.S. Department of Homeland Security U.S. Immigration and Customs Enforcement Washington, D.C. 20528
John P. Torres, Director Office of Detention and Removal Operations 801 I St., NW Suite 900 Washington, DC 20536
Gary Mead, Assistant Director Office of Detention and Removal Operations 801 I St, NW Suite 900 Washington, DC 20536
Marc Moore ICE Field Office Director, San Antonio 8940 Fourwinds Drive San Antonio, TX 78239
Simona Colon T. Don Hutto Residential Center 1001 Welch St., P.O. Box 1063 Taylor, Texas 76574

Case 1:07-cv-00164-SS Document 3 Filed 03/06/07 Page 15 of 18
John Pogash ICE National Juvenile Coordinator Department of Homeland Security Immigration & Customs Enforcement 800 I Street, NW, Suite 900 Washington, D.C. 20536
Johnny Sutton U.S. Attorney for the Western District of Texas United States Attorney's Office 601 NW Loop 410, Suite 600 San Antonio, Texas 78216
Alberto Gonzales Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001
~
Vanita Gupta

Case 1:07-cv-00164-SS Document 3 Filed 03/06/07 Page 16 of 18

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

SAULE BUNIKYTE, by and through her )

next friend and mother, Rasa Bunikiene, )

)

Plaintiff,

)

)

v.

)

)

MICHAEL CHERTOFF, eta/.,

)

)

____________D_e_fe_n_da_nt_s._____

)
)

[FIRST PROPOSED] ORDER

Plaintiff's Motion for a Preliminary Injunction Ordering Her Immediate Release from

Hutto with Her Mother Under Conditions of Supervision, and Permitting Her Counsel and

Experts to Inspect the Facility and Examine Plaintiff is GRANTED IN PART; and it is hereby

ORDERED that:

( 1)

Counsel for the parties shall appear before the Court for a hearing on

Plaintiffs Motion for a Preliminary Injunction Ordering Her Immediate

Release from Hutto with Her Mother Under Conditions of Supervision, and

Permitting Her Counsel and Experts to Inspect the Facility and Examine

Plaintiff on - - - - - - , 2007; and

(2)

Prior to the aforementioned hearing, plaintiffs counsel and her psychological

and juvenile conditions of confinement experts shall be permitted to inspect

Hutto and speak with plaintiff and her mother.

Case 1:07-cv-00164-SS Document 3 Filed 03/06/07 Page 17 of 18 Austin, Texas this __ day of _ _ _ _ _ _, 2007
United States District Judge
2

Case 1:07-cv-00164-SS Document 3 Filed 03/06/07 Page 18 of 18

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

SAULE BUNIKYTE, by and through her )

next friend and mother, Rasa Bunikiene, )

)

)

Plaintiff,

)

)

v.

)

)

MICHAEL CHERTOFF, eta/.,

)

)

____________D_e_fe_n_da_nt_s._____

)
)

Civil Action
No.: AQ7 CA 164 SS

[SECOND PROPOSED) ORDER Plaintiff's Motion for a Preliminary Injunction Ordering Her Immediate Release from Hutto with Her Mother Under Conditions of Supervision, and Permitting Her Counsel and Experts to Inspect the Facility and Examine Plaintiff is GRANTED IN PART; and it is hereby ORDERED that plaintiff be immediately released from the Hutto facility to and with her mother under reasonable conditions of supervision.

Austin, Texas this __ day of _ _ _ _ _ _, 2007

United States District Judge

 
 Case 1:07-cv-00164-SS Document 46 Filed 04/06/2007 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

FILED

WESLEYANN EMPTAGE, by and through her next friend and mother, Raouitee Pamela Puran,
Plaintiff,
~vs-
MICHAEL CHERTOFF, Secretary of U.S. Department of Homeland Security; JULIE L. MYERS, Assistant Secretary, U.S. Immigration and Customs Enforcement {(ICE); JOHN P. TORRES, Director, Office of Detention and Removal Operations, ICE; MARC MOORE, ICE Field Office Director; GARY MEAD, Assistant Director of Detention and Removal Operations at ICE; Simona Colon, ICE Officer in Charge; and JOHN POGASH, ICE National Juvenile Coordinator,
Defendants.
MOHAMMED IBRAHIM, by and through his next friend and mother, Deka Warsame,
Plaintiff,
-vs-
MICHAEL CHERTOFF, Secretary of U.S. Department of Homeland Security; et al.,
Defendants.
BAHJA IBRAHIM, by and through her next friend and mother, Deka Warsame,
Plaintiff,
-vs-
MICHAEL CHERTOFF, Secretary of U.S. Department of Homeland Security; et al.,
Defendants.

Case No. A-07~CA-158-SS
Case No. A-07-CA-161-SS Case No. A-07-CA-162-SS

Case 1:07-cv-00164-SS Document 46 Filed 04/06/2007 Page 2 of 4

AISHA IBRAHIM, by and through her next friend and mother, Deka Warsame,
Plaintiff,
-vs-
MICHAEL CHERTOFF, Secretary of U.S. Department of Homeland Security; et aIl.,
Defendants.
SAULE BUNIKYTE, by and through his next friend and mother, Rasa Bunikiene,
Plaintiff,
-vs-
MICHAEL CHERTOFF, Secretary of U.S. Department of Homeland Security; et al.,
Defendants.
EGLE BAUBONYTE, by and through her next friend and mother, Rasa Bunikiene,
Plaintiff,
-vs-
MICHAEL CHERTOFF, Secretary of U.S. Department of Homeland Security; et al.,
Defendants.
SHERONA VERDIEU, by and through her next friend and mother, Delourdes Verdieu,
Plaintiff,
-vs-

Case No. A-07-CA-163-SS Case No. A-07-CA-164-SS Case No. A-07-CA-165-SS Case No. A-07-CA-166-SS

-2-

Case 1:07-cv-00164-SS Document 46 Filed 04/06/2007 Page 3 of 4

MICHAEL CHERTOFF, Secretary of U.S. Department of Homeland Security; et aIl.,
Defendants.
KEVIN YOURDKHANI, by and through his next friend and mother, Masomeh Alibegi,
Plaintiff,
-vs-
MICHAEL CHERTOFF, Secretary of U.S. Department of Homeland Security; et al.,
Defendants.

Case No. A-07-CA-167-SS

ORDER
? BE IT REMEMBERED on the zZ day of April 2007 the Court reviewed the file in the
above-styled cause, specifically the supplemental briefmg filed by the parties in response to this Court's Order of March 21,220007. It has come to the Court's attention that the medical records of the minor Plaintiffs, filed by Defendants as exhibits A-H in support of Defendants' "Reply to Equitable Remedies Sought by Plaintiffs" [filed March 26, 2007], and the medical records of Plaintiffs' parents, filed by Defendants as exhibits 6 and 7 in support ofDefendants' "Supplemental Briefand Filing ofAdditional Evidence" [filed March 29,22007], were placed into the record without the consent of Plaintiffs or their parents.
Defendants have abused their control of these sensitive records throughout this litigation. When these cases were first filed, Defendants refused Plaintiffs and their parents access to their own medical records without ever providing a rational basis for the refusal to Plaintiffs or this Court.

-3-

Case 1:07-cv-00164-SS Document 46 Filed 04/06/2007 Page 4 of 4

Now, Defendants have made these same records public in a manner that is both inappropriate and legally deficient.
IT IS ORDERED that the medical records of the minor Plaintiffs, filed by Defendants as exhibits A-H in support of Defendants' "Reply to Equitable Remedies Sought by Plaintiffs" [filed March 26, 2007] and the medical records ofPlaintiffs' parents, filed by Defendants as exhibits 6 and 7 in support of Defendants' "Supplemental Brief and Filing of Additional Evidence" [filed March 29,,220007] shall be PLACED UNDER SEAL by the Clerk ofthis Court immediately.

66""""-tiili

SIGNED this the

day of Aprill220007.

SAM SP S UNITED STATES DI

-4-

 
 Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 1 of 39

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

FILED

SAULE BUNIKYTE, by

and through his next friend and mother,

Rasa Bunikiene,

Plaintiff,

-vs-

Case No. A-07-CA-164-SS

MICHAEL CHERTOFF, Secretary of U.S. Department of Homeland Security; et aIl.,
Defendants.

EGLE BAUBONYTE, by and through her next friend and mother,
Rasa Bunikiene, Plaintiff,

-vs-

Case No. A-07-CA-165-SS

MICHAEL CHERTOFF, Secretary of U.S. Department of Homeland Security; et al.,
Defendants.

SHERONA VERDIEU, by and through her next friend and mother,
Delourdes Verdieu, Plaintiff,

-vs-

Case No. A-07-CA-166-SS

MICHAEL CHERTOFF, Secretary of U.S. Department of Homeland Security; et al.,
Defendants.

ORDER
'lf!& BE IT REMEMBERED on the I&day of April 2007 the Court held a hearing in the

Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 2 of 39
above-styled causes,1I and the parties appeared through counsel. Before the Court were Plaintiffs' Motions for Preliminary Injunction, Defendants' Responses thereto, and Plaintiffs' Replies. After considering these documents, the arguments of counsel at the hearing, the applicable law, and the case file as a whole, the Court sought supplemental briefing and evidence on certain issues related to Plaintiffs' request for preliminary relief. Having considered the.,suppliemental briefing filed by Plaintiffs and Defendants, the Court now enters the following opinion and orders.
Background Plaintiffs are minor children who entered the United States illegally with their parents and were apprehended by Immigration and Customs Enforcement ("ICE") and the Department of Homeland Security ("DHS"). Plaintiffs and their parents, who are seeking political asylum from various countriieess,,22 have been detained at the Don T. Hutto Family Residential Center ("Hutto") in Taylor, Texas during their immigration proceedings. Hutto is only the second family detention center in the United States. The first, in Berks· County, Pennsylvania, was built in 2001 from a converted nursing home. Hutto, in contrast, is a converted medium-security prison. Hutto has been in operation since May of2006. It was initially used to house only families who were candidates for expedited removal, but now also houses detainee families not subject to expedited removal. The average stay ofa Hutto resident subject to
1I The hearing concerned eight related cases; however, the complaints filed by Wesleyann Emptage, Mohammed Ibrahim, Bahja Ibrahim, Aisha Ibrahim, and Kevin Yourdkhani have since been voluntarily dismissed because each ofthese Plaintiffs has been released from Hutto as a result of bond, parole, or the conclusion of immigration proceedings.
22 Two of the remaining Plaintiffs in the related cases, Saule Bunikyte and Egle Baubonyte, state that they wish to apply for asylum but have been prevented from filing asylum applications by ineffective assistance of counsel to date.
2

Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 3 of 39
expedited removal is 20 days, while the average stay of one not subject to expedited removal is 50 days. Resp. 13-14. Most ofthe Plaintiffs, however, have exceeded the longest average stay by quite a bit. The Verdieu family, for example, had been detained for 176 days before filing suit.
Hutto is the product ofa relatively recent shift in immigration policy. Prior to 2001, families apprehended for entering the United States illegally were most often released rather than detained because of a limited amount of family bed space; families who were detained had to be housed
,6. separately, splitting up parents and children. Perry Affffidid. ., 6. In the wake of September 11,2001,
however, immigration policy fundamentally changed.3 The current policy of more restrictive immigration controls, tougher enforcement, and broader expedited removal ofillegal aliens has made the automatic release of families problematic. DHS initially responded by detaining more family groups, placing adults in ICE holding facilities and placing alien minors into separate ORR custody. DHS argued this was necessary because alien smugglers had begun "renting" children to travel with illegally entering adults in hopes ofpassing the groups offas "families" and thus avoiding detention under the automatic-family-release policy. Id
Though separate detention of minors may have removed some children from dangerous smuggling situations, it often had the effect of splitting up legitimate family groups. In 2005, Congress rejected this approach, stating
Children who are apprehended by DHS while in the company oftheir parents are not in fact
33 In order to implement policy changes regarding immigration, Congress passed the Homeland Security Act in 2001, splitting the function ofthe Immigration and Naturalization Service (INS) into three separate agencies and placing all three agencies under the jurisdiction of the Department of Homeland Security (DHS). The Act transferred responsibility for the care and custody of unaccompanied alien children to the Department of Health and Human Services' Office of Refugee Resettlement (ORR).
3

Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 4 of 39
'unaccompanied' and if their welfare is not at issue, they should not be placed in ORR custody. The committee expects DHS to release families or use alternatives to detention such as the Intensive Supervised Appearance Program whenever possible. When detention of family units is necessary, the Committee directs DHS to use appropriate detention ~pace to house them together. House Committee on Appropriations, DepartmentofHomelandSecurityAppropriations Bill, 2006: report together with additional views (to accompany HR. 2360), 1099tthh Cong., 11sstt Session, 2005, H. Rep. 109-79. Despite Congress~ expressed preference for family release "whenever possible," DHS is reluctant to return to a policy ofautomatically releasing family groups. DHS argues that automatic release offamilies encourages parents to subject their children to the dangers ofillegal immigration. Therefore, in addition to experimenting with the ISAP program (an electronic monitoring program currently in use in nine pilot locations, none of which are in or near Texas), DHS has begun to explore the use of"Family Detention Centers" designed to house family groups together. Mot. Prel. Inj. Ex. C, Attachment 1: Women's Commission Report: Locking Up Family Values: the Detention ofImmigrant Families n.1l2. As discussed above, Hutto is the second ofonly two family detention centers currently operating in the United States. The minor Plaintiffs allege their detention in Hutto violates the terms of a class action settlement agreement entered in Flores v. Meese, No. 85-cv-4544 (C.D. Cal. September 16, 1996) (the "Flores settlement"), which "sets out nationwide policy for the detention, release, and treatment ofminors in the custody ofthe [Immigration and Naturalization Services] INS and . .. supersede[s] all previous INS policies that are inconsistent with the terms ofthis Agreement." Flores Settlement ~ 9, Mot. Prel. Inj. Ex. A. The Flores settlement is binding on ICE and DHS as successor organizations to INS. Flores Settlement ~ 1.
4

Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 5 of 39
Ofcourse, the provisions ofthis settlement agreement, entered overten years ago, were never intended to be permanent authority, much less the only binding authority setting standards for the detention ofminor aliens. The Flores Settlement was intended as astopgap measure until the United States could promulgate reasonable, binding standards for the detention of minor in immigration custody. Flores remains in force until "45 days following defendants' publication of final regulations implementing this Agreement." Stipulated Order Extending Settlement Agreement, Mot. Prel. Inj. Ex. B. Yet the United States does not contest that the Flores settlement is still in effect. Despite the passage ofjust over a decade, neither DHS nor Congress has yet promulgated binding rules regarding standards for the detention of minors. In fact, it appears that Flores is the only binding legal standard directly applicable to the detention of minor aliens by the United States government, despite the passage of time and the drastic changes in immigration policy since this judgment was first entered.
Though it is no defense that the Flores Settlement is outdated, it is apparent that this agreement did not anticipate the current emphasis on family detention, where the parole of adult family members is limited by acts of Congress or the judicial branch. Since its inception in 2001, family detention has been governed by ad hoc policies DHS derives from a combination ofDHS's Detention Operations Manual, an internal standards guide that is not codified by statute or incorporated into regulation, and the Flores Settlement. Women's Commission Report 8. Neither the Detention Operations Manual nor the Flores Settlement addresses the concerns specific to family detention: the Detention Operations Manual is largely derived from American Correctional Association standards for the custody ofadult criminal inmates, while the Flores Settlement was the result of litigation regarding unaccompanied minors, not minors in a family group. !Id.
5

Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 6 of 39
Nonetheless, the Flores Settlement, by its terms, applies to all "minors in the custody" ofIiCE and DHS, not just unaccompanied minors. Flores Settlement, ~ 9. The Settlement expresses a policy preference for the release ofminors where possible, and sets out standards for the conditions of detention where release is not available. Under Paragraph14 of the Flores settlement, ifIiCE or DHRS determines the detention of a minor is not required to secure his or her appearance in immigration proceedings or for safety reasons, the minor "shall be released from custody without unnecessary to delay" to (in order ofpreference): aparent, alegal guardian, an adult relative, an adult designated by the child's parent, a licensed program willing to accept legal custody, or an adult individual or entity seeking custody (if family reunification appears impossible). Of course, this preference for release makes no sense when the minor's parents are detained with the child. Plaintiffs and Defendants agree that separating the minor Plaintiffs from their parents by releasing the children to adult relatives would be traumatizing and detrimental to them.
Though the release policy expressed in Paragraph 14 has limited utility in the context of family detention, Paragraph 19 sets out the foundation of the detention standards applicable to any minor in United States immigration custody, and there is no reason why its requirements should be any less applicable in a family detention context than in the context of unaccompanied minors. Paragraph 19 requires that any minor not released from custody under Paragraph 14 must be housed in a "licensed program" until such time as release can be effected or until the minor's immigration proceedings are concluded. A "licensed program" is a program that is (1) licensed by an appropriate State agency to provide residential, group, or foster care services for dependent children, (2) is "nonsecure as required by State law," and that (3) meets standards of medical care, education, supervision, and nutrition described in Exhibit 1 of the Flores settlement. Flores settlement ~6.
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The Flores settlement provides that a minor may be held in a "secure facility" (as opposed to a "licensed program") only if the minor (1l) has been charged or "is chargeable" with a crime or delinquency other than an isolated or petty offense, (2) has committed or threatened violence to himself or others while in INS custody, (3) has engaged in disruptive conduct like drug abuse, stealing, or intimidation of other children while in a licensed program, (4) is an escape risk or (5) would be in danger unless kept in a secure facility. Flores setttlleemmeennt t,, 21. A minor "will not"be placed in a secure facility under Paragraph 21 if there are less restrictive options available such as a medium security facility or licensed .program. Flores settlement , 23. A "medium security facility," like a "licensed program," must be licensed to provide residential, group, or foster care child services under State law and must be in compliance with the standards set out in Exhibit 1of the Flores settlement. Flores settlement, 8. All decisions to place minor in secure facility must be reviewed and approved by a regional juvenile coordinator. Flores settlement, 23.
Paragraph 24 of the Flores settlement provides for judicial review of ICE's detention of minors. Under Paragraph 24(a), a minor in deportation proceedings "shall be .·afforded a bond redetermination hearing before an immigration judge in every case." Several of the Plaintiffs in these related cases, however, are not eligible for bond because ICE has classified them as "arriving aliens." Under 8C.F.R. § 1003.19(h)(2)(i)(B),immigrationjudges are withoutjurisdictionto review ICE's custody determinations for "arriving aliens in removal proceedings."
Regardless, Paragraph 24(b)provides that any individual child may bring suit in any Federal District Court to (1) challenge ICE's placement determination or (2) allege the facility in which he is detained is not inccoommppliance with the standards in Exhibit 1ofthe Flores agreement. Paragraph 24(c) provides that judicial review of a placement decision will be under an abuse of discretion
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standard, whilejudicial review ofafacility's compliance with Flores Exhibit 1standards is de novo. Paragraph 24(c) also requires Defendants to provide minors not placed in licensed programs with "notice of the reasons for housing the minor in a detention or medium security facility." Plaintiffs sue under both prongs of Paragraph 24(b), alleging Defendants have abused their discretion in 'placing them in the Hutto facility, which is not a licensed program, and further alleging the Hutto facility is not in compliance with Exhibit 1 standards.
As discussed above, the Hutto facility is a converted medium security prison. It is operated by the Corrections Corporation ofAmerica ("CCA"), a private operator ofprisons. Hutto has been in operation since May 2006, and is not licensed to provide residential, group, or foster care services for dependent children by the State ofTexas or any other state. However, the Hutto facility applied for and was granted a licensing exemption from the State ofTexas based on CCA's representation that children in Hutto remain in the care oftheir parents or legal guardians while they are detained. Def.'s Status Report, Decl. Marc Moore, Attachment.
Plaintiffs and Defendants offer conflicting accounts ofconditions within the Hutto facility. Plaintiffs describe unreasonably cold rooms, inadequate medical care, substandard food, and psychologically abusive guards. Plaintiffs further assert the facility is run like a prison: there is 2441/7 camera surveillance of residents in both communal and personal living areas, the residents are escorted everywhere within the facility and are not allowed to move from one area to another by themselves, the facility has a secure perimeter, and no contact visits are allowed. Plaintiffs allege the guards discipline children at Hutto by threatening to separate them from their parents. Plaintiffs' expert, Dr. Andrew Clark, interviewed five children recently released in Hutto. Dr. Clark testified these children had experienced weight loss, bed wetting, nightmares as a result of stress from
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Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 9 of 39
incarceration. Defendants assert the level of care and nutrition at Hutto is excellent and that Hutto is
continuing to modify and improve its policies. For example, parents were initially required to attend school with their children, which resulted in "limited school hours" (which translates as "one hour of instruction per day") because of space constraints. In January, parents were no longer required to supervise school hours, which allowed the Hutto facility to increase its program to five hours of classroom time, one hour ofrecreation, and one hour oflunch. In response to complaints about food, Hutto performed a survey ofthe residents, changed the menu, and provided open-access refrigerators filled with fruit and other snacks in the dorms. Hutto has also modified its policy regarding contact visits and now allows limited, supervised contact visitation.
Plaintiffs seek a preliminary injunction ordering their release from Hutto and the simultaneous release of their parents. Plaintiffs also seek a preliminary injunction ordering access to them and their medical records for their expert witnesses. Plaintiffs ultimately seek a declaratory judgment that the Flores settlement is binding and enforceable, and a permanent injunction ordering Defendants to comply with the provisions of the Flores Settlement with respect to each Plaintiff. Defendants assert Plaintiffs are not entitled these remedies.
Analysis II. Exhaustion
As a threshold matter, Defendants assert Plaintiffs' suit is barred because they have failed to comply with the "informal resolution" procedure mandated by the Flores Settlement. The Flores Settlement requires Plaintiffs' counsel to "confer telephonically or in person with the United States Attorney's Office for the district in which an action is to be filed" to attempt an informal resolution
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of the complaint before filing suit. Flores, 24. The United States claims Plaintiffs have not complied with this "exhaustion" provision. However, Plaintiffs have produced affidavits and records of correspondence showing that, on February 21 and 22,,220007, counsel for Plaintiffs faxed a letter and called the United States Attorney for the Western District of Texas, the Honorable Johnny Sutton, attempting informal resolution of their claims. Th~ United States Attorney's Office informed Plaintiffs the matter had been transferred to Victor Lawrence in theWWashington, DC Office of Immigration Litigation. Plaintiffs sent a letter to Lawrence on March 1, 2007, again attempting informal resolution, but did not attempt to telephone him. Lawrence did not attempt to contact Plaintiffs in response to either the March 1, 200066letter or the February letter and calls to Mr. Sutton, which had been forwarded to him. Lawrence asserts he thought any attempt at negotiation would be futile in light ofPPlaintiffs ' March 2, 2007 "embargoed" press release announcing the forthcoming filing of these lawsuits on March 6, 2007.
From the pleadings and evidence on file, and particularly from the attitude ofthe parties and counsel at the hearing, it is evident that Plaintiffs sought to file this lawsuit as soon as possible to garner maximum attention from the press. It is equally evident that neither side is interested in reaching any conciliatory agreement even now, let alone prior to filing suit. Nevertheless, though both parties could have made better efforts to confer prior to this litigation, it appears Plaintiffs have literally complied with paragraph 24's requirement by telephoning the United States Attorney's Office in the Western District at least twice to attempt informal resolution prior to filing suit. Moreover, they have complied with the spirit of paragraph 24. Plaintiffs have shown they faxed letters seeking informal resolution of Plaintiffs' complaints to both Mr. Sutton and Mr. Lawrence over a period of approximately two weeks before filing suit. During those two weeks, the United
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Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 11 of 39
States never substantively responded to any of Plaintiffs' overtures. Paragraph 24 is intended to encourage both parties to make good faith efforts to resolve complaints; it is not intended to allow the United States to avoid legitimate suits by simply refusing to return correspondence. Paragraph 24 is no bar to Plaintiffs' suit. II. Prreliminary Injuunnction Standarrd
To obtain a preliminary injunction, plaintiffs must show (1) a substantial likelihood of success on the merits, (2) a substantial threat that··plaintiffs will suffer irreparable injury if the injunction is not granted, (3) that the threatened injury outweighs any damage that the injunction might cause the defendant, and (4) that the injunction will not disserve the public interest. Planned
Parenthood v. Sanchez, 403 F.J3d 324, 329 (5th Cir. 2005). A preliminary injunction is an
"extraordinary remedy" and should only be granted ifthe plaintiffs have "clearly carried the burden of persuasion' on all four requirements." Karaha Bodas Co., L.L. C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.J3d 357, 363 (5th Cir. 2003). A. Liklihood of Success on the Merits
Plaintiffs allege their detention in Hutto is an abuse of discretion because Hutto is not a "licensed program" within the meaning of the Flores Settlement and Defendants have given no reason for their decision to place Plaintiffs in a secure facility.44 Plaintiffs further allege the Hutto facility is not in compliance with the standards set forth in Exhibit 1 of the Flores Settlement. Plaintiffs are highly likely to prevail on both claims.
44 Plaintiffs contend the standard ofreview regarding ICE's placement decision should be de novo because ICE did not give Plaintiffs any notice of the reason for its decision to place them in a non-licensed program. See Flores Settlement ,'24(C). The Court is unpersuaded by this argument. ICE's placement decision is reviewed for abuse of discretion. !Id. ICE's failure to provide a reason for its decision is a factor to be weighed in determining whether ICE abused its discretion, but does not change the standard of review.
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i. Hutto is not a ""llicensed faciliittyy"" and Defenndants have abused theirr discretion in placing Plainttiffs there.
In order to qualify as a "licensed program" under the Flores Settlement, Hutto must meet three requirements. The facility must be (1l) licensed by an appropriate State agency to provide residential, group, or foster care services for dependent children, (2) "non-secure as required by State law," and (3) in compliance with the standards of medical care, education, supervision, and
,6. nutrition described in Exhibit 1 of the Flores Settlement. Flores Settlement '6.
Defendants argue Hutto is a "licensed program" because it has obtained a valid licensing exemption from the State of Texas. Plaintiffs respond that Defendants obtained their exemption by misrepresenting the extent to which parents in detention would be able to make decisions regarding the care of their children. The Hutto facility is exempted as a "program of limited duration" with "parents on the premises" under 40 Tex. Admin. Code § 745.1l117(2). The criteria listed for this exemption are:
a. The program operates in association with a shopping center, business, religious organization, or establishment; b. The parent or person responsible for the child attends or engages in some activity nearby; c. The children are cared for during short periods. A child may only be in care when the parent or person responsible for the child attends or engages in the nearby activity; d. The parent or person responsible for the child can be contacted at all times. Id Apparently, the exemption was granted on the premise that the only "child care" offered by Hutto personnel would be during the educational hours and that parents would accompany their children at all times. The Court questions whether this is areasonable characterization ofthe Hutto operation. From the testimony at the hearing and the affidavits presented to the Court, it seems clear that
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Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 13 of 39
the facility and the officers exercise a high level of control over virtually every aspect of the families' functioning, including things like what time they get up in the morning, what time they shower, what time they eat, when their meal stops, where they go, whether they have access to a game or a toy. That really in every important respect- in every important aspect of the family's functioning throughout the day that it's the facility, it's the officers who administer the rules there that retain control. March 20, 2007 Hearing Testimony of Dr. Andrew Clark. Moreover, Plaintiffs have been in the control.,aannd custody of Hutto personnel twenty-four hours a day, seven days a week, over a period of several months each. This situation stands in sharp contrastto the description of a "program of limited duration" offered by 40 TEX. ADMIN. CODE § 745.117(2). The statute characterizes this exemption as one for "occasional short term care" and lists Sunday school classes (typically held once a week for at most two hours) as an example. !Id. The statute specifically excludes ongoing care programs like employee or student day care operations, stating that they do not represent the type of""ooccccaasional short term" arrangement contemplated by this exemption. !Id. The power of a federal district court to review the licensing decisions ofltlhie State of Texas is, however, quite limited. See, e.g. G.J Deasy Invest., Inc. v. Mattox, 778 F.2d 1091, 1092 (5th Cir. 1985) ("'The Due Process Clause does not authorize this court to assess the wisdom of the [State] Legislature's [licensing] decision."') (quoting Rice v. Norman Williams Co., 458 U.S. 654 (1982)»). The Court is pleased to note the State is currently reviewing Hutto's licensing exemption in light of policy changes at the facility, but the Court is without power to instruct the state on compliance with its own licensing requirements. Plaintiffs argue the licensing exemption, while it may bring Hutto in compliance with state law, is insufficient to satisfy the requirements of the Flores Settlement, which is a separate source of legal obligation and which does not contemplate exemptions. Defendants respond that the
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exemption satisfies the spirit ofthe Settlement because noo..affirmative license is available- Texas only grants licenses regarding the care of children unaccompanied by their parents, not family groups. Plaintiffs point out that Texas does in fact provide licensing for residential child care to emergency shelters and other organizations offering residential care to both adults and children. See TEx. ADMIN. CODE §748.190 1 et seq. ("The rules in this subchapter apply to operations that provide care for both children and adults.").
Plaintiffs further argue that, ifan affirmative license is truly unavailable, Defendants should have brought this "impossibility" to the attention of the Flores court and sought a clarification or modification of the Settlement allowing them to operate under an exemption rather than a license. The Court finds it inexplicable that Defendants have spent untold amounts of time, effort, and taxpayer dollars to establish the Hutto family detention program, knowing all the while that Flores is still in effect, without either promUullgating final regulations or going back to the Flores court for clarification and/or modification of the requirements of the consent decree in the family detention context. Nevertheless, the fact is that Defendants have not sought any such clarification or modification and clearly have no intent to do so.
While, as discussed above, this Court is without power to dictate under which provision of the Texas Administrative Code the Hutto facility should have been considered for licensing, the Court is convinced that the State's decision to grant a licensing exemption does not discharge Hutto's obligations under the Flores Settlement. The Settlement Agreement is, in essence, a Courtapproved contract binding on ICE. and DHS. See, e.g. United States v. ITT Continental Baking Co., 420 U.S. 223, 237 (1975). It is also a court order directing the parties to comply with its terms. !Id. at n.tl 0O. The terms ofthe Flores Settlement direct Defendants to house child detainees in facilities
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that are state licensed to provide residential care to minors. A state license is qualitatively different from a state license exemption. A state license subjects the facility to periodic health and safety evaluations by an outside regulatory body, while a state licensing exemption, by its very nature, removes that layer of oversight.
Comparing Hutto's interaction with Texas regulators with the experience of the Berks facility, the only other "Family Detention Center" in the country, is instructive in this regard. The Berks facility, like Hutto, was initially informed that the State ofPPeennnsylvania did not have licensing requirements for family residential care. Women's Commission Report 36. Berks, however, requested that Pennsylvania apply the standards generally applicable to child residential and day treatment facilities to "create a box to check," as Berks personnel felt the facility could not operate without an affirmative license ofsome kind. I/d. The State agreed, and Berks has since been subject to annual review for compliance with all state regulations governing child residential and day treatment facilities, including regulation ofphysical accommodations, equipment, staffqualifications and training, child health and safety assessments, and the nutrition and health care afforded children in its custody. See generally 55 PA. CODDEE§§ 3800.1 et seq; see also PI's Resp. to SUuppp. Br. Ex. GG, Attachment I.
In contrast, the Hutto facility has not been subject to any state regulation at all regarding its treatment ofthe children in its care. As a result, the undisputed testimony is that for at least the first seven months ofits existence the Hutto facility offered children in its care only one hour ofeducation per day. The undisputed testimony is that, until recently, children in the care of the Hutto facility were allotted twenty minutes or less to eat their meals and were not afforded any other nutrition
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during the day. Hutto is admittedly making changes to improve the quality of life for its detainees, but as Plaintiffs pointed out at the hearing, many of these changes were coincidentally made at or around the time ofthe Texas Civil Rights Project ("TCRP")'shighly publicized challenge to Hutto's policies. TCRP was given a tour of the facility immediately after Hutto added several thousand dollars' worth of improvements to the physical plant and the recreational equipment. As the Court noted in the March 20,220007 hearing, "a whole lot ofthings appeared right before the tour, including gym mats .... I suspect a lot oftthat would have taken place ifthere was an application for a license from the state ofTexas on having children. I think, very promptly, those changes would have been totally made because it would be unacceptable to anybody issuing a license for children to live there."
The Court finds the state licensing requirement is a substantive protection for which the Flores parties bargained, and ICE cannot unilaterally avoid that material contract term by choosing to seek license exemptions for its child detention facilities. See, e.g. Police Ass'n ex rei. Cannatella v. CittyyooffNNeewOOrrlleeaans, 1000FF.3Jd 1159,1173 (5thCir.1996)(alocalordinancepermittingconduct that is prohibited in a consent decree does not excuse defendants from complying with the terms of the consent decree). If it is, in fact, impossible for ICE to obtain a license from the state of Texas to provide "residential, group, or foster care services for dependent children" in a family detention setting, Flores Settlement ~ 6, the proper course of action is to apply to the Flores court for a modification of this requirement. Police Ass 'n, 100 F.J3d at 1171.
Even ifthe licensing exemptionwere enough to satisfy the state licensing requirement ofthe Flores Settlement, the evidence presented at the hearing strongly suggests Hutto does meet the other
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two prongs of the defmition of a "licensed program" under Flores. A ~~licensed program" must be "non-secure as required by state law" and must operate in compliance with the standards set forth in Exhibit 1 of the Flores Settlement. Flores Settlement ~ 6.
The evidence presented at the hearing and by affidavit is that the Hutto facility is run in many respects as a "secure facility." The Texas Family Code describes a "secure detention facility" as "any public or private residential facility ... that (A) includes construction fixtures designed to physically restrict the movements and activities of juveniles or other individuals held in lawful custody in the facility, and (B) is used for the temporary placement of any juvenile who is accused of having committed an offense, any nonoffender, or any other individual accused of having committed a criminal offense." TEX. FAM. COoDEE§§ 51.02 (13) and (14). The Hutto facility hQuses juvenile nonoffenders and includes construction features such as an outer perimeter fence that was topped with razor wire until recently. March 20, 2007 HearingTestimony of Simona Colon. Furthermore, the movements of the Hutto detainees are restricted in that they are required to be escorted everywhere by Hutto personnel (although a limited "hall pass" program is being implemented to give detainees the right to walk to medical and law library areas unaccompanied). Testimony of Simona Colon. The detainees are confined to the common area in their "pod" (formerly "cell block") except during sleeping hours, meal times, and scheduled education and recreation times. Testimony of Dr. Clark; Women's Commission Report 16. The Hutto detainees are forced to stand still for "head counts" several times a day. Testimony of Simona Colon. The lights in each "dorm room" stay on all night Gust as they did when the "dorm rooms" were "prison cells"). Declaration of Kevin Yourdkhani (age 9), Mot. PreLl. Inj. Ex. J; Decalaration of Deka
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Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 18 of 39
Warsame (mother of Mohammed Ibrahim), Mot. Prel. Inj. Ex. M. The dorm room doors are monitored by laser sensors that are tripped when the door opens more than four inches. Women's Commission Report 17. In short, Hutto has been operated to date as a "secure" facility under Texas law.
The evidence presented at the hearing and by affidavit also shows that the Hutto facility is not being operated in compliance with the standards of Flores Exhibit 1. As compliance with Exhibit 1 provides an independent ground for relief, this issue will be discussed more fully below. For now, it suffices to say that the Hutto facility is simply not a "licensed program" within the meaning of the Flores Settlement, because it is neither (1) licensed by the State of Texas, (2) "nonsecure" under Texas law, or (3) in compliance with Exhibit 1. Flores SSeettttlelmemeenntt~ 6.
Defendants have no discretion under the terms of the Flores Settlement to place a child in a non-licensed program unless the minor (1) has been charged or "is chargeable" with a crime or delinquency other than an isolated or petty offense, (2) has committed or threatened violence to himself or others while in INS custody, (3) has engaged in disruptive conduct like drug abuse, stealing, or intimidation of other children while in a licensed program, (4) is an escape risk or (5) would be in danger unless kept in a secure facility. Flores settlement ~ 21. Even a minor who fits these criteria "will not"be placed in a secure facility under Paragraph 21 if there are less restrictive options available such as a medium security facility or licensed program. Flores settttlelmemeenntt~ 23. Because Defendants have never made any individualized fmding that any ofthe minor Plaintiffs falls into one of the categories described in Paragraph 21 of the Flores Settlement, Plaintiffs are likely to prevail on their claim that Defendants have abused their discretion by placing Plaintiffs in Hutto,
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a non-licensed program. ii. Hutto is not in compliance with Exhibit 1 of the Flores Settlement
Plaintiffs are equally likely to prevail on their independent claim that the Hutto facility is not being operated in compliance with Exhibit 1ofthe Flores Settlement. A facility's efforts to comply with Exhibit 1 are reviewed de novo. Exhibit 1 is written in broad terms and covers many aspects ofthe detention process. The evidence introduced at the preliminary injunction hearing and through affidavits highlights a few key respects in which Hutto is likely failing to satisfy the standards of Exhibit 1. The Court's discussion below is not exhaustive, and the Court makes no definitive findings regarding the Hutto facility's compliance or failure to comply. A full evidentiary hearing on the subject ofHutto's compliance is necessary to make afinal determination on Plaintiffs' claims. Nevertheless, the record established to date shows that Plaintiffs are substantially likely to prevail on their challenge to the Hutto facility's compliance with Flores Exhibit 1. 1) Exhibit 1(A)((1l) rrequires ""prroperr"" physical care, including ""suitable"" living accommodations, food, apprroprriate clothing, and personal grooming items
The testimony presented at the hearing and in the affidavits establishes that living accomodations and food, in particular, may well be "unsuitable" at Hutto. "The food is very bad and no one can eat it, everyone throws it out. .. [My son] Kevin has lost 4 pounds in 10 days." Declaration ofMMaassomeh Alibegi (mother of Kevin Yourdkhani), Mot. Prel. lInj. Ex. I. "The food is garbage.... Before we got commissary money, I was hungry all the time for five days." Declaration of Kevin Yourdkhani (age 9), Mot. Prel. Inj. Ex. 1J. "None of my children will eat the food that is served in the cafeteria ... it makes their stomachs hurt so they won't eat it. Mohammed
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has thrown up." Declaration ofDDeka Warsame (mother ofMMoohharmnmed Ibrahim), Mot. Prel. Inj. Ex. M. "I don't like the food in here. It makes my stomach feel bad, sometimes cold sometimes greesy [sic] most of the time." Declaration ofBBaahhja Ibrahim (age 9), Mot. Prel. Inj. Ex. 0O. Plaintiffs' expert, Dr. Clark, testified that the children he interviewed had lost significant weight during their time at Hutto, which is unusual in a growing child. The declaration ofMMarc Moore, however, states that each Plaintiffs medical records show stable weight or minor weight gain during the children's stay at Hutto. Declaration of Marc Moore, Supplement to Deff..'s Reply to Equitable Remedies.
At the hearing, Simona Colon testified that she has made arrangements for detainees to have access to refrigerators with snack food in the dorm areas, but it is unclear whether this has actually increased the children's access to healthy nutrition. In particular, it is unclear whether the refrigerators, which Colon testified are full of fruit and milk, are replacements for, additions to, or the same thing as the "commissary" mentioned in the detainees' declarations. "The children eat the food from the commissary, only chips and chocolate cookies and honey bars and cupcakes and apple juice are for sale there." Declaration of Deka Warsame. "Now I can eat chips, cookies, and chocolate milk [from the commissary]." Declaration of Kevin Yourdkhani.
The living conditions·' at Hutto seem questionable in general. For example, the testimony of Simona Colon established that there is no privacy barrier separating toilets from the rest of each family's living area, though the facility has recently designated two cells in each pod as bathrooms to remedy this issue. The declaration of Rasa Bunikeine, mother of Plaintiffs Saule Bunikyte and Egle Baubonyte, states that "Only 30 minutes is allowed for all the children in the pod to take a shower .... One night when there were 28 kids in the pod, there were only three showers working,
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two had only very cold water and we could not use them." Mot. Prel. lInj. Ex. G. Nevertheless, Bunikeine states, "Officer Ramos said 'Only one minute per child in the showweerr..'""' lId The Declaration ofElsa Carbajal, mother ofRRichard Tome Carbajal and Angelina Tome Carbajal, states that "Here they only give us twenty minutes to eat .... And ifthe children have not finished eating, they tell us to throw aawway the food and get going. In some cases they have grabbed the food and thrown it in the trash in front of the children." Mot. Prel!.' lInj. Ex. P. Several detainees also stated that, during the colder months, they were not allowed enough clothing to stay warm. Declarations of Elsa Carbajal, Deka Warsame. Detainees complain that the clothing provided is often dirty or stained and smells bad. Declarations of Deka Warsame, Bahja Ibrahim; Declaration of Aisha Ibrahim (age 11), Mot. Prel. lInj. Ex. N. 2) Exhibit 1l((AA))(2) requires "appropriate routine medical and dental care"
Exhibit 1 does not define "appropriate" medical care, but the testimony and affidavits before this Court raise doubt that Hutto is providing it. At the hearing, ICE representative Commander Hochberg testified there is sick call seven days a week, with "pick-up" every single day. Pick-up residents are seen within 24 hours. However, Commander Hochberg also testified that the medical staff at this facility (which is responsible for the medical treatment of over 400 detainees, approximatelyhalfofwhom are children) consists ofexactly one licensed physician available on-site exactly 8 hours per week, one dentist, four nurse practicioners, and six nurses. There is no pediatrician on staff. !Idd. There are two mental health providers, neither ofwhom is a board-certified psychologist (one is a "masters' level social worker" and the other is "master's level psychologist.") /Idd. One licensed psychiatrist is available by phone. !Idd. There are no interpreters on the medical
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staff, though the staffhhave access to electronic interpreters. !fd. Detainee Masomeh Alibegi states "Often at the facility they run out of [medical] supplies and several requests must be made before they get the medicine.... Everyone in the pod is really sick. My kids have eye infections and I have seen the nurses using the same dropper to give kids eye drops over and over again and not cleaning it." 3) Exhibit 1l((AA))(3) rrequires the facility to make an individualized needs assessmment for each child.
Facility Director Simona Colon testified that this assessment process is simply not being conducted. She gave no explanation for this failure, but stated that the facility is currently "looking at three-prong assessments to meet [the requirements ofFlores]." The declaration ofMMark Moore, however, states that Hutto's existing intake policy satisfies this requirement. Declaration of Marc Moore, Def.'s Supp!l. Reply to Equitable Remedies. The Court is unconvinced. Hutto's intake assessment appears to identify the broad physical and mental health needs ofeach detainee, but does not establish any details regarding the minor's "educational assessment and plan," "family relationships and interaction with adults, peers, and authority figures," or "personal goals, strengths, and weaknesses." Flores Ex. 1(A)(3). Moreover, these detailed assessments are supposed to be conducted in addition to "various initial intake forms." !fd. 4) Exhibit 1l((AA))(4) rrequires the facility to prroovide educational services ""aapppprroopprriate to the minor's level of develooppmmeenntt"" in a ""strruuctured classroom setting, Monday thrrough Friday"" that should include ""SSccience, Social Studdies, Math, Reading, WWrriitting, and Phhysical Educationn"" and focus seconndarily on Ennglish Lannguage Trraainning
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The detainees assert the level ofeducation at Hutto is "absolutely inappropriate." Declaration of Rasa Bunikiene. "The teacher only gives out packets of work but does not explain anything." Declaration ofEgle Baubonyte (age 15). "They put me in grade 4, but they won't help me learn.. . . I like math but no one will help me, they are always learning ABCs and it is too easy.... The teacher doesn't have time to talk to me." Declaration of Kevin Yourdkhani (age 9). "Children in high school are doing elementary work." Declaration of Pamela Puran (mother of Wesleyann
.
Emptage), Mot. Prel!.' lInj. Ex. L. At the hearing, Simona Colon admitted the Hutto detainees were receiving only one hour of
education services per day when she arrived in November of 2006, but states: So beginning of January, they started receiving four hours core curriculum classes, one hour of recreation, and one hour of lunch. We included, shortly afterwards, another hour of extracurricular activity, which could include either computer, arts, crafts, music. So now, the children are receiving, you know, from kindergarten to twelfth grade, five hours of classroom time, one hour of recreation, and one hour of lunch. So they're receiving a total of seven hours.
Colon asserts the educational services being provided now are in compliance with Texas state requirements. However, the court notes that the declarations of Egle Baubonyte and Kevin Yourdkhani, both expressing dissatisfaction with the substance of the educational programs, were executed on March 1, 2007, well after the changes Colon describes were made. 5) Exhibit 1l((AA))(5) requires at least one hour per day oflarge muscle activity and one hour of structured leisure time activity (outdoors weather permitting)
This is one ofthe few areas about which the detainees had little complaint. Simona Colon testified that Hutto has recently significantly upgraded both recreation equipment and policies,
23

Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 24 of 39
upgrading toys in the dorms and gymnasium and adding an extra hour of rec time to the detainees' schedule. Residents have access to basketball, soccer, volleyball, ping pong, video games, exercise videos, and craft supplies during recreation times. 6) Exhibit 1l((AA))(6) requires "at least one individual counseling session per week conducted by trained social work staff."
The testimony of Simona Colon is: "Currently, we're not conducting the individual counseling." Colon's testimony did not explain why this express requirement of the Flores. settlement is not being met. The declaration of Marc Moore states that Hutto's psychological services are available on request and that this weekly counseling requirement is not applicable to a family detention setting because the children's parents are available. De£ 's Suppl. Reply to Equitable Remedies. The Court notes, however, that many ofthe parents oftthe minor Plaintiffs in these related cases are experiencing psychological trauma of their own, having fled serious persecution (including torture and rape in some cases) in their home countries. There is no reason to assume their children are less in need ofcounseling while in the custody ofthe United States than any other minor suffering similar upheaval. In short, there is no reason to assume the parties intended to limit the clearly-worded requirement oftthe Flores Settlement that all minors in United States immigration custody receiivvee"[a]t least one individual counseling session per week conducted by trained social work staff' to unaccompanied minors. Flores Exhibit 1l((AA)(6). 7) Exhibit l(A)(7) requires "group counseling sessions at least twice a week."
The testimony of Simona Colon is that group counseling began in March of 2007 and is conducted by by CCA case managers and facility program managers. "What they're conducting is they'll put the dorms together with the employees that work in that dorm who have established
24

Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 25 of 39
relationships, kind of like we perform our meetings, and they have an open forum." !fd. This procedure seems to satisfy the Exhibit 1 requirement, but Colon offered no explanation for why Hutto took ten months to comply with this relatively clear-cut directive. 8) EExhibit 1l((AA))(9) rrequires the facility to prroovide a ""ccommpprreehheennssive orientatioonn"" to detaainnees.
The testimony of Simona Colon is that the handbook given residents at orientation is incorrect with regard to numerous rules and regulations. Though the declaration of Marc Moore is that detainees receive a comprehensive orientation including translation services, Deff..'s Reply to Equitable Remedies, the Court is concerned by the stated inaccuracies in the orientation handbook. 9) Exhibit l(A)(ll) rrequires that a facility allow detainees visittation and coO~l~1::tacct with family members.
The testimony of Simona Colon is that no contact visits were allowed until March 2007, but that this policy was recently changed. 10) EExhibit lI((A)(12) guarraannttees detainees a rreaasonable rright to prrivacy: to the extent ""pperrmmitted by house rruules"" detainees should be able to weaarr theirr own clothes, have a prrivate space forr theirr personal belongings, be allowed prrivate phone time and prrivate visitation, and rreeceive and send unncensored mail unnless there is a rreaasonable belief that the mail contains contraband.
The extent to which Exhibit 1 guarantees specific privacy rights is unclear because of the limiting language accompanying this section: residents may wear their own clothes "when available" and have private phone and visitation time "as permitted by house rules and regulations." Flores Exhibit 1l((AA))((12). Nonetheless, the extent to which Hutto's regulations curtail detainees' privacy
25

Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 26 of 39
rights may invade Exhibit 1's "reasonable right to privacy" guarantee. For example, Hutto residents were not allowed to wear their own clothes at all until recently. Simona Colon's testimony is that Hutto has changed this policy so that, beginning March 3, 22007 children under 5 are allowed to keep 3 sets of clothing. Hutto plans to extend this privilege to another age group every 30 days. The testimony of Simona Colon is that no jewelry is allowed at Hutto.
With regard to a "private space for personal belongings," Colon testifies that detainees may keep toys and hang the childrens' artwork in their rooms, but the handbook provided to the detainees at orientation states that no toys may be kept in the rooms and nothing may be hung on the walls. Colon testifies that detainees are not allowed to receive books from family members; the books must be mailed directly from the publisher.
Privacy in other important areas is restricted. The testimony ofCommander Hochberg is that there are no private areas to consult with mental health professionals; consultations happen in the dorms or in the clinical area. The testimony ofSimona Colon is that at the time ofthe hearing there were no private toilets for detainees; each dorm room contains an open toilet. Colon testified the facility plans to change this by setting aside cells that will be used as "restrooms" in each dorm area beginning the Monday after the hearing.
Colon further testified that there are no private attorney-client conference rooms; attorneys use one community visitation room and one community classroom to speak with their clients. The testimony ofGriselda Ponce is that her clients have expressed embarrassment during their "credible fear" interviews because other detainees are able to hear the details oftheir answers to the asylum officer's questions, which often involve personally embarrassing or terrifying experiences. Simona
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Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 27 of 39

Colon's testimony establishes that, until the day of the March 20, 2007 hearing, not only were detainees required to consult with their lawyers in the presence of guards, children, other detainees, and whomever may have happened to be in the public area where attorney visitation took place, but they were also required to discuss their cases (including traumatic past events such as rape and torture in the case of asylum seekers) in the direct presence of their minor children.
Furthermore, until the day ofthe March 20,,22007 evidentiary hearing, neither Plaintiffs, their parents, their counsel, nor their duly authorized medical experts were allowed access to the Plaintiffs' own medical records. Defendants offered no reasonable explanation for this phenomenon, probably because support for such a policy is virtually unknown in Anglo-Americanjurisprudence.5 Compounding this injury to Plaintiffs' privacy rights, Defendants recently proceeded to enter these top-secret medical records, as well as the medical records ofPlaintiffs' mothers, as unsealed exhibits in this case- without the permission of any party..66
Hutto also has regulations restricting residents' movement in ways that may be an unreasonable limitation on privacy, though Colon testified there have been recent policy changes in this area. Residents used to be escorted everywhere by guards, but "we have implemented a pass program where they are allowed to go from their dorm areas to medical. Now they'll be allowed to go to the legal area for visitation, regular visitation, where they'll be allowed to go to recreation so that it's not acontrolled movement." Testimony ofSimona Colon. The residents are also "counted"

5 5

Defendants

represent

that

this

particular

policy

ended

on

the

day

of

the

evidentiary

hearing.

The Court certainly expects so.

66 The Court has, ofcourse, sealed these records.

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Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 28 of 39
four times a day (down from seven counts a day prior to March 2007). Colon testifies that counts are conducted as follows: "The contractor would stop movement, and if anyone was in the dorm area, they were placed in the bedroom area as they conducted the count. The others, ifthey were in recreation, they just used the box with all the Ids.... That has since changed.... now, they don't move the residents to the bedroom area. They just stop movement and conduct their counts." 11) Exhibit Il(C) guarantees that "Minors shall not be subjected to corporal punishment, humiliation, mental abuse, or punitive interference with the daily functions of living, such as eating or sleeping."
The testimony of the detainees is perhaps most troubling in this regard. Many declarants state that Hutto guards have threatened to separate them from their families as a means of disciplining them for minor infractions of Hutto rules. "When the police [guard] came and saw my dad in my room, he sad ifhhe comes again and sees my dad in my room he's going to put my mom in a separate jail and my dad in a separate jail and me in a foster home." Declaration of Kevin yYourdkhani. "When I was at recreation, a Hatian woman called Cheli Rose told me that one ofthe officials .... said that she'd be placed in another cell away from her child [ifshe continued to cry]." Declaration of Sherona Verdieu. "Wesleyann has heard the guards threaten that children who act up will be separated from their parreennttss.".'' Declaration ofPamela Puran. "[T]he case manager, Miss Parks, came to me and said .... I can have one chance but ifthe children don't behave first we will . be separated into different pods and then if they still don't behave ICE will take them to another place." Declaration ofDDeka Warsame. "When my sister Bahja got in trouble and the guards said they were going to separate my family I got so mad at Bahja and I was scared." Declaration of Aisha
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Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 29 of 39
Ibrahim. "Ifyou don't be good you can or will be separated from your mom." Declaration ofBahja Ibrahim. Threatening to separate very young children from their families for minor rules infractions is a disciplinary tactic that is certainly inappropriate and which may well constitute mental abuse. iii. Plainttiffs have not shown they are entitled to the rrelease of theirr parrents based on the Flores settlement.
The Court acknowledges the testimony of Simona Colonthat the Hutto facility is a work in progress and is continually updating and improving its policies, but the testimony and evidence in the record thus far suggests Plaintiffs are highly likely to prevail on their claims that the Hutto facility is not being operated in compliance with many, if not most, of the standards outlined in Exhibit 1ofthe Flores Settlement. There is more than one element to "likelihood ofsuccess on the merits," however. Plaintiffs have established a high likelihood of success on the merits of their claims, but they have not established that they are entitled to the specific relief they seek. In particular, Plaintiffs seek immediate release from Hutto with their parents as a. remedy for Defendants' alleged Flores violations. The Flores settlement, however, does not provide any particular rights or remedies for adult detainees.
The Flores Settlement was drafted in response to the complaint ofagroup ofunaccompanied minor aliens. Its provisions, though applicable to minors detained with their families, do not specifically contemplate family detention. Though family unification is a stated goal of both the Flores Settlement and US immigration policy generally, nothing in the settlement agreement expresses a preference for releasing parents who have violated immigration laws. In fact, the context of the Flores Settlement argues against this result: the Settlement was the product of litigation in
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Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 30 of 39
which unaccompanied minors argued that release to adults other than their parents was preferable to remaining in custody until their parents could come get them. See Reno v. Flores, 507 U.S. 292 (1993). The Flores Settlement deals with the rights of minor aliens in detention, not with the rights of detained parents.
Though each Plaintiffs surviving parents are in detention with them, it appears possible for ICE to comply fully with the settlement terms by releasing the children to adult relatives not in custody, adult friends designated by their parents, or even state-operated foster care. See Flores Settlement ~14. Plaintiffs have not identified any authority in the Settlement language or in applicable case law, statutes, or agency rules that would prevent such a release. However, such a release is not mandated by the Flores Settlement language. Paragraph 14 states that detention of a minor may be ~~required ... to ensure the minor's safety." Both Plaintiffs and Defendants recognize that keeping the minor Plaintiffs with their parents is in their best interests, and release ofthe minor Plaintiffs without their parents would not be beneficial. Therefore, Plaintiffs do not seek release to another adult; they seek release from Hutto only ifthey can be released simultaneously with their parents.7
Neither Flores nor any federal rule or statute mandates the simultaneous release of parents and children from detention. Though there are no federal rules governing standards for detention of minors in family groups, the federal rule on release of minor aliens provides that if a detained
77 The Court notes Plaintiffs Egle Baubonyte and Saule Bunikyte are currently seeking parole to their respective stepfathers without the simultaneous parole of their mother, Rasa Bunikeine. Their application for a preliminary. injunction before this court, however, appears to remain an application for the simultaneous release of the whole family.
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Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 31 of 39
minor has identified a parent who is also in detention, simultaneous release of the juvenile and the
adult shall be considered on a case-by-case basis ifno parent, legal guardian, or adult relative can
be found who is not also in detention. 8 C.F.R. 236.3 (emphasis added). This rule does not require simultaneous release and indeed appears to prefer release to an adult relative not in custody over simultaneous release ofparent and child. !Id.
It therefore appears that nothing in this rule or in the terms of the Flores settlement would prevent release of the children to an adult relative not in ICE custody. This illustrates the fact that the Flores Settlement gives the minor Plaintiffs enforceable rights, but does not create rights in the parents separate from their children's rights. Plaintiffs do not raise any constitutional or statutory claims; they rely only on the Flores settlement. As Flores creates no rights in the parents ofdetained minors, Plaintiffs have not established any basis for releasing the parents of the minor Plaintiffs.
Plaintiffs emphatically do not seek release ofthe minor Plaintiffs without their parents, but there appears to be no basis for a preliminary injunction ordering release of the Plaintiffs with their parents on these grounds. Though the Court certainly has the power to enforce Plaintiffs' rights under the Flores consent decree by entering an order broader than the terms of the decree itself, the Court is not convinced that Plaintiffs' parents are entitled to obtain release based on their children's rights under Flores. B. Irreparable injury
The Court is also unconvinced that Plaintiffs have established irreparable injury, though Defendant's alleged conduct is certainly unjustifiable. As a threshold matter, the Court notes Plaintiffs can claim no irreparable injury from the fact oftheir detention. The detentions themselves
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Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 32 of 39
are entirely lawful. Plaintiffs can challenge only the conditions of detention. Plaintiffs allege the stressful conditions of detention are causing them irreparable injury.
Plaintiffs' expert witness, Dr. Andrew Clark, opined that the majority of the minor Plaintiffs are suffering from depression and/lorppoost-traumatic stress disorder ("PTSD"). The Court, however, does not find Dr. Clark's diagnosis ofPTSD credible. He interviewed ex-detainees for less than an hour each and describes symptoms of stress that, while serious, do not rise to the level ofPTSD. As the expert witness for the defense, Dr. Gustavo Cadavid, testified, "Considering that this is a detention center, it's not a country club, it's a tough situation. There [are] stressors there; that's undeniable. But from there to say that everybody, regardless, has PTSD or has a huge stress, I think that's a leap. It's a big leap."
Dr. Clark does credibly describe stress-related symptoms such as nightmares, bed wetting, aggressive and regressive behavior among children released from Hutto. However, each ofthe four released families he interviewed told Dr. Clark that these behaviors have improved as the child continues daily life away from Hutto. For example, according to Dr. Clark, nine year old Neixcary Burgos says memories ofher detention give her difficulty concentrating one month after her release, but twelve year old Reina Garcia no longer experiences nightmares or "any symptoms" and is doing well in school after two to three months away from the facility, though talking about Hutto still makes Reina cry. March 20,,220007 Hearing Testimony of Dr. Andrew Clark.
Another aspect of""iirrrreeparable" injury is that Plaintiffs must have no adequate remedy at law that is as complete and effective as the equitable relief they seek. The equitable remedy Plaintiffs seek is release from Hutto with their parents. As discussed above, the Court is not convinced that
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Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 33 of 39
the Flores settlement can be read to establish any rights or remedies for adult relatives of detained minors. There are several legal avenues available to Plaintiffs, however, that can provide exactly this relief. In particular, bond, parole, and habeas corpus proceedings can all result in the release of the Plaintiff families. a. Sherona Verdieu's legal remedies:
A hearing before an immigration judge regarding the Verdieu family's asylum petition is scheduled for Apriill225, 2007. The Verdieus are not eligible for release on bond until the hearing, because they are classified as "arriving aliens." Under 8 C.F.R. § 1003.19(h)(2)(i)(B), immigration judges are without jurisdiction to review ICE's custody determinations for "arriving aliens in removal proceedings."
The Verdieus are eligible for parole: they are asylum seekers who have passed a credible fear screen; they have a relative in Miami, Florida who is a US citizen and is willing to support them and ensure their compliance with immigration proceedings; and their identities are not in question. The Verdieu family has submitted two requests for parole to ICE Field Office Director Mark Moore. Their October 3,22006 request was denied without explanation on November 7,220006. Their March 16, 2007 request has also been denied. The Verdieu family has not made any habeas corpus challenge to the detention or to the denial of their requests for parole. b. Egle Baubonyte and Saule Bunikyte's legal remedies
A hearing before an immigration judge is scheduled for Apriill226, 2007 in Chicago, lllinois. The girls' mother, Rasa Bunikiene, is worried that the girls will be separated from her during these proceedings unless the family is released from custody, because there is no familyddeetteention center
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Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 34 of 39
in Illinois. Bunikiene alleges she told her attorney to apply for asylum, but the attorney never filed the asylum application. The hearing is to determine whether the family, who were conditional permanent residents and whose residence is now being challenged, should be removed.
Though this family was eligible for release on bond, Bunikiene claims her immigration attorney has been ineffective and that the family's bond request was denied not on the merits but because the attorney did not properly file it. The attorney subsequently moved for a change ofvenue from San Antonio to Chicago, where the family lived prior to detention. The Chicago judge held that any custody redetermination should be made by the San Antonio judge who initially heard the bond request; the girls currently have requests for bond redetermination pending in San Antonio.
The family is eligible for release on parole: they were conditional permanent residents whose residence is being challenged. Bunikeine is married to a US citizen in Chicago; he is willing to support the family and ensure their compliance with immigration proceedings. Their identities are not in question. The attorney has filed 1I--751 waiver forms (Petitions to Remove to Conditions of Residence) on behalfofboth girls, but no request for parole has been made on Bunikeine's behalf. The girls' requests are still pending. No habeas petition has been filed in this case. c. Effect of legal remedies
The Court notes that the existence of parole, bond, and habeas proceedings does not impact Plaintiffs' request for injunctive relief ordering ICE to comply with the Flores Settlement in detaining plaintiffs, because these procedures cannot fully address the plaintiffs' conditions of detention. Neither Plaintiffs nor Defendants have identified any avenue other than a lawsuit based on the Flores Settlement for challenging the conditions of detention at Hutto. However, the
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Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 35 of 39
preliminary relief Plaintiffs seek is release from Hutto with their parents, which is exactly the relief that bond, parole, and habeas proceedings are designed to provide.
Plaintiffs·' argue these remedies are not as "complete, practical, and efficient" as injunctive relief under Flores would be. See Terrace v. Thompson, 263 U.S. 197, 214 (U.S. 1923). In particular, they argue the standard for habeas reliefwill be stricter than the standard for release under Flores. Habeas courts generally uphold the government's custody decisions so long as the government can present a "facially legitimate and bona fide reason" for the denial ofparole, whereas Plaintiffs believe Flores expresses a preference for supervised release. Plaintiffs also argue that the timetable for decisions on parole and habeas applications is indefinite, while they believe Flores requires their immediate release.
Plaintiffs cite McCarthy v. Madigan 503 US 140, 147 (1992) for the proposition that a plaintiff may not be required to exhaust administrative remedies where the uncertain timetable for administrative review could be prejudicial. However, unlike the plaintiff in McCarthy, Plaintiffs in this case have not shown that the time it takes to process a parole or habeas claim would be "futile" or would jeopardize their claim for relief. !Id. Plaintiffs allege Defendant Marc Moore has made a practice of denying parole claims from Hutto detainees without explanation and without regard to factors that would normally point towards eligibility for parole. As the Court announced at the March 20,2007 hearing, it is therefore ORDERED that Moore shall be present for all future hearings unless excused. Nevertheless, Plaintiffs have not shown that they are without meaningful access to legal remedies. Though the Verdieu family has been denied parole twice, a successful habeas challenge would grant Sherona Verdieu the exact relief she seeks here- release with her family.
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Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 36 of 39
Even without a successful habeas petition, Sherona's asylum hearing on Apriill225, 2007 may well achieve her release from Hutto with her family. The existence of these multiple avenues for legal review of the detention undermines Plaintiffs' claims of irreparable injury.
Plaintiffs claim irreparable injury from the fact of the detention itself, but the detention is lawful. The conditions ofthe detention probably violate the Flores settlement, but Plaintiff's expert failed to establish ongoing or irreversible injury from the conditions of ex-detainees, and the testimony of Simona Colon is that conditions at Hutto are significantly improving. C. Balance of Harms
Plaintiffs have certainly established serious problems with conditions at Hutto, but these problems must be weighed against the alleged injuries Defendants would sustain if Plaintiffs were granted preliminary relief. The Court notes that ordering the release of Plaintiffs with their parents based on Hutto's failure to meet the requirements of Flores would gravely undermine the entire family detention program. Plaintiffs assert they are not challenging the legality offamily detention generally; they are merely challenging family detention that is not Flaores-compliant. However, ordering the release of Plaintiffs with their parents as a remedy for Defendants' failures to comply with Flores would have the practical effect of invalidating the detention of every other family in Hutto, as well. Hutto is the larger of only two family detention centers in the entire country. A preliminary injunction ordering the release of these detainees would therefore effectively gut the family detention program nationwide. Though the United States is not entitled to operate family detention centers without regard to its obligations under Flores, the Court is reluctant to enter an order essentially returning ICE to a policy of catch-and-release on the basis ofa preliminary record.
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Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 37 of 39
D. Public Interest Plaintiffs assert Congress has expressed a preference for the supervised release of families,
pointing to the ISAP program. The language of the Flores settlement likewise expresses a preference for release. However, both Congress and the Flores settlement recognize the release of detained families is secondary to the strong public interest in ensuring that illegal immigrants appear for all necessary legal proceedings. Congress has delegated to DHS and ICE the authority to balance the public interest in family unification and supervised release against the public interest in enforcing immigration law. Given the fact that as many as 39% of aliens issued a Notice to Appear by DHRS never actually appear for immigration proceedings, the Court cannot say DHRS has abused its mandate by exploring family detention. Defs Reply to Supplemental Briefing, Attachment. The public interest in enforcing immigration law would be ill served by apreliminary injunction ordering Plaintiffs' release with their parents. III. Expedited Trial Schedule
Though Plaintiffs are not entitled to a preliminary injunction ordering their release with their parents, the Court recognizes that their continued detention in substandard conditions is an urgent problem. Furthermore, though Plaintiffs have exceeded the "average" stay in Hutto by quite a bit, the Court acknowledges that swift adjudication ofthis controversy is warranted to avoid a situation that is "capable of repetition, but evading review." Accordingly, the Court asked the parties to prepare an expedited briefing and trial schedule for this case.
Defendants assert that November 2007 is the earliest they can be ready for trial. Defendants assert it will take time to conduct discovery and draft dispositive motions in the many related but
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Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 38 of 39
unconsolidated cases. The Court is unconvinced. First, the number ofPlaintiffs in the related cases decreases almost daily as Plaintiffs' immigration proceedings continue. There were ten related cases filed on March 6, 2007; as ofApriill9, 2007 there are three active cases remaining. Second, the three related cases are going to trial on issues that are substantially similar across the board; Defendants' compliance with Flores Exhibit 1 is an issue that will certainly be common to each related case. The burden ofdiscovery is not so great that Defendants need nine months to prepare these cases for trial. Plaintiffs' suggested schedule, seeking docket call on July 16, 2007 is more reasonable, though the Court's schedule will not permit a trial in July. The related cases will, instead, go to trial in the month of August 2007.
Conclusion Accordingly,
IT IS ORDERED that Plaintiffs' Motion for Preliminary Injunction is GRANTED IN PART and DENIED IN PART. Defendants are ordered to allow Plaintiffs' counsel reasonable access to Plaintiffs, the Hutto facility, and Plaintiffs' records for purposes of discovery. Plaintiffs are not, however, entitled to release from Hutto with their families on the basis of the preliminary record.
IT IS FURTHER ORDERED that Defendant Marc Moore shall be present at all further hearings in the above~styled related cases unless previously excused by the Court.
IT IS ORDERED that the above-styled related cases are set for trial in the month ofAugust 2007. In light of this trial setting, the parties are ordered to confer and present a proposed scheduling order regarding discovery and briefing in the related cases. In the event the parties cannot agree, each party is directed to submit a revised proposed scheduling order in light of the
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Case 1:07-cv-00165-SS Document 53 Filed 04/09/2007 Page 39 of 39 August 2007 trial date now set.
SIGNED this the ~~dadayy of Aprill220007.
SAM SPARKS UNITED STATES DISTRICT JUDGE
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 Case 1:07-cv-00164-SS Document 53-1 Filed 04/18/2007 Page 1 of 10

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

IN RE HUTTO FAMILY DETENTION )

CENTER,

)

)

Plaintiffs,

)

)

)

v.

)

)

MICHAEL CHERTOFF, Secretary of

)

U.S. Department of Homeland Security )

(DHS); JULIE L. MYERS, Assistant

)

Secretary, U.S. Immigration and Customs )

Enforcement (ICE); JOHN P. TORRES, )

Director, Office of Detention and Removal )

Operations, ICE; MARC MOORE,

)

ICE Field Office Director; GARY MEAD )

Assistant Director of Detention and Removal)

Operations at ICE; SIMONA COLON, ICE )

Officer in Charge; JOHN POGASH, ICE )

National Juvenile Coordinator,

)

)

Defendants.

)

____________________________________)

Civil Action No.: A-07-CA-164-SS
DEFENDANTS’ MOTION TO DISMISS AND, IN THE ALTERNATIVE, MOTION TO STAY PROCEEDINGS TO ENABLE PARTIES TO DEVOTE FULL RESOURCES TO RESOLVING ALL CLAIMS BROUGHT UNDER PARAGRAPH 24 OF THE FLORES SETTLEMENT AGREEMENT

INTRODUCTION AND BACKGROUND

This case began on March 6, 2007, when the American Civil Liberties Union (ACLU)

filed ten separate lawsuits on behalf of detainees at the T. Don Hutto Family Residential Center

(Hutto). The ACLU alleged that plaintiffs’ detention at Hutto violated provisions of the Flores

Settlement Agreement (FSA). It is undisputed that the ACLU filed these lawsuits before it

reasonably engaged in discussions with the Government to determine whether the dispute could

be resolved, and before the ACLU fully pursued alternate remedies for its clients. In the six

weeks following the filing of the lawsuit, all ten original plaintiffs have been released from Hutto

via alternate remedies such as bond or parole. Thus, and as explained more fully below,

Case 1:07-cv-00164-SS Document 53-1 Filed 04/18/2007 Page 2 of 10
plaintiffs’ claims are moot, and this case should be dismissed. Defendants recognize that the ACLU has additional client detainees who currently are in
the informal resolution process that is required by Paragraph 24E of the FSA. The ACLU has not yet filed suit on behalf of these detainees, and defendants are seeking to resolve these detainees’ complaints in good faith.
All of the ACLU’s lawsuits are moot and should be dismissed. In the event the Court does not dismiss them, defendants respectfully request that the Court stay all proceedings to enable the parties to fully focus on informal resolution of the matters involving the ACLU’s other clients without the impeding distractions of discovery and trial preparation.
ARGUMENT I. THIS CASE SHOULD BE DISMISSED AS MOOT SINCE ALL TEN
PLAINTIFFS HAVE BEEN RELEASED FROM DETENTION AT HUTTO A. The Standard for Mootness “[A] case becomes moot ‘when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.’” Murphy v. Hunt, 455 U.S. 478, 481 (1982) (quoting United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396 (1980)); see Rocky v. King, 900 F.2d 864, 867 (5th Cir. 1990). The present cases are moot because every plaintiff lacks a legally cognizable interest in the outcome. See Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002) (“The transfer of a prisoner out of an institution often will render his claims for injunctive relief moot.”); Rocky, 900 F.2d at 867, 869 (inmate's claim for injunctive and declaratory relief with respect to field work conditions “clearly had . . . already become moot” once he was no longer a field worker). As ICE has released the plaintiffs from Hutto, none of
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them continues to hold a legally cognizable interest in the outcome of litigation seeking their release and a change in Hutto’s conditions.
The ACLU cannot litigate these cases as a class action. Paragraph 24B of the FSA states that, “. . . the United States District Court shall be limited to entering an order solely affecting the individual claims of the minor bringing the action.” (Emphasis added). Thus, the Court does not have jurisdiction through the FSA to enter an order that affects non-plaintiff detainees who never brought an action. In any event, and despite the moot nature of this litigation, ICE has been making efforts to improve conditions at Hutto, including significant changes in policy, and is seeking to continue to address concerns by inviting the ACLU to tour the facility and make reasonable suggestions. See Exhibit A, Letter from Victor Lawrence to Vanita Gupta and Gouri Bhat dated April 17, 2007. ICE believes that the tour and its willingness to respond reasonably to the ACLU’s suggestions will ameliorate even the complaints of possible future plaintiffs. Cf. Coliseum Square Assoc., Inc. v. Jackson, 465 F.3d 215, 246 (5th Cir. 2006) (“Corrective action by an agency can moot an issue.”)
B. Plaintiffs Fail to Meet the Exception to Mootness The Supreme Court has “recognized an exception to the general rule [of mootness] in cases that are ‘capable of repetition, yet evading review.’” Murphy, 455 U.S. at 482.
[I]n the absence of a class action, the capable of repetition yet evading review doctrine was limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again. Id. “[A] mere physical or theoretical possibility” is insufficient to satisfy the test; [r]ather, . . .
3

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there must be a ‘reasonable expectation’ or a ‘demonstrated probability’ that the same controversy will recur involving the same complaining party.” Id. The Court has “generally . . . been unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury.” Honig v. Doe, 484 U.S. 305, 320 (1988) (citing Los Angeles v. Lyons, 461 U.S. 95, 105-106 (1983) (no threat that party seeking injunction barring police use of chokeholds would be stopped again for traffic violation or other offense, and would resist arrest if stopped); Murphy, 455 U.S. at 484 (no reason to believe that party challenging denial of pre-trial bail “will once again be in a position to demand bail”); O'Shea v. Littleton, 414 U.S. 488, 497 (1974) (unlikely that parties challenging discriminatory bond-setting, sentencing, and jury-fee practices would again violate valid criminal laws); cf. Hernandez v. Cremer, 913 F.2d 230, 234-35 (5th Cir. 1990) (reasonable to expect United States citizen from Puerto Rico would again exercise right to travel to Mexico, creating possibility for repetition of facts giving rise to claim).
In this case there is no reason to believe plaintiffs and their families either will violate the conditions of their parole or that they again would attempt to enter the country illegally, and then ICE would place them in Hutto. There is no “reasonable expectation” or “demonstrated probability” that meets the standard for plaintiffs’ claims to be considered capable of repetition. Accordingly, plaintiffs cannot satisfy the second prong of the “capable of repetition yet evading review” exception. As there is no longer a “live” controversy affecting plaintiffs, they lack a legally cognizable interest in the outcome. Plaintiffs’ claims are moot, and the ten cases should
4

Case 1:07-cv-00164-SS Document 53-1 Filed 04/18/2007 Page 5 of 10
be dismissed.1 II. IF THE COURT DOES NOT DISMISS THIS CASE AS MOOT, IN THE
ALTERNATIVE, THIS COURT SHOULD STAY THE CURRENT PROCEEDINGS TO PERMIT THE PARTIES TO ATTEMPT TO MEDIATE ISSUES AS ENVISIONED BY PARAGRAPH 24 OF THE FSA. A. The Release of All Ten Plaintiffs Make this an Ideal Time to Mediate the
Dispute As Envisioned Under the FSA. If the Court does not dismiss this case as moot, the current posture of this litigation makes this an ideal time to stay proceedings and aggressively mediate all disputes in accordance with Paragraph 24 of the FSA. No plaintiffs currently are placed at Hutto, although the ACLU has identified five additional persons for whom it intends to file suit if negotiations fail. Defendants want to mediate these additional claims and are actively exploring alternatives for the five additional detainees identified by the ACLU. Plaintiffs’ filing of additional lawsuits at this time would violate the exhaustion requirements of Paragraph 24E of the FSA. On April 17, 2007, defendants wrote ACLU counsel seeking a stay in discovery to mediate the remaining claims. See Exhibit A. Defendants advised the ACLU that defendants were making sincere, good faith efforts to improve family detention generally and Hutto specifically. Id. In addition to creating the Juvenile and Family Residential Management Unit within Immigration and Customs Enforcement (ICE), ICE no longer will place families who are not in INA § 235(b) (8 U.S.C. § 1225(b)) expedited removal proceedings in Hutto. Id. These changes will significantly decrease the average detention time for families at Hutto. Id. ICE also is working with Williamson County, Texas, to investigate licensure for Hutto.
1 In making this argument, defendants do not concede that plaintiffs satisfy the first prong of the “capable of repetition” exception, and note that both prongs are necessary to meet the test. .
5

Case 1:07-cv-00164-SS Document 53-1 Filed 04/18/2007 Page 6 of 10
Id. The licensing process takes time, but defendants believe that active mediation attempts on other issues regarding conditions, at the same time as ICE is working with the State of Texas, will be beneficial for everyone. These beneficial efforts would be severely impeded if defendants were required to respond to onerous discovery and prepare for trial at the same time they are negotiating with the ACLU.
B. Continuing to Litigate Moot Claims Will Hamper the Efforts to Mediate the Dispute.
The ACLU has demanded onerous discovery from defendants. See Exhibit B, ACLU’s Production Requests. The ACLU seeks disclosure of information that requires a great amount of resources to identify, locate, and organize for release. The ICE resources involved in the discovery process are the same ICE resources involved in negotiating the claims. Requiring ICE to participate in the discovery process while attempting to negotiate claims not yet filed would unnecessarily impede both processes. Thus, a stay of the current litigation is required to permit the parties the unfettered opportunity to negotiate the dispute.
These lawsuits are about conditions at Hutto, and the parties’ best efforts should be spent focusing on conditions rather than litigating moot claims. At the March 23, 2007 evidentiary hearing, defendants formally invited the Court to tour Hutto to observe the conditions. See Transcript of March 23, 2007 Hearing, page 30, lines 4-7 (“We would invite your Honor to come and look at this facility to see what's done there because I guarantee you that it has changed dramatically since the time that you were sending [pre-trial detainees] there from your position on the bench.”) Defendants made the same offer to the ACLU in correspondence dated April 12, 2007 and April 17, 2007, but, to date, the ACLU has not acted on it.
6

Case 1:07-cv-00164-SS Document 53-1 Filed 04/18/2007 Page 7 of 10
The ACLU should take a tour of Hutto for at least two reasons. First, defendants genuinely believe that a tour of the facility would satisfy any remaining concerns about conditions at Hutto. Second, the information gained by the ACLU during the tour would provide a rational basis for suggestions, if any, to improve conditions which it believes are not in compliance with Exhibit 1 of the FSA. The tour would be particularly helpful to the negotiation process so that defendants can fully understand ACLU’s concerns, and make adjustments where reasonable and/or necessary.
Onerous discovery and tours during an expedited period for discovery and trial only impede the parties’ ability to resolve this litigation through informal resolution as Paragraph 24E of the FSA requires. Moreover, the ACLU’s requested discovery is burdensome, and not rationally tailored to develop evidence about the prevailing conditions at Hutto. See Exhibit B, ACLU Production Requests. The ACLU even demands that the agency search all its e-mail files for various information, none of which is designed to elicit responsive information regarding prevailing conditions at Hutto. See Exhibit C, ACLU April 16, 2007 Correspondence Regarding E-mails. The e-mail demands alone would likely take an untold amount of hours to search, to read, and to redact. If discovery were to proceed, defendants would assert objections to the ACLU’s discovery demands where they are overly burdensome, not reasonably calculated to lead to admissible evidence concerning prevailing conditions, and/or protected from disclosure by privilege.
If the Court is not inclined to dismiss these ten cases as moot, defendants respectfully request that the Court stay all proceedings to give the parties time to fully pursue good faith negotiations as required by the FSA. Defendants believe that six weeks of good faith
7

Case 1:07-cv-00164-SS Document 53-1 Filed 04/18/2007 Page 8 of 10 negotiations, where the ACLU and the Court can tour Hutto and express concerns or suggestions, and where ICE can make reasonable efforts to address the concerns, would be beneficial to all parties involved.2 // //
2 Shortly before filing this document, the ACLU responded to defendants’ April 17, 2007 correspondence. See Exhibit B, April 18, 2007 Correspondence from ACLU. Although the ACLU expressed some limited interest in a stay, the ACLU made a stay contingent on numerous “provisos” that defendants find unacceptable such as continued discovery, and ACLU’s expressed need to “have active cases on file for at least a handful of children at the facility.” These provisos defeat the purpose of the stay as envisioned by the Government. The Government wants to negotiate pursuant to Paragraph 24 of the FSA outside of litigation, an opportunity it has never had.
8

Case 1:07-cv-00164-SS Document 53-1 Filed 04/18/2007 Page 9 of 10
CONCLUSION
For the foregoing reasons, the Court should dismiss this action as moot. In the
alternative, the Court should stay all proceedings for six weeks to enable the parties to negotiate
over Hutto’s conditions as required by the FSA.
Respectfully submitted,
JOHNNY K. SUTTON United States Attorney
JOHN PANISZCZYN Assistant United States Attorney
PETER D. KEISLER Assistant Attorney General
DAVID J. KLINE Principal Deputy Director
/s/ Victor M. Lawrence
VICTOR M. LAWRENCE Senior Litigation Counsel Office of Immigration Litigation U.S. Department of Justice, Civil Division P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Tel: (202) 305-8788 Fax: (202) 233-0397
EDWARD E. WIGGERS Trial Attorney Office of Immigration Litigation U.S. Department of Justice, Civil Division P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Tel: (202) 616-1247 Fax: (202) 233-0397
9

Case 1:07-cv-00164-SS Document 53-1 Filed 04/18/2007 Page 10 of 10
CERTIFICATE OF SERVICE The undersigned certifies that on this 18th day of April 2007 a true and correct copy of the foregoing Defendants’ Motion to Dismiss, and In the Alternative, Motion to Stay Proceedings To Enable Parties to Devote Full Resources To Resolving All Claims Brought Under Paragraph 24 of the Flores Settlement Agreement was served by ECF Filing on all counsel of record, along with all exhibits, and through agreement of the parties,3 has been e-mailed to the following counsel of record:
Vanita Gupta, Esq. ACLU Legal Department 125 Broad Street New York, NY 10004 vgupta@aclu.org
/s/ Victor M. Lawrence U.S. Department of Justice
3 The parties have an agreement that, because of the large number of counsel on the case, all service pleadings may be served via ECF to registered attorneys and an additional e-mail to Vanita Gupta.

 
 Case 1:07-cv-00164-SS Document 64 Filed 05/10/2007 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

FILED

AUSTIN DIVISION

28001lt1AY II0 AMH 10: 18

INRE HUTTO FAMILY DETENTION CENTER

WCELSETREKRNUSO ODO~I~ S TOROIfCT"\COTEUXRAT. S
BY \t0A"" \
Case No. A-07-cC~llg4-sSsS

ORDER

q!_ ~ BE IT REMEMBERED on the

day of May 2007 the Court reviewed the file in the

above-styled cause, specifically Defendants' Motion to Dismiss and, in the Alternative, Stay the

Proceedings [#53], Plaintiffs' Response thereto [#59], and Defendants' Request for the Court to

Assign a Magistrate Judge to Facilitate Settlement [#57]. Having reviewed these documents, the

applicable law, and the case file as a whole, the Court enters the following opinion and orders.

Background

The factual background ofthe related Hutto cases is set forth in detail in the Court's Order

of April 9, 2007, which is here incorporated by reference. Briefly, on March 6,,2200007, ten minor

plaintiffs filed suit against various officials of the Department of Homeland Security (DHS) and

Immigrations and Customs Enforcement (ICE), alleging DHS and ICE were holding plaintiffs at the

T. Don Hutto Family Detention Center (Hutto) in conditions that violated the standards of a

settlement agreement binding on both organizations (the Flores settlement). Plaintiffs sought a

preliminary injunction ordering their release from Hutto with their parents.

The Court did not grant Plaintiffs' release with their parents on the basis ofthe preliminary

record, but nevertheless found Plaintiffs were highly likely to prevail on their claims that the Hutto

facility is not in compliance with certain requirements of the Flores settlement. Accordingly, the

Case 1:07-cv-00164-SS Document 64 Filed 05/10/2007 Page 2 of 5
Court consolidated the related cases' and set the consolidated case for trial in August 2007 on an expedited schedule.
Though the Court did not grant preliminary release of the Plaintiffs and their parents, the United States has since released all ofthe minor plaintiffs. Some have completed their immigration proceedings or received bond; others have been paroled. Eight of the Plaintiffs have voluntarily dismissed their claims upon release. The last two plaintiffs in the related cases, Egle Baubonyte and Saule Bunikyte, were granted parole on April 13, 2007. Unlike their co-plaintiffs, however, Baubonyte and Bunikyte wish to continue pursuing their claims against ICE and DHS despite their release from Hutto. Defendants contend all of Plaintiffs' claims arise out ofthe conditions oftheir confinement and are now moot because Plaintiffs are no longer in detention. Plaintiffs respond that they have a continued legitimate interest in litigating theconditions at Hutto because their release from Hutto on parole is entirely within Defendants' discretion and may be revoked by Defendants at any time. For reasons discussed more fully below, the Court finds Plaintiffs' argument persuasive. The motion to dismiss is DENIED.
Defendants argue in the alternative for a six-week stay of this litigation to permit further settlement negotiations. Defendants argue that discovery in the case is taxing and interferes with settlement negotiations. Plaintiffs assert, on the contrary, some discovery is necessary to facilitate settlement negotiations. For the reasons discussed below, Defendants' motion for a stay is DENIED. The related cases remain set for trial in August 2007.
1, By the time the Court entered its order consolidating the cases, several of the original plaintiffs had been released on parole or through other proceedings and only three related cases remained.
-2-

Case 1:07-cv-00164-SS Document 64 Filed 05/10/2007 Page 3 of 5
Defendants further move for the appointment of a magistrate judge to oversee settlement negotiations. Their request is not joined by Plaintiffs. Though the Court certainly encourages settlement, the Court is not in the habit offorcing mediation ofany kind on an unwilling party. The motion to appoint a magistrate is DENIED without prejudice to its re-urging as ajoint motion ifaall parties agree.
Analysis I. Mootness
Defendants argue the release of the last two plaintiffs has mooted this controversy. While it is true that release from custody often renders a claim for injunctive release moot, see, e.g. Oliver v. Scott, 276 FJd 736, 741 (5th Cir. 2002); Rockyv. King, 900 F.2d 864, 867 (5th Cir. 1990), Defendants overlook the fact that Plaintiffs have not been unequivocally released. On the contrary, "[t]he Attorney General at any time may revoke a bond or parole ... rearrest the alien under the original warrant, and detain the alien." 8 U.S.C. § 1226(b). The Supreme Court has held that such "discretionary parole" is sufficient to support a live case or controversy because it can be revoked at any time, even iftthe detainee does nothing in particular to warrant revocation. Clark v. Martinez, 543 U.S. 3711,,3376 nJ (U.S. 2005) (holding habeas petition not mooted by parole governed by 8 C.F.R. § 212.12(h) (2004) because this parole is "subject to the Secretary's discretionary authority to terminate.") The Sixth Circuit has reached a similar conclusion regarding the parole ofdetained aliens: "Unlike parole granted following incarceration for a criminal conviction, [the detainee] need not do anything for the INS to revoke his parole. . . . Under these circumstances, we believe that [the detainee] is threatened with an actual injury traceable to the defendant and likely to be redressed by afavorable judicial decision." Rosales-Garcia v. Holland, 322 F.J3dd 3866,,395-996 (6th Cir. 2003).
Here, Plaintiffs Egle Baubonyte and Saule Bunikyte have been released on parole that is -3-

Case 1:07-cv-00164-SS Document 64 Filed 05/10/2007 Page 4 of 5
entirely discretionary with ICE. They may be brought back into custody "at any time, for almost any reason." !Id. In these circumstances, Plaintiffs have a continuing, vital interest in the outcome ofthis litigation. The claims ofEgle Baubonyte and Saule Bunikyte are not moot.
Because Plaintiffs' claims are not mooted by their discretionary parole, the Court need not determine whether Plaintiffs' claimed exceptions to the mootness doctrine apply to this case. Nevertheless, the Court notes that Plaintiffs' parole represents nothing more than a voluntary cessation of questionable conduct by the Defendants. It is well settled that "voluntary cessation of allegedly illegal conduct does not deprive the tribunal ofpower to hear and determine the case, i.e.,
does not make the case moot." United States v. Ww.T. Grant Co., 345 U.S. 629, 632 (1953). See
DeFunis v. Odegaard, 416 U.S. 312, 317-18 (1974). Dismissal on grounds of mootness is inappropriate where "the denial of injunctive relief might leave [DHS and ICE] 'free to return to
[their] old wayyss..'"' Hernandez v. Cremer, 913 F.2d 230,,2235 (5th Cir. 1990) (quoting Ww.T. Grant,
345 U.S. at 632). Accordingly, the discretionary release of Plaintiffs does not moot their claims. Defendants' motion to dismiss the case as moot must be denied. II. Stay
Defendants move in the alternative for a six-week stay of all proceedings, including discovery, in this case to "permit the parties the unfettered opportunity to negotiate the dispute." It has, however, been this Court's experience that an impending trial date tends to facilitate settlement far more effectively than a stay of all proceedings. Moreover, reasonable discovery is necessary to facilitate settlement in this case. Much of the information germane to Plaintiffs' claims is within Defendants' custody and control. Without some discovery, Plaintiffs are at a serious disadvantage that cannot possibly encourage reasonable negotiation.
-4-

Case 1:07-cv-00164-SS Document 64 Filed 05/10/2007 Page 5 of 5

Defendants claim Plaintiffs' discovery requests impede settlement because they are "onerous" and involve the same "ICE resources" as those involved in negotiating settlement ofthe claims. In support ofthese contentions, Defendants attach Plaintiffs' Requests for Production. Mot. Dism. Ex. B. Plaintiffs have made only 26 requests for production, which appear to be relatively narrow in scope and tailored to the specific claims and contentions made by the parties in this suit. This discovery may well be inconvenient, but it does not appear "onerous," particularly in light of the limitations on electronic discovery to which Plaintiffs have agreed. Correspondence of Apr. 16, 2007, Mot. Dism. Ex. C. The fact that the "same ICE resources" are involved in discovery and settlement negotiation can only facilitate reasonable settlement, as these "resources" will presumably have intimate knowledge ofthe strength ofDefendanttss,' position as discovery clarifies the merits of the case.
Conclusion Accordingly, IT IS ORDERED that Defendants' Motion to Dismiss and, in the Alternative, Stay the Proceedings [#53] is DENN1lED. IT IS FURTHER ORDERED that Defendants' Request for the Court to Assign a Magistrate Judge to Facilitate Settlement [#57] is DENIED without prejudice torree--uurrging as a joint motion.

1!'f SIGNED this the

day of May 2007.

s~~'77111f~~-
UNITED STATES DISTRICT JUDGE
-5-

 
 Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 1 of 34
Exhibit A Settlement Agreement

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 2 of 34

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

IN RE HUTTO FAMIT..,Y DETENTION CENTER

) ) ) ) Case No. A-07-CA-164-SS ) ) ) ) )

SETTLEMENT AGREEMENT

Preamble

This Settlement Agreement (the "Agreement" or "Hutto Agreement") is made and

entered into by all Plaintiffs and Defendants in the individual actions consolidated as In

re Hutto Family Detention Center, No. A-07-CA-164-SS (collectively herein, the

"Parties"), as of August 26, 2007. A list of individual actions that the Court consolidated

is attached as Exhibit A ("Consolidated Actions"). The Hutto Agreement resolves all

claims raised by Plaintiffs in the Consolidated Actions.

WHEREAS, in January 1997, Defendants entered into a Settlement Agreement in

the case of Flores v. Meese, No. CV 85-4544-RJK (C.D. Cal.);

WHEREAS, Plaintiffs filed multiple individual lawsuits in the United States

District Court for the Western District of Texas pursuant to Paragraph 24(B) of the Flores

Settlement Agreement ("FSA"), which permits minors in immigration custody to

challenge their placement in particular types of facilities, and allows minors to assert that

particular types of facilities do not comply with the minimum standards for licensed

facilities set forth in Exhibit 1 of the FSA;

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Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 3 of 34

WHEREAS, Plaintiffs alleged that the T. Don Hutto Family Residential Center in

Taylor, Texas ("Hutto" or "Hutto facility") is non-compliant with the FSA and the

minimum standards for licensed facilities set forth in Exhibit 1 of the FSA;

WHEREAS, Defendants deny the allegations;

WHEREAS, the Parties have conducted extensive discovery on an expedited

schedule and the Parties believe it is in their mutual interest to settle the Consolidated

Actions to avoid the risks and burdens of trial in this matter, and accordingly enter into

this Hutto Agreement to globally resolve all claims brought forth in the Consolidated

Actions;

NOW, THEREFORE, in full settlement of the Consolidated Action and in

consideration of the promises and undertakings set forth herein and other consideration,

the sufficiency of which is hereby acknowledged, it is hereby stipulated and agreed, by

and between the undersigned, as follows:

I.

Parties and Definitions

1. Plaintiffs are the following accompanied minors who are in legal custody

of U.S. Immigration and Customs Enforcement ("ICE") at the Hutto facility, or were

detained at Hutto and remain subject to re-detention by ICE: Antony Castanon Nartatez;

Jonathan Castanon Nartatez; Jeniffer Castillo-Padilla; Esther Donaire-Padilla; Jose

Fernando Erazo-Paredes; Gladys Elizabeth Martinez Grijalva; Maryorie Alejandra

Martinez Grijalva; Antony Alexander Martinez Grijalva; Joseline Vanessa Mendez-

Sanchez; Kimberly Dayan Sanchez Ordonez; Fredy Pineda-Brisuela; Marusia Razmias;

Paola Osorio Restrepo; Andrea Osorio Restrepo; Susana Rodriguez Blanco; and Marco

Antonio Toruno Altamirano.

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Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 4 of 34

2. Plaintiffs are represented by the following counsel: the national legal

department of the American Civil Liberties Union ("ACLU"); the American Civil

Liberties Union of Texas; LeBoeuf Lamb Greene & MacRae LLP, and the University of

Texas School of Law Immigration Clinic.

3. Defendants are Michael Chertoff, Secretary of U.S. Department of

Homeland Security ("DHS"); Julie L. Myers, Assistant Secretary, ICE; John P. Torres,

Director, Office of Detention and Removal Operations, ICE; Marc Moore, ICE Field

Office Director; Gary Mead, Assistant Director of Detention and Removal Operations at

ICE; Simona Colon, ICE Officer in Charge; and John Pogash, former ICE National

Juvenile Coordinator.

4. The "Effective Date" is the date upon which the Agreement enters into

effect, which shall be the date on which the Court signs an order approving the

Agreement.

II.

Living Accommodations at the Hutto Facility

5. Defendants agree to provide living accommodations to all residents of the

Hutto facility that comply with the specific conditions identified in Exhibit B and Exhibit

C of this Agreement. Exhibit B identifies conditions reforms that Defendants agree to

implement within three (3) months of the Effective Date of the Agreement. Exhibit C

details many of the conditions reforms already made by Defendants.

III.

Hutto Population and Periodic Review of Detention

6. Defendants agree to take the following actions in an effort to shorten the

average duration that accompanied minors are detained at Hutto:

3

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 5 of 34
A. ICE agrees to place only those families that are in expedited removal proceedings pursuant to 8 U.S.C. § 1225(b) in the Hutto facility, barring exigent circumstances such as an unexpected influx of alien families or lack of available bed space for family detention as described below. If ICE determines in its discretion that a family in non-expedited removal proceedings should be detained in a family detention center, and bed space exists at another facility that ICE is using as a family detention center at the time of the Effective Date of this Agreement, ICE will first seek placement at that facility. If no bed space exists at that facility, the family may be detained at Hutto or another ICE family detention center then in use. This paragraph has no effect on families initially placed at Hutto who are in expedited removal proceedings, but who later establish a credible fear, and who may subsequently enter non-expedited removal proceedings.
B. Every six (6) months during the term of the Agreement, Defendants will produce spreadsheets (redacted of names and identifying information) to Plaintiffs' Counsel showing that, for each non-expedited removal family placed at Hutto, no bed space existed at any other ICE family facility at the time of the placement.
C. ICE agrees that the Field Office Director ("FOD") in charge of case management at the Hutto facility, or his or her designate,
4

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 6 of 34
shall, within thirty (30) days of a family's initial arrival at the Hutto facility, conduct a review to assess whether that family may be released on parole, bond, or other conditions, or released on recognizance, or transferred to another family detention facility, and whether the family's conditions of release may be modified (e.g., whether a previously set bond may be reduced). The FODor his or her designate shall thereafter conduct a review every 30 days, or as close to every 30 days as possible when professional obligations necessitate otherwise but not later than 40 days, to determine if circumstances warrant that the family be released on parole, bond, or other conditions, or released on recognizance, or transferred to another family detention facility, and whether the family's conditions of release may be modified (e.g., whether a previously set bond may be reduced where the family is eligible for a bond reduction by the FOD). The FOD will conduct such review by considering all relevant information in his or her possession, including any information provided by the detained family members and/or their respective counsel. D. Upon review of specific requests for release or transfer and in all cases where a family has been detained at Hutto for greater than sixty (60) days, if the FOD decides to not release or transfer the family, reduce the family's bond (where a family is eligible for a bond reduction by the FOD), or modify the family's conditions of
5

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 7 of 34

release, the FOD will issue a written decision summarizing the

reasons for such a determination. However, nothing in this

paragraph limits the discretion of the FOD to deny release, deny

transfer, deny reduction of bond (where eligible), or deny

modification of the conditions of release. Such denials by the FOD

shall not give rise to an actionable claim under this Agreement, and

are not subject to challenge or review in any forum, whether

administrative or judicial. This paragraph shall not be construed as

precluding any alien's right to petition for a writ of habeas corpus.

E. Defendants will retain copies of all letters generated pursuant to

this paragraph and will provide these copies to U.S. Magistrate

Judge Andrew W. Austin during each compliance review

conducted pursuant to Paragraph 7 of this Agreement.

IV.

External Oversight

7. Magistrate Judge Austin will conduct on-site reviews of the Hutto facility

to verify ongoing compliance with conditions reforms listed in Exhibits B and C of the

Agreement, and the periodic reviews conducted pursuant Paragraphs 6(C) and 6(E) of the

Agreement. Magistrate Judge Austin will conduct the first compliance review within

four (4) months of the Effective Date of the Agreement; a second compliance review

within six (6) months of the first review; and a third compliance review within one (1)

year of the second review.

8. To complete his reviews, Magistrate Judge Austin shall have full access to

the Hutto facility and to all non-privileged materials and documents related to Hutto in

6

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 8 of 34
the Defendants' possession, custody, or control, as necessary to verify compliance with those provisions identified in Paragraph 7. To the extent materials and documents in the possession or control of any organization or entity providing detention services at Hutto are deemed to be necessary by Magistrate Judge Austin to verify compliance, Defendants shall make all reasonable efforts to obtain such materials and documents. If Defendants are unable to obtain such materials and documents from the detention services provider, and it is impossible for Magistrate Judge Austin to verify compliance by any other means, Magistrate Judge Austin may find the applicable provision to be "deficient because of an inability to verify." Magistrate Judge Austin further shall be permitted to conduct private, confidential interviews with Hutto detainees and facility staff, including Defendants' employees, as necessary to verify compliance.
9. As soon as possible after each review, Magistrate Judge Austin will report to the Parties regarding compliance, identifying all conditions noted to be deficient and making recommendations for resolving any deficiencies.
10. In the event any provisions are noted as being deficient, Defendants shall have forty-five (45) days to cure the deficiency. During the forty-five (45) day cure period, Plaintiffs may not bring any judicial action for violation of this Agreement based on the deficiency. If the deficiency remains uncured after the forty-five (45) day cure period upon verification in a manner agreed upon by the Parties, Plaintiffs may pursue any remedy under the procedures established in Paragraph 24 of this Agreement.
11. For those conditions reforms identified in Exhibits B and C of the Agreement that are marked with an asterisk (*), it shall be an affirmative defense to any action to enforce the provisions of this Agreement that the failure to cure a deficiency is
7

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 9 of 34
because compliance with the particular conditions reform would compromise the safety, health, or welfare of the detainees or staff at the Hutto facility. However, in the event that changed circumstances would warrant non-compliance with a conditions reform identified in Exhibits B and C of the Agreement, Defendants shall, except in emergency situations, first seek modification of the conditions reforms pursuant to Paragraph 34 of this Agreement to account for such changed circumstances, and, in emergency situations, shall seek modification of the conditions reforms within thirty (30) days of the emergency arising.
12. Plaintiffs shall not be responsible for any costs associated with the compliance reviews conducted by Magistrate Judge Austin. V. .JFRMU Administrative Review
13. Within four (4) months of the Effective Date of this Agreement, Defendants agree that ICE's Juvenile and Family Residential Management Unit ("JFRMU") shall implement standards governing the care of families detained at Hutto, including standards related to the hiring and training of on-site staff at the facility ("family detention standards"). JFRMU will consider standards that are employed by states operating residential centers, including, but not limited to, the State of Texas, e.g., Texas' Minimum Standards for General Residential Operations (40 Tex. Admin. Code§ 748.1 et seq.), in formulating, developing, issuing, and implementing the family detention standards. However, standards that would require structural changes to the Hutto facility (e.g., minimum room size) shall not apply. JFRMU shall retain full discretion in issuing the family detention standards, and such standards shall not be subject to administrative
8

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 10 of 34
or judicial review. Within one week of the implementation of the family detention standards, a copy shall be provided to Plaintiffs' Counsel.
14. In addition to the consultants listed in Paragraph 18 of this Agreement, JFRMU will retain a Child Care Professional who meets the qualifications listed in Exhibit D of the Agreement to act as a consultant and assist JFRMU in the development of the family detention standards and to participate in the annual evaluation of the Hutto facility for compliance with those standards.
15. Within six (6) months of the Effective Date of the Agreement, and annually thereafter, JFRMU shall evaluate the Hutto facility against the family detention standards that are issued pursuant to Paragraph 13 of this Agreement and report on the facility's compliance. During the term of this Agreement, Defendants agree to provide copies of all inspection reports prepared by JFRMU pursuant to this paragraph to Plaintiffs' Counsel within one (1) week of the reports being issued.
16. In the event JFRMU determines that any family detention standards are not being satisfied at Hutto, Defendants shall have sixty (60) days to cure the deficiency and obtain verification of compliance from JFRMU. During this period, Plaintiffs may not bring any judicial action for violation of this Agreement based on the noncompliance. If Defendants remain non-compliant with a particular standard after the conclusion of the sixty-day cure period and upon verification by JFRMU, Plaintiffs may pursue any remedy under the procedures established in Paragraph 24 of this Agreement.
17. Defendants agree to continue to make reasonable efforts to secure a license from the State of Texas and to keep Plaintiffs' Counsel apprised of these efforts. If Texas grants a license, Paragraphs 13-16 will cease to apply.
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Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 11 of 34

18. JFRMU is in the process of retaining consultants in the following areas:

medical, mental health, child psychiatry, education, and conditions. All such consultants

who have been retained shall assist JFRMU in both the development of the family

detention standards and the inspection of the Hutto facility for compliance with those

standards.

VI.

Management of the Hutto Facility

19. During the term of the Agreement, Defendants will ensure that, in hiring

all professional and non-professional staff who will have regular and significant direct

contact with children, the contractors and subcontractors involved in management of the

facility ("detention services providers") make reasonable efforts to recruit and give

preference in hiring to candidates with prior experience working with children and

families, or with an educational background in child welfare, child psychology, education

or social work. Within four (4) months of the Effective Date of the Agreement, and

annually thereafter, Defendants will report to Plaintiffs' Counsel describing efforts made

in compliance with this paragraph and actions taken by the current detention services

provider(s) in response to these efforts.

20. Defendants intend to modify the Inter-Governmental Service Agreement

(IGSA) between ICE and Williamson County to incorporate performance-based family

detention standards after the standards are implemented pursuant to Paragraph 13 of the

Agreement.

21. Defendants are responsible for ensuring that future contracts regarding

Hutto and any subcontracts regarding Hutto shall be consistent with the terms and

conditions of this Agreement.

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Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 12 of 34
VD. Term of Agreement and Dispute Resolution 22. This Agreement, and all responsibilities and obligations contained herein,
will terminate upon any of the following events, whichever occurs first: A. Publication in the Federal Register of final regulations implementing the FSA; B. Discontinued use of the Hutto facility as a family residential center on a permanent basis (evidenced by a public statement from ICE and transfer of all families out of Hutto) or for a period of one (1) year or longer (evidenced by non-detention of families at Hutto for 365 continuous days); or, C. Two (2) years from the Effective Date of the Agreement.
23. This Agreement applies to and is binding upon all Plaintiffs and Defendants, including Defendants' officers, agents, employees, successors and assigns.
24. In the event of non-compliance with the terms of the Agreement, Plaintiffs may seek judicial relief in the method described as follows:
A. Plaintiffs shall notify Defendants in writing of the specific grounds and facts upon which Plaintiffs allege non-compliance with identified provisions of the Agreement. Defendants shall respond in writing within fourteen (14) calendar days. The Parties will agree to a reasonable date by which Defendants will cure instances of non-compliance. If the dispute is not resolved, Plaintiffs shall notify Defendants by letter and request that counsel meet and confer. The Parties shall meet within fourteen (14) calendar days
11

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 13 of 34
of Plaintiffs' notice, or on some other mutually agreed upon date, in an attempt to arrive at an amicable resolution of the dispute. Nothing said by any party or counsel for any party during any and all meetings held pursuant to this paragraph may be used by any opposing party in subsequent litigation between the Parties or in any other lawsuit. B. Upon mutual agreement of the Parties, and the consent of Magistrate Judge Austin, the Parties may refer a dispute unresolved after the meetings held pursuant to Paragraph 24(A) to Magistrate Judge Austin for mediation. C. If the dispute remains unresolved five (5) business days following the conclusion of such meeting or meetings, or following mediation held pursuant to Paragraph 24(B), or if Defendants do not respond to Plaintiffs' initial notice of dispute within fourteen (14) calendar days, or if counsel do not meet and confer (or agree to a date to meet and confer) within fourteen (14) calendar days of Plaintiffs' request to meet and confer, Plaintiffs may apply to the Court for specific performance or other appropriate relief. 25. The Parties agree that the United States District Court for the Western District of Texas (Austin Division) has jurisdiction to enforce the provisions of this Agreement.
12

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 14 of 34
26. Good faith efforts to comply with the dispute resolution procedures set forth in this Agreement are a condition precedent to any action to enforce the Agreement by Plaintiffs. Vlll. Finality and Release of Claims
27. During the term of the Agreement, Plaintiffs and Plaintiffs' Counsel, as defined in Paragraphs 1 and 2, agree not to file any class action in the Central District of California or any new individual actions in the Western District of Texas based on any alleged FSA violations involving the Hutto facility. However, this paragraph does not limit the ability of Plaintiffs' or Plaintiffs' Counsel to file any action to enforce the provisions of this Agreement in the manner specified in Paragraph 24 of this Agreement.
28. During the term of the Agreement, Defendants agree not to move to modify or terminate the Agreement based on mootness or standing grounds. However, if the United States District Court for the Central District of California (Western Division) issues an order pursuant to that court's continuing jurisdiction in Flores v. Chertoff, CV 85-4544-RJK, that Defendants believe conflicts with, or is duplicative of, its obligations under this Agreement, Defendants may move the United States District Court for the Western District of Texas (Austin Division) for an order terminating Defendants' conflicting or duplicative obligations under this Agreement. If the District Court of the Western District of Texas finds that the order of the District Court of the Central District of California does conflict with or duplicate Defendants' obligations under this Agreement, those obligations found to be conflicting or duplicative shall immediately terminate. All other provisions of this Agreement, including all Defendants' obligations not found to be conflicting or duplicative shall remain in full force and effect.
13

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 15 of 34
Defendants' inclusion of this clause has no preclusive effect on the Government's ability to assert res judicata, collateral estoppel, law of the case, or any other appropriate defense to whatever litigation may develop before the District Court of the Central District of California.
29. The Parties will jointly file a motion asking the Court to approve the Agreement and to retain enforcement jurisdiction during the term of the Agreement. The Parties agree to not appeal or move to reconsider any findings made by the Court in approving the Agreement, but Plaintiffs reserve the right to move to reconsider or appeal any dismissal of the Consolidated Actions by the Court. However, once the Agreement terminates pursuant to Paragraph 22, the Parties agree that all rights to move to reconsider or appeal will terminate.
30. This Agreement, as of the Effective Date, resolves any and all claims raised by Plaintiffs in their complaints against Defendants and their predecessors, successors, or assignees, together with past, present or future officials, employees, representatives, and agents.
31. Plaintiffs' Counsel agree to make all reasonable efforts to ensure Plaintiffs' appearances at all immigration hearings, up to and including any hearings on final orders of removal.
32. Each party agrees to bear its own costs and fees (including attorneys' fees), and with no rights of appeal. Plaintiffs agree that they shall not seek, solicit, or request attorneys' fees and/or litigation costs provided under the Equal Access to Justice Act, 28 U.S.C. § 2412 or any other provision.
14

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 16 of 34

IX.

Modification of Agreement

33. This Agreement constitutes the entire agreement among the Parties as to

all claims raised by Plaintiffs in the Consolidated Action, and supersedes all prior

agreements, representations, warranties, statements, promises, covenants, and

understandings, whether oral or written, express or implied, with respect to the subject

matter hereof, with the exception of the FSA, which the Parties agree is not modified by

this Agreement.

34. This is an integrated agreement and may not be altered or modified except

by a writing signed by all parties in interest at the time of the authorization and

modification.

X. Protection of Discovery Materials

35. Within ninety (90) days of the Effective Date of this Agreement,

Defendants may produce to Plaintiffs' Counsel a list of documents identified by Bates-

number for which they have a good faith basis to assert privilege. Plaintiffs are under no

obligation to object to Defendants' assertion of privilege at the time the list is produced

and retain the right to dispute Defendants' assertion of privilege as to specific documents

at any time. Plaintiffs agree to provide Defendants with at least ten (10) days notice if

they intend to disclose or disseminate in other litigation any of the documents identified

as privileged by Defendants. If Defendants object to the intended disclosure, they have

the burden to seek appropriate protection in any court of competent jurisdiction. If

Plaintiffs intend to disclose or disseminate in other litigation any documents that

Defendants have produced during the course of this litigation within ninety (90) days of

15

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 17 of 34

the Effective Date of this Agreement, Plaintiffs will provide Defendants with ten (10)

days notice.

XI.

No Admission of Liability

36. The Parties understand and expressly agree that the terms of this

Agreement, the settlement provided for herein, and any action taken by any party in

connection herewith are intended to compromise disputed claims, to avoid litigation, and

to buy peace, and that this Agreement and the settlement provided for herein do not

constitute and shall not be construed or viewed as an admission of any wrongdoing or

liability by any party, including but not limited to: (a) an admission by Defendants of any

violation of law or the FSA; (b) an admission by Defendants that any standard, policy,

practice or procedure challenged in the Consolidated Action violated or failed to comply

with either the language or the intent of any applicable law or the FSA, or (c) an

admission by Defendants that their position in this litigation was not substantially

justified.

XII.

Representations

37. The Parties to this Agreement represent and warrant to each other that:

A. Each of them has legal capacity, and authority to compromise and

release all claims as provided herein;

B. Each of them has the legal capacity and authority to enter into and

perform all the terms of this Agreement; and

C. Each of them has read this Agreement, understands its terms, and

intends to be legally bound by it.

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Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 18 of 34

XITI. Sufficiency of Consideration

38. The Parties acknowledge that the covenants contained in this Agreement

provide good and sufficient consideration for every promise, duty, release, obligation,

agreement, and right contained in this Agreement.

XIV. Advice of Counsel

39. Each party to this Agreement acknowledges that the party has had the

benefit of advice of competent legal counsel with respect to the decision to enter into this

Agreement and the settlement provided for herein.

XV.

Mutual Exclusivity of Provisions

40. If any provision of this Agreement is declared invalid, illegal or

unenforceable in any respect, the remaining provisions shall remain in full force and

effect, unaffected and unimpaired.

XVI. Notifications

41. All written communications required by this Agreement shall be

transmitted by U.S. Mail and electronic mail to undersigned counsel for Defendants and

Plaintiffs at the addresses listed below. All counsel shall be informed promptly in the

event that any substitution is to be made in counsel or representatives designated to

receive notification under this Agreement, and the name and contact information for

substitute counsel or designated representative shall be promptly provided.

XVIT. Non-Retaliation

42. Defendants agree that they shall not retaliate against any Plaintiff because

that person has filed or may file a complaint for enforcement purposes only, provided

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Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 19 of 34

information or assistance, or participated in any other manner in a proceeding relating to

this Agreement.

XVlll. Defense of Agreement

43. The Parties agree to defend the provisions of this Agreement. The Parties

shall notify each other of any court challenge to this Agreement.

XIX. Multiple Counterparts

44. This Agreement may be executed in a number of identical counterparts, all

of which shall constitute one agreement, and such execution may be evidenced by

signatures delivered by facsimile transmission.

XX.

Successors

45. This Agreement shall be binding on all successors, assignees, employees,

and all those working for or on behalf of Defendants and Plaintiffs.

XXI. Titles and Headings

46. Titles and headings to Articles and Sections herein are inserted for

convenience and reference only, and are not intended to be part of or to affect the

meaning or interpretation of this Agreement.

18

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 20 of 34

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 21 of 34
EXHffiiTA
The Consolidated Actions include the following individual lawsuits, consolidated
for trial under In re Hutto Family Detention Center, Case No. A-07-CA-164-SS:
07-CA-309-SS: Susana Rodriguez Blanco 07-CA-380-SS: Fredy Pineda-Brisuela 07-CA-381-SS: Antony Castanon Nartatez 07-CA-382-SS: Jonathan Castanon Nartatez 07-CA-383-SS: Marusia Razmias 07-CA-384-SS: Marco Antonio Toruno Altamirano 07-CA-452-SS: Kimberly Dayan Sanchez-Ordonez 07-CA-453:-SS: Maryorie Alejandra Martinez Grijalva 07-CA-454-SS: Esther Donaire-Padilla 07-CA-455-SS: Jose Fernando Erazo-Paredes 07-CA-456-SS: Gladys Elizabeth Martinez Grijalva 07-CA-457-SS: Paola Osorio Restrepo 07-CA-458-SS: Joseline Vanessa Mendez-Sanchez 07-CA-459-SS: Jeniffer Castillo-Padilla 07-CA-460-SS: Antony Alexander Martinez Grijalva 07-CA-461-SS: Andrea Osorio Restrepo

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 22 of 34

Structural Changes

EXHffiiTB

D D Privacy curtains installed in showers in all pods. D D Privacy curtains installed around toilets in all rooms. D D Porcelain toilets and sinks installed in all rooms occupied by residents. D D Outdoor recreation area improved to include sand volleyball court.
Living Arrangements

D D

*Room searches are not conducted in the absence of individualized

suspicion, unless necessary to ensure the health or safety of a resident.

D D Each resident is provided with his or her own bed.

D D

Residents are permitted to decorate rooms with personal items, so long as

the decorations do not present a health or safety hazard.

D D Residents are provided mattresses of at least 4 inches in thickness, or, if
4" thick mattresses are not yet available, residents who express discomfort
with their bed may have access to two 3" mattresses.

D D Each family (including husband-and-wife couples) is permitted to spend
unlimited time together in any of their respective rooms, with the door open, between the hours of 8 a.m. and 8 p.m. During orientation, families are informed that they may spend this time together in their rooms. Adults are not disciplined for being in their spouse's room. However, residents, including husband-and-wife couples, are further informed during orientation that they may not engage in sexual or intimate activity. If residents do engage in sexual or intimate activity, their privilege of being in individual rooms together will be suspended.

Movement

D D *Between 8 a.m. and 8 p.m., residents are allowed free access to the

1

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 23 of 34

Clothing

outdoors and other areas within the perimeter of the facility. These areas include, but are not limited to, outdoor and indoor recreation areas, the gymnasium, computer lab, library, cafeteria, all pods, barber area, and medical and dental clinics. Minor residents 12 years and older are free to move to and from these areas with a pass signed by his or her parent; residents younger than 12 years must be accompanied by a parent.

D D Residents are allowed access to personal clothing, if appropriate and in acceptable condition.
D D The facility provides pajamas for children upon request. D D Residents are allowed to retain in their rooms up to 10 sets of clothing,
including personal clothing and facility-provided clothing, so long as the clothing does not cause a safety hazard and appropriate space exists.
D D The facility accepts donations of appropriate clothing from organizations.
Toys

D D Each pod contains communal toys for minor residents' use.
D D *Children are allowed to keep a limited number of toys in their rooms
from 8 a.m. to 8 p.m. After 8 p.m., toys are returned to the communal area.
D D The facility allows for the donation of new toys in their original
packaging, although the facility may screen toys to ensure they are appropriate and safe for children's play.
Phone Access

D D Phone cards are sold at commissary at reasonable cost.
D D Phone calls placed by children are not monitored in real time or
subsequently in the absence of

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Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 24 of 34

D D
D D
D D
Schedule

individualized suspicion, but the facility may log phone calls placed by children.
During orientation, the facility informs all residents that their personal calls are recorded (even in the absence of individualized suspicion), but generally are not monitored in real time.
The facility does not refer to residents as "prisoners" in outgoing phone messages.
The facility provides access to a telephone system that allows residents to make phone calls free of charge to pro bono or free legal service providers.

D D
D D
D D
Food

From Monday through Friday, the facility does not wake children until 6:30 a.m. at the earliest.
On Saturday and Sunday, the facility does not have a wake-up time for residents. On these days, the facility offers a continental-style breakfast and/or brunch for extended hours to allow for flexible wake-up times.
A flexible showering schedule is implemented so that children may shower at various times during the day (e.g., after they exercise).

D D

A variety of meals are offered at the facility.

D D Food is served from serving stations visible to the residents.

D D A certified dietician oversees and approves menus.

D D The facility consistently ensures that perishable food items such as milk
have not expired or spoiled.

Library

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Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 25 of 34

D D Residents have free access to a library and books.

D D

The facility makes efforts to ensure there are a sufficient number of age-

and language-appropriate books available to residents.

D D The facility ensures that translation dictionaries are available in Spanish.
D D The facility allows for organizations to donate new and used books,
although books may be subject to screening to ensure no contraband is contained in any books.

Television and Music

Yes No

D D Each occupied pod has two televisions to allow for both Spanish and
English TV.
D D The facility provides music and listening equipment to residents, or
accepts donations of these items.

Law Library

Yes No
D D

Residents have access to current legal materials as required by ICE's National Detention Standards.

Orientation

D D Residents are provided with a handbook reflecting current rules and
policies. The Handbook is updated within reasonable time after rule and policy changes are made.
Legal Orientation and Access

D D Legal orientation materials are available to residents in both English and
Spanish, including materials prepared by, or in consultation with, local immigrants' rights organizations.
D D Immigrants' rights organizations are permitted to conduct legal orientation
4

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 26 of 34

D D D D
D D D D D D
Visitation

presentations (LOPs) on a regular basis.
Facility staff are instructed on attorney-client privilege and confidentiality to prevent questioning of residents about the content of legal visits. Facility staff are instructed to not provide legal advice or discourage residents from exercising their rights.
Interpreters affiliated with a non-profit organization or an attorney are permitted to enter the facility if, on that first visit, the interpreter provides 24-hour advance notice. On subsequent visits, the interpreter need not announce his or her visit in advance, and is only subject to the same security procedures as attorneys (e.g., provision of identification, etc.) as long as they are accompanied by, and under the supervision of, the law student, paralegal or attorney for whom they are working.
Residents are provided access to a copier at no cost for use in preparation of their legal case.
Attorneys are able to leave incoming phone messages for residents. Messages are then promptly provided to residents who are permitted to return the attorneys' calls.
Phone instructions (as clarified by plaintiffs' counsel) for accessing tollfree pro bono legal services are provided by the phones in each pod.

D D The facility has weekday visitation hours; signs at the facility display the
weekday visitation hours.
Activities for Children

D D Structured physical activities are provided for children when not in school,
such as organized sports, physical activities such as dance, intellectually stimulating activities, arts and crafts, and music.
D D *The facility organizes regular off-site field trips for children that serve
either a recreational or educational function. However, children subject to a final order of removal, children with documented disciplinary problems, and children whose parents do not consent to off-site trips may be prohibited from participating. The facility also may condition a child's

5

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 27 of 34

D D
Mail

participation on an off-site trip upon the parent(s) consent to limit and/or waive liability of the government, service provider, or field trip provider.
Children are permitted to have paper, pens, crayons, pencils, toys, and books in their rooms between 8 a.m. and 8 p.m.

D D The facility ensures that guards do not read resident mail. D D Residents' relatives are permitted to send books and appropriate clothes.

Medical & Dental Care

D D

Subject to the availability of qualified and willing candidates, the facility

has on-site medical staff who speak Spanish.

D D The facility will provide a larger and more suitable space for
medical consultation (the actual increase in space may not yet be in place
within 3 months of the Effective Date of the Agreement).

D D Subject to the availability of qualified and willing candidates, the facility
has an on-site Spanish-speaking dental assistant.

D D Residents have access to a limited number of over-the-counter
medications, such as Pepto Bismol, through the medical services staff at
the facility.

D D Children are provided with soft and full-sized toothbrushes.

Mental Health

D D

Residents have access to mental heath care as needed.

D D Subject to the availability of qualified and willing candidates, the facility
has a Spanish-speaking social worker for on-site counseling.

6

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 28 of 34

Counts

D D *No head counts of residents are performed as a regular operating
practice. Facility utilizes a system in which residents self check-in with
designated staff no more than three times per day.

Commissary

Yes No
D D

Residents' family members and friends are allowed to add money to residents' commissary accounts.

D D Items are available at the commissary for purchase by residents at a reasonable cost.
D D Residents are permitted to purchase additional grooming items at the commissary.

Computers

Yes No
D D

Residents are permitted limited access to the internet in the facility's computer lab; Facility may employ web-filtering software and webmonitoring software, and require residents to follow an access policy.

7

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 29 of 34

EXHIBITC

Education

D D Students have five hours of class time per day.

D D Computer lab with English as a second language (ESL) and other
computer classes available. (The language program is the English Language Learning and Instruction System (ELLIS), which teaches
elementary vocabulary to users in Spanish, Mandarin Chinese,
Vietnamese, and Arabic.)

D D Telephonic translating service is accessible in the classrooms.

D D

Educational assessments completed for each child.

D D Adult education classes, including ESL, parenting, development, and computers are occurring. (A Spanish language computer parenting program is loaded on the computers. A separate ESL class in addition to the ELLIS software will be added.)

D D School curriculum is based on Texas Educational Knowledge and Skills
standards.

D D All teachers are certified in Texas or are enrolled in a Texas Education
Agency certification program.

Recreation
D D Children and adults have access to the outdoors during the day. D D Children have a physical education period and a recess period during the
school day.
D D Open recreation time offered during the day. D D Child recreation rooms available to all residents. D D Movie nights occur at least once per week. D D Monthly birthday parties for residents occur. D D Residents have outside recreation time on weekends, weather permitting.

1

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 30 of 34

D D Yam, crochet needles and other craft activities available in pods.

Living Conditions
D D Mattresses are at least three-inches in thickness.
D D Walls in pods and many common spaces painted in variety of colors,
including some art murals.

D D Leaks in living areas from ceilings are repaired in a timely manner.
(Immediate repairs may not be possible due to weather conditions.)

D D Temperature is regulated and adjusted to account for resident complaints. D D Some decorating of rooms allowed. D D Each child allowed a teddy bear in room. D D Porcelain toilets and sinks present in pods. D D Night lights are not on in the room unless requested by residents. D D Room doors are unlocked at all times.

Clothing
D D D D

Residents can wear their own clothing, within prescribed limits. Residents are provided various types of clothing to wear in the facility.

Privacy
D D D D

One room in each pod is vacant and designated for private toilet use.
Curtains around toilets installed in all pods, except for B Hall. Installation in B Hall is in progress and will be completed within three (3) months.

Grooming

D D Shampoo and conditioner available to residents. D D Barber services available at least twice per week. D D Variety of grooming supplies and toiletries available at commissary.

2

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 31 of 34

Food

D D Menu undergoes regular revisions.
D D Cafeteria-style menu allows residents to select from choice of
entrees and side dishes.

D D Salad bars available.

D D Meat-based courses available at every meal.

D D Refrigerators in pods are stocked with juice, milk, cookies, and fruit.

D D Condiments are readily available.

D D Drink machines are available in the cafeteria for dinner.

D D

Variety of snacks are available in the commissary.

Mental Health Services

D D "Town Hall" meeting occurs twice each week.

D D

Individualized needs assessment performed for each minor.

D D Minors have available to them a session with social worker once per week.

D D Acculturation and adaptation services, containing information on
social and inter-personal skills, are available.

D D

Division of Immigration Health Services (DIHS) staff assists with

monitoring of assessment folders to refer minors for immediate

counseling and mental health care if they need it.

Medical Care

D D Full-time Public Health Service pediatrician onsite.

D D Immunization program for minors in place.

D D

Morning and evening medicine distribution takes place in pods.

Visitation
D D

Contact visits available.

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Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 32 of 34

Attorney Visitation
D D Attorneys are not required to fax in visitation sheet before arriving. D D Designated attorney room available for client meetings. D D Children are not required be with parents during attorney meetings.

Detainee Movement

D D

Housing and interior doors opened; residents are free to move between

housing units and non-restricted areas of the facility so long as they check-

in when they enter a new area. For children 12 and above, a pass

indicating parental consent is required; children under 12 must be

accompanied by their parent.

D D Daily head counts of residents achieved through system whereby residents check-in with staff at set times.

Staff
D D

Staff uniform consists of polo shirts and khakis.

Orientation

D D Orientation explaining rules, services, expectations, and the availability of legal assistance provided to new residents.

D D Local non-profit organizations permitted to give legal orientation program at the organization's expense.

Hutto Facility

D D No razor wire on perimeter fencing. D D No fence in front of the entrance to the facility. D D No bars on the entrance to the facility. D D Front area and back recreation area landscaped; flower beds on grounds. D D Resident intake area has wooden doors; doors remain unlocked. D D No signs on premises describing Hutto as a "corrections facility."

4

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 33 of 34

Record Keeping
D D Resident files now contain intake forms, disciplinary reports, records of
counseling and commissary records.

D D Client case records are safe guarded and locked in Case Manager's Office;
strict key control is maintained; a logbook is utilized to ensure file integrity.

Work
D D

Detainees allowed to work in kitchen or housekeeping for $1/day.

5

Case 1:07-cv-00164-SS Document 92-2 Filed 08/26/2007 Page 34 of 34
EXHffiiTD
Requirements for Child Care Professional retained by JFRMU pursuant to Paragraph 14 of the Agreement:
• At least 2 years of full-time experience in the management or supervision of child-care personnel and programs.
• A master's or doctoral degree in social work or child psychology.

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

IN RE

)

)

)

HUTTO FAMILY DETENTION CENTER )

Case No. A-07-CA-164-SS

REPORT TO PARTIES OF FINAL PERIODIC REVIEW OF FACILITY The undersigned submits the following report to the Parties of the above-styled case, as called for in ¶ 9 of the Parties’ Settlement Agreement, executed on August 26, 2007. I. Background This compliance inspection took place on June 1, 2009, and lasted from approximately 9:00 a.m. to 5:30 p.m. Advance notice of the inspection was not provided, although the Parties were aware that the inspection was required to take place by June 10, 2009 (one year from the date of the second inspection). Assisting the undersigned were Derek Quick (law clerk in the undersigned’s chambers), Noah Galton (intern from the undersigned’s chambers), Christina Helmrichs (Spanishlanguage interpreter), Ben Maya (Spanish-language interpreter), and Yolanda Pesina (Deputy U.S. Marshal who also acted as a Spanish-language interpreter) (collectively, the “inspection group”). The inspection began with a meeting with the CCA and ICE-JFRMU1 administrators, Evelyn Hernandez and George Robertson, respectively. Also present at the initial meeting were Don George (JFRMU), Tom Hochberg (Director of Health Services), Sean Allain (Assistant Director of Health Services), Art Perez (Assistant Field Office Director, ICE), Anibal Martinez (Deputy Chief Counsel to the Field Office Director), and Carl Stephens (Supervisory Detention and Deportation Officer,

1Immigration Customs Enforcement-Juvenile and Family Residential Management Unit.

ICE). We briefly reviewed the ground rules for our inspection and discussed our intentions for the review. As with the prior reviews, we once again received full cooperation.
The inspection group visited every occupied pod in the “A” Hall, the cafeteria, the classrooms, the intake area, the commissary, the medical and dental offices, the mental health offices, the library, the computer lab, the visitation area, the office/administrative area, and the indoor and outdoor recreation facilities. The group also interviewed approximately ten adult residents (some in groups, some individually), six minor residents, three pod-staff members, the senior medical staff, dental staff, mental health staff, commissary staff, library staff, intake staff, three teachers, the school’s principal, the individuals in charge of orientation, the Field Office Director and his staff, as well as the CCA and ICE-JFRMU administrators.
We also reviewed a large number of documents, four binders of which were presented to us by Ms. Hernandez and Mr. Robertson at our initial meeting, and the rest of which were prepared in response to specific requests we made both before and during our inspection. The first large binder contained documentation regarding structural changes at the facility since our last inspection, living conditions, resident movement, residents’ clothing and toys, phone access, the building schedule, menus for 105 meals, food surveys, library inventory, orientation information, legal information available to residents, grooming services, Town Hall meeting records, visitation, after school activities for children, the mail system, medical/dental and mental health services, the commissary, the computer lab, and education. The remaining three binders contained copies of each letter issued to residents pursuant to ¶ 6 of the Settlement Agreement since June 1, 2008. The documents provided at our request included: (1) a current census of the residents; (2) identification of the current administrative staff and managers; (3) a spreadsheet setting out every resident that has been housed
2

at Hutto since June 15, 2008 (indicating for each resident the date he/she arrived at Hutto and the date he/she departed); (4) a copy of the planned menus for the food served in the cafeteria for August 2008, January 2009, and May 2009, along with documentation showing what was actually served during those months; (5) documentation setting forth all field trips that minors have been taken on since our last visit; (6) documentation regarding all monthly birthday parties since our last visit; (7) a list of all employees of the medical staff, dental staff, and mental health/social work staff that have been employed at Hutto since June 15, 2008, including dates of employment, title, CV or resume, and identification of whether they are Spanish speaking; (8) a list of all employees of the school at Hutto since June 15, 2008, including dates of employment, certifications, title, and identification of whether they are Spanish speaking; (9) a copy of Hutto’s videotaped orientation; and (10) a copy of the current handbook.2 II. Findings
A. Scope of Review As set out in the prior reports, the scope of review is set by ¶ 7 of the Settlement Agreement, which directs the undersigned to “verify ongoing compliance with conditions reforms listed in Exhibits B and C, and the periodic reviews conducted pursuant to Paragraphs 6(C) and 6(E) of the Agreement.” It requires that after the on-site review, I will “report to the Parties regarding compliance, identifying all conditions noted to be deficient and making recommendations for resolving the deficiencies.” Consistent with the Agreement, we limited our inspection to verifying
2With regard to the documentation listing both planned meals and that which was actually served, we did not receive the records of what was actually served during May 2009. We also did not receive a copy of the “video orientation.” During our inspection, it became apparent that ICE abandoned use of the video for orientation (with the exception of a short video produced by ICE which is used solely to explain immigration issues and relevant immigration law).
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compliance with Exhibits B and C, and to reviewing the materials provided regarding ¶ 6, and this report is similarly limited. As with the prior reports, because our report is intended to address “conditions noted to be deficient,” it will not list all of the items on which there has been compliance. Rather, only non-compliant (or problematic) items will be discussed, and thus any item on Exhibit B or C not addressed below is an item on which the undersigned finds that ICE is in compliance under the Settlement Agreement. This report will also address all items that were addressed as non-compliant or problematic in the second report (and discuss the progress that has been made on those items).
B. Non-compliant, problematic, or previously-addressed issues 1. Orientation and Handbook3
In the June 2008 Report, the inspection group reported that the handbook appeared to be in compliance with the Agreement, and that continues to be the case. We found no significant problems with the handbook, and, from our inspection, it appears that the handbook is being updated within a reasonable amount of time after rules or policies are changed.
On the issue of orientation, ICE and CCA have recently taken positive steps to improve the orientation process. As evident both in the December 2007 and June 2008 Reports, the orientation
3The Settlement Agreement language at issue here is: Residents are provided with a handbook reflecting current rules and policies. The Handbook is updated within reasonable time after rule and policy changes are made. Orientation explaining rules, services, expectations, and the availability of legal assistance provided to new residents.
See Exhibit B, p. 4, “Orientation” and Exhibit C, p. 4, “Orientation.” 4

process at Hutto has been a problem-area for some time. In the past, orientations were lacking in continuity and in breadth. Though steps had been taken to improve the process prior to the June 2008 inspection, the June 2008 Report revealed that the orientations were still lacking in consistency. As stated, ICE and CCA recently altered the orientation procedures, and those alterations took place on May 26, 2009, six days prior to our inspection. The new orientation is a multiple-step process that takes place over a two-week period, and the stated goal of the change is to increase the amount of information the new residents are able to absorb during orientation. Because new residents are often tired and disoriented when they arrive at the facility, it is CCA and ICE’s view that an orientation procedure that moves more slowly will allow residents to have time to rest before they are inundated with information concerning the rules and policies of Hutto.
The newly adopted orientation process is, more or less, a three-step process: First, upon arrival, residents are given a very brief, initial orientation covering only essential information that residents will need to know during their first seventy-two hours at Hutto (i.e., the location of the cafeteria, medical facilities, etc.). At this time, residents are also given a short pamphlet covering everything they were told at the initial session, as well as a copy of the full Hutto handbook. Next, within the following seventy-two hours, the residents receive a full, comprehensive orientation. This part of the orientation is conducted by residence counselors, who work from a uniform script while a telephone-operated translation service simultaneously interprets. During this process, the residence counselors also answer questions that new residents may have. Last, two weeks after the full, comprehensive orientation, there is a follow-up “re-orientation” where residents have the opportunity to clear up any issues they may be unclear on, after having had two weeks to actually live in the facility. Further, ICE and CCA report that they constantly stress to residents that their personnel are
5

available for questions at any time in order to answer any questions that residents may have. At each Town Hall meeting, residents are reminded that they can receive “re-orientations” at any time in order to clear up any issues they may be unclear on. Finally, Don George, the person in charge of Hutto’s orientation process, told us that he personally takes the time to visit with residents at least once a day, and thereby to be available himself to answer questions they may have.
Generally speaking, the residents seemed better informed regarding the rules of the facility during this inspection than during past inspections. While there were some minor exceptions (for example, some residents reported confusion regarding their ability to use telephone cards other than the ones issued at the commissary, and other residents reported confusion regarding their ability to bring articles such as toys and books into their individual rooms), overall things seem improved on this front. Further, the revamped orientation process is promising, and though its long-term effects are hard to predict since it was implemented only six days prior to our inspection, it seems to be a marked improvement over past processes.
2. Mental Health Services4 In prior reports we noted that ICE was not in compliance with the Settlement Agreement because the weekly sessions with minors were being conducted by “case workers” employed by CCA, who had no mental health training or experience. Further, our prior inspection revealed that the weekly sessions were also brief and perfunctory. ICE has cured both of these deficiencies since our last visit. First, the responsibility for fulfilling these obligations has been shifted from CCA to
4There are two Settlement Agreement items at issue on this topic, which state that “Minors have available to them a session with [a] social worker once per week,” and a “‘Town Hall’ meeting occurs twice each week.” See Settlement Agreement, Exhibit C, p. 3 “Mental Health Services.”
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the Public Health Services staff (which provides the medical care to Hutto residents), ably run by Tom Hochberg. All weekly sessions with minors are handled by the health services staff, not CCA case workers. The staff conducting the sessions are all licensed social workers or psychologists. Each minor has an individual meeting weekly.5 These meetings appear to be thorough and comprehensive, and further seem to have been well-received.6 Moreover, ICE has gone further, and taken steps to make sure that the weekly session with each minor is as individualized and helpful as possible. Toward this end, the health services staff now conducts weekly “multi-disciplinary meetings” where the mental health staff meet with members of the medical staff, case workers, residence counselors, or teachers—depending on what is needed—to discuss particular individuals who may need extra attention. The multi-disciplinary team then develops a plan of action tailored to that individual and their specific needs.7 Finally, there are now weekly adolescent group sessions led by Lorener Brayboy, a licensed graduate social worker, on Saturdays. During our inspection, two teenagers reported that these sessions were both enjoyable and helpful.
All in all, it appears that ICE has taken significant steps to remedy the past deficiencies in this area, and our interviews with the health care staff suggest that the staff is dedicated to continuing to provide these services and to improve upon them. The only criticism we have at this time is that
5Depending on the age and preference of the minor, the session may include the minor’s parent(s).
6The only negative comment we heard regarding the weekly sessions was from a fourteenyear-old girl, who reported that the social workers “are not very helpful.” It was her opinion that the social workers do not actually listen to what she has to say, but instead just try to make her laugh and then “pretend like everything is okay.”
7While these meetings address the needs of minors, as warranted, they are not limited to minors and also sometimes address problems facing the adults as well.
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this change did not occur sooner. Having said this, these are very positive changes, and I strongly recommend that ICE continue to charge the health services staff—not CCA—with fulfilling the mental health obligations of the Settlement Agreement.
The situation is not quite as improved with regard to Town Hall meetings. In the June 2008 Report we noted that, while Town Hall meetings do in fact occur at least twice a week, the meetings included little to no dialogue between the staff and residents. Rather, residents were basically being reminded of the rules that they must abide by, and the meetings were essentially lectures. Our most recent inspection suggested that the Town Hall meetings have not changed much, and still seem to be “lectures to residents” rather than a “dialogue between residents and staff.”8 During our interviews, residents reported that they did not participate in Town Hall meetings for two different reasons: (1) they do not feel comfortable expressing their opinions at the meetings for fear of being scolded; and (2) they feel as though, even if they do express their opinions, no one will listen to them or actually take them seriously. ICE needs to stress to CCA that it is at least as important (if not more important) for the staff conducting the Town Hall meetings to listen to the residents’ concerns as it is for the staff to express any concerns CCA may have about the residents complying with rules or regulations. Harkening back to the traditional Town Hall meeting (as we did in a prior report) is helpful here. While the undersigned is reluctant to look to Wikipedia for any truly authoritative information, its entry on this point expresses the issue well:
A town hall meeting is an informal public meeting derived from the traditional town meetings of New England. Similarly to those meetings, everybody in a community
8In the materials provided to us at the beginning of our inspection, we were supplied with notes from several different Town Hall meetings. With only a few exceptions, residents consistently asked very few questions, if any at all. In fact, the records revealed very little dialogue of any kind between residents and staff at the meetings.
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is invited to attend, voice their opinions, and hear the responses from public figures and elected officials, although attendees rarely vote on an issue. In today's heterogeneous communities with large populations, more often, town hall meetings are held so that people can influence elected officials in their decision making or to give them a chance to feel that their voices are being heard.
See http://en.wikipedia.org/wiki/Town_hall_meeting (last visited July 1, 2009) (emphasis added).
The reports we have received, and the meetings we witnessed in 2008, demonstrate that the CCA
supervisors view the meetings’ main purpose as providing a forum for the supervisors to tell the
residents what the residents need to be doing. This has it backward. As reflected in the above
quotation, the main purpose of a town hall meeting should be for the residents to express to the
supervisors the residents’ concerns, and to hear the supervisors’ response; to provide the residents
a forum to influence the supervisors’ decision-making, or to allow the residents to feel that their
voices are being heard. CCA needs to re-train its supervisors accordingly, and redirect the information flow, so that the supervisors are listeners and responders, not lecturers.9
3. Medical and Dental Care
In the June 2008 Report, it was reported that the medical and dental facilities at Hutto were
compliant with the Settlement Agreement, and they remain to be compliant. Additionally, with
regard to the medical center, we were pleased to find that there has been significant consistency of
staff. The medical center continues to be run by the same administrator and lead doctor as it was
during the June 2008 inspection. While the clinic functions well and the residents generally reported
satisfaction with the care they receive, one woman reported that, when her child had blisters on her
9If ICE will remember that this requirement was something that the Plaintiffs negotiated for, and stress this to CCA, it may help. Why would the residents have fought to be lectured to twice a week? Rather, it seems to us that the purpose of this requirement was to provide residents some input on the conditions of their living quarters, or at least to provide a forum to express their opinions on their living quarters and on improvements that could be made to them.
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hands and feet, the doctor gave her no medicine or advice for her child’s situation. We were unable

to ascertain whether the woman’s child actually had a treatable illness, and it appears that this

person’s experience was inconsistent with the vast majority of other residents’ reported experiences

with the health clinic. In sum, the health care being provided to the Hutto residents meets or exceeds

the requirements of the Settlement Agreement, and Mr. Hochberg and Dr. Soto are to be commended

for the manner in which they have managed the health facilities.

4.

Food10

Food has consistently been a major source of complaints among residents. In the June 2008

Report we stated that, while it appeared that the facility was in literal compliance with the checklist

items, it was questionable whether ICE had met the requirement that there be a “variety of meals”

offered at the facility. We saw little movement in this area since last year, and the residents we

interviewed still complained about the menu’s repetitive nature; in fact, every resident we spoke with

concerning the food stated that there was too much repetition, and we heard consistent complaints

that too many hotdogs and hamburgers are served and that the side dishes are always the same (rice and beans). The lack of chicken was also a very common complaint.11

10The Settlement Agreement addresses this item in two places. Exhibit B provides that “a variety of meals [will be] offered at the facility,” while Exhibit C adds that the “menu undergoes regular revisions.” See Exhibit B, p. 3, “Food”; Exhibit C, p. 3, “Food.”
11On the day of our inspection, we ate our lunch at the cafeteria. Interestingly, grilled (or perhaps baked—it was unclear) chicken leg quarters were served. Because we did not receive the menus for the month of June, we do not know if chicken was the planned lunch for June 1, 2009, or if CCA arranged to serve that once we made our appearance there that morning. (Two residents we spoke to at lunch commented to us that chicken was only being served because we were there.) To CCA’s credit, from looking at the menus supplied to us prior to the inspection, it appears that an effort is being made to serve “unprocessed” chicken (i.e., not chicken “patties”) more often. As for our view of the food, we found the offerings bland and heavily weighted toward carbohydrates. The chicken was dry, the mashed potatoes appeared to be from a box, and the peas and carrots were about
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A new issue raised with regard to food was the amount of time allotted for minors to eat lunch. Every minor we interviewed complained that by the time they got to the cafeteria (from school), went through the line, and then sat down to eat, they had 10 minutes or less to eat lunch. This should be remedied, and we recommend that CCA do whatever is necessary to give minors a more reasonable amount of time to eat lunch (at least 20 minutes at the table). Further, inconsistency persists regarding the availability of wheat bread at meals. Upon review of the files provided to us, it is apparent that there were many instances where CCA’s menu stated that wheat bread would be served but white bread was substituted instead.
We recognize that it is a big challenge to make institutional food appetizing, particularly when those consuming it have to eat it day after day. As a result, we believe that the standard that should be set for such food should reflect the realities of the situation, and we have tried to do that. The problem we find with the food is that it is—even under this standard—quite bad. Moreover, it appears that it would not be that difficult to improve upon it. Once again, the root of the problem is likely the fact that CCA is in charge of the food, and CCA is in the business of running prisons, and doing so for profit. When it comes to food, a private, for-profit prison company will have two primary goals: (1) meet the minimum requirements with regard to food set by the relevant state’s jail standards commission; and (2) do so as inexpensively as possible. Neither of these goals is likely to lead to very palatable food. While we cannot say that ICE is in violation of the Settlement
as far from fresh as they could be. The beans were just plain odd. They appeared to be a mix of pinto and black beans, with the ratio being about 80:20 pinto to black. They had no seasoning of any kind. Like the potatoes, the rice was “prepared,” and had a strange texture and flavor. I feel confidant that neither the rice nor the beans are anything like what the Mexican and Central American residents consume when they prepare rice and beans themselves. Further, it is telling that we found the residents’ favorite food—the chicken we were served at lunch—to be dry and not terribly tasty. It makes us wonder what the less-favored food tastes like.
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Agreement with regard to the food at Hutto, CCA could clearly do much better, and could probably do so without spending much more than it presently does. As just one example, the adult residents plainly need things to do to keep them occupied, and the facility has plenty of arable land around it. Following the lead of the First Lady, the facility could, with the assistance of the residents, easily grow fresh vegetables and serve those to its residents. If ICE is truly committed to making the facility as “residential” as possible, this would seem well within that expressed goal.12
5. Activities for Children13 The June 2008 Report found that ICE was compliant with both of these items. However, the Report recommended that CCA or ICE keep a separate record of field trips taken, and children attending, so that the review on this point could be more easily accomplished. Such records have been kept, and it appears that ICE has complied with the Settlement Agreement by conducting at least one field trip per month since the June 2008 inspection. Furthermore, ICE has kept records of attendance for these field trips.14 With regard to offering structured activities for children outside of school, ICE continues to be compliant.
12Unsurprisingly, the undersigned’s suggestion last year that residents be allowed to prepare a meal once in a while has not been implemented, so I remain doubtful that there will be vegetables growing at Hutto anytime soon.
13The Settlement Agreement requires that“structured physical activities [must be] provided for children when not in school,” and further that the facility “organize[] regular off-site field trips for children that serve either a recreation or educational function.” See Exhibit B, p. 5-6, “Activities for Children.”
14While field trips are taking place on a regular basis, a couple minors who we interviewed reported that they were not too enthralled with the chosen activities (the one which was mentioned the most in this regard was the trip to the botanical gardens). Accordingly, it might be a good idea to survey the minors in order to get a better idea of the types of field trips they might find interesting.
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The Settlement Agreement also requires that “children are permitted to have paper, pens, crayons, pencils, toys, and books in their rooms between 8 a.m. and 8 p.m..” Exhibit B, p. 6, “Activities for Children.” Many of the children we spoke with reported that they were unable to bring these items into their rooms.15 It is unclear whether these reports are the product of employees being unaware of the requirements of the Settlement Agreement in this regard, or the children’s misunderstanding of the rules. If these reports are a product of ICE and CCA’s practices, such practices must be altered to comply with the Settlement Agreement. If, instead, these reports are the product of miscommunication, ICE and CCA should make more of an effort to let children know exactly what they can and cannot do.
6. Phone Access and Phone Cards16 The June 2008 Report revealed that phone calls made by residents are no longer monitored or recorded in any capacity, but residents did not necessarily believe this to be the case. This skepticism appeared to be largely the result of the phone system still having a recording on it which played immediately before a call was connected, informing the recipient that the call was coming from the Hutto facility. Furthermore, the handbook appeared to be deficient in this regard. Upon our most recent inspection, any such suspicion had disappeared. Every resident the inspection group interviewed understood that his/her calls were not monitored or recorded. Hutto’s policies are now
15A child in Pod A reported that she could bring toys and books into her room. However, children in Pod B reported that they could not bring paper, pens, crayons, or pencils into their rooms unless they had homework for school. Those same children reported that children in Pod B could not bring toys into their rooms.
16The relevant Settlement Agreement provisions state that “Phone cards are sold at commissary at reasonable cost,” and “The facility provides access to a telephone system that allows residents to make phone calls free of charge to pro bono or free legal service providers.” Exhibit B, p. 2-3, “Phone Access.”
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clearly set forth in the handbook, and there is no longer a recording played immediately before calls are connected informing the recipient that the call is coming from the Hutto facility.17
The June 2008 Report also revealed that the cost of phone cards sold at the commissary was excessively high and unreasonable. It appears that this issue has improved due to the fact that residents are now given the option of either buying phone cards from the commissary (which are still priced the same) or using commercial calling cards/accounts that they can receive from family. With one exception, the residents interviewed were all using calling card accounts that were maintained by family members. Thus, although the commissary cards are still unreasonably expensive, this deficiency has been mitigated by the modifications to the phone system allowing the use of commercially available calling cards. However, the overpriced cards in the commissary still place a heavy burden on the residents who do not have access to commercially available accounts through family members. Furthermore, there are also residents who are unclear on the phone policy at Hutto. Though the handbook specifically states that residents’ family members can send residents phone cards via mail, some residents were unaware of this policy. In fact, a resident in Pod B reported that he was specifically told that the only phone cards he could use were those sold at the commissary. Both of these problems should be remedied. The cure for the latter issue is simply a matter of communication. The former is more difficult, but ICE needs to provide a reasonably priced phone system to those residents who do not have the ability to obtain phone cards outside of the facility.
Finally, with regard to calls to legal providers, the Settlement Agreement requires that the “facility provides access to a telephone system that allows residents to make phone calls free of
17A member of the inspection group tested whether the recording had been eliminated by making a call to his cell phone from one of the phones in the pod. No recorded messages were apparent on either end, and there were no indications that the call was being monitored.
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charge to pro bono or free legal service providers.” Exhibit B, p. 3, “Phone Access.” Upon our inspection, two different individuals in Pod B reported that they had tried calling the free legal service using the phones within Pod B and never got an answer. It was unclear to the inspection group whether this issue is attributable to the phone system at Hutto, the phone systems at the free legal services, and/or to the residents being unclear on how to use the phones correctly. Whatever the source of the problem, it should be addressed and remedied.
7. Library18 The June 2008 Report revealed that roughly 70% of the residents at Hutto were Spanish speakers (very few of whom were proficient in English), yet the vast majority of books in the library were in English. Upon our most recent inspection, the proportion of Spanish speaking residents at Hutto had risen to above 80%, and the Spanish-language collection still comprises roughly 20% of the total library inventory. However, this is not to say that the total number of Spanish-language books in the library has not increased over the past year. Upon our inspection and after reviewing Hutto’s records, it appears that the total number of books in the library has in fact increased over the last year (including the number of Spanish-language books).19 Even so, the majority of books are still in English.
18The relevant Settlement Agreement provision states that “[t]he facility makes efforts to ensure there are a sufficient number of age- and language-appropriate books available to residents.” Exhibit B, p. 4, “Library.”
19The supply of books in languages other than Spanish appeared to have improved as well. The library now contains a shelf of Arabic books that, according to Dr. Bradford (the school principal), were purchased with input from an Iraqi resident (the Arabic books, however, are almost all geared toward adults). The inspection group also saw books in French, Chinese, Swedish, Farsi, and Korean. There were several translation dictionaries as well for a wide array of languages.
15

As in the June 2008 Report, it is recommended that CCA take proactive steps to locate more non-profit and charitable organizations bearing affiliations or associations with the communities regularly represented at Hutto and solicit book donations.20
8. Visitation During the June 2008 inspection, the inspection group was told several times by the CCA administrator that the facility would make special arrangements to accommodate visitors who travel long distances to come to the facility to visit residents. However, the June 2008 inspection revealed that residents and pod supervisors alike were under the impression that all visits were limited to one hour, regardless of the distance traveled by the visitor. Upon our most recent inspection, the residents and pod supervisors we interviewed understood that those traveling long distances would be allowed to visit for longer than the time normally allotted. Furthermore, the written policy now reflects the fact that visitors traveling more than three hours to Hutto may have extended visits.
20For instance, throughout all three of our inspections, there has been a sizeable population of Christian Iraqis at Hutto, and Iraqi families have reported a lack of Iraqi children’s books in the Hutto library. CCA should strive to provide books for Iraqis and other groups that have had a steady presence at Hutto (even if the presence is not overwhelmingly large). The CCA administrator indicated that CCA had made efforts to locate pertinent books by contacting consulates for countries from which many of the Hutto residents come. Out of a total of several dozen letters sent, apparently only three responses were received. While this effort to locate books is commendable, the results are not surprising, given that many of the residents at Hutto are seeking asylum from these very countries (the Christian Iraqis are a case in point), and the consulates at issue may not feel terribly motivated to assist individuals claiming to have been persecuted by those countries. A better source of assistance might be domestic asylum or relief organizations that regularly work with individuals from the countries that routinely populate Hutto.
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9. Computers21 The June 2008 Report stated that there were insufficient internet-accessible computers, and that residents were not allowed access to web-based e-mail services. Interviews during the 2008 inspection also revealed that some residents were unaware that internet access was available to them at all. Upon our most recent inspection, these deficiencies had been remedied. There are now twenty computers in the lab that are internet-accessible. Additionally, each computer contains software to instruct those unfamiliar with computers how to use them. Each computer also has ESL software with seventeen different languages. Finally, the computer lab is open to anyone when it is not being used for school (computer lab schedules are posted on the computer lab doors). As far as internet-use is concerned, we were able to surf the internet rather freely during our inspection, accessing a number of international sites that would be of interest to the groups regularly housed at Hutto. With regard to e-mail, residents now have access to Gmail. However, residents reported that this was not of a lot of use to them since most residents did not have Gmail accounts before their detention and, therefore, have no access to their “address books” contained in their other e-mail accounts.22
10. Living Areas/Pods ICE is in compliance with the Settlement Agreement terms pertaining to the living areas of the facility, with one exception. ICE is currently, and has consistently been, in violation of the
21The relevant provisions states that “Residents are permitted limited access to the internet in the facility’s computer lab; Facility may employ web-filtering software and web-monitoring software, and require residents to follow an access policy.” Exhibit B, p. 7, “Computers.”
22Perhaps ICE should consider allowing access to the other oft-used internet e-mail services (e.g., Hotmail or Yahoo mail), which would increase the possibility that a resident would have access to an account they owned prior to their detention.
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Settlement Agreement provision requiring that there not be a wake-up time for residents on the weekends. The language at issue states this point quite plainly:
On Saturday and Sunday, the facility does not have a wake-up time for residents. On these days, the facility offers a continental-style breakfast and/or brunch for extended hours to allow for flexible wake-up hours. Exhibit B, p. 3, “Schedule.” Despite this, the handbook states that residents must “check-in” between 8:30 a.m. and 9:30 a.m. on Saturdays and Sundays. See T. DON HUTTO RESIDENTIAL CENTER FAMILY RESIDENT ORIENTATION HANDBOOK, at 9 (revised 4/14/09). Such a rule obviously requires a wake-up time on the weekends and is in direct violation with the Settlement Agreement. Though the handbook also contains a statement that there is no wake-up time for residents on weekends, this is clearly contradicted by both the policy regarding “check-in” times, and by the experiences of the large majority of the residents and staff we interviewed.23 It appears that ICE has never fulfilled this requirement of the Settlement Agreement, and continues to be in violation. This should stop, and stop immediately. In short, let the teenagers sleep—that’s what they do on weekends. Check their I.D.’s when they get up.
23During our inspection, pod staff consistently stated that there was indeed a wake-up time for residents on the weekends. Furthermore, residents consistently stated that they did have wake-up times on the weekends. In fact, some residents and children in Pod B reported being awoken as early as 6:30 a.m. on the weekends for an “I.D. check.” Another child in Pod B reported being awoken at 8:00 a.m. on the weekends for an “I.D. check.” Regardless of any inconsistencies with the actual times, it is undeniable that the current policy at Hutto is to require a wake-up time on the weekends for residents.
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On a much more general level, the fact that use of this facility as a family detention center may not violate the Settlement Agreement does not mean that doing so is good public policy.24 The facility was built as a jail. To make a literary allusion here,
What's in a name? That which we call a rose By any other name would smell as sweet; So Romeo would, were he not Romeo call'd, Retain that dear perfection which he owes Without that title. WILLIAM SHAKESPEARE, ROMEO AND JULIET act 2, sc. 2. While ICE can call Hutto a “juvenile and family residential” facility, that doesn’t change the fact that it is a jail. Or, to make a much less literary analogy, “if it looks like a duck, walks like a duck, and quacks like a duck, it’s probably a duck.”25 The pods at Hutto look, walk, and quack “jail” quite loudly. And while CCA has made many modifications to mitigate the feel of the place, only so much can be done. The layout of the residential pods provides little to no privacy. The common area takes up the bulk of the square footage, and is shared by everyone. The only private spaces are the “rooms,” which are in fact twobunk prison cells. Even these cells are not private, as the staff continually walks through the pods and discourages anyone from closing the door to their rooms, except at night. Unsurprisingly, one of the biggest areas of stress in the pods revolves around various residents getting upset with other residents or with pod staff, largely due to the close proximity and non-private manner in which the residents are forced to live. Although the use of this facility to hold families is not a violation of the
24Although the issue discussed here is not strictly within the terms of the undersigned’s responsibility as monitor, I believe that it directly contributes to the disputes between the parties that led to the underlying suit. Accordingly, I’ve taken the liberty to address it.
25I have no idea who gets credit for this statement, but if one is interested, see the Wikipedia entry at http://en.wikipedia.org/wiki/Duck_test (last visited July 1, 2009).
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Settlement Agreement, it seems fundamentally wrong to house children and their non-criminal parents this way. We can do better.26
11. Commissary In the June 2008 Report, it was reported that some of the female residents desired more of a selection with regard to grooming products. Our most recent inspection revealed that there is now a greater variety of such products. Other than phone cards, which were discussed earlier in this report, the prices at the commissary seem quite reasonable.
12. Recreation In the June 2008 Report, it was stated that monthly birthday parties were not occurring with regularity. Exhibit C requires that “monthly birthday parties for residents occur.” Exhibit C, p. 1, “Recreation.” ICE has remedied this deficiency. Both ICE’s records and resident interviews reveal that monthly birthday parties are now a regular occurrence.
13. Clothing The June 2008 Report revealed that many women were being denied their personal underwear. Upon our most recent inspection, we received no such complaints. Furthermore, Hutto’s current handbook does not seem to preclude women from retaining their personal underwear.
26A very positive counter-balance to the housing arrangement is the nature of the Hutto school. Because it is housed in portable buildings made to be classrooms, it looks and feels like a school, not a jail. Further, the very nature of the school permits the children to escape from the confines of the jail facility and to spend the day with other children. Our interviews of Dr. Bradford and various teachers reflected that they are dedicated to making the school as effective as it can be given the huge challenges they face with a constantly rotating student base. Not to downplay the work that the mental health staff is doing at Hutto, but the school may be the single most important asset Hutto has as far as the children’s mental health is concerned.
20

14. Communication
In the June 2008 Report we noted that many of the deficient items at Hutto were the result
of a lack of awareness or information amongst residents. Our review suggests that residents
generally are more aware of the rules and policies than were the residents during the June 2008
inspection. It appears that the newly implemented orientation system is a positive step. ICE should
continue its efforts to improve communication between staff and residents within the facility. 15. Staff Behavior27
We have not previously discussed staff behavior in prior reports, but we received some
complaints in this inspection which merit discussion. During our inspection, two adults and one
child housed in Pod B reported that the staff within Pod B was verbally abusive. Additionally,
several individuals (regardless of what pod they were in) reported that Deportation Officer Yanoush
was extremely rude and verbally abusive.
With regard to Pod B staff, it was reported that staff members wearing “light blue” shirts
were verbally abusive. For example, a woman reported that she was told by a staff member to “shut
27Admittedly, no provision in Exhibit B or C explicitly states that residents at Hutto should not be verbally abused. Nevertheless, the overall treatment of Hutto residents is relevant to our review in light of the multitude of provisions within Exhibit B and C meant to ensure that residents are treated decently, and fairly. For example, Section VI of the Settlement Agreement states that:
During the term of the Agreement, Defendants will ensure that, in hiring all professional and non-professional staff who will have regular and significant direct contact with children, the contractors and subcontractors involved in management of the facility (“detention services providers”) make reasonable efforts to recruit and give preference in hiring to candidates with prior experience working with children and families, or with an education background in child welfare, child psychology, education or social work.
Settlement Agreement, p. 10, “Management of the Hutto Facility.”
21

up her daughter” when her daughter was crying because the staff member had a headache and did not want to be bothered. On another occasion, a different resident reported that a staff member yelled for her daughter to “shut up” when the woman’s daughter was crying because the girl had a sore in her mouth. On yet another occasion, it was reported that a man asked a staff member (with the last name “Acevedo”) a question in Spanish. Acevedo allegedly told the man that “people in this country should speak English.” Finally, a child reported that some workers are very rude if approached, especially if the approaching resident asks a question in a foreign language. That same child reported that he feels uncomfortable asking pod staff any questions unless the staff member speaks Spanish.
With regard to Deportation Officer Yanoush, numerous residents reported multiple instances of him being rude and verbally abusive. Many adults stated that Yanoush is just mean, and has told many residents that it is not worth consulting attorneys because the residents cases are likely to fail. A child reported that she was scared to go to sleep at night because Yanoush, with no explanation, led her family to believe that they might be deported in the middle of the night. That same girl reported that Yanoush often will not listen to adults or children when approached because, at least in her view, he does not believe the residents’ claims. The two particularly remarkable aspects of these comments were: (1) the sheer number of parties who complained about Yanoush, totally independently of one another; and (2) that the comments were all made more or less spontaneously, and not in response to a specific question. The overlapping, corroborative nature of these comments strongly suggests that this officer has a bad attitude, inappropriate to a facility detaining children and their parents.
22

C. Compliance with ¶ 6 F.O.D. Reviews28 Paragraph 6 of the Settlement Agreement requires that the ICE Field Office Director (“F.O.D.”) shall make reviews of families detained at Hutto every 30 days to assess whether the families can be released or their bonds reduced. See ¶ 6(C) and (D) of Settlement Agreement. Paragraph 6 also requires that a letter be sent to any family that remains detained at Hutto after 60 days, explaining the reasons they have not been released. See id. In the June 2008 Report, it was determined that any family detained at Hutto more than 60 days must receive a letter pursuant to ¶ 6 within 14 days after their 60th day at Hutto. It was further stated that, despite a certain degree of information common to all of the review letters, the letters appeared to be in compliance with ¶ 6 of the Settlement Agreement. Our review found that since the June 2008 Report, ICE has complied with the 74-day mandate. As noted earlier, we received copies of all letters sent to residents pursuant to ¶ 6 of the Agreement, along with a spreadsheet setting out every resident that has been housed at Hutto since June 15, 2008 (indicating for each resident the date he/she arrived at Hutto and the date he/she departed). Since the time of our last review, Mike Pitts has taken over as the new Field Office Director. The undersigned met with F.O.D. Pitts during the inspection, and discussed the content of the letters, as well as the “more than 60-day” review process his office completes on Hutto residents. Pitts stated that he recently instituted a new regimen meant to ensure a more individualized review
28Prior to the most recent review, Plaintiffs counsel criticized the 60-day letters as having once again become “boilerplate,” and the attorneys for the parties exchanged correspondence with each other, and with the undersigned, regarding these issues. Ultimately, the plaintiffs’ counsel agreed to wait until this report was produced to determine if they wished to pursue that issue further. Because of this recent history, on our review we undertook a careful analysis of the letters, and how they are generated.
23

of each resident at Hutto. As of April 17, 2009, Pitts has supplemented the ¶ 6 letters with case review worksheets.29 The case review worksheets allow residents the opportunity to see every piece of information that went into the decision as to whether they should be detained or released. Pitts also stated that a draft letter for any resident not being released is sent to him for approval on the 59th day after that resident’s arrival (if needed). It is Pitts’s view that this new system allows for a very thorough review of each resident. Pitts stated that his aim is to search for a reason to release a detainee, lower their bond, or otherwise reduce their time in detention if possible.
We believe that the process in place since April, as well as the type of letters sent in those cases, complies with the requirements of the Settlement Agreement. If ICE continues to follow this procedure, we believe it will be in compliance with the terms of the Settlement Agreement.
D. Overall Assessment All in all, ICE has demonstrated a good deal of progress since our last inspection. The best change we saw related to the interaction between the social workers and mental health staff and the minors. Shifting the responsibility for the minor’s mental health to the Public Health Services officers is a big improvement, and should remain in place moving forward. The change of the orientation procedure is also a positive change. Notwithstanding these improvements, the fact remains that the facility is poorly suited to its present use. Furthermore, though the instances seemed isolated, the reported incidents of verbal abuse were disconcerting. Finally, complaints about the
29Case review worksheets include TDHRC custody data, entry into U.S. data, apprehension data, asylum claim data, EOIR data, travel document data, educational data (children only), medical data, detention disciplinary data, legal representative/attorney data, request(s) for change in custody status/redetermination, family/community ties in U.S., employment/education/data (adult only), case review history, 60 day reviews, background checks, case summary, reviewing officer recommendation, AFOD/SDDO review, AFOD recommendation, OCC recommendation, DFOD recommendation, and F.O.D. decision.
24

food and communication barriers throughout Hutto have been consistent for some time now. While ICE and CCA staff running the facility appear to very well-intentioned, there is only so much that can be done in the present setting, and present contractual arrangement.
SUBMITTED this 2nd day of July, 2009. _____________________________________ ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE
25

 
 I'
Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 1 of 25

an 7C~ 166SS
APPENDIX IN SUPPORT ~LAINTIFF'S MOTION FOR A
TEMPORARY RESTRAINING ORDER AND PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION,
BOTH FILED MARCH 6, 2007

Exhibit A:

Stipulated Settlement Agreement in Flores v. Meese

Exhibit B:

December 12, 2001 Stipulation & Order in Flores v. Meese

Exhibit C:

Declaration ofVanita Gupta, Esq. with Attachments:

Attachment 1: Women's Commission Report: Locking Up Family Values: The Detention ofImmigrant Families
Attachment 2: February 21, 2007 Letter to United States Attorney Johnny Sutton
Attachment 3: March 1, 2007 Letter to Office of Immigration Litigation, Victor Lawrence

Exhibit D:

Declaration of Gouri Bhat, Esq.

Exhibit E:

Declaration of John Sargent, M.D.

Exhibit F:

Declaration of David R. Blackburn, Ph.D.

Exhibit G:

Declaration of Rasa Bunikiene, on behalf of Saule Bunikyte

Exhibit H:

Declaration of Egle Baubonyte

Exhibit 1:

Declaration of Masomeh Alibegi, on behalf of Kevin Yourdkhani

Exhibit J:

Declaration of Kevin Yourdkhani

Exhibit K:

Dedaration of Sherona Verdieu

Exhibit L:

Declaration of Raouitee Pamela Puran, on behalf of Wesleyann Emptage

Exhibit M:

Declaration of Deka Warsame, on behalf of Mohammed Ibrahim

Exhibit N:

Declaration of Aisha Ibrahim

Exhibit 0:

Declaration of Bahja Ibrahim

Exhibit P:

Declaration of Elsa Carbajal, on behalf of Richard Anderson Tome Carbajal and Angelina Juliet Tome Carbajal

Case 1:07-cv-00166-SS Document 2-2 Filed 03/06/07 Page 7 of 30
EXHIBIT C

Case 1:07-cv-00166-SS Document 2-2 Filed 03/06/07 Page 8 of 30
IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS
DECLARATION OF VANITA GUPTA Vanita Gupta, pursuant to 28 U.S.C. § 1746, makes the following declaration under penalty of perjury: 1. I am an attorney with the Racial Justice Program ofthe American Civil Liberties Union
Foundation, which represents Wesleyann Emptage; Aisha Ibrahim; Bahja Ibrahim; Mohammed Ibrahim; Angelina Juliet Tome Carbajal; Richard Anderson Tome Carbajal; Kevin Yourdkhani; Egle Baubonyte; Saule Bunikyte; and Sherona Verdieu. I make this Declaration in connection with the Complaints and accompanying motions filed on March 6, 2007 by each of the aforementioned individuals. 2. Attached hereto as Attachment 1 is a true and correct copy of a report issued in February 2007 by the Women's Commission for Refugee Women and Children and the Lutheran Immigration and Refugee Service. The report, entitled Locking Up Family Values: The Detention ofImmigrant Families, contains an assessment of the conditions of confinement at the T. Don Hutto Family Residential Center in Taylor, Texas ("Hutto"), and discusses some alternatives to detention that are available to Immigration and Customs Enforcement. 3. Attached hereto as Attachment 2 is a true and correct copy of a February 21, 2007 letter from myself to Johnny Sutton, United States Attorney for the Western District of Texas. The letter, which was sent pursuant to ~ 24(E) of the Stipulated Settlement Agreement in the case of Flores v. Meese, No. 85-4544 (C.D. Cal.) ("Flores Settlement"), sought informal resolution of the matter that is now the subject of litigation before this Court.

Case 1:07-cv-00166-SS Document 2-2 Filed 03/06/07 Page 9 of 30 4. Attached hereto as Attachment 3 is a true and correct copy of a March 1, 2007 letter from
myself to Victor Lawrence, an attorney with the Department of Justice, Office of Immigration Litigation. The letter, which was sent pursuant to ~ 24(E) of the Flores Settlement, sought informal resolution of the matter that is now the subject of litigation before this Court. 5. I have received no substantiye response to the concerns raised in either the February 21, 2007 letter, or the March 1, 2007 letter. I declare under penalty of perjury that the foregoing is true and correct.
EXECUTED on March 6, 2007
2

Case 1:07-cv-00166-SS Document 2-2 Filed 03/06/07 Page 10 of 30
EXHIBIT C:
ATTACHMENT 1

Case 1:07-cv-00166-SS Document 2-2 Filed 03/06/07 Page 11 of 30
LIRS
LU1Ht:f{t\N lMMiGRAliUN A~'O REfUGEE :St:RV1C£
LOCKING UP FAMILY VALUES:
The Detention of Immigrant Families
Women's Commission for Refugee Women and Children Lutheran Immigration and Refugee Service February 2007

Case 1:07-cv-00166-SS Document 2-2 Filed 03/06/07 Page 12 of 30
LIRS
Ll}iHtAAN IA-~M!GMilON
M•u R~FUG£1': sr~vtr;f
Lutheran Immigration and Refugee Service 700 Light Street Baltimore, MD 21230 tel. 410.230.2700 fax. 410.230.2890 lirs@lirs.org www.lirs.org
Women's Commission for Refugee Women and Children 122 East 42nd Street New York, NY 10168-1289 tel. 212.551.3115 fax. 212.551.3180 wcrwc@womenscommission.org www. womenscommission.org
<0 2007 by Women's Commission for Refugee Women and Children All rights reserved.
ISBN: 1-58030-058-8
Mission Statements
Since 1939, Lutheran Immigration and Refugee Service has worked with service, advocacy and educational partners nationwide to bring new hope and new life to America's newcomers. LIRS resettles refugees, protects unaccompanied refugee and migrant children, including victims of trafficking, advocates for fair and just treatment of asylum seekers, seeks alternatives to detention for those who are incarcerated during their immigration proceedings and stands for unity for families fractured by unfair laws. LIRS is a cooperative agency of the Evangelical Lutheran Church ofAmerica, the Lutheran Church Missouri Synod and the Latvian Evangelical Lutheran Church in America. With initiative and stewardship, LIRS seeks creative solutions for uprooted people regardless of race, ethnicity or religious beliefs.
The Women's Commission for Refugee Women and Children works to improve the lives and defend the rights of refugee* women, youth and children. The Women's Commission works in consultation with refugee women, youth and children. Through our advocacy, we ensure that their voices are heard in the halls of power and taken into account in the decision-making process. Our work contributes to long-term solutions, thereby lessening the likelihood of continuing cycles of conflict and displacement. The Women's Commission is legally part of the International Rescue Committee (IRC), a non-profit 50l(c)(3) organization. The Women's Commission receives no direct financial support from the IRC.
* The term refugee here includes refugees, internally displaced persons, returnees and asylum seekers.
Cover photos: Left, play area at Hutto. Right, note slipped to a member of our delegation at Hutto.

Case 1:07-cv-00166-SS Document 2-2 Filed 03/06/07 Page 13 of 30
Table of Contents
Executive Summary ........................................................................................................................ 1
I. Introduction .................................................................................................................................. 4 II. Background ................................................................................................................................. 5
Family Detention: Historical Context ..................................................................................... 5 Standards of Care and Custody ............................................................................................... 6
Family Detention Standards ............................................................................................... 6 Flores Settlement ............................................................................................................... 7 Detention Standards ........................................................................................................... 8 Accountability and Oversight ............................................................................................. 9 III. Family Detention in the International Context ........................................................................ 10 IV. Conditions ofConfinement ..................................................................................................... 11 Facilities ........................................................................................................................... 11 Physical Setting ................................................................................................................ 12 Processing ......................................................................................................................... 14 Accommodations .............................................................................................................. 16 Food Service..................................................................................................................... 19 Medical Care ................................................................................................·.................... 20 Mental Health Care .......................................................................................................... 23 Education .......................................................................................................................... 25 Recreation......................................................................................................................... 26 Discipline ......................................................................................................................... 28 Access to Counsel ............................................................................................................ 31 Telephone Access ............................................................................................................. 34 Visitation and Spiritual Support ....................................................................................... 34 V. Conclusions .............................................................................................................................. 36 VI. Recommendations ................................................................................................................... 45
Appendix A: Methodology ............................................................................................................ 48 Appendix B: Family Detention and International Law ................................................................. 49 Appendix C: Family Detention Practice in the International Context... ........................................ 51
Britain: Detention of Families and Children .................................................................... 51 · Germany: Immigration Detention~ .................................................................................... 52
Australia: Community Detention ..................................................................................... 52 Sweden: A Model for Others? .......................................................................................... 53 Appendix D: Alternatives to Detention ......................................................................................... 54 Executive Summary of the UNHCR Report on Alternatives to Detention of Asylum Seekers and Refugees ...................................................................... 54 ICE Intensive Supervision Appearance Program (ISAP) ...................................................... 56 Legal Orientation Program .................................................................................................... 60 Appendix E: Facility Comparison Chart ....................................................................................... 63 Appendix F: Acknowledgements .................................................................................................. 65

Case 1:07-cv-00166-SS Document 2-2 Filed 03/06/07 Page 14 of 30

Commonly Used Abbreviations

ACA ALDF CBP CIS CCA DHS EOIR ICE IGSA IJ INS LIRS NCCHC NGO OIG ORR PHS

American Correctional Association Adult Local Detention Facilities U.S. Customs and Border Protection U.S. Citizenship and Immigration Service Corrections Corporation of America U.S. Department of Homeland Security Executive Office for Immigration Review U.S. Immigration and Customs Enforcement Intergovernmental Service Agreement Immigration Judge Immigration and Naturalization Service Lutheran Immigration and Refugee Service National Commission on Correctional Health Care Nongovernmental Organization Office of Inspector General Office of Refugee Resettlement Public Health Service

Case 1:07-cv-00166-SS Document 2-2 Filed 03/06/07 Page 15 of 30

Executive Summary

Dominica1 is a Honduran asylum seeker detained with her two children at the T. Don Hutto Residential
Center in Taylor, Texas. Nelly is nine years old and Alice is three. At night they all sleep together in the
bottom bunk of their jail cell because they are afraid. Nelly says, "If you are not good, they will take you away from your mom."2

Dominica is almost seven months pregnant. The doctor has told her for months that her baby is underweight. He has told her she needs to eat more. But she says she can't. ''The food doesn't work here. I cannot eat it." She explains that the food is "difficult to eat" and she doesn't get much time. "There are only a maximum of20 minutes to eat and I have to feed my children first. They do not eat quickly. You are not allowed to take food out of the cafeteria, even if you haven't had time to finish. Something like bread or an apple.. .they take it away. It is so sad to throw something like that away because you could not eat fast enough."

Dominica requested parole over two months ago. Her mother is a legal permanent resident and she has
passed a credible fear interview. She still has not a received a response to her request. She is afraid that she will have her baby in jail. 3

Dominica's story is just one of countless tales from detained immigrant families. A small child's note, slipped into the hand of a member of our delegation, sums up their pleas:

"Help us and ask us questions."

On any given day the U.S. government has the capacity to detain over 600 men, women and children apprehended as family units along the U.S. border and within the interior ofthe country. The detention of families expanded dramatically in 2006 with the opening of the new 512-bed T. Don Hutto Residential Center. Although Hutto has become the centerpiece of a major expansion of immigration detention in America, it builds on and further institutionalizes many of the practices established at the smaller Berks Family Shelter Care Facility in Leesport, Pa., where U.S. Immigration and Customs Enforcement (ICE) has detained a small number of families sfnce 2001.

The recent increase in family detention represents a major shift in the U.S. government's treatment of families in immigration proceedings. Prior to the opening of Hutto, the majority of families were either released together from detention or separated from each other and detained individually. Children were placed in the custody ofthe Office of Refugee Resettlement (ORR) Division for Unaccompanied Children's Services, and parents were detained in adult facilities.
Congress discovered this and took immediate action to rectify

Prior to the opening of Hutto, detained children were separated from their parents and placed in the custody of the ORR Division for Unaccompanied Children's Services.

1 All names and some identifying characteristics of detainees and fonner detainees have been changed throughout this report. 2 Nelly, interview by Michelle Brane, T. Don Hutto Residential Center, December 4, 2006. 3 Dominica, interview by Michelle Brane, T. Don Hutto Residential Center, December 4, 2006.

Locking Up Family Values: The Detention of Immigrant Families

1

Case 1:07-cv-00166-SS Document 2-2 Filed 03/06/07 Page 16 of 30

it, in keeping with America's tradition of promoting family values. It directed ICE to stop separating families and either to place them in alternative programs or to detain them together in nonpenal, homelike settings. Such Congressional directives were intended to preserve and protect the role ofthe family as the fundamental unit in our society. However, ICE chose to develop a penal detention model that is fundamentally anti-family and un-American.
Lutheran Immigration and Refugee Service and the Women's Commission for Refugee Women and Children felt it vital to examine the implications of this expanding penal approach to family detention in order to inform the development of policy and practice that serves the best interests of children and families. To that end we visited both the T. Don Hutto Residential Center and the Berks Family Shelter Care Facility and talked with detained families as well as former detainees. What we found was disturbing:
• Hutto is a former criminal facility that still looks and feels like a prison, complete with razor wire and prison cells.
• Some families with young children have been detained in these facilities for up to two years. • The majority of children detained in these facilities appeared to be under the age of 12. • At night, children as young as six were separated from their parents. • Separation and threats of separation were used as disciplinary tools. • People in detention displayed widespread and obvious psychological trauma. Every woman we
spoke with in a private setting cried. • At Hutto pregnant women received inadequate prenatal care. • Children detained at Hutto received one hour of schooling per day. • Families in Hutto received no more than twenty minutes to go through the cafeteria line and feed
their children and themselves. Children were frequently sick from the food and losing weight. • Families in Hutto received extremely limited indoor and outdoor recreation time and children did
not have any soft toys.
Yet not everything we saw reflected a failure ofthe system. At the Berks facility:
• The educational system was appropriate to children's developmental needs. • Families were permitted to participate in field trips. • Children were able to participate in arts and crafts activities. • Families enjoyed ample outdoor recreation time in an open, grassy area.
But despite these few positives, the system of family detention is overwhelmingly inappropriate for families.
• Both settings strip parents of their role as arbiter and architect of the family unit. • Both facilities place families in settings modeled on the criminal justice system. • There are no licensing requirements for family detention facilities because there is no precedent
for family detention in the United States. • There are no standards for family detention, but both facilities violated various aspects of existing
standards for the treatment of unaccompanied children and adults in immigration proceedings.
Neither facility provides an acceptable model for addressing the reality ofthe presence of families in our immigration system. Although there is precedent in the adult detention system for the use of alternatives to detention and other pre-hearing release systems,4 ICE has unfortunately made no effort to expand these
4 See Appendix 0, "UNHCR Report on Alternatives to Detention of Asylum Seekers and Refugees."

2

Locking Up Family Values: The Detention of Immigrant Families

Case 1:07-cv-00166-SS Document 2-2 Filed 03/06/07 Page 17 of 30
programs to include families. Based upon these findings, we recommend the following systemic changes to the U.S. government's treatment of families in immigration proceedings:
• Discontinue the detention of families in prison-like institutions. • Parole asylum seekers in accordance with international standards and DHS's own policy
guidelines • Expand parole and release options for apprehended families. • Implement alternatives to detention for families not eligible for parole or release. • House families not eligible for parole or release in appropriate, nonpenal, homelike facilities. • Expand public-private partnerships to provide legal information and pro bono legal access for all
detained families, and to implement alternative programs.
For a full list of recommendations, see page 45.

Locking Up Family Values: The Detention of Immigrant Families

3

Case 1:07-cv-00166-SS Document 2-2 Filed 03/06/07 Page 18 of 30
I. Introduction
As of February 2007, the U.S. government has the capacity to detain over 600 men, women and children apprehended as family units along the U.S. border and within the interior of the country. Family detention space dramatically increased in 2006 with the opening of the T. Don Hutto Residential Center in Taylor, Texas. This facility, a key component in the Department of Homeland Security's (DHS) Secure Border Initiative Family Custody Implementation Plan,5 represents a major shift in the U.S. government's treatment of families in immigration proceedings from a policy of releasing6 or separately detaining family members to a policy of family detention.
Consistent with the role of the Women's Commission for Refugee Women and Children and Lutheran Immigration and Refugee Service in advocating for appropriate treatment of immigrant women, children and families, we found it vital to engage in field research and to take an active part in examining this new policy. This report and research builds on our agencies' ongoing work on behalf of children and families in detention. In particular we sought to examine issues of family unity and the provision of legal, medical and psychosocial services to families who are in the custody of DHS.
What follows is our effort to examine the utility and appropriateness of family detention, and to recommend systemic changes that will transform the U.S. government's response to the needs of families in immigration proceedings. We hope that this research will contribute to the development of policy and practice that serves the best interests of children and families and that this report will prove a useful educational resource for policy makers and the public.7

5 U.S. Immigration and Customs Enforcement, letter to Judge John C. Doerfler, April 17, 2006. 6 DHS refers to this practice as "catch and release." 7 For information on metho.dology refer to Appendix A.

4

Locking Up Family Values: The Detention of Immigrant Families

Case 1:07-cv-00166-SS Document 2-2 Filed 03/06/07 Page 19 of 30

II. Background
Family Detention: Historical Context
The U.S. government has historically struggled with how to administratively handle migrating families apprehended both internally and at the borders. As recently as six years ago the family detention landscape looked very different from what it does today. In 2001 the Immigration and Naturalization Service (INS) began to detain some migrant families in the Berks Facility, a former nursing home. Because there were few detention beds available for family units, a single parent and child would occasionally be detained for short periods of time in hotels contracted for that purpose. However, the majority of families apprehended were released pending a hearing before an Immigration Judge (IJ).
In the wake of the attacks of September 11, 2001, Congress passed the Homeland Security Act, splitting the functions of the INS into three separate agencies, and placing all three agencies under the jurisdiction of the newly created DHS. The act also transferred responsibility for the care and custody of unaccompanied alien children from the INS to the Department of Health and Human Services' Office of Refugee Resettlement (ORR) Division of Unaccompanied Children's Services.
Other post-9/11 changes in immigration law have led to broader enforcement and more restrictive immigration policies, including the expansion of expedited removal.8
Past U.S. policy of releasing families apprehended together became problematic in the current climate of increased enforcement. According to DHS assessments, the practice of releasing families encouraged undocumented immigration because prospective migrants would "rent" children to accompany them on the border crossing, thereby ensuring that they would be released on their own recognizance should they be caught.9 DHS sought to address this problem by detaining both the adults and the children with them. Because of a shortage of detention bed space, the agency began placing children in ORR shelters and holding parents in countless immigration detention centers and state and county jails.10 In some cases this action protected children from what might have been dangerous smuggling situations, but in other instances it resulted in the forced separation of parents from their children, which unlawfully rendered the children unaccompanied. 11
Congress discovered the problems and directed DHS to stop separating migrant families. In 2005, the House report accompanying the Department of Homeland Security appropriations bill, 2006, stated:
8 Expedited removal is a policy that requires immigration authorities to detain all individuals who enter the United States tl!rougl! international airports, land ports and seaports if they are without legal documentation, including many asylum seekers who are unable to obtain travel documents prior to tleeing their country of origin. The practice of expedited removal has been expanded to apply also to individuals arrested without proper documentation within I00 miles ofU.S. international borders and within 14 days oftheir entry into the United States. This second expansion was first piloted in the Tucson, Ariz., and Laredo, Texas, border patrol sectors. Many families now in Hutto were arrested in the Laredo area. For more information see U.S. Commission on International Religious Freedom, Report on Asylum Seekers in Expedited Removal, (Washington, D.C., February 8, 2005). See also U.S. Department of Homeland Security, "DHS Expands Expedited Removal Authority Along Southwest Border," news release, September 14,2005, http://www.dlls.gov/dl!s.gov/dhspublic/display?content=4816, and U.S. Department of Homeland Security, "DHS Streamlines Removal Process Along Entire U.S. Border," news release, January 30,2006, http://www.aila.orglcontent/default.aspx?docid= 18404.
9 Department of Homeland Security Immigration and Customs Enforcement, "DHS Closes Loopholes by Expanding Expedited Removal to Cover Illegal Alien Families," news release, May 15,2006, http://www.ice.gov/pilnews/newsreleases/articles/060516dc.htrn.
10 Women's Commission for Refugee Women and Children, Behind Locked Doors: Abuse ofRefUgee Women at the Krome Detention Center, (New York: October 2000).
11 Christopher Nugent, "Whose Children Are These? Towards Ensuring the Best Interests and Empowerment of Unaccompanied Alien Children," The Boston Public Interest Law Journal, Spring 2006. Chad C. Haddal, "Procedural Definition of 'Unaccompanied' for Unauthorized Alien Children," memorandum to House Judiciary Committee, November I, 2006.

Locking Up Family Values: The Detention of Immigrant Families

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The Committee is concerned about reports that children apprehended by DHS, even as young as nursing infants, are being separated from their parents and placed in shelters operated by the Office of Refugee Resettlement (ORR) while their parents are in separate adult facilities. Children who are apprehended by DHS while in the company of their parents are not in fact "unaccompanied;" and if their welfare is not at issue, they should not be placed in ORR custody. The Committee expects DHS to release families or use alternatives to detention such as the Intensive Supervised Appearance Program12 whenever possible. When detention offamily units is necessary, the Committee directs DHS to use appropriate detention space to house them together.13
In response to Congress's directive, and in keeping with its efforts to ensure court appearance and deter migration, the administration began expanding the practice of detaining families together. DHS opened the T. Don Hutto Residential Center in May 2006. The facility was originally intended to house families apprehended while attempting to cross the U.S.-Mexico border, but families apprehended in the interior are also detained there, 14 including some that are apprehended when parents come to collect children who have been released from ORR custody.
The practice of detaining families in jail-like, criminal settings is contrary to the explicit intent of Congress. Congress clearly reaffirmed its intent in the House report ofthe Department of Homeland Security appropriations bill, 2007: "The Committee encourages ICE to work with reputable non-profit organizations to consider allowing family units to participate in the Intensive Supervision Appearance Program, where appropriate, or, if detention is necessary, to house these families together in non-penal, homelike environments until the conclusion oftheir immigration proceedings."15
DHS's use of Hutto greatly expands family detention in a way that contravenes Congress's directives and is inconsistent with the United States' international obligation to protect the rights of the most vulnerable migrants. With the opening of Hutto, DHS has dramatically departed from its own less jail-like model, as embodied by the Berks facility. However while the environment at Berks is closer to a nonpenal, homelike model, it still fails to satisfy Congressional intent.
Standards of Care and Custody
Family Detention Standards
To date no family detention standards have been implemented. Since its inception six years ago family detention has been governed by ad hoc hybrid policies and procedures that DHS derives from a combination ofDHS 's Detention Operations Manual, described below, and Flores v. Reno, 16 a 1993 case that resulted in a settlement stipulating that children in immigration proceedings be placed in the "least restrictive setting."17 The National Juvenile Coordinator reported that his office has drafted standards. ICE has also reached out to the NGO community to discuss the development of standards for family
12 The Intensive Supervised Appearance Program is an alternative to detention program under ICE that is currently in use at nine pilot locations. Aliens are equipped with electronic monitoring devices for the first 30 days, and must comply with curfews and regular appointments with a caseworker. The level of monitoring needed is reevaluated and adjusted accordingly every 30 days.
11 House Committee on Appropriations, Department ofHomeland Security appropriations bill, 2006: report together with additional views (to accompany H.R. 2360), !09th Cong., 1st Session, 2005, H. Rep. 109-79.
14 Robert Bernal, DHS supervisory detention and deportation officer, and Joe Cirulli, deputy director, Berks County Youth Center, interview by Michelle Brane and Emily Butera, Berks County Shelter Care Facility, October 27, 2006; Daniel Coronado, CCA public information officer, interview by Michelle Brane and Emily Butera, T. Don Hutto Residential Center, December 4, 2006; John Pogash, ICE national juvenile coordinator, interview by Emily Butera and Michelle Brane, Washington, D.C., December 20, 2006.
15 House Committee on Appropriations, Department ofHomeland Security appropriations bill, 2007: report together with additional views (to accompany HR. 5441), 109th Cong., 2dSession, 2006, H. Rep. 109-476.
16 Stipulated Settlement Agreement, Flores v. Reno, Case No CV85-4544-RJK (C.D. Cal. 19%), http://web.centerforhumanrights.net: 8080/centerforhumanrights/children/Document2004-06-18. 8124043749.
17 John Pogash, ICE national juvenile coordinator, interview by Emily Butera and Michelle Brane, Washington, D.C., December 20, 2006. We asked each of these parties for copies of the rules governing the different facilities, but never received a copy.

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detention.18 We welcome such a development, and urge DHS to involve child and family welfare experts to help assure that any proposed standards are as appropriate as possible.
Were standards to be developed, key elements should include the following:
• Using the least restrictive setting appropriate with a preference for parole, release or alternatives to detention;
• Utilizing nonpenal, homelike settings in the rare instances when some form of detention is necessary;
• Utilizing assessment procedures for verifying family relationships; • Ensuring that the maximum length of stay not exceed three weeks; • Promoting and supporting parents' ability to function in their roles as parents through adult
mental health, medical and legal services that ensure that emotionally or physically compromised parents can adequately care for children; • Meeting children's basic needs for food, sleep, bathroom access and play on a flexible and childfriendly schedule; • Providing developmentally appropriate autonomous activities for children, including field trips, recreation time, school and other activities that do not require the continuous presence of parents; • Retaining pediatric as well as adult specialists to oversee nutrition, health and mental health services; • Providing children with high levels of psychosocial, developmental and educational stimulation; • Ensuring that parents, not facility staff, have responsibility for child discipline; and • Prohibiting the use of coercive control techniques such as involuntary separation of family members and environmental manipulation (keeping rooms very cold).
Flores Settlement
A class action lawsuit challenging the constitutionality of policies and practices governing the detention ofunaccompanied children resulted in the 1996 Flores v. Reno settlement agreement. 19 This agreement, "intended to protect the rights of unaccompanied illegal juveniles in INS custody as well as to ensure their well~being,"20 was also meant to become the basis for regulations that would codify a range of standards relating to care and confinement in the least secure setting possible, and a preference for release.21
Key Flores requirements include the following:22
• Separation of minors from unrelated adults; • Preference for release of unaccompanied minors to the care of parents, legal guardians, other
relatives, or foster homes or other facilities whenever possible; • Detention of minors in licensed programs that comply with all relevant child welfare laws and
regulations; • Provision of suitable accommodations, food service, clothing and personal care items; • Affirmation of children's right to wear their own clothes;
18 The ICE national juvenile coordinator states that ICE Detention and Deportation has drafted a set of new family detention standards that incorporate all the relevant standards and requirements of the adult Detention Standards and the Flores v. Reno settlement. These standards are awaiting approval by legal counsel. John Pogash, telephone interview by Michelle Brane, Washington, D.C .• January 31,2007.
19 Women's Commission for Refugee Women and Children, Prison Guard or Parent? INS Treatment ofUnaccompanied Refugee Children, (New York: May 2002): p. 9.
zo U.S. Department ofJustice, Unaccompanied Juveniles in INS Custody, Report Number I-2001-009, September 28, 2001, http://www.usdoj.gov/oiglreports!INS/eOI09/exec.htm.
21 Women's Commission, Prison Guard or Parent? pp. 9-10. 22 Flores v. Reno.

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• Provision of routine medical and dental care, family planning services and emergency medical care; administration of prescription medicine and accommodations for dietary restrictions; provision of mental health interventions as appropriate;
• One individual counseling session each week with a trained social worker and group counseling sessions at least twice each week;
• Provision of educational services appropriate to a child's level of development and communications skills;
• Recreation and leisure time including daily outdoor activity and one hour oflarge muscle activity each day;
• Prohibition of corporal punishment, humiliation, mental abuse and punitive interference with such daily functions as eating and sleeping; disciplinary actions may not adversely impact a child's health, physical or psychological well-being or deny a child regular meals, sufficient sleep, exercise, medical care, the right to correspondence or legal assistance;
• Expeditious processing of apprehended minors and timely provision of notice of their rights and the availability of free legal services; and
• Visitation privileges which encourage visitors and respect the child's privacy.
It is important to note that the Flores standards have not yet been codified into regulations. In addition, not only are provisions of the Flores settlement being violated in both family detention facilities, the preference for family reunification contained in the Flores settlement is being manipulated by DHS. When children are released from ORR custody, ORR notifies DHS of the child's release. In turn, DHS uses this information to apprehend and redetain children, this time with their parents.
Detention Standards
In its Detention Operations Manual, also known simply as the Detention Standards, DHS lays out 36 standards for ICE and ICE-contracted facilities. Standards cover visitation procedures, grievance policies, medical care, discipline, access to counsel, telephone access and food service, among other topics. In response to nongovernmental organization complaints about the detention of noncriminals in prisons, U.S. immigration authorities developed these standards to establish minimum requirements for care and custody and to afford detainees certain rights and protections. However, while these standards should obligate DHS to provide appropriate conditions of confinement, they are neither statutory nor incorporated into regulation,23 creating a situation in which accountability is problematic and violations remain widespread.24
Aside from four standards related to legal access, the standards are largely derived from American Correctional Association standards, which are intended to regulate the custody of criminal inmates. Therefore, the standards reinforce the current culture of immigration detention in which harsh prison management practices are imposed on a noncriminal population.
Key Detention Standards requirements for adults in detention include the following: 25

23 Women's Commission, Behind Locked Doors, p. 3. 24 A report by the DHS Office ofthe Inspector General released in December 2006, found inappropriate conditions of confinement in all five
adult facilities visited, including a failure to provide timely and responsive medical care and a safe and appropriate environment. Although the inspector general did not visit Hutto, the report is instructive as an illustration of common systemic problems that also occur in family detention. Department of Homeland Security Office ofthe Inspector General, Treatment ofImmigration Detainees Housed at Immigration and Customs Enforcement Facilities, Report No. OIG..Q7-0 I, December 2006. p. 1·2. 25 U.S. Immigration and Customs Enforcement, Detention Operations Manual
http://www.ice.gov/partners/dro/opsmanuaVindex.htm.

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. : ~ ·:.,: .',., .··~

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• Access to healthcare, including initial medical and dental screening, primary medical and emergency medical and dental care, and regular sick call; arrangements, as needed, for specialized health care, mental health care and hospitalization; translation assistance to facilitate medical assistance where needed
• Access to outdoor recreation or a large recreation space with exercise equipment and access to sunlight for at least one hour daily, five days a week; in Contract Detention Facilities, access to outdoor recreation seven days per week
• Written notification of disciplinary practices, prohibited acts and sanctions; written notification of protections against personal abuse, corporal punishment, excessive use of force, retaliatory disciplinary actions and deprivation of food, clothing, bedding, hygiene products, exercise, access to visitation, telephone access, correspondence, or access to the law library
• Formal grievance procedures for detainees that guarantee protection from reprisals • Right to visitation, including private visitation with legal representatives • Access to telephones during waking hours, including privacy for legal calls, one working phone
for every 25 detainees and access to phone calls • Opportunity to participate in religious practice and access to personal religious property including
prayer beads, rosaries, prayer rugs and other items appropriate to religious practice; accommodations for dietary restrictions as required by religious practices
Accountability and Oversight
In addition to a lack of enforceable standards, procedures for assessing applicability of correctional standards and inspecting family detention centers give ICE tremendous independence in dictating how detained families are treated. The draft Inter-Governmental Service Agreemenr6 under which Williamson County, Texas, is contracted to operate the Hutto facility states:
The Provider is required, in units housing ICE detainees, to perform in accordance with the most current editions of the Reviewers Guide which contains Standards of Performance, ICE Detention Standards to the extent applicable in a family detention facility and as reflected in Provider's policies and procedures, American Correctional Association (ACA) Standards for Adult Local Detention Facilities (ALDF) and Standards Supplement, Standards for Health Services in Jails, latest edition, National Commission on Correctional Health Car.e (NCCHC). Some ACA standards are augmented by ICE policy and/procedure. In cases where other standards conflict with DHS/ICE Policy or Standards, DHS/ICE Policy or Standards prevail.27
Such phrases as ''to the extent applicable in a family detention facility," coupled with the lack of written standards for family facilities, underscore the lack of clear and adequate standards and accountability. In addition, under current ICE policy ICE employees conduct inspections ofiCE facilities. Such an inspection policy means that no independent, impartial oversight authority inspects family detention facilities for compliance with either ACA/NCCHC or ICE standards. Perhaps even more disconcerting, all inspectors responsible for conducting inspections of family detention facilities are trained in investigation techniques by the ICE national juvenile coordinator, the same staff person responsible for devising and administering family detention.28

26 We were able to obtain only a draft copy of this agreement. 27 "Inter-Governmental Service Agreement between the United States Department of Homeland Security U.S., Immigration and Customs
Enforcement, Washington, DC, and Williamson County, Texas," Modification 0001, ICE/WC IGSAMODI~l. Marked "Unofficial Document." 28 John Pogash, ICE national juvenile coordinator, interview by Emily Butera and Michelle Brane. Washington, D.C., December 20, 2006.

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The recent DHS Office ofthe Inspector General report9 raises concerns about the effectiveness ofboth oversight ·policy and existing standards in ensuring safe and humane conditions of confinement. Yet they remain the only relevant standards available for holding facilities accountable for the safety of detained families. While this indicates a fundamental flaw in the appropriateness of detention across the board, the absence of family-specific guidelines for care and custody provides further evidence that the entire system of family detention is without precedent and inappropriate.
Ill. Family Detention in the International Context
Many international conventions, including the Universal Declaration ofHuman Rights, the International Covenant on Civil and Political Rights, and the Convention on the Rights ofthe Child apply to children and families in detention. In particular, such conventions elevate the role of the family as the fundamental unit in society and restrict the use of detention for asylum seekers, particularly children.
Unfortunately, the United States is not alone among peer nations in the detention of families. The United Kingdom and Germany, for example, detain families under conditions quite similar to those in the United States, despite European guidelines that prescribe consideration for family unity as a central element of immigration policy. However, nations such as Australia and Sweden offer alternative approaches that might serve as models for improved detention practice in the United States.
For more information about applicable international law and family detention practices in other countries refer to Appendix B.30

29 DHS OIG, Treatment ofImmigration Detainees, p. 1-2. 30 See Appendix Bon page 49.

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IV. Conditions of Confinement
Facilities
T. Don Hutto Residential Center
The T. Don Hutto Residential Center (Hutto), a 512-bed facility located about 30 miles outside Austin in Williamson County, Texas, is operated by the Corrections Corporation of America (CCA) under a contract with the county. DHS has contracted with Williamson County to pay a rate of $2,801,643 as a fixed monthly payment for up to 512 detainees and an additional $79 per day for each detainee over 512. This is equivalent to approximately $180 a day per individual detained.31 Hutto opened as a family facility in May 2006. Prior to its use for family detention, the facility held people with pending criminal trials, adults in immigration detention and criminal inmates for the U.S. Marshals Service, DHS and the state of Texas, respectively.
On the day of our visit, there were 377 detainees in Hutto, however DHS staff noted that this number had recently dropped from approximately 400. Although the majority of the families are nationals of Central or South American countries, a review of the total population statistics indicated that there were also detainees from Djibouti, Ethiopia, Greece, Haiti, Indonesia, Iraq, Jordari, Kuwait, Romania and Somalia. Many of these families had been apprehended along the U.S.-Mexico border and are in expedited removal proceedings, however there were also families who were apprehended in the interior as well as many asylum seekers.32
Berks County Shelter Care Facility
The Berks County Shelter Care Facility (Berks), an 84-bed facility located about an hour outside Philadelphia in Leesport, Pa., began holding migrant families in March 2001. This site is part of the larger Berks County Youth Center complex that includes a juvenile facility housing U.S. citizens charged with or convicted of crimes, juveniles detained with the U.S. Marshals Service, and some detained juveniles whom DHS has deemed to be "other than unaccompanied."33 Until 2002 the complex also included a shelter that housed minors in INS custody. It is owned and operated by Berks County under a contract fromDHS.
Berks is a sprawling, dormlike facility located in rural Pennsylvania. Berks County receives $194 per
person perday from DHS for the first 60 detainees, and a fixed rate of $5.20 per person per day beyond
that. In addition, DHS pays for all medical and educational costs. On the day of our visit there were · twenty-some families in residence.34 The majority of the detained families were from Central America. The largest number of detainees in 2006 were nationals of Guatemala, but the facility also housed detainees from China, Colombia, El Salvador, Guyana, Iraq and Pakistan at the time we visited. Many of those detained were apprehended trying to cross the U.S.-Mexico border and are in expedited removal proceedings. However there are also families who were apprehended in the interior.

31 Inter-Governmental Service Agreement between ICE, and Williamson County. 32 We requested information regarding the percentage of families in expedited removal versus other proceedings, but did not receive it. 33 John Pogash, ICE national juvenile coordinator, interview by Emily Butera and Michelle Brane, Washington, D.C, December 20, 2006. 34 Just under 84 individuals.

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DHS detained Luz, a woman from Ecuador, with her 15-year-old son. "/ have been living in the United States for more than four years. I have a U.S. citizen daughter who is now almost two years old. I sent for my son who is 15. He came across the border from Mexico, but he was
detained. I received a call to come and pick him up, so /left my daughter with my friend who
lived next door, and took a bus to Arizona to get him. I picked up my son and we went straight to the bus. At the bus station, I was approached by some officers and they detained both of us. I have been here for nine months without seeing my baby girl. She was only one year old when I left her with my friend. I don't know what is happening with her. '135
Physical Setting
The Hutto facility is a former prison. It is surrounded on three sides by fencing and several layers of concertina wire, although this wire has been removed from around the entrance and the front gate remains open. Regardless, facility security vehicles circle the building on a constant basis, and there is no buffer between the facility's recreation areas and the perimeter wire. An ICE enforcement agent who accompanied the tour indicated that the agency would like to remove the remaining concertina wire, but noted that the cost of such refurbishment is prohibitive?6

Left, the entrance of the T. Don Hutto Residential Center in Williamson County, Texas. Right, several layers of concertina wire and fencing surround the former prison.
Hutto's interior layout features a system in which 11 pods, or living units, each with two levels of cells, open into a common area.
In addition, the facility has a cafeteria, gymnasium, law library, general library, medical wing, visitation area and processing area, as well as several classrooms and overflow education trailers. The hallways are long, wide and windowless, and walls are painted an institutional green. Some colorful murals have been painted in the cafeteria and in the pods, and pod common areas have been carpeted. Other modifications include padding the edges of bunks, modifying stair railings and installing bedrails.
Each hallway is separated from the next by wrought iron gates. The hallway gates were open during our visit, and individual cell doors were unlocked; however, all doors in and out of the pods and control
35 Luz, interview by Michelle Brane, Berks Family Shelter Care Facility, October 27, 2006. 36 Stacy Guerin, ICE San Antonio Field Office, interview by Michelle Brane and Emily Butera, T. Don Hutto Residential Facility, December 4,
2006.

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rooms were locked. Guards are stationed around the pod exit doors. Doors and gates are opened and closed by computers in a central control room, and do not have sensors that halt movement if a person or object is in the way. This feature poses a safety hazard for families in detention, particularly for small children. One member of our delegation was almost caught in one of these doors when she fell behind the group. Doors to the outdoor recreation area and overflow educational spaces are not locked; however, these outdoor spaces are surrounded by concertina wire. Any doors leading outside the perimeter fencing are locked at all times or secured by a guard.
From the central control room, facility staff members monitor and record all activity within the detention center using over 100 newly installed pan/tilt/zoom cameras. Cameras record 24 hours a day. Control room staff demonstrated their ability to zoom close enough to be able to read what a detained person is writing on a piece of paper. All videotapes are archived and can be recalled to investigate incidents.37

Because it is situated in a former nursing home, the 84-bed Berks facility has a more residential atmosphere than Hutto. Hallways still have an institutional appearance, but because they are ringed by offices and common spaces with external windows, the building receives some natural light. The hallways contain murals and artwork made by children detained in the facility, and families moving through the facility interact with staff members.

Although exterior doors are equipped with alarms, they are not locked from the inside. A sign instructs visitors to pass through a metal detector at the front entrance. A chain link fence surrounds a small outdoor area, but the Berks facility does not have any concertina wire or other perimeter fencing. All interior doors are unlocked and open, and when asked whether doors leading to the outside were kept locked, the ICE detention and deportation officer. expressed surprise and asked why locked. doors would be necessary in a facility that houses women and children.

The interior consists oftwo housing wings, each of

Top, the exterior of the Berks facility, a former nursing home. Above, a mural adorns a hallway
in the facility.

which has common recreational space, in addition to a cafeteria that doubles as a multi-purpose room, a gymnasium, art room, classrooms, counseling rooms, courtroom, visitation spaces and medical

clinic. Each wing has a control room, but unlike at Hutto, this is simply an office space with video

monitors used by on-duty staff assigned to each wing.

37 According to Daniel Coronado, public information officer, T. Don Hutto Residential Center, tapes have only been recalled to address complaints on the part of staff. He did not expand on what would constitute an incident warranting review.

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Processing
Accounts of the time between apprehension and arrival at family detention facilities vary. Some families are separated for lengthy periods before being reunited, particularly at Hutto. Some separations are attributable to provisions ofthe Orantes injunction, which bars ICE from transferring Salvadoran nationals outside ofthe Customs and Border Protection (CBP) district in which they were apprehended for seven days. Because both Hutto and Berks are outside ofthis radius, Salvadoran families are separated at the border during this "waiting period." Children are either temporarily held at an ORR facility within the radius, held at juvenile facilities contracted by ICE or held at the border. Their parents are sent to adult facilities within this radius until they are reunited.38

At Hutto, each detainee is issued three sets of clothing-scrubs, underwear, socks and sweatshirtsand two pairs of shoes. They sleep in the same clothing.

Families arrive at the facility and are brought into the processing area through a sally port. They are placed in cells where they can use the restroom and receive food and water. After they have had some time to rest they go through an intake interview with ICE staff. Each individual is fingerprinted and photographed and checked against the Automated Biometric Identification System (IDENT)39 database for any pre-existing information. To verify identity and increase the likelihood that child victims of . trafficking and smuggling can be identified, even the youngest of children are identified and entered into the system individually. Verification offamily relationships generally occurs at the point of apprehension; however, ICE occasionally discovers children who are not in the company of their biological parents, and transfers them to ORR.
After being processed by ICE, detained families are processed by the Corrections Corporation ofAmerica (CCA). They turn over any personal effects and are issued clothing and toiletries. Each detainee receives three sets of clothing, including scrubs, underwear, socks and sweatshirts, and two pairs of soft-bottom shoes. In addition, each receives a blanket, sheets, a towel, a washcloth, soap, a toothbrush, a comb, toilet paper, toothpaste, deodorant and shampoo. Families with infants also receive diapers, bottles, sippy cups, a receiving blanket, a baby fork and spoon, baby hygiene products and a diaper bag. One former detainee, Rebecca, a Honduran woman detained with her three children, complained that people are not issued
38 American Bar Association, letter to Walter LeRoy, acting chief, Detention Standards Compliance Unit, Office of Detention and Removal Operations, U.S. ICE, Re: Separation ofDetained Salvadoran Families in South Texas, October 6. 2006.
39 John Pogash, ICE national juvenile coordinator, interview by Emily Butera and Michelle Brane, Washington, D.C., December 20,2006.

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enough clothing to accommodate the laundry schedule. Consequently, one day per week they are forced to wear dirty clothing, which is also the same clothing that they sleep in.40
Families who have been processed and integrated into the larger facility population are able to place requests with the commissary for additional hygiene items and snacks, provided that they have money in their account.
In addition to receiving personal items, all detainees who arrive at Hutto shower before leaving the processing area. Showers are located inside the processing area, so that while some new arrivals are showering, ICE and CCA staff members are processing other people. The shower areas are divided from the room and people in it by a wall along three sides and a curtain covering the entrance. There are two shower stalls, which include a dressing area inside the curtained partition, a baby bathtub and a changing table. Detained families interviewed by the University ofTexas Immigration Law Clinic complained that the Hutto facility did not have hot water.41
After arrivals complete processing, they are transferred to the medical wing for a full medical assessment before being released into the general population. The Public Health Service (PHS) Division of Immigration Health Services officer told the delegation that pregnant women are given a lead screen to cover their abdomen for the X-ray taken for TB screening. Carmen, a pregnant women we spoke with who was detained at Hutto for three months, told us that she was X-rayed with no lead screen, even after she told the radiologist that she was five months pregnant.42
Within a few days of their arrival at Hutto, families also receive an orientation about the facility's rules and procedures and watch a "Know Your Rights" video.43

As families arrive at the Berks facility they are taken to a joint DHS and Berks County processing room. Both children and adults are fingerprinted and entered into the IDENT database. Family relationships are verified at the point of apprehension; however, DHS officers cross-check identity and relationships when they enter information into the database.44 Detained individuals confirmed that they received a listing of attorneys at the time of this initial processing.
Unlike at Hutto, people detained at Berks are permitted to wear the clothing they had with them when they were apprehended, with the exception of shoes. Children seven and under receive soft-:bottom sneake~, and children older than seven and adults are issued flip,.,flops. Those who did not have sufficient clothing with them when they arrived at Berks are issued clothing provided by the county. They can also purchase clothing during "field trips" to locations including Wal-Mart. During our visit we observed families sorting through and choosing from donated clothing on a rolling cart.
Families do their own laundry, using washers and dryers located in the bathroom areas. Gina, a Guyanan woman detained with her daughter, complained that the dryers frequently break and remain unrepaired for
40 Rebecca, interview by Emily Butera, Austin, Texas, December 4, 2006. 41 CCA staff explained that there were initially problems with the water being so hot that children were getting scalded, so the facility installed
regulators to prevent water temperature from exceeding 98 degrees. The officer in charge stated that she did not know whether or not there was hot water throughout the facility, but that she would check into the complaint. 42 Carmen, interview by Michelle Brane and Emily Butera, Brownsville, Texas, December 6, 2006. Two other pregnant women also recounted having been x-rayed without a protective screen (Dominica, interview by Brane, T. Don Hutto Residential Center, February I, 2007; Noreen, interview by Brane, T. Don Hutto Residential Center, February I, 2007). 43 The "Know your Rights" video, produced by the Florence Immigrant Rights Project, Florence Arizona, provides a brief introduction to various forms of relief available to individuals in immigration proceedings. 44 Robert Bernal, DHS supervisory detention and deportation officer, interview by Michelle Brane and Emily Butera, Berks County Shelter Care Facility, October 27,2006.

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weeks at a time. She also noted that there are not enough washers and dryers for the size of the population, and not enough times during the day when laundry could be done, making it difficult to wash clothing on a regular basis.45
Accommodations
Family members are housed in old inmate cells located within housing pods. Within each pod there are approximately 20-30 cells on two levels with a communal area and showers in the center. Each cell has a single twin bed or a twin bunk bed, a pair of high-tension hooks to hang towels, a porcelain or stainless steel sink and toilet, and storage bins under the bed for storing extra clothing. The walls and floor are bare except for an unbreakable acrylic mirror. There were no personal items or toys visible. There is no divider separating the sleeping area from the toilet area, so families are not afforded any privacy when using the toilet. Cell doors must remain open except during count and after "lights out." Residents who need to use the toilet at other times can enter their cell and close the door.
Outside of sleeping hours, one hour of education, one hour of recreation time and 20 minutes for each meal, families are confined to the common area of their pod.46 Men, women and children are commingled. Each common area has plastic couches, two televisions and some video games. There is also a refrigerator used for the evening snacks of milk and an apple that children bring back from dinner.47 We observed groups of individuals playing cards, but no other toys were available. Individuals are able to use the phones located in the pods during this "free time."
During morning and evening free time, adults and children, respectively, are given five minutes to shower. The shower area is located within the common space, but has been covered from above as a modification for families. A curtain separates the shower area from the main room. Inside the shower area are three showerheads extending from the wall, divided by waist-high privacy barriers. The dressing area consists of a long bench with no privacy barriers. Within the shower area there is a baby bathtub.

Left, the communal area of a pod. Each pod contains 20 to 30 cells on two levels. Right, a cell with a
single twin bed. There is no divider between the sleeping area and the toilet area in the cell, so families are not afforded any privacy when using the toilet.
45 Gina, interview by Emily Butera, Berks Family Shelter Care Facility, October 27, 2006. 46 Approximately 13 hours a day, which includes time spent in cell during count. 47 Daniel Coronado, public information officer, T. Don Hutto Residential Center, comments during tour of center, December 4, 2006.

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Before each meal and several times during the night, facility staff conduct counts ofthe detainee population. During these counts, people are confined to their cells and cell doors are closed. These counts can take up to one hour.
Because each cell has only one twin bed or bunk bed, and possibly a crib, family units are not necessarily housed in the same cell. Stafftry to assign parents with young children to the first floor. If a parent has more than one child, some children may be assigned to a different cell. If a father is detained along with an older daughter, they will be assigned to different cells.48 Efforts are made to house family units in adjacent cells; however, the fluctuating population does not always allow this, and at times children are held on the second floor ofthe pod.49 Infants sleep in cribs that can be brought into the cells at night. When we visited, there were no cribs in the cells, but there were several in the common area.
Some parents decide to keep all oftheir children with them, in which case multiple family members may share one twin bed. Dominica is a pregnant asylum seeker detained at Hutto with her two daughters, ages 3 and 9. She told us that all three of them sleep together on the bottom bunk oftheir cell because they are
afraid. 5°
At night cell doors are closed, but not locked. Instead CCA has installed laser sensors that are tripped when a cell door opens more than four inches. Consequently, if children wake up in the night and want their parents, they set off an alarm. CCA staff, who monitor the residents all night, respond to such disturbances. Rebecca complained that her son suffered from anxiety and woke frequently during the night. She explained that she asked facility staff ifthey could share a room, and that when her request was rejected, "they told me that my son was experiencing anxiety because I am a bad parent, and that they would not contribute to this by housing my son with me."51
All adults are assigned daily chores from a rotating list, and complete their chores during either a morning or afternoon rotation. As such, they are responsible for cleaning and upkeep of the pods and their cells, including bathroom areas.

The layout ofBerks also requires that members ofthe same family are sometimes placed in separate

rooms; however, the housing areas have a more dormlike feel compared to the cells at Hutto. Berks

families are housed in one of two residential wings, which consist of multiple dorm style rooms, common

areas and men's and women's bathrooms. Families are housed in the same wing, but do not necessarily

share a room. Instead, the population is divided into three groups: parents with children under six,

juveniles and adults.

·

A parent with children under six typically shares a room with his or her young children and parents ofthe same sex who also have children under six. Children six and older are housed in same-sex juvenile rooms. Adults who have only older children share same-sex rooms with other such adults. For example, a family consisting of a mother, father, 4-year-old girl and 7-year-old boy would be divided as follows: the mother and 5-year-old girl would be in one room, possibly together with other women and their young children; the 7-year-old boy would be in a room with other children over five; and the father would be in a room with other adult men. Whenever possible, children over five share a room with their same-sex siblings. In other cases, facility staff try to arrange the room assignments so that parents and children are close together. Outside each door is a list with the names of the individuals assigned there.

48 Ibid. 49 Ibid. 50 Dominica, interview by Brane, T. Don Hutto Residential Center, Febi'Ulll)' I, 2007. 51 Rebecca, interview by Emily Butera, Austin, Texas, December 4, 2006.

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Rooms range from just a few beds to rooms with seven or eight beds. Some rooms have bunk beds and others have standard beds, but all are twin size. Each room also has multiple armoires for clothing storage, and families are allowed to keep personal effects such as books and toys in their rooms.

It was difficult to ascertain the degree to which parents have access to their children at night. According to former detainee Sophia, a Colombian asylum seeker who was detained at Berks with her three young daughters, if children wake up in the middle of the night, they are able to get to their parents, and the night staff help them do so. 52 However, some currently in detention said that their children cry at night and they are not allowed to go to them. The Berks facility deputy director told us that the night staff
would intervene to see what the children needed and to help ensure that they did not disturb others.

Each housing wing has common space with televisions and couches. The wing we toured had three such rooms, two ofwhich had televisions in them. Families spend time in these common areas when they are not in school or involved in other activities,53 and although the Berks deputy director told us that once
families leave their rooms for the day they are not allowed back in until "lights out," we observed school
books on children's beds during the morning break, which suggests that they are at least allowed into their
rooms to drop off and pick up items.

The bathroom facilities provide more privacy than at Hutto, but the layout and procedures are still quite institutional. Parents and children have to share space, and detainees have to shower and dress in front of many other people. Each housing wing has bathrooms divided by sex. The bathrooms consist of several toilets, three showers, a dressing area, a row of sinks and washers and dryers. Showers are only permitted at night. The showers are in individual stalls, but they appeared very run~down and were located at the top of a small set of stairs. Parents complained that the water temperature was too hot and scalded the children. Consequently, when we were there many had taken to using their personal hygiene containers (in which they store their toiletries) to give children sponge baths in the sink. We raised this issue with the detention and deportation officer and the deputy director, and on our second visit detainees told us that the' problem had been resolved. In addition, the toilet areas had privacy curtains instead of doors, and the dressing area was not separated from the rest of the room by a privacy barrier.

All adults in detention are assigned daily chores from a rotating list, and complete their chores during either a morning or afternoon rotation. As such, detainees are responsible for cleaning and upkeep ofthe bathroom areas.

Gina complained about the toilet area, stating that in her housing wing two toilets had been broken for

several weeks, and one ofthe two sinks in the ladies bathroom was also broken. She also noted that when

maintenance fixed the broken toilets they failed to replace the curtains that serve as stall doors. As a

result,

women

in

her

housing

area

were

not

using

these

toilets.

4 5

Because

of

broken

facilities

and

limited

hours for bathroom usage, she told us that there were not enough toilets and sinks, and some people were

not afforded a turn. Another detainee, Hasan, a Pakistani man detained with his brother, complained that

he was not permitted to comply with his religious obligations. In particular, he noted that women are

allowed to shave their legs and armpits and men are permitted to shave their faces, but no other body

parts,

although

such

practices

are

prescribed

by

his

religion.

5 5

52 Sophia, interview by Michelle Brane and Emily Butera, Reading, Pa., January 16, 2007. 53 Approximately 8 hours a day, or less if additional recreation time is given or a coordinated or organized activity is scheduled. 54 Gina, interview by Emily Butera, Berks Family Shelter Care Facility, October 27, 2006. 55 Hasan, interview by Emily Butera, Berks Family Shelter Care Facility, October 27, 2006.

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Food Service

Families detained at Hutto eat breakfast, lunch and dinner in the cafeteria, and children carry an apple and milk back to their pods after dinner for an evening snack. No other food may be taken out of the cafeteria. The menu repeats every week. Families are cycled through the cafeteria by pod. To get their food, detainees proceed through a line, and cafeteria workers pass them trays of food through a long narrow slot. This slot was widened from the slide-through prison model as an accommodation for family detention, but it is not wide enough to permit those detained to easily see who is distributing food or to observe the kitchen area. Detained individuals are not permitted to select their food. 56

There were bins containing baby food and high chairs available for use. A menu was posted alongside the food service area. The CCA public information officer told us that each detainee received 3,500 calories per day. He added that pregnant women and children receive extra calories as needed. However, several pregnant women we spoke with told us that they did not receive any special diets even after making requests. 57 Detained individuals wear wristbands that list their allergies or any special dietary needs.

Each

pod

is

given

20-25

minutes

to

eat.

8 5

However

many

of

the

detained

individuals

we

spoke

with

told

us that they have only 5-15 minutes, and that sometimes staff members yell at them to get up and leave

before they have finished eating or feeding their children. This discrepancy was explained as the result of

detainees' placement in line. The clock starts running when the first families arrive in the cafeteria. Those

in the middle or end of the line have only 10-15 minutes by the time they get their food. Families eat

together, and stafffacilitators are available in the cafeteria. When asked about the role these facilitators

play at meal times, the public information officer told us that they help the parents with small children get

their trays and set up high chairs. The tables are bolted to the floor and can accommodate four adults.

The menu was heavily based on American food, including such items as hamburgers and cereal. All of the families we interviewed complained about the food, and most said that their children were often
unable to eat it, frequently had upset stomachs, and were losing weight. Lily was five months old when
she entered the Hutto facility and weighed 18 pounds. According to her mother, three months later she weighed 14 pounds.59 In addition, detainees expressed frustration that they were not given enough time to
feed themselves and their children. It is difficult to ascertain whether the food is making children sick because it is unsafe, because it is not culturally appropriate, or because of stress or depression. However, it bears noting that a CCA staff member pulled one member of our delegation aside and in confidence urged her to take a close look into the food situation because it is poor and children are hungry. The staff
member also noted that when the children are hungry in the evenings, staff can give them milk, but no food.

A recent report of the Office of the Inspector General for Homeland Security on ICE's lack of compliance
with the Detention Standards at five adult facilities found instances of undercooked food, dirty food trays and improper food temperature at two ofthe five facilities they investigated.60 Given the wider context of
ICE noncompliance with standards, as found in the Office ofthe Inspector General report, complaints from those in detention and staff at Hutto raise deep concerns regarding food at this facility.

56 Lisa Berkman, County Commissioner, Williamson County, Texas, telephone interview by Michelle Brane, January 23, 2007. Commissioner
Lisa Berkman toured the facility shortly after we were given access. She states that since that visit she has been working with CCA to make
some improvements to the food, including offering a choice of entree and vegetable. 57 Cannen, interview by Michelle Brane and Emily Butera, Brownsville, Texas, December 6, 2006; Dominica, interview by her attorneys at the
T. Don Hutto Residential Center, January 2007. ' 58 Daniel Coronado, public information officer, comments during Hutto tour, December 4, 2006. 59 Cannen (mother of Lily), affidavit obtained by the University ofTexas Law School, October 23, 2006. 60 DHS OIG, Treatment ofImmigration Detainees, p. 10.

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Since our visit in December 2006, attempts have reportedly been made to address complaints with the food. A Williamson County Commissioner was told that those in detention are now receiving a choice of entree and vegetable instead of having no choices at all.61 A questionnaire was distributed to those in detention asking them what kinds of food they would like to be served. Detained individuals confirm receiving and completing the questionnaire, but also say that there have been no menu changes so far.
In general, those detained in Berks did not have the volume of complaints about food service and quality that people detained in Hutto had, although some remarked that there was a shortage of culturally appropriate food and options for vegetarians. Gina noted that the food is only tolerable, but that detainees have no choice so they take what they get.62 Detainees take all three daily meals in a cafeteria~style setting, where they go through a line and salad bar and select their food. According to the Berks deputy director, detained individuals have 45 minutes for each meal and because of the small size of the facility, all housing wings can be accommodated simultaneously. Since we did not receive a tour of the food service area and were not in the facility during mealtimes, we were not able to observe the quality of food or the menu. The detention and deportation officer and the deputy director said that there is always a vegetarian option. We did not receive any feedback from the facility or DHS on the availability of kosher or halal food.
Medical Care
As of August 1, 2006, health care has been provided by the Public Health Service (PHS) Division of Immigration Health Services,63 a service that provides health care for ICE detainees. We received conflicting information about the composition of the medical staff and are therefore unable to say with certainty the degree to which the facility has full-time staffing. The CCA public information officer told us that there are PHS nurses, one nurse practitioner and one dentist on site Monday through Friday. In addition, he told us, the facility has a contract with one pediatrician and one doctor, who come to Hutto once a week and on emergency calls. In contrast the PHS representative in charge of the medical clinic told us that there is only one contracted doctor-a family practitioner. The PHS representative also told us that there will ultimately be a pharmacist on staff and in the meantime the facility handles prescriptions though a mail service and an emergency contract with a local pharmacy. In addition to examination room~, the facility has a negative pressure room for the treatment of suspected tuberculosis cases.
In addition to medical screening upon entry, the public information officer informed us that families in detention receive ongoing medical care as needed. In particular he informed us that they provide pregnant women with gynecological services. However, women we spoke with said they did not receive adequate prenatal care.64

61 Lisa Berkman, County Commissioner, Williamson County, Pa., telephone interview by Michelle Brane, January 23, 1007. 61 Gina, interview by Emily Butera, Berks Family Shelter Care Facility, October 27, 2006. 63 Refer to http://www.inshealth.org/Provider/CustodialFacilityResponsibilities.htm. 64 Carmen, interview by Michelle Brane and Emily Butera, Brownsville, Texas, December 6, 2006; Carmen, affidavit; Noreen, telephone
interview by Michelle Brane, February I, 2007; Dominica, interview by Brane, T. Don Hutto Residential Center, February I, 2007.

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Carmen told us that she did not receive adequate prenatal care. Her pregnancy was confirmed on August 18, 2006. No further exam or treatment was given. On September 23 she fainted and was taken to the hospital. She was told that she had a kidney infection and that she should drink lots of water. She was not given any antibiotics. Carmen received her first prenatal exam on October 20, 2006. On this occasion she and several other pregnant women were transported by van to a clinic together. At this time she estimated that she was seven months pregnant, but no medical estimate was given to her. She reported that she was not given any vitamins or special diet during this time, and that no milk was available. "It is only available to the children," she said. 65
Since our visit, and in response to complaints regarding prenatal care, Hutto has made a contractual agreement with a local clinic. Pregnant women are now taken to the clinic for regular prenatal screenings and care.66 Despite this improvement in prenatal care we remain concerned. Women are shackled when traveling to and from the clinic. In addition, we continue to question the appropriateness of these conditions of confinement for pregnant women. As noted above, Dominica, an asylum seeker who was seven months pregnant at the time we interviewed her, has been taken to see the doctor on several occasions because of difficulties with her pregnancy. She tells her attorney that the doctors say she is not receiving enough nutrition and has to eat more, but she finds the food difficult to eat. She is now receiving extra fruit at mealtimes, but reports that despite the doctor's directive that she drink more milk, milk continues to be available only for the children.67
When detainees require medical attention, they place a medical call slip in a box in the hallway or give it to facility staff. According to the PHS representative, these slips are checked twice a day and people are called to the clinic for care. However, families complained about delays of several days between submitting a request and receiving treatment. If a parent or child requests sick call, the entire family is required to go to the medical clinic as facility licensing requirements prevent families from being separated for more than a short period of time. This rule extends to the need for quarantine or treatment in the negative pressure room. If one member ofthe family requires such observation or care, the entire family will be quarantined in the medical clinic. According to the CCA public information officer, if a parent has to go to the hospital, the facility can provide supervisory care for their children for up to 72 hours. In such cases facility staff members are assigned to care for the children.
Information gathered from current and former detainees raises substantial concerns about the availability of medical care. Many mothers complained about their children getting rashes. All said that they were told by the medical staffthat it was an allergy and to give the child more water.68 During our interviews .·with families we observed a one-year-old child who had a rash.on.his cheeks and chest.. These parents also told us that the doctor said it was an allergy and to give him lots of Water. In addition, they told us that he would not eat anything and would only drink milk.69

65 Ibid. 66 Lisa Berkman, County Commissioner, Williamson County, Texas, telephone interview with Michelle Brane, January 23, 2007. According to
Commissioner Berkman, the facility has contracted with the Lonestar Circle of Care, a federally qualified health care clinic. 67 Griselda Ponce, attorney at law, telephone interview by Michelle Brane, January 23, 2007. 68 Carmen, interview by Michelle Brane and Emily Butera, Brownsville, Texas, December 6, 2006; Carmen, affidavit; Dominica, interview by
Brane, T. Don Hutto Residential Center, February I, 2007; Juan and Luisa (child's parents), interview by Michelle Brane, T. Don Hutto
Residential Center, December 4, 2006. 69 Juan and Luisa, interview by Michelle Brane, T. Don Hutto Residential Center, December 4, 2006.

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Case 1:07-cv-00166-SS Document 2-3 Filed 03/06/07 Page 6 of 28

Rebecca complained that her child suffered from repeated vomiting, but when "I asked for medical attention the staff told me that they would need to see vomit to believe that he was sick." In addition, she reported that guards frequently tell people not to bother them with sick requests. She a/so told us that her son had a toothache and she put in a request to see the dentist. After three weeks, "he was finally taken to see the dentist, who pulled his tooth without Novocain or anesthesia. My son was in terrible pain." When Rebecca experienced uterine pain, she went to see the nurse. The nurse told her that she was not permitted to prescribe medicine and put Rebecca on the list of detainees who needed to see the doctor. She waited some time for the doctor to come, as her condition was not deemed an emergency. She had to wait for the
doctor to be called in on an emergency. Finally, more than a week later, the doctor came for a
call in the middle of the night, and Rebecca and her children were awoken at 3:00a.m. and taken to see the doctor. On another occasion, Rebecca raised concerns about her children having skin infections, a complaint that was corroborated by another detainee. Her children did not receive medicine until they began to bleed from the rash. 70
Lily was five months old when she arrived at the Hutto facility. She developed a rash while in detention. She a/so had no appetite. The medical personnel told her mother that Lily's condition was caused by an allergy to an antibiotic that emergency room doctors had prescribed to treat pneumonia prior to her transfer to Hutto. Hutto took the antibiotic away and told her to give the baby lots of water. After the rash became worse, she was given a cream, but the cream did not
help. After her release Lily's mother took the baby to a pediatrician who told her that the rash
was not related to an allergy. He prescribed another cream and the rash has improved. The rash was still visible when we met with her several months after release. 71
Another child, Julian, also had problems with the food. His mother, Alicia, told us that the food makes him vomit almost every day. The only medicine they have given him is acetaminophen. Alicia noted that even she knows that acetaminophen isn't appropriate to deal with stomach problems. She reports that whenever children have problems sleeping or have been anxious, they are told to drink water. She also reported that all of her children have lost weight. Her 15-year-old daughter weighed 100 pounds when she first arrived in Hutto and at the time ofthe interview weighed 85 pounds.72

Medical care at the Berks facility appears more comprehensive than at Hutto. Care at this site is administered through a contract with a local family practice clinic, and the doctors are family practitioners who rotate coming to the facility. All people receive an initial medical screening upon entry, just as at Hutto. There is a nurse on site daily and a doctor on site four days a week. Unlike at Hutto, sick call is held seven days a week, and a nurse is on call during hours when no medical staff members are on site.
Detainees who require immediate medical attention due to illness or injury are taken to a local hospital. A dentist is on site on Thursdays. However, Mirsa, who was detained with her young child, had a visibly swollen jaw when we spoke with her. She told us that when she asked to see the dentist, county staff told her that dental care was only available for the children.73

70 Rebecca, interview by Emily Butera, Austin, Texas, December 4, 2006. 71 Carmen, interview by Michelle Brant! and Emily Butera, Brownsville, Texas. December 6. 2006. 72 Alicia, affidavit obtained by University of Texas Law School Clinic, November 2006. 73 We mentioned her condition to Joe Cirulli, deputy director, Berks County Youth Center, and Robert Bernal, DHS supervisory detention and
deportation officer, who indicated that they would look into the situation.

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The nurse provides as much treatment as possible during sick call, and will call a doctor if medical care is required outside scheduled physician's hours. If children cannot provide proofof vaccination they are revaccinated. Specialist visits or tests must be pre-approved by the Division oflmmigration Health Services/4 which is responsible for health care for individuals in ICE custody. Both DHS and Berks County staff expressed frustration with the delays in the approval of medical care caused by DHS bureaucracy; however, they acknowledged that services are generally better for families than for individuals.
Detained families with whom we spoke confirmed that it is relatively easy for Berks detainees to obtain medical care. Requests for medical attention are submitted to county staff, and individuals are able to see the nurse that same day. However, some individuals expressed frustration that placing a sick call is the only way to get nonprescription painkillers such as aspirin, and that if you have a headache in the morning it can take all day to get medicine. They also complained that because people are not permitted to be in their rooms during the day, they are not allowed to lay down if they do not feel well. A woman we spoke with complained that she was placed in medical isolation for a month and not told why.75 During this time other mothers in detention had to provide care for her children. 76
Mental Health Care

Hutto's PHS representative advised our delegation that Hutto officials are seeing less need for mental health services than they had originally anticipated. They speculated that this is because family units are together. Yet they also advised us that depression is the most common disciplinary problem, and that many detainees do not want to participate in activities because they are depressed. In the course of interviews with people currently and formerly detained, all exhibited symptoms of psychological distress that have been previously linked to the trauma of detention, including visible fear, crying and expressing a desire for medication to alleviate their depression and anxiety.77
There are two mental health providers on site-a PHS mental health counselor and a mental health coordinator. The PHS representative told us that they were both licensed, but the mental health coordinator later he told us that he was working toward licensing but has not yet been licensed. He also told us that in an ideal situation people would be scheduled for weekly counseling visits and that the mental health counselor is considering developing counseling groups, but that conducting such therapeutic treatment in a short-term setting is difficult.. Individuals with behavioraL problems and their family members are assigned to counseling. Information gathered in the course of providing mental health services is kept confidential, but there is a duty to warn DHS and CCA if individuals present a danger to their own or others' safety.
Detainees indicate that mental health services are not regularly provided, and that they are discouraged from accessing them through a combination offactors. Rebecca told us that there is not regular counseling, and that when someone asks to speak with a counselor staff members tell them that they are crazy and that DRS will take their children away. In addition, she told us that she met with a counselor on
74 Refer to http://www.inshealth.org/Provider/CustodiaiFacilityResponsibilities.htm. 75 Mirsa, interview by Michelle Brane, Berks Family Shelter Care Facility, October 27, 2006. 76 Joe Cirulli, deputy director, Berks County Youth Center, told us that the woman had tested positive for tuberculosis and that they had
explained to her that this was the reason they had put her into isolation. Her lack of understanding may have been due to a language barrier and lack of interpretation. n Heaven Crawley and Trine Lester, No Place for a Child: Children in UK Immigration Detention: Impacts, Alternatives and Safeguards, (London: Save the Children UK, 2005), p. 29; see also Physicians for Human Rights and Bellevue/NYU Program for Survivors of Torture, From Persecution to Prison: the Health Consequences ofDetention on Asylum Seekers, (Boston and New York City, June 2003), p. 38.

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one occasion, but was not able to communicate with him because he did not speak Spanish.78 Carmen also
confirmed the lack of translation services when she told us about being sent to counseling on one
occasion. She stated that the counselor seemed nice, but that she did not fmd the session helpful because he did not speak Spanish.79 If one member of a family is referred to counseling or asks to speak with a counselor, the entire family must attend the session. This rule extends to children, who must have a parent in the room during any conversations with a counselor. Susanna, an asylum seeker detained with her
young daughter began to see a counselor when she became very distressed and anxious that she and her daughter would be separated. She was given a regular appointment with a social worker, which she found helpful. Her daughter was in the room during all sessions. She sat in a comer and colored.80

There are no licensed clinical social workers on staff at Berks; however, the county provides caseworkers to staff the detention center and· families detained at Berks appear to receive regular and ongoing case management services. In addition, two licensed social workers are available to the families every Thursday to provide therapeutic care.
During our visit we observed families meeting with caseworkers. These caseworkers provide services as specified by Pennsylvania Department of Public Welfare guidelines, which include developing a family service plan for each family. Case managers are available to assist individuals in areas of need. Several weeks after our second visit, we received a letter via fax from a te·enager that we interviewed. This letter indicated that she had been speaking to the caseworker about her frustrations with being detained. This caseworker, knowing that we had developed a rapport with the young woman, had suggested that she reach out to us, and assisted her in sending a fax.81
Christina, a 14-year-old girl who was detained at the Berks family facility for over two years, sent us a letter:
"My problem is that this man [who works at the facility] is always looking for ways to bother me by making fun of me to his co-workers. This happens all the time. He calls us 'dirty undocumented' or 'ignorant people.' This really hurts me .... Today he asked me where I got my socks, they are yellow and on the edges it says 'Livestrong.' He made fun of me and asked me if I knew what that meant. I said 'No.' He laughed and said something I didn't understand. I tried to just walk away but he made me feel so bad that I couldn't stand it and started to cry. One of the workers here saw me crying and asked me iff was okay. They told me I didn't have to be quiet and that I should tell someone. She told me to write to you and tell you. Please don'tte/1 anyone I am complaining, I don't want to get in more trouble here." Note: Christina has since been released and has given us permission to print this letter.
Caseworkers play a role in detainees' submission of grievances. Hasan told us that he had filed three grievances during the time he was at Berks. Each time, he sent these grievances to the resident director, who suggested that he raise his concerns with the caseworker. Hasan reported that the caseworker's response was to caution him that people have been thrown out ofthe center, and their families separated, because they complained.82 The detention and deportation officer informed us that all complaints about treatment and conditions are directed to the county.
78 Rebecca, interview by Emily Butera, Austin, Texas, December 4, 2006. 79 Carmen, interview by Michelle Brane and Emily Butera, Brownsville, Texas, December 6, 2006. 80 Susanna, interview by Michelle Brane, T. Don Hutto Residential Center, December 4, 2006. 81 Christina, letter via fax to Michelle Brane. December 5, 2006. 82 Hasan, interview by Emily Butera, Berks Family Shelter Care Facility, October 27, 2006.

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Education

At the time of our visit to Hutto, children and adults

received one hour of education daily, Monday through

Friday. This abbreviated educational schedule was the

result of licensing requirements that limited the number

of hours per day parents and children could be apart.

According to ICE, educational programming has since

been expanded to four hours per day, and the

curriculum complies with Texas state standards.83 In

response to her queries about the educational situation,
a county commissioner was told that the center would now be following Texas education requirements.84 We have received reports from people in detention that
they now receive more hours of education per day, but

On the day we visited, the high school class at Hutto was learning about child development, specifically at what age a child can be toilet trained. At the time of our visit, children and adults received one hour of education daily.

we have not been able to confirm the total number of

hours or the substance of educational hours claimed. The Hutto school has a principal and teachers who

are either state-certified or eligible for certification. ICE reports that a different subject is taught each day,

including science, social studies, language arts and math. There are 10 teachers and three teacher's aides,

and students are separated into classes by age group. The older students, ages 13-18, are in one class.

Younger students between approximately four and 12 attend the same class, and the youngest children

either sit in the adult classes or go to the elementary classrooms. At the time of our visit, parents attended

English language classes and sessions on parenting skills. Classes were taught in English, and guards

were posted in all classrooms.

On the day we visited, the high school class was learning about child development, specifically at what age a child can be toilet trained. In the elementary classroom, the children were coloring. Only the adult education class seemed appropriate for the students' needs, focusing on basic English words and phrases for expressing illness. Detainees complained that in the elementary classes children just sing and color. Alicia told us that at first the older children were only taught math, but then they told the teachers that they wanted to learn English, so an English class was added to their curriculum. They are also now taught U.S. history and the names of body parts.85

.The principal told us that because they were finding that more and more ofthe students had been living in the United States for years before being apprehended, and had attended U.S. schools, the facility was considering offering advanced placement courses so that students would not be behind when they return to mainstream school. However, it posed a challenge to integrate an advanced placement class into an environment where students only have one hour of education a day. In addition, our tour included a visit to the computer lab, which was being set up at the time of the tour but was not yet in use. Staff members told us that when computers were operational they would have basic parenting and English instruction programs installed.

83 John Pogash, ICE national juvenile coordinator, interview by Emily Butera and Michelle Brane, Washington, D.C., December 20, 2006. 84 Lisa Berkman, County Commissioner, Williamson County, Texas, telephone interview with Michelle Brane, January 23,2007. 85 Alicia, affidavit obtained by the University ofTexas Law School Clinic, November 2006.

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Children's educational services at the Berks facility are administered by the Berks County Intermediate Unit, with funding from DHS. Classes are governed by the Pennsylvania Alternative Curriculum Standards, a set of guidelines for alternative and special needs schools. The children are divided into elementary and middle/high school classes and attend school for four hours a day. All children's classes are taught in English, and students study English, social studies, math and science. In addition, each classroom is equipped with computers that utilize the PLATO computer-assisted instruction program to create lessons tailored to individual students' abilities and needs.
In addition to children's education, adults at Berks attend English as a second language classes four days a week. We encountered adults in the English program during our tour. These classes are conducted in the cafeteria, and appeared to consist mainly of workbook study, given that the space was not equipped with a blackboard or appropriate seating for lecture-style education. While the adults and older children are in class, the youngest children accompany their parents, play in a small cordoned-off area in the cafeteria, or participate in activities led by staff members in a small gymnasium inside the facility.
Children and parents with whom we spoke indicated that they had no significant complaints about the quality of education provided at Berks. One family was released during the time that we were researching this report, and the children now attend public schools in the area. Although they had only been in mainstream school for about a week when we spoke with them, they seemed to be doing well in their classes and performing at grade level. In addition, all three of the children learned to speak English quite well during the time they were at Berks.
Recreation

Families in detention receive one hour of recreation

and large motor exercise per day, Monday through

Friday. There is a large gymnasium inside the

facility, and people rotate through recreation time

by housing unit. In the gymnasium we observed

several basketball nets and basketballs, and for

toddlers and younger children a play area cordoned

off with furniture: There did not seem to be much

opportunity for indoor large muscle activity for the

The outdoor play area at Hutto is fenced in by concertina wire. Children said that they had not been outside on the playground in several months.

younger children or adults, but during our visit most ofthe older children were playing basketball. There were a few toys in the cordoned off area, most notably plastic trucks and kitchenettes. We

observed no stuffed animals and no dolls. This is the only time that the younger children have access to

age-appropriate toys. The pods have couches and games, TVs and video games appropriate for older children. Children are not permitted to have their own toys or to receive toys from outside the facility.86

On our tour we were told that children are allowed to hang pictures in their cells, but we did not observe

anything on the walls of any of the cells during our visit. Families told us that no toys are allowed in the pods and that nothing can be hung or taped to the walls.87 Despite the fact that computer paper and

86 Margarita, affidavit obtained by the University of Texas Law School Clinic, November 2006. 87 Leila, telephone interview by Michelle Brane, February I, 2007.

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crayons seemed to be available in many parts of the facility, families told us that children are not allowed to keep the pictures they draw or color.88
In addition to the indoor gymnasium, Hutto has an outdoor recreation area with a large soccer field, two jungle gyms, slides and three covered tables. This area is surrounded by perimeter fencing with concertina wire. The public information officer told us that families are allowed to go outside for at least one hour per day, Monday through Friday, weather permitting, and that they try to give families more time whenever possible. We received conflicting reports from families in detention on this issue. Some people told us that they rarely go outside because staff members tell them it is either too hot or too cold. At least one detainee, Margarita, said that they go outside for one hour a day rain or shine, hot or cold. She said that the children are given sweaters when it is very cold, but the adults are not.89 On the weekends detainees are not allowed outside at all.
Families in Hutto do not participate in any off-site recreational activities. The public information officer reported that they try to organize activities on-site, including cultural activities, whenever possible. There are no programs coordinated with outside volunteer groups, and there have been several reports in the media indicating that local groups who have offered to conduct activities for detained families have been denied permission to do so. Each pod has two facilitators; staff members accompany families to all activities to make sure that each family unit is engaged in an activity and interacting with each other. We observed facilitators playing basketball with the older children, but otherwise not interacting with the parents and younger children. For the most part, the parents seemed to spend their recreation time sitting on the furniture that separates the young children's area from the large gymnasium.

Families receive one hour of recreation per day, Monday through Friday. Recreation i$ the only time that younger children have access to age-appropriate toys.
In addition to the gymnasium Hutto has a general library and a law library; however, people are only allowed in the library during their orientation to the facility. Library carts circulate to the pods every five days, and detainees are permitted to take one book at a time. According to the public information officer, detainees can request that a particular book be placed on the cart, and there are books in languages other than English. But a cursory review of the library revealed few foreign language or children's books, and the collection is minimal given the size of the facility.

88 Ibid. 89 Margarita, affidavit obtained by the University ofTexas Law School Clinic, November 2006.

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Recreational programming at the Berks facility surpasses that at Hutto, perhaps because of its smaller size.
When children and adults are not in classes, and adults are not assigned to the chore rotation, the families have free time. Although families and individuals cannot move freely within the facility and are escorted in lines from one activity to another by county staff, they spend their free time in a more homelike space. Each housing wing has at least two recreational spaces with carpeting, couches and televisions. At the time of our tour, cartoons were playing in one room and a news program in the other. They seemed to be able to move freely between the two rooms, although they were not permitted outside the housing wings during this time. Each recreational room had some toys available. These were common toys including trucks, teddy bears and dolls. Children were allowed to take one toy with them to their room. One of the recreation rooms had an armoire filled with board games and puzzles. There was also a game table in the room.
Families are afforded outdoor recreation time whenever the weather permits. Detainees confirmed that they often had more than the standard one hour, and that on weekends in particular they could spend all morning outside if the weather was moderate. However they also reported that recreation time could be taken away for as long as two weeks for "bad behavior." It was very cold on the day of our first visit, but on our second visit we observed people outdoors playing soccer and relaxing on a grassy area outside the facility. Facility staff members guard families during this outdoor recreation time, but there is no fencing cordoning off the recreation space from the road.
In addition to outdoor recreation time, there is a small gymnasium in which the younger children were playing on the day of our first visit. They were engaged in activities including playing with balls and riding scooters. The facility also features a well·equipped larger gymnasium with fitness equipment and free weights, but this area is strictly limited to staff use.
In addition to athletic recreation time, the facility offers other activities for families in detention. The law library has computers available for use, a bookmobile delivers reading materials and there is an art room where crafts are organized. On the day our delegation visited, the children had painted pumpkins. Staff members also told us that local church groups come and lead activities at the facility, including art projects and holiday parties. Individuals are permitted to participate in facility-run field trips to places such as McDonald's, Wal-Mart and the local farmer's market. However, no one with a final order of .removal is allowed to go on a field trip, and the facility, does not permit an entire family unit to go on the same field trip.
Discipline
It has proven difficult to ascertain institutional disciplinary practices in family detention facilities, and the absence of any clear standards for family detention compounds this problem. ICE has no policy guidelines for family detention facility staff regarding disciplining children. Discipline is seen as the parents' responsibility, and guards and staff members are to exercise common sense when handling a situation in which the parent is unable or unwilling to control a child.90 Local and headquarters officials repeatedly stated that the only problems they encounter are parents who want to use corporal punishment, which is not allowed in the facilities.

90 John Pogash, ICE national juvenile coordinator, interview by Emily Butera and Michelle Brane, Washington, D.C., December 20. 1006.

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The public information officer repeatedly tol~ us that disciplinary problems are handled by sending the
entire family,to the counselor. "Time-out" is a commonly used form of discipline. In addition, families informed us that threats of separation are frequently used as a means of discipline. In particular, staff
members encourage parents to keep their children quiet and get children to behave by telling children and
their parents that ifthe child does not do what they are told to do by staffthey will be taken away. Nelly, a 9-year-old girl detained with her 3-year-old sister and her mother, who is applying for asylum, told us
that if she misbehaved she would be separated from her mother. When asked why she believed this she said, "Everyone knows that; that's what they say.'.91 All those we interviewed expressed frustration that
children are punished for what is normal behavior for young children like running around, making noise
and climbing on the couches. One detainee that we interviewed experienced this in the context of children
getting out of line while walking through the hallways. Another said that these threats are made even when children are crying and cannot be consoled.92 Susanna, a mother detained with her 6-year-old daughter, complained that the guards were unnecessarily strict with rules and regulations. She gave the
example of her daughter's needing to use the bathroom during an attorney visit. The guards refused to let her use the bathroom because they were about to have a "count." They made the girl wait for more than
15 minutes while she cried. When the attorney complained to staff, the mother became worried that she and her daughter would be separated.93 Parents confirmed, "It is the parents' job to keep their kids under control.''94 They also said that staff members tell them that if their children are loud or misbehave they will be written up, and that this information will go into their record and could affect their court case.95
Another form of disciplinary action is to put children in the corner for 30 minutes and not allow them to talk or move. 96

Noreen, an asylum seeker who has been released from Hutto, recounted an incident in which a 6-year-old child cried when he was not allowed to take a picture he had colored into his room.
When the guard shouted at the child for crying, the child's father intervened. Noreen does not
know exactly what happened next, but says that the family-child, mother and father-were separated into different pods for three days after the incident. 97

Carmen confirmed that if children misbehaved, either the child or the parent would be "written up." A

write-up could result in loss of television privileges or recreation time, or in children being sent to their

cells. She told us that when the children in the pods were too loud or active, guards would turn up the air

conditioning so that the room became very cold. She also stated that when detainees were angry, guards

turned offthe hot water 'so that only cold water was available.98' ·

· ·

·

Disciplinary practices at Berks also raise concerns. We interviewed several detainees and some former detainees who said that their physical needs were being met, but suggested that they were psychologically and verbally abused by staff.

91 Nelly, interview by Michelle Brane, T. Don Hutto Residential Center, December 4, 2006. 92 Susanna interview by Michelle Brane, T. Don Hutto Residential Center, December 4, 2006. 93 Ibid. 94 Alicia, affidavit obtained by University of Texas Law School Clinic, November 2006. 95 Ibid. 96 Rebecca, interview by Emily Butera, Austin, Texas, December 4, 2006. 97 Noreen, interview by Michelle Brane, T. Don Hutto Residential Center, February I, 2007. 98 Carmen, interview by Michelle Brane and Emily Butera, Brownsville, Texas, December 6, 2006.

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As at Hutto, parents reported that children were often disproportionately punished for small incidents that are normal child behavior. Detainees and DHS officials both stated that time-outs are a common disciplinary tactic, and detainees reported that a prohibition against talking is another form of discipline at Berks. All families interviewed express a general sense that they were disrespected by staff members, frequently yelled at and issued unnecessarily harsh punishments for behavioras simple as not being able to do homework for lack of a pencil.99 One family told us that a child spoke back to a member of the staff, telling him that he was not her mother and that she did not have to do what he said. The staff member became angry with the child and pushed her. 100 In another instance, a girl got caught passing a note in class. Passing notes of any kind is a violation of the facility rules. 101 She received the punishment of not being allowed to talk to anyone of the opposite sex for two weeks. When she violated the prohibition, she was prohibited from speaking with anyone other than immediate family members for two weeks. The family was told that ifthey did not comply, the girl would be sent to the juvenile facility. 102 This incident caused extreme stress to the child and the entire family.
Threat of separation is another frequently used disciplinary tactic. Several families told us that facility staff would threaten them with separation if they misbehaved, and on several occasions it seems that children were sent to the secure juvenile detention facility without an opportunity to defend themselves in court.103 When we asked the detention and deportation officer and the deputy director how they handle disciplinary problems, they told us that since Berks is not a criminal facility, adults exhibiting criminal behavior would be placed in an appropriate adult facility and their now unaccompanied children would be turned over to the custody of ORR. If children exhibited severe behavioral issues, staff might need to transfer them to a secure facility. Unless their accompanying parents had other children with them at Berks, they would be sent to an adult facility. We pressed for an explanation of what constitutes severe behavioral issues, but did not receive any concrete examples. We heard several second-hand stories of separation. One case appeared to be the result of a child fighting with a staff member. In another instance a minor had gotten into a fight in the cafeteria and hit another minor. Families told us that sometimes juveniles were sent to the Berks County Youth Center Juvenile facility, which is not an ORR facility, for a few days as punishment for misbehaving. 104 Sophia and her daughter, Christina, recounted an incident in which some new arrivals had resisted when treated badly by guards and had been "sent away." The prevailing belief among families in detention is that they will be separated if anyone misbehaves, which creates an environment of extreme psychological stress.
In the course of our interviews there emerged some confusion about whether or not parents are allowed to discipline their children. One parent indicated that she could, but another parent said that it could be quite difficult to discipline children because the facility's rules strip the parents of any authority in their children's eyes. Her daughter told us, in a separate conversation, that she saw how much it bothered her mother to not be able to parent them. 105 Parents told us that many children lost respect for their parents because of the parents' lack of control at the facility. "Parents are not the ones who decide what their child is or isn't allowed to do. It is the guards who decide and have the ultimate control to punish or discipline the children and the adults."106 Many children expressed anger or frustration with their parents
99 Sabrina, interview by Michelle Brane and Emily Butera, Reading, Pa., January 16, 2007. 100 Sophia, interview by Michelle Brane and Emily Butera, Reading, Pa., January 16, 2007; Christina, interview by Michelle Brane and Emily
Butera, Reading, Pa., January 16, 2007; Sabrina, interview by Michelle Brane and Emily Butera, Reading, Pa., January 16,2007. 101 "Berks county INS Family Shelter, Adult Program Rules," supplied by Berks County Youth Center, on file with the Women's Commission
for Refugee Women and Children. 102 Christina, interview by Michelle Brane and Emily Butera, Reading, Pa., January 16, 2007. Confirmed by Jose, interview by Michelle Brane,
Berks County Shelter Care Facility, November 29, 2006. 103 Sophia, interview by Michelle Brane and Emily Butera, Reading, Pa., January 16, 2007; Christina, interview by Michelle Brane and Emily
Butera, Reading, Pa., January 16, 2007. 104 Christina, interview by Michelle Brane and Emily Butera, Reading, Pa., January 16, 2007; Sabrina, interview by Michelle Brane and Emily
Butera, Reading, Pa., January 16, 2007. 105 Christina, interview by Michelle Brane and Emily Butera, Reading, Pa., January 16, 2007. 106 Sophia, interview by Michelle Brane and Emily Butera, Reading, Pa., January 16,2007.

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for leading them into detention and for being powerless or unwilling to help. Some children asked or cried for their parents to sign for deportation so that they could go home.107
In addition, adults and children both complained to us of verbal disrespect, including suggestions that the families should just give up and go home because they would never get out of detention. They also recounted instances in which detainees were told that they were worthless, stupid or dirty immigrants. This type of verbal abuse seemed to cause particular distress to children who often cried or became depressed. Hasan told us that staff members made jokes about Ramadan and Muslims. He also complained that female staff members look into male residences. 108 Both he and another woman complained that staff members sit outside the bathroom doors while children are showering. He and Gina complained that staff members wake them up by shouting at them and turning the lights in their rooms on and off.109
When asked in separate interviews what one thing they would change about the facility one child said, "Replace all the staff." Her mother said, "Hire only people with child care experience or expertise."110
Access to Counsel

According to the CCA public information officer, families in detention are provided with a list of legal services providers during their orientation. Detainees told us that they receive the list the first time they go to court The facility has a law library with three computers, two typewriters and access to LexisNexis and numerous other legal resources. Those detained can reportedly use the law library at any time if they make an appointment to do so.
Hutto has two televideo courtrooms, which are used for master calendar hearings and credible fear hearings. Masters are done every day with judges from San Antonio and Houston, and people are taken to court for all merits hearings. 111 Per DHS staff, one or two families bond out each day, and the number of individuals granted bond seems higher overall than at Berks. The director of the DHS San Antonio Field Office governs parole of asylum seekers in the office's jurisdiction. According to DHS staff accompanying us on the tour, very few asylum seekers are granted parole in the San Antonio district. Dominica is a pregnant asylum seeker with two children. She is having complications with her pregnancy. Her mother is a legal permanent resident ofthe United States. She has requested parole and has waited more than two months without a response. 112 We requested more detailed information from DHS on grant · rates for parole; but did not receive this information in time for publication;
A listing of legal services providers was posted next to each phone in the pod we visited, and the phones were set up to direct dial frequently called providers and consulates. A list of free legal service providers was also posted. We tested the direct dial system and we were able to get a call through to the University of Texas Immigration Law Clinic. However, we reached an answering machine. These phones cannot
107 Sophia, interview by Michelle Brane and Emily Butera, Reading, Pa., January 16, 2007; Christina, interview by Michelle Brane and Emily Butera, Reading, Pa., January 16, 2007.
108 Hasan, interview by Emily Butera, Berks Family Shelter Care Facility, October 27, 2006. 109 Hasan, interview by Emily Butera, Berks Family Shelter Care Facility, October 27, 2006; Gina interview by Emily Butera, Berks Family
Shelter Care Facility, October 27,2006. 110 Sophia, interview by Michelle Brane and Emily Butera, Reading, Pa., January 16, 2007; Christina, interview by Michelle Brane and Emily
Butera, Reading, Pa., January 16, 2007. 111 A master hearing is an initial hearing before an immigration judge. Credible fear hearings allow arriving aliens to establish whether or not
they meet a minimum legal threshold for fear of return to their home countries. Satisfaction of this minimum threshold is a necessary step towards applying for asylum before an immigration judge. Merit hearings take place before an immigration judge and give aliens an opportunity to substantively present their applications for relief. 112 Griselda Ponce, attorney at law, telephone interview by Michelle Brane, January 23, 2007. Ponce is Dominica's attorney of record.

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receive incoming calls, so leaving messages on a machine is of limited use to people in detention. Detainees told us that they did not receive a listing of legal service providers, and Rebecca told us that staff members sometimes took the phone out of her hands and hung it up when she was talking to attorneys. 113 One formerly detained person told us that according to DHS there are no free lawyers and she would be sent back to her country unless she could pay a lawyer to represent her. She found the phone number for the Political Asylum Project of Austin on the posted list of service providers, and has now been released pending adjudication of her application for asylum.
Attorneys are able to access the facility, but since the Legal Orientation Program114 does not exist in family detention centers, they only come when contacted by a detainee. Attorneys reported that many of their clients are domestic violence-based asylum applicants. They report that the U.S. Customs and Immigration Services (CIS) office in Houston routinely denies credible fear rulings to applicants whose claims are based on domestic violence. Detained asylum seekers reported that guards at the Hutto facility tell them that domestic violence is not a basis for asylum and that if they request asylum they will be detained for eight months. 115
Attorney-client meetings are conducted in a private room, but parents must keep their children with them during the meetings. This has posed problems in ensuring adequate representation, particularly in asylum cases and cases involving rape and domestic violence. Because parents do not want to discuss the facts of their case in front of their children, attorneys do not get the information they need to effectively represent their client. Recently, attorneys have been informed that they are limited to speaking with 10 people per visit, and that children are included in the total. Attorneys have complained that this severely limits their ability to meet with their clients. Because of family size, and because children must always accompany the parent regardless of whether the attorney wants to meet with the child, this rule effectively limits visits to three clients or fewer. 116
Removals are effected every other week, and are dependent on the cooperation of individual consulates. Because of the high volume of Central American expedited removal cases, removals to these countries take place fairly frequently. However, nationals of other countries may wait longer before removal is effected. Because the facility has not yet been open a year, data on length of stay is insufficient to allow any clear conclusions. ICE informed us on December 20, 2006, that the average length of stay at Hutto was 18.5 days. 117 Most recently, ICE reported that the average length of stay for families not seeking asylum is 40 days. 118 These averages can be misleading. Many are only detained for very short periods of time because they are immediately returned to their country or accept voluntary departure or return. Others, such as asylum seekers, might have cases that go on for months while they remain in custody. Many of those with whom we spoke had been detained·for three or four months. It is likely that the average length of stay at Hutto will increase as its length of operation increases. Since the facility had only been open for approximately six months at the time of our visit, it would have been impossible for anyone to be detained for longer than that time period, which contributed to a low average length of stay.I19
m Rebecca, interview by Emily Butera, Austin, Texas, December 4, 2006. 114 The Legal Orientation Program is run by the Board ofimmigration Appeals within the Executive Office for Immigration Review. Through
the program attorneys conduct "Know Your Rights" presentations in detention centers, allowing them to explain to detainees what their legal options are. The program also assists detainees with finding pro bono attorneys if they want to pursue asylum claims. The program has been very effective in protecting the rights of detainees as well as saving government time and expense. Many detainees, particularly those in expedited removal, realize that they have no claim for relief and accept voluntary removal or deportation rather than remaining in detention. See http://www. usdoj.gov/eoir/probono/probono.htm. 115 Barbara Hines, University of Texas Law School, telephone interview by Michelle Brane, November, 2006; Frances Valdez, University of Texas Law School, telephone interview by Michelle Brane, November 2006; Carmen, interview. 116 Griselda Ponce, attorney at law, telephone interview by Michelle Brane, January 23, 2007. 117 John Pogash, ICE national juvenile coordinator, interview by Emily Butera and Michelle Brane, Washington, D.C., December 20, 2006. 118 Gary Meade, press tour ofT. Don Hutto Residential Center, February 9, 2007. 119 At Berks, which has been in operation since 2001, we encountered families that had been detained for as long as two years.

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The Berks facility's distance from a major metropolitan area makes it difficult for families to locate counsel and limits the availability ofpro bono attorneys.
The facility has accommodations for legal matters. Within the facility asylum officers use an attorneyclient visitation room to conduct orientation and interviews for detainees who express credible fear. Immigration judges from York, Pa., conduct hearings both in person and by video conferencing in a courtroom at Berks. The facility also has a law library. Although ICE staff told us that detainees never used this space, we observed someone using the computer on our second visit. In general, local policy is that master calendar hearings are conducted by video conferencing every Thursday, and merit hearings are done in person at the York courthouse. Because York was short one immigration judge in recent months, the Executive Office for Immigration Review has resorted to conducting merits hearings by video at times.
Families report receiving a list of legal services providers upon arrival. No Legal Orientation Program is offered at Berks. Both the deputy director and the detention and deportation officer expressed an interest in having local immigration service providers conduct rights presentations at the Berks facility, noting that such sessions would ease anxiety and help unclog the system, which they explain becomes burdened by people who have no form of relief. However, conversations with potential service providers confirm that limited funding and staff resources make this unlikely in the short term.
Per the detention and removal officer, parole is only available in instances of significant public benefit or urgent humanitarian need. 120 In his analysis, most detainees are in expedited removal proceedings and are subject to mandatory detention. Consequently, parole rates are quite low at Berks, and officials could not recall anyone who had been paroled recently. While the parole option may be limited for non-asylum seekers in expedited removal it is contrary to policy statements with respect to asylum seekers. Per an INS Policy Guidance issued in 1997, "parole is a viable option and should be considered for aliens who meet the credible fear standards, can establish identity and community ties, and are not subject to any possible bars to asylum involving violence or misconduct. ..."121 Although ICE did not respond to our request for statistics about parole rates in the York district, we met several families at Berks with pending asylum claims who were eligible for parole but had not been released.
Bond rates are set by the immigration judge, and are often prohibitively high, as was the case for a woman and her son whose bond was set at $15,000 even though she had a U.S. citizen child who was .being car(!d for by friends during her detention.
ICE headquarters informed us that on December 20, 2006, the average length of stay at the Berks facility was 58 days. In the course of interviewing, we found that most families seem to have been at Berks between five and six months. However, we encountered several families who had been detained at Berks for much longer periods oftime, including one who had been there for over two years, another just under two years and another almost a year.

120 He acknowledged that parole is almost never granted. When asked for an example of who might qualify, he said, "someone who is about to discover cancer."
121 "Expedited Removal: Additional Policy Guidance," memorandum from Michael Pearson, Executive Associate Commissioner for Field Operations, to INS Regional Directors, District Directors and Asylum Office Directors, December 30, 1997.

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Telephone Access

Telephone access at Hutto is compromised by the cost of phone cards and the location of phones. Detainees are able to purchase $10, $15 and $20 phone cards. The $10 cards allow for 20 minutes at 50¢ a minute. A bank of four phones is located in the center of each pod, and neither individual phones nor the phone bank have privacy screens. The phones located in the pods worked at the time of our visit. Information about attorney access by phone is documented above.

Telephone access is similar at Berks. The facility has two telephones, which are located in a hallway. Detainees are able to purchase calling cards with rates of $1 or more per minute. A $3 0 card allows for 20-25 minutes oftalk time. Indigent individuals are issued calling cards at government expense. In addition, one detainee with whom we spoke noted that individuals are sometimes permitted to use a phone belonging to facility staff. Another detainee told us that the telephone had been broken the previous week, which prevented anyone from being able to contact relatives or attorneys.
Visitation and Spiritual Support

Non-attorney visitation is permitted at Hutto on weekends between 8:00a.m. and 5:00p.m., and attorney visits are permitted seven days per week. However all non-attorney visits are non-contact. A Plexiglas wall separates detainees from their visitors, and they must communicate through a telephone handset attached to the wall, allowing a visitor to talk to only one member of a family at a time. Children are required to be with their parent for the visit and guards are present on the detainee side of the visitation space. Detainees are permitted to use the restroom only one time during a visit.

The publ1c information officer explained that visits are non-

contact to eliminate the need for strip searches following

visitation. Dominica, a pregnant asylum seeker detained

with her two daughters, summed up the tremendous strain

that non-contact visits pose on people who have not seen

each other in many years. She explained that while she is

happy to finally see her mother again, it is difficult to be forbidden to touch her.122 In some cases, visitors are U.S.
citizens, whose parents, spouse or children were
apprehended and detained.

A Plexiglas wall separates detainees from
their visitors. Visits are non-contact to eliminate the need for strip searches
following a visitation.

Spiritual counseling and services are provided as needed. Most available services are Christian but the public information officer told us that accommodations are made for Muslims.

122 Dominica, interview by Brant\, T. Don Hutto Residential Center, Februruy 1, 2007.

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Families are permitted to have visitors seven days per week. All visitors pass through a metal detector as they enter facility. Contact visits are permitted, but actual contact is limited. The husband of one detained woman complained to us that when he went to visit his wife, staff would yell at him when he would try to hug her. Although he is a U.S. citizen by birth, staff members told him to go back to his country.123 Availability of spiritual counseling and services is intermittent and varies among different faiths. Berks used to take families to churches located in the surrounding community, but this practice has been discontinued.

123 Paul, interview by Michelle Brane and Emily Butera, Reading, Pa., January 16, 2007.

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V. Conclusions
The penal setting at Hutto is clearly an inappropriate and disturbing setting in which to hold families. Although the previous sections have revealed significant differences in the conditions of confinement at Berks versus Hutto, these discrepancies do not negate the central argument that conditions at both facilities are inappropriate. Both settings strip parents of their role as arbiters and architects of the family unit; both place noncriminals in facilities modeled on the criminal justice system, with little regard to national and international standards for the care and protection of children and families; and neither provides an acceptable model for addressing the reality of the presence of families in our immigration system. Furthermore the current models do not meet the standards dictated by Congress, including alternatives to detention and nonpenal, homelike environments.124 In fact, ICE has made no effort to develop release alternatives to family detention.
Our concerns include the following:
Licensing
The concept of family detention is not one that has any precedent in the United States, therefore no appropriate licensing requirements exist.
• Flores requires that minors be placed in licensed programs that comply with all relevant child welfare laws and regulations. Yet family detention facilities that house a significant number of young children as well as vulnerable adults are not yet required to obtain a license, because no licensing category exists for this type of facility.
• Lack of licensing requirements for family detention facilities presents a logistical problem for entities charged with operating such facilities. Berks County asked the licensing board to create a category or "box to check" even though none officially existed, because they refused to open without some fonn of license. 125 This demonstrates their belief that appropriate licensing should be required when operating such a facility.
• The Texas Department of Family and Protective Services exempted Hutto from child care licensing requirements because the children detained there are considered accompanied since their parents are detained with them. 126 The repercussion of this exemption is that it effectively requires children to be in the company of their parents at all times. The requirement that parents not be separated from their children means that adults detained at Hutto cannot speak with their attorneys, medical personnel, visitors or counselors without their children in the room. As individuals such as asylum seekers or victims of domestic violence may feel uncomfortable relaying sensitive or disturbing infonnation in front oftheir children, their medical care and legal representation may be compromised. Ifthey cannot give medically or legally vital infonnation to medical workers or attorneys, they will likely not receive the services they need or relief for which they qualify. In addition, children are not being interviewed separately from adults to assess whether they may have independent claims to legal relief. Furthennore, this exemption has led to a system in which children were only receiving one hour of education a day.
124 Depanment ofHomeland Security appropriations bill, 2007: report together with additional views. 12s John Pogash, ICE national juvenile coordinator, interview by Emily Butera and Michelle Brane, Washington, D.C., December 20. 2006. 126 Hutto contacted the department about child care licensing. It was determined that they were exempt from CCL (Child Care Licensing) by 40
Texas Administrative Code, Chapter 745, Subchapter C. Specifically, Section 745.117 provides that a "program oflimited duration" with "parents on the premises" can be exempt from licensing. For more information see http://www.dfps.state.tx.us/child_care/child_care_standards_and_regulations/.

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• IfiCE claims that family detention facilities are following licensing standards laid out in the Flores settlement, appropriate authorities should license facilities in which children are held.
Standards
The lack of family detention standards means that no consideration has been made for the particular needs or situations that arise from detaining families.
• The only guidelines that exist to provide oversight of family detention are the ICE Detention Standards and the Flores settlement. ICE told us that the facilities operate on a hybrid ofthe Detention Standards and Flores standards that has yet to be finalized. These guidelines do not take into account the unique needs of families.
• Because Flores and the Detention Standards are not statutory or codified in regulations, and because inspections are conducted by its own staff, ICE is not held accountable for compliance. This lack of independent accountability contributes to a system in which vulnerable children and families are not provided with appropriate and humane conditions of confinement.
• There is a fundamental clash of cultures emerging from efforts to apply a criminal justice model to a noncriminal family population. The underlying system is flawed, and cosmetic adjustments will not resolve this conflict.
Physical Setting
The current facilities being used for family detention are modeled on a penal system and are not the least restrictive settings appropriate to children's age and special needs or to the preservation of the family unit.
• Flores presumes release for unaccompanied minors, and indicates that minors who are not released should be placed in the least restrictive setting possible.127 While ICE has carried out modifications to make Hutto and Berks more family-friendly, the use of a jail-like structure and the imposition of policies and procedures borrowed from the criminal justice system place families in a fundamentally inappropriate setting. While CCA and ICE staff at Hutto noted during our December 2006 tour that the facility is still undergoing "softening," it will remain a jail-like environment. Consequently, it is concerning to note that DHS views the Hutto facility as a prototype for future expansion of family detention. 128 Given what we learned and observed during our visit, a Hutto-like facility is not an acceptable setting for even the short-term detention of migrant families.
• Flores specifies that facilities maintain adequate temperature control and ventilation, 129 but a central complaint of detainees in both facilities was that staff would set the air conditioning very high, a complaint that we concurred with on our visits.
• The Flores settlement states that children should be afforded the right to wear their own clothing when possible. 130 In addition, in keeping with recommendations by Physicians for Human Rights, detained migrants should be able to wear their own clothing as a simple yet important way "to

127 Flores v. Reno, Exhibit 2(b), Instructions to Service Officers re: Processing, Treatment and Placement of Minors. IZS John Pogash, ICE national juvenile coordinator, interview by Emily Butera and Michelle Brane, Washington, D.C., December 20, 2006. 129 Flores v. Reno, section on Temporary Custody. 130 Ibid., Minimum Standards for Licensed Programs, #12, p. 16.

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identify themselves as individuals and not criminals."131 However, at the Hutto facility, children and their parents wear prison uniforms. In addition, at both Hutto and Berks, older children and their parents are required to wear flip-flops or slippers, a policy adopted from criminal correctional practice. This encourages deeper institutionalization of an already inappropriate environment.
• According to accounts from families detained at Hutto, they are not afforded sufficient clothing or laundering services so that they are forced to wear a dirty or used set of undergarments at least one day a week. 132
• Families do not have freedom of movement within the facilities, being able to move only for prescribed activities and when escorted by facility staff.
• Parents and children are separated during sleeping hours. At Hutto laser control systems that effectively serve as locks on cell doors prevent parents from attending to their children's needs after "lights-out." In addition, at Berks children over five years of age sleep separately from their parents. This policy prevents parents from carrying out traditional parenting roles, breaks down the bond between parent and child, and undermines children's trust that parents will take care of them. This policy also causes psychological distress for both children and parents.
• Those detained at Hutto are not afforded any privacy in the use of toilets and showers, and facilities fail to regulate water temperature appropriately for children.
Food Service
Food service is rushed and is not culturally appropriate. It does not sufficiently meet the nutritional needs of children and pregnant women, and it does not permit parents to make basic decisions about their children's health.
• The Flores settlement stipulates that facilities holding children should provide for their dietary needs in keeping with all applicable state child welfare laws and state and local health and safety codes. 133 In addition, the Detention Standards state that facilities must provide quality food service and nutritious meals. Neither children nor adults at Hutto are receiving appropriate or sufficient food to ensure ongoing physical development. In fact, many children and pregnant women claim to be losing weight due to insufficient caloric intake, unsafe or unfamiliar food or depression.
• Many detained at Hutto indicate that they only receive 5-10 minutes to eat, and that sometimes staff members yell at them to get up and leave before they have finished eating or feeding their children.
Medical Care
Health care in family detention facilities is inadequate to meet the needs of detained families, particularly the special needs of vulnerable children and expectant mothers.

131 Physicians for Human Rights and Bellevue/NYU, From Persecution to Prison, p. 191. 132 In violation of standards set in the U.S. ICE Detention Operations Manual. 133 Flores v. Reno, Exhibit l(a).

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• The ICE Detention Standards state that all in detention "shall have access to medical services that
promote detainee health and general well-being," and that facilities should provide both primary and emergency medical care and emergency dental care.134 In addition, as specified in the Flores settlement, these detention facilities should be providing appropriate, routine medical and dental care and emergency health care services.135 Those detained at both Hutto and Berks complained
about inadequate medical and dental care.

• Detainees at both Berks and Hutto did not receive medical treatment in a timely manner despite following procedures to request medical attention.

• Detainees are sometimes provided medicines that are inappropriate for their medical needs.

• Pregnant mothers reported that they were not provided with prenatal care.

• At Berks adults reported being denied dental care, and at Hutto detainees reported receiving dental care without the use ofNovocain or anesthesia.

• Physical symptoms and complaints by detainees may be manifestations of psychological stress that is not being adequately addressed and in fact is exacerbated by the conditions of detention. 136

Mental Health Care

Detained families do not receive sufficient or culturally appropriate therapeutic mental health care services necessary to address the unique psychological stresses implicit in the migration and detention experience.

• Our observations about the psychosocial health of those detained in both facilities stand in stark contrast to comments from CCA staff and the ICE national juvenile coordinator that there was less need for mental health care than previously anticipated. Every interview subject cried during interviews conducted inside Hutto, as did many of the families interviewed at Berks.

• Many current and former detainees expressed a desire for counseling services and, in some cases,

for anti-depressant or anti-anxiety medications. This contrast between what we were told and

what we observed reflects staff members' and administrators' lack of expertise in identifying

signs of mental and emotional stress and lack of awareness ofhow existing policies and

procedures. exacerbate the psychological stresses for familiesY7

·

• Hutto employs facilitators who travel with families from each housing pod. The facilitators are
responsible for keeping families engaged in activities and with each other. The need for staff to
compel engagement suggests that detained individuals in this facility suffer from depression that manifests itselfthrough physical inactivity and disengagement.138

• The Flores settlement stipulates that children will receive "at least one (1) individual counseling
session per week conducted by trained social work staff. In addition, the settlement prescribes group counseling sessions at least twice per week. 139 There are no regularly scheduled individual

134 U.S. ICE Detention Operations Manual, Medical Care. 135 Flores v. Reno, Minimum Standards for Licensed Programs,# 2; pg. 15.
136 Physicians for Human Rights and Bellevue/NYU, From Persecution to Prison, p. 88. 137 Ibid., Pg. I. 138 Ibid., pp. 7 and 38. 139 Flores v. Reno, Minimum Standards for Licensed Care, #6 and 7.

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or group counseling sessions at either facility, other than family meetings with county caseworkers at Berks and family disciplinary counseling at Hutto. The lack of regular counseling at Hutto is reinforced by the mental health coordinator's statements that in an ideal situation detained individuals would be scheduled for weekly counseling sessions, and that his colleague was uncertain how to develop group sessions in a short-term setting.
• Detainees indicate that they are discouraged from accessing mental health services through a combination of factors, including threats of family separation in response to mental health problems, language barriers and the requirement at Hutto that all members of the family attend any session with a mental health staff member.
• Women and children migrants frequently become the victims of sexual violence in the course of making their way to the United States. 140 These populations have a need for specialized and frequent therapeutic counseling services that are not accommodated in either the Berks or Hutto facilities.
Education
Educational services at the Hutto facilitv are not appropriate to the children's level of development and do not meet educational standards.
• The Flores settlement stipulates that children in custody should receive "educational services appropriate to [their] level of development. ..in a structured classroom setting...which concentrates primarily on the development of basic academic competencies ... [including] science, social studies, math, reading, writing and physical education."141 However, at Hutto we observed middle and high school students being taught child development and elementary students coloring. We did not observe any classroom activity that would suggest that the educational services are appropriate to students' level of academic competency or that the curriculum included a focus on the subjects prescribed above.
• The Flores settlement also stipulates that children receive educational services appropriate to their communication skills, 142 which suggests that provisions should be made for accommodating various levels of English proficiency. At Hutto, parents complained that their children are not learning in the classes because they do not speak English and teachers are not able to speak .spanish.
• Until recently, children detained at Hutto received only one hour of schooling per day, Monday through Friday. Recent media reports and an affidavit from a detainee state that this has recently been increased to four hours per day, but we have not been able to confirm length or changes in quality of the new program.
• Teachers at the Hutto facility are required to be only "license-eligible" in the State of Texas. They do not have to hold a license from the state or school district to obtain employment at this facility.

140 Women's Commission, Behind Locked Doors, p. 3. 141 Flores v. Reno, Minimum Standards for Licensed Programs,# 4, p. 15. 142 Ibid.

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Recreation
Recreational activities provided are insufficient for the physical and mental well·being of children and families in detention, and prevent the natural development of parent-child relationships.
• The Flores settlement specifies that children should receive one hour per day of outdoor activity, seven days per week, and at least one hour of large muscle and one hour of structured recreational activity per day. This recreation allotment should be increased to three hours per day on days when school is not in session.143 However, children do not consistently receive this required level of recreation at either facility. At Berks, children do not get to go outside for fresh air every day. At Hutto, there was a discrepancy about outdoor recreation, with some in detention telling us that outside recreation was provided when the weather was moderate, and others telling us that they had to go outside for one hour every day regardless of weather conditions. Those detained at Hutto do not receive any recreation time on the weekends. However, the Detention Standards stipulate that people at contract detention facilities such as Hutto be provided with access to outdoor recreation seven days per week.
• Both Hutto and Berks had few toys or sports equipment available for children or adults. The few toys that we did see were trucks and kitchenettes, as well as video games at Hutto and some games and a game table at Berks. The absence of toys that encourage fine motor skills, muscle control, physical strength and imaginary play can compromise natural child development and psychological well·being.
• Children at Hutto were not allowed to have their own toys, so whatever toys they could find to play with during their one hour of recreation time had to be left behind in the gymnasium. No toys are permitted in the cells at Hutto.
• The ICE Detention Standards state that volunteer groups may provide recreational or educational programming for people in detention. 144 However, the Hutto facility does not permit outside groups to provide activities for people in detention.
Discipline
Both children and adults are subject to inappropriate disciplinary practices. Disciplinary policies are unclear. and are not formulated with consideration for parental roles or the range of ages and maturity in the program. In addition, staffmembers are not culturally sensitive to the needs of alien minors.
• The Flores settlement prohibits the use of corporal punishment, humiliation, mental abuse and punitive interference with such daily functions as eating and sleeping. In addition, under Flores disciplinary actions may not adversely impact a child's health or physical or psychological wellbeing. Nor may they deny a child regular meals, sufficient sleep, exercise, medical care, the right to correspondence or legal assistance.145 The disciplinary practices at both facilities violate these standards.
• The Detention Standards stipulate that written notification of disciplinary practices, prohibited acts and sanctions must be provided to detainees. In addition, the standards prohibit corporal punishment; excessive use of force; retaliatory disciplinary actions; or deprivation of food,
143 Ibid.,# 5, p. 15. 144 U.S. ICE Detention Operations Manual, Recreation. 145 Flores v. Reno, Exhibit l, Section C.

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a j
Case 1:07-cv-00166-SS Document 2-3 Filed 03/06/07 Page 26 of 28
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clothing, bedding, hygiene products, exercise, access to visitation, telephone access, correspondence or access to the law library. The disciplinary practices at both facilities violate these standards.
• Both Berks and Hutto have standard disciplinary policies in place, but neither has guidelines or written policies regarding the disciplining of children. Minors are subject to humiliation, mental abuse and punitive interference with the daily functions ofliving, particularly exercise.
• Because there are no staff guidelines or ICE policies on disciplining children, neither parents nor guards are clear about what to do in a situation where a parent is unwilling or unable to control his or her child. In our interviews with families and through personal observations we found that discipline issues played a large role in undermining family unity, health and stability. On the one hand parents have no control and feel powerless to discipline or influence their children's behavior. On the other hand the fear of being separated from their children due to disciplinary issues creates enormous pressure to control their children. This results in extremely stressful parent-child relationships. Additionally, children feel anger and resentment toward their parents for leading them into the detention setting and for not being able to protect them, while the parents feel guilt, stress, helplessness and frustration.
• The absence of disciplinary guidelines also leads to situations in which staff members apply punishments that are disproportionate to actual incidents.
• Recreation is inappropriately withheld as punishment, in violation of both Flores and Detention Standards. 146
• Climate control-particularly extremely cold temperatures-is used for discipline or for controlling loud or active children, in violation ofthe Flores settlement. 147
• Threats of separation are used as discipline, and children and parents alike are very afraid that they will be separated, which creates a climate of extreme stress.
• Actual separation, in which one or more family members are sent to a prison or juvenile center, does occur. It is not always clear whether the actions that led to the separation rose to the level that would necessitate such a transfer.
· • Separation of days or months has reportedly been employed as a disciplinary tactic.
• Verbal abuse is used as a form of discipline, in contravention of both the Flores settlement and the Detention Standards. 148 Abuse includes such tactics as telling detainees, particularly children or adolescents, that they are worthless.
Access to Counsel
We observed or received reports of instances in which access to counsel or the use of telephones was compromised.

146 Flores v. Reno, Exhibit I, Section C; U.S. ICE Detention Operations Manual, Disciplinary Policy. 147 Flores v. Reno, V (12). 148 Flores v. Reno, Exhibit I, Section C; U.S. ICE Detention Operations Manual, Disciplinary Policy.

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• Both the Flores settlement and the Detention Standards require that children and adults in detention be afforded access to legal counsel.149 Access to counsel is a key element in a detainee's likelihood of obtaining relief. However, policies and procedures at both Hutto and Berks limit the ability of families in detention to communicate with counsel and to make informed decisions about their cases.
• People detained in Hutto reported that they are routinely told that applying for asylum will result in being detained for eight months or longer, which discourages them from seeking political asylum.
• ICE is failing to implement its own parole criteria (credible fear, community ties, establishment of identity and not a suspected security risk) for asylum seekers and failing to release them.150
• At Hutto there were four phones in each pod, none surrounded by a privacy screen, although both the Flores settlement and the Detention Standards require that detainees must be provided with privacy during legal calls. 151
Visitation
Restrictions on contact and privacy exacerbate emotional stress on families in detention.
• The Flores settlement affords detained children visitation rights, stipulating that visitation be structured to encourage privacy for visitors and children during visitation to the extent practicable. 152 However, at Hutto all visits with friends and relatives are non-contact and take place by telephone through a Plexiglas wall. In addition, at both Hutto and Berks guards are present in the visitation rooms, undermining families' sense of comfort and ability to communicate openly with visitors.
• At Hutto if any member of a family wishes to receive a visitor, all members of the family must participate in the visit, a policy that prevents adults from speaking openly with friends and family without exposing children to traumatic information.
• At Hutto detainees are only permitted to use the bathroom one time during a visit. For families with small or several children, this can be difficult and may discourage visits.
Clash of Cultures
The use of family detention has created a clash of cultures. A correctional model is being improperly imposed upon noncriminal families.
• The penal model of family detention leads to babies in uniforms with name tags, cribs inside prison cells, parents losing the ability to discipline their children, and families unable to live as a normal family unit. Yet there is no means by which traditional correctional practices can be successfully applied to this noncriminal population without severely compromising the physical and psychological well-being of families.

149 Flores v. Reno, Exhibit I, A(14); U.S. ICE Detention Operations Manual, Visitation. 150 "Expedited Removal: Additional Policy Guidance." 151 Flores v. Reno, Exhibit I, A(12); U.S. ICE Detention Operations Manual, Telephone Access. 152 Flores v. Reno, Exhibit I, A( II).

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• The lack of precedent and standards for family detention suggests that a penal model cannot be reconciled with child and family welfare practice.
• When children are released from ORR into the custody oftheir undocumented parents, ICE sometimes redetains them along with their parents. This discourages parents from coming forward to reunify with their children, creates a conflict with the Flores settlement's preference for release, and places additional burdens on ORR. Finally, this practice causes severe emotional distress for both children and parents.

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VI. Recommendations
Recommendation One
Discontinue the detention of families in penal institutions.
• Close the T. Don Hutto Residential Center. (ICE)
• Begin transitioning to the use of nonpenal, homelike facilities for families not eligible for release on parole or bond or to alternatives to detention. (ICE)
Recommendation Two
Institutionalize a preference for release for all families who can establish identitv and community ties and who do not pose a securitv risk.
• Complete release as soon as possible but no later than three weeks after apprehension. (ICE or ORR)
• Codify parole criteria to ensure that asylum seekers who do not present a flight risk or pose a threat to the community are released from detention. 153 (ICE)
• Authority to parole asylum seekers should be shifted to an objective decision-making body, such as the asylum corps or the Executive Office for Immigration Review. (ICE, CIS and EOIR)
• Where at least one member of the family has established credible fear or is applying for a valid form of relief, release the family or transfer them into an alternatives program or a nonpenal, homelike environment. (ICE)
• Grant temporary work authorization to asylum seekers whose cases are pending and who have been released into the community. (CIS and ICE)
• Liberalize parole criteria for families in expedited removal proceedings. (ICE and Congress)
• Make bonds for families accessible and not excessive. Children detained as part of a family unit should not be assigned an individual bond. (EOIR)
Recommendation Three
Implement alternatives to detention for families not eligible for parole or release. 154
• Implement alternatives to detention as soon as possible but not later than three weeks after apprehension. (ICE or ORR)

153 U.S. Commission on International Religious Freedom, Report on Asylum Seekers in Expedited Removal, Volume I: Findings and Recommendations, p. 55.
154 For additional information on alternatives to detention see Appendix D.

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• Expeditiously develop pre~hearing release programs or alternatives to detention for families nationwide, such as supervised release and shelter care under the auspices of nonprofit social service agencies with expertise in meeting the needs of refugee families. (ICE and NGOs)
• Individuals in expedited removal proceedings should be eligible for alternatives to detention such as the Intensive Supervised Appearance Program. Such programs should be considered to be a form of custody. (ICE)
• Grant temporary work authorization to asylum seekers whose cases are pending and who have been released into alternative programs. (CIS and ICE)
Recommendation Four
Families not eligible for parole or release into the community or alternative programs should be housed in appropriate nonpenal, homelike facilities.
• Transfer responsibility for custody of families in immigration proceedings to ORR, which is better equipped to address the special needs of refugee families. (Congress)
• Homelike facilities should permit families to share the same living space and enable parents to prepare food for and care for their children. (ICE or ORR)
• Separation of families who remain in homelike detention should never be used as a form of punishment. However, short-term voluntary separation within the facility should be permitted for purposes such as educational activities, recreation activities, medical examinations, counseling sessions and meetings with legal counsel. (ICE or ORR)
• Homelike facilities should employ a daily release model of family detention similar to that reportedly used in Australia, where parents and children are permitted to leave the facility during the day. 155 Pending asylum applicants detained in homelike facilities should be granted temporary work authorization to enable them to work in the surrounding community. (CIS and ICE or ORR)
• All facilities used for the detention of families should be licensed by appropriate regulatory bodies. Local, state and national governments that do not yet have standards should develop standards to ensure safety and dignity of children and families in detention and to prevent situations where services and safety are compromised by licensing requirements. In addition, because parents do not have control over conditions of confinement, regulatory bodies should err on the side of mandating facility compliance with all relevant standards for housing children. Internal procedures should provide adequate protection for children and meet their ongoing educational, physical and psychosocial development needs. (ICE or ORR, local government)
• Develop and codify family detention standards that take into account the needs of families, parental roles and the particular needs of children. Standards should ensure protection and continued educational, physical and psychosocial development of children throughout the period of detention. (ICE or ORR)

155 See Appendix C.

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• Homelike family detention facilities should be subject to oversight and inspection by an independent authority. (ICE or ORR)
• Homelike detention facilities should take care in hiring staff who have employment experience and expertise with child welfare, family protection or family preservation, and not only with the criminal or juvenile justice systems. In addition staff should receive continued specialized training in the unique physical and psychological needs of immigrant families. All stafftraining should be based upon a child and family welfare model and not a criminal or juvenile justice model. (ICE or ORR)
• Visitation policies in homelike facilities should permit contact visits. Noncriminal families should not be subject to strip searches after visits. (ICE or ORR)
• Any pending asylum applicant who cannot be released from detention should be permitted to participate in a work release program. (CIS and ICE)
Recommendation Five
Children released from ORR custody should not be redetained with their parents upon family reunification.
• This practice creates a conflict with the predisposition for release of unaccompanied minors under the Flores settlement by discouraging parents from reuniting with their children. (ICE)
Recommendation Six
Enhanced public-private partnerships should be employed to provide Legal Orientation Programs. including legal information and pro bono legal access. for all detained families. including those in expedited removal proceedings.
• Assure access to legal orientation as soon as possible and no later than one week after being detained. (ICE or ORR, and EOIR)
• Expand the Legal Orientation Program or a similar model to all family detention sites. Presentations should include information on claims involving domestic violence, sexual. violence, gang membership and other issues of unique importance to children and families' eligibility for relief. (ICE or ORR, EOIR and NGOs)
• Children whose families are in immigration proceedings should be treated as individuals who may be eligible for forms ofrelief separate from those available to their parents. Public-private partnerships should include the development of information and representation models that facilitate an exploration and pursuit of children's individual claims. (ICE and NGOs)
• Public-private partnerships such as the CAIR Coalition model should be expanded to provide legal representation for families and individual family members at credible fear interviews. (CIS and NGOs)
• Staff members charged with conducting credible fear interviews should receive appropriate training regarding minimal threshold requirements, particularly regarding domestic violencebased asylum claims. (CIS)

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Appendix A: Methodology
This report is based on an assessment of the conditions of detention at the Berks Family Shelter Care Facility in Leesport, Pa., and the T. Don Hutto Residential Center in Taylor, Texas. The Women's Commission for Refugee Women and Children and Lutheran Immigration and Refugee Service carried out all research between October 2006 and February 2007; Research consisted of tours of these facilities and interviews of individuals currently and formerly detained. In addition, we engaged in formal and informal conversations with facility staff; local and national DHS staff; staff of Williamson County, Texas, and Berks County, Pa.; and attorneys representing detainees at Hutto.
We followed up our visits with ongoing conversations with ICE National Juvenile Coordinator John Pogash. Since these discussions, a considerable amount of public and press attention has been directed toward family detention in general and the Hutto facility in particular. As a result of this attention some modifications have been made.
Ease of access to the facilities differed between the sites. We were afforded easy access to the Berks facility. DHS and Berks County Youth Center staff responded quickly to initial and follow-up requests. During the course of our tour, we asked permission and were allowed to sit and talk with detained families in the cafeteria for some time. During these conversations, ICE and facility staff remained out of earshot. We were also allowed follow-up visits with detainees of our choosing.
LIRS and the Women's Commission were the first NGOs permitted to tour Hutto. It took several months to gain access. Ultimately we were given access and were able to speak with three families detained in the facility. With the exception ofthe first interview, a member ofthe Hutto staff was present in the room during these interviews. We were not able to gather all relevant information during our brief facility visits, and some questions about policies, statistics and physical plant remain. We have requested statistics and other clarifying documentation from the ICE national juvenile coordinator in an effort to resolve these outstanding questions. ICE has responded unofficially by stating that they have been deluged with requests for information regarding Hutto and family detention in general, and are unable to process our requests at this time. They requested that all inquires be processed through the quarterly DHS/ICE liaison meetings. 156 Consequently, where there is a lack of additional information available, we have made note of this in the text.

156 John Pogash, telephone interview by Michelle Brane, Washington, D.C., January 31,2007

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Appendix 8: Family Detention and International Law
Both treaty law and customary international law prohibit prolonged arbitrary detentions and provide a directive for the humane treatment of detainees. Article 3 ofthe Universal Declaration of Human Rights, the basis for most human rights law, states, "everyone has the right to life, liberty and security of person."157 Article 16(3) specifies that "the family is the natural and fundamental group unit of society and is entitled to protection by society and the State."158 More specifically, Article 25 asserts that "everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control." Additionally, Article 9 states, "No one shall be subjected_ to arbitrary arrest, detention, or exile."159 These articles support the notion that all human beings, regardless of their political status, deserve a basic, decent level of treatment.
The International Covenant on Civil and Political Rights, to which the United States is a party, corroborates the above principles. Article 9(1) states that "no one shall be subjected to arbitrary arrest or detention."160 Article 9(4) elaborates, "anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release ifthe detention is not lawful."161 The convention outlines specific guarantees for families. Article 23 states, "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State."162 Moreover, Article 17 states, "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."163
Although the United States has not ratified the Convention on the Rights ofthe Child, it is widely accepted by the international community as international law. Various provisions in the convention apply to the current problems in U.S detention facilities. Article 10 speaks specifically about the obligation of states toward children separated from their families. "Applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family."164
Article 16 states "No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation and the child has theright to the protection ofthe law against such interference or attacks."165
Specific articles target the requirement of states to provide certain basic services to children regardless of their political status. Article 25 asserts, "States Parties recognize the right of a child who has been placed by the competent authorities for the purposes of care, protection or treatment of his or her physical or mental health, to a periodic review ofthe treatment provided to the child and all other circumstances
157 Universal Declaration ofHuman Rights, 71 U.N. Doc A/810 (1948), Article 3. 158 Ibid, article, 16(3). 159 Ibid, article 9. 160 International Covenant on Civil and Political Rights, U.N. General Assembly Resolution 2200 A (XXI) (December 16, 1966) (entered into
force March 23, 1976), article 9( I). 161 Ibid., article 9(4). 162 Ibid., article 23. 163 Ibid., article\7. 164 United Nations Convention on the Rights ofthe Child, U.N. General Assembly Resolution 44/25 (November 20, I989) (entered into force
September 2,1990), Article 10. 165 Ibid., article 16.

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relevant to his or her placement."166 Article 27 affirms, "States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development."167 Lastly, Article 31 maintains that "States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts. States Parties shall respect and promote the right ofthe child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity." 168
In February 1999 the Office of the United Nations High Commissioner for Refugees issued the UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention ofAsylum Seekers. In it, UNHCR proclaims that the detention of asylum seekers is inherently undesirable, and that it should be avoided as a general principle. It recommends that there be a presumption against detention, but that if used, detention should be limited to a minimal period of time. Guidelines 6-10 require states to provide certain basic levels of treatment of detainees including education, health care and counseling, and outlines specific conditions for detention. The Guidelines also call for special protection of populations at risk, including women and children. This means that, according to Guideline 2 and the UNHCR guidelines on protection and care of refugee children, minors who are asylum seekers should not be detained. 169 These guidelines are predicated on the 1951 United Nations Convention Relating to the Status ofRefugees and its 1967 Protocol, both of which the United States ratified in 1968. It mandates that countries not impose penalties on asylum seekers on account oftheir illegal entrance or presence as long as they present themselves without delay to the authorities and show good cause for the illegal entrance or presence.
UNHCR directly addressed concerns about U.S. detention policies in 1993, before the extreme growth of detention sites in 1996 and again at present:
The UNHCR Executive Committee has expressed deep concern about the detention of refugees and asylum seekers merely on account of their undocumented entrance or presence in search of asylum, Executive Conclusions, No. 44 recommended that 'in view of the hardships which is involves, detention should be normally avoided.' Detention of refugees and asylum seekers should be normally limited to the shortest time necessary to establish the applicant's identity and the elements ofthe asylum claim.170

166 Ibid., article 25. 167 Ibid., article 27. 168 Ibid., article 31. 169 Office of the U.N. High Commissioner for Refugees, UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the
Detention ofAsy/11111 Seekers, February 1999, http://www.unhcr.org/protect/PROTECTION/3bd036a74.pdf. 170 Rene Van Rooyan, representative, UNHCR Branch Office to the United States, letter to Doris Meissner, Commissioner, Immigration and
Naturalization Service, March 4, 1993.

50

Locking Up Family Values: The Detention of Immigrant Families

Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 7 of 28

Appendix C: Family Detention Practice in the International Context
The European Union adopted a directive in 2003, binding on all member states, that declares that asylum seekers within the European Union "may move freely" within the territory of the host member state, but that when necessary for "legal reasons or reasons of public order, Member States may confine an applicant to a particular place in accordance with their nationallaw."171 The directive also mandates that ''Member States shall take appropriate measures to maintain as far as possible family unity as present within their territory, if applicants [asylum seekers] are provided with housing by the Member State concerned."172
In 2005, the Council of Europe's Committee of Ministers adopted a set of guidelines that address the "forced return" process. One of those guidelines states that people in immigration detention in Europe "pending their removal from the territory should not normally be held together with ordinary prisoners," and that "the principle of the unity ofthe family should be respected and families should therefore be accommodated accordingly."173 The guidelines also state that member states should only detain immigrant children as a last resort, that detained children have a right to education and leisure, that detained families should have separate and private accommodation, and that the "best interest of the child shall be a primary consideration in the context of the detention of children pending removal."174 However, the guidelines are not binding on member states; rather, member states are "encouraged" to adopt them, but they do not "imply any new obligations for Council of Europe member states."175
Britain: Detention of Families and Children
Rules for immigration detention centers in the United Kingdom were promulgated in 2001 in accordance with the Immigration and Asylum Act 1999.176 The rules state that families in detention are "entitled to enjoy family life at the detention centre save to the extent necessary in the interests of security and safety."177 They also are to be provided with "accommodation suitable to their needs," and with everything "reasonably necessary" for the care and well-being of infants and children. 178
The British government has claimed that it seeks to detain families only for as short a time as possible. 179 However, some "NGOs working with detained families argue that there is a gap between stated policy and what happens in practice to families, citing prolonged periods of detention in some cases."180 In other cases, British immigration officials have engaged in questionable apprehension and detention tactics. One family of asylum seekers in Glasgow, Scotland, after being told by officials that "everything was fme" with their claim, was forcibly taken into detention at 6:00 a.m. one morning. The husband was separated from his wife and son, and they were taken to a detention center in separate cars. Before leaving, they were told that they were "being sent back to their own country," not a detention center. After being

171 European Union, "Council directive of27 January 2003 laying down minimum standards for the reception of asylum seekers," Anicle 7. 172 Ibid., article 8. 173 Committee of Ministers ofthe Council of Europe, Guidelines on all stages ofthe Jorced return' process. [CM (2005) 40], Guidelines I 0 and
II, quoted in Amnesty International, lta(v: Temporary Stay-Permanent Rights: The Treatment ofForeign Nationals Held in 'Temporary
Stay and Assistance Centres,' AI Index: EUR 30/004/2005. (London: June 2005), pp. 61-62. 174 Ibid., guideline 11, p. 62. 175 Ibid., p. 57. 176 D. Stevens, "The Immigration and Asylum Act 1999: A Missed Opportunity?" The Modern Law Review, 64(3): 413-438, (2001): p. 431. 177 Detention Centre Rules 2001 SI 2001/238 pt 2 r 11. 178 Ibid. 179 Amnesty International, Seeking Asylum Is Not a Crime: Detention ofPeople Who Have Sought Asylum, AI Index: EUR 45/015/2005.
(London: June, 20 2005), p. 14. 180 Ibid.

Locking Up Family Values: The Detention of Immigrant Families

51

Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 8 of 28

detained for 17 days, they were released on bail; at the time of their interview with Amnesty International their asylum claim still had not been decided.181
Germany: Immigration Detention
Much like the United States, anyone without authorization to be in Germany may be detained, including those whose "asylum claim has been rejected and who are subject to...deportation."182 In terms of families of asylum seekers, anyone over the age of 16 may be detained, and "pregnant women are also detained (as they are in Britain and France), but are sent to hospital six weeks before the due date and allowed to remain for six weeks after the birth."183 Conditions in German immigration detention facilities can vary from state to state, 184 but in one detention center the conditions appear similar to many American detention centers. It is difficult to move around, and detainees must ask permission for even the smallest privilege, e.g., "to open a window...or fetch hot water for tea."185 Furthermore, "(t]here are no work or training possibilities in Kopernick and detainees are only allowed one hour's exercise in the yard."186 Pro bono attorneys visit to dispense legal advice once a week, but detainees are responsible for retaining and paying for their own attorneys. 187
Australia: Community Detention
Australia maintains several immigration detention centers, called "immigration reception and processing centres."188 In a review of publicly available documents on the experiences of children in Australian immigration detention, the Australian advocacy group Children Out of Detention found that "[t]wenty five documents allege that detention itself is the cause of significant mental health problems in children, additional to the trauma and persecution already experienced by them in their home country and during their journey to 'freedom.' "189
Furthermore, the same review found that "[t]wenty five documents allege that detention itself is a damaging environment for children."190 In a 2002 submission to a government inquiry on children in detention the Professional Alliance for the Health of Asylum Seekers and Their Children, of which the Royal Australasian College of Physicians is a main sponsor, said that they had learned of a family that had been detained for 10 months without a decision on their refugee status. 191
Since the publication of the 2002 Children Out of Detention report the Australian Parliament adopted a new law that ends the practice of detaining children and families. With this 2005 law, Parliament gave the minister for immigration and multicultural and indigenous affairs the "non-compellable power" to "specify alternative arrangements for a person's detention," so that the minister cari "allow families with children to reside in the community at a specified place (instead of at a detention centre or residential

181 Ibid., p. 15. 1112 Michael Welch and Liza Schuster, "Detention of Asylum Seekers in the US, UK, France, Germany, and Italy: A Critical View of the
Globalizing Culture of Control," Criminology and Criminal Justice. 5(4): 331-355. (2005), p. 341. 183 Ibid.
184 Ibid. 185 Ibid. 186 Ibid., p. 342. 187 Ibid. 188 International Detention Coalition, The Heart ofthe Nation's Existence: A Review ofReports on the Treatment ofChildren in Australian
Detention Centres, January 2007, p. 2, http:l/idcoalirion.orglportal/componentloption,com_remository/ltemid,I05/func,fileinfo/id,16/. 189 Ibid.
190 Ibid. 191 Professional Alliance for the Health of Asylum Seekers and Their Children, Submission to Human Rights and Equal Opportunity
Commission Inquiry into Children in Immigration Detention, (May 2002), p. 27,
http://www.racp.edu.aulhpu/policy/asylumseekers/alliance_inquiry.pdf.

52

Locking Up Family Values: The Detention of Immigrant Families

Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 9 of 28

housing project) in accordance with conditions that address their individual circumstances."192 The new law also specified that minors should only be detained as a last resort.193
This program was developed in response to the failure of a program to detain all asylum seekers arriving by boat or without valid entry documents in remote detention facilities. 194 Now, all families with children under 18 are released into "community detention" programs in which NGOs provide care and accommodations for families who are still deemed to be in custody of the Australian government. In this program, the "Minister [of the Department of Immigration and Multicultural Affairs] can stipulate different conditions for each family, such as when they need to be at the residence and when they need to report to DIMIA officers. However, within these conditions families can go out shopping, go to school and so on, without being accompanied by a guard."195
Sweden: A Model for Others?
Sweden is known for the generosity of its immigration laws as compared to the laws of its peer countries. This reputation extends to its detention policies as well. The Australian study sponsored by the Royal Australasian College of Physicians discussed above also describes several positive aspects of the Swedish system of receiving, housing and sometimes detaining asylum seekers.
• According to Swedish law, someone under the age of eighteen can only be detained for three days or less. 196
• Unaccompanied minors who arrive in Sweden are taken to government-run group homes. 197 • Families that arrive without documentation are given family accommodation and must report daily to
the Department of Immigration.198 • If the Swedish government is uncertain about possible risks to national security, only the husband is
detained while other members of the family are released to group homes outside of the detention center. The family members can visit the husband often.199 • Asylum seekers can either choose to reside with a relative or friend, or can rent an apartment from the Swedish Migration Board.200 • Families of asylum seekers are offered a daily allowance from the Swedish government, and children are "not obliged to attend school although the municipal authority is responsible for ensuring that those who wish to attend school are offered a place" on the same terms as other Swedish citizens and residents. "20 1

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192 House of Representatives, Parliament of the Commonwealth of Australia, Migration Amendment (Detention Arrangements) Bill 2005:

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Explanatory Memorandum, http://www.ajustaustralia.com/resource.php?act=attache&id=78. 193 Ibid. 194 Mina Fazel, "Detention of Refugees," BMJ, 332:251-252, February 4, 2006, http:/lbmj.bmjjoumals.com/cgiicontent/full/33217536/251.

195 Children Out of Detention, "Community Detention for Families in Australia,"

http://www.chilout.org/information/community_detention.html.

.,

1% Professional Alliance, Submission to Human Rights and Equal Opportunity Commission. p. 51.

l
I

197 Ibid. 198 Ibid. 199 Ibid. 200 Swedish Migration Board, Reception ofAsylum Seekers in Sweden, March 2006,

http://www.migrationsverket.se/infomateriaVasyl/allmant/mottagandet_en.pdf

201 Ibid.

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Locking Up Family Values: The Detention of Immigrant Families

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Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 10 of 28

Appendix D: Alternatives to Detention
Executive Summary of the UNHCR Report on Alternatives to Detention of Asylum Seekers and Refugees202
In 2002, UNHCR's Agenda for Protection urged 'States more concertedly to explore alternative approaches to the detention of asylum seekers and refugees ... '203 in response to the increasing use of detention of asylum seekers and/or refugees by host governments. This study is a contribution towards that objective. This study undertook research into the practices regarding the use of alternatives to detention for asylum seekers and/or refugees of thirty-four States. The information presented herein is valid up to 31 March 2004 and takes no account of changes in law or practice between that date and the date of publication. This study has two main parts. First, it presents a concise overview ofthe legal standards under international law applicable to both detention as well as alternatives to detention that may give rise to some restrictions on the freedom of movement of asylum seekers and/or refugees. Second, and forming the main part ofthis study, it presents a range of alternatives to detention used by many receiving countries and attempts to evaluate those measures, specifically in relation to rates of absconding.
This study found that there is a significant difference in the level of effectiveness of a particular alternative depending on whether it is applied in a primarily 'destination', as opposed to a primarily 'transit', State. The statistical data available suggests that restrictive alternatives involving close supervision or monitoring, for the purpose of ensuring compliance with asylum procedures, are seldom if ever required in destination States where most asylum seekers wish to remain. In such States, the rate at which asylum seekers abscond, prior to a final rejection of their claim and/or the real prospect of removal from the territory, seems to be low. Projects established to provide alternatives to detention throughout the duration of refugee status determination procedures in such countries are therefore all highly effective, but this appears to be due less to their design than by happenstance, that is, asylum seekers who reach their 'destination' country are unlikely to abscond because they have a vested interest in remaining in the territory and in complying with the asylum procedure. With this context in mind, there is a real risk of certain alternatives, such as electronic tagging, being misapplied to asylum seekers who would not and should not otherwise be detained, thereby becoming an unnecessary restriction on their freedom of movement and other rights.
In some countries with well-articulated national legislation in which consideration of alternatives is required prior to the issuing of any detention order, official information was unavailable with regard to the implementation of the relevant articles. Available figures and anecdotal evidence from asylum lawyers in those countries suggest, however, that alternative measures were rarely if ever applied to their clients. Although detention of asylum seekers prior to a decision on a claim is, to date, a relatively exceptional measure in those contexts, the non-implementation of the available alternative measures is of concern. In transit States, where the rate of absconding is usually higher, this study found several examples of reception policies and programmes which successfully reduced this rate, without recourse to detention. In some southern European countries, for example, the partial or recently introduced provision of State accommodation and support to asylum seekers is making a marked reduction in the rate at which such persons abscond and move on irregularly to other countries.

202 United Nations High Commissioner for Refugees, Alternatives to Detention ofAsylum Seekers and Refugees, prepared by Ophelia Field and Alice Edwards, Division oflntemational Protection Services, POLAS/2006/03, April 2006.
203 UNHCR Agenda for Protection, June 2002, NAC.961965/Add.!, p.8.

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Locking Up Family Values: The Detention of Immigrant Families

Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 11 of 28
Even in primarily destination States, certain factors were found to further reduce the low rate at which asylum seekers there abscond. The provision of competent legal advice and concerned case management, for example- which serve as non-intrusive forms of monitoring and which ensure that asylum seekers fully comprehend the consequences of non-compliance - were found to raise rates of appearance and compliance. Similarly, legal support, guardianship and specialised group homes run by nongovernmental agencies were found to successfully reduce the rate at which separated asylum-seeking children disappeared from several European countries. Early, detailed interviewing of such children at the border, to fully establish the nature of their situation, was also found to be an effective alternative to placing 'protective' restrictions upon their freedom of movement after admission.
The effectiveness of alternatives used to ensure the availability for removal or compliance with removal proceedings of persons found not to be in need of international protection is less certain, though there were several successful examples to be cited even here. Several countries report successful results from projects for counselling persons not in need of international protection about consenting to mandatory return, and both Australian and British nongovernmental organizations report high rates of success in monitoring sample groups of people released while awaiting removal. Return-oriented centres established in some European States for persons who refuse to cooperate with their forced return (or for asylum seekers with manifestly unfounded claims or, in one case, for separated children), have not so far produced similar evidence of success. For persons found not to be in need of international protection who cannot be returned to their home country, reporting requirements are successfully used in a number of States as an alternative to the inhumane and unlawful prospect of indefinite detention.
This study further found that, where comparative costs of detention vis-a-vis alternatives to detention are available, alternatives are universally more cost-effective than detention. Finally, this study advocates for further empirical research, transparency and public education at the national and international level in relation to all these issues.
ICE Intensive Supervision Appearance Program (ISAP)204
See pages 56 to 59.
Legal Orientation Program205
See pages 60 to 62.

04 '

Handouts, meeting with ICE, June 21, 2004.

zos Steven Lang, Pro Bono Coordinator of the U.S. Department of Justice, Executive Office for Immigration Review, "Pro Bono Program

Update- January 2005," memorandum to all immigration judges and court administrators, January 2005.

Locking Up Family Values: The Detention of Immigrant Families

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Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 12 of 28

Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 13 of 28

):.-~

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~ Eight pilot sites initially: Baltimore, Philadelphia, Miami, St. Paul, Denver, Kansas City, San Francisco, and Portland, OR.

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~ Purpose of program is to intensely supervise aliens released into the community to ensure their appearance at their immigration hearings

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alternative to detention program.

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Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 14 of 28

Alternatives to Detention-
Intensive Supervision Appearance Program (ISAP):
~ ISAP includes utilization of supervision tools such as curfews, electronic monitoring, decreasing levels of restrictions as participants demonstrate compliance, and community collaborations to support the participant.
~ The target groups for this program are detained adults {over 18) and meet the eligibility criteria that includes: ~ - Aliens who are not mandatory detention cases ~ - Identity of alien has been established and verified ~ - Alien will maintain a local address within jurisdictio·n of the ISAP field office site ~ - Alien is non-violent and not a threat to public safety ~ - Aliens must volunteer to participate in the program

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Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 15 of 28

Offici!. ofPublic A)fairs t.S. Department of Ilomelantl Security

U.S. Immigration and Customs Enforcement

June 17, 2004

N ws Release

Contact: ICE OPA 202-514-2648

ICE UNVEILS NEW ALTERNATIVE TO DETENTION Pilot project to be introduced in eight cities
Washington, D.C.- U.S. Immigration and Customs Enforcement (ICE) today announced a new pilot program providing a less restrictive alternative to detention. The Intensive Supervision Appearance Program (ISAP) will be introduced on June 21, 2004, at eight ICE locations across the United States. The cities where this new program will be introduced are Baltimore; Philadelphia; Miami; St. Paul; Denver; Kansas City; San Francisco; and Portland, Oregon.
"ISAP is an alternative to detention that further enables ICE to prioritize detaining criminals and other public safety and security risks;" said Acting Director of Detention and Removal Operations Victor Cerda. "ISAP aims to promote integrity in the immigration system by helping to ensure compliance with court appearances and orders, and will likely relieve pressure on detention space in pilot cities by providing this alternative to aliens who might otherwise be detained."
ICE's Office of Detention and Removal Operations (DRO) manages ISAP in partnership with Behavioral Interventions, Inc. (BI) of Boulder, Colorado. ISAP, one of several alternatives to detention pilot projects currently being tested, is a supervision program in which case specialists are assigned to a limited caseload of participants and are responsible for monitoring those participants in the community by using tools such as electronic monitoring (bracelets), home visits, work visits and reporting by telephone. Case specialists will also assist participants in obtaining pro-bono counsel for their hearings and help them to receive other types . of assistance to which they may be entitled.
In order to be eligible for participation in ISAP, an alien must be an adult with a confirmed identity who does not pose a threat to the community or national security. Additionally, ISAP will be available only to aliens who are not subject to mandatory detention; who are pending immigration court proceedings or are awaiting removal from the United States; and who will be residing within the managed area. ISAP is a voluntary program; all participants must agree to participate and comply with the conditions of their release. Aliens who violate the conditions of their release may face detention or increased supervisory restrictions. ICE will evaluate the program at the end of the pilot and based on the results determine any possibilities for future implementation.
-ICE-
U.S. immigration and Customs Enforcement (ICE) is the largest investigative arm ofthe Department ofHomeiand Security, responsible for the enforcement ofborder, economic, infrastructure and transportation security laws. ICE seeks to prevent acts of
terrorism by targeting the people, money and materials that support terror and criminal networks.
www.ice.gov

Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 16 of 28

U.S. Department of Justice Executive Office for Immigration Review
Office ofGeneral Counsel 5107 Leesburg Pike, Suite 2600 Falls Church, Virginia 22041
Pro Bono Program Update - january 2005

To:
From:

All Immigration Judges and Court Administrators Steven Lang, Pro Bono Coordinator

I am pleased to send all of you this update on the Pro Bono Program. Since April of 2000, the Pro Bono Program has worked to improve the level and quality of pro bono representation. This has been carried out primarily through initiatives which facilitate access to information and create new incentives for attorneys and law students to take on pro bono cases before the immigration courts and Board of Immigration Appeals (BIA). The Program has also continued to perform an important community relations role, with the Coordinator often serving as liaison between our agency and the non~profit legal community on issues related to legal assistance for indigent aliens.
Many of the Program's accomplishments owe their success to the numerous Immigration Judges, Court Administrators and Headquarters' staff whose interest and active involvement in the Program have helped to shape its approach and direction. Our agency has long recognized the mutual benefits derived from strong pro bono participation in the immigration hearing process. Working together, the Program continues to look forward to your comments, suggestions, and enthusiasm as we 'contend with current and future challenges.
In these difficult budget times, the Pro Bono Program has limited its focus over the past year to three major initiatives~ the Legal Orientation Program, the BIA Pro Bono Project, and interagency initiatives aimed at improving access to pro bono legal services for Unaccompanied Alien Children. The Program also continues to promote and develop two earlier initiatives ~ the Pro Bono Program webpage, and the Model Hearing Program (MHP).
I. Le:al Orientation Programs
In FY'02, Congress appropriated $1 million to the INS for "Legal Orientation Programs." The Pro Bono Program lead efforts to transfer these funds to EOIR, as well as to determine the best available means of funding such programs across the country. These funds have recently been renewed. We are currently in the process of evaluating program performance and reviewing proposals for continued, as well as new funding.
EOIR's past experience with Legal Orientation Programs (also known as ''Rights Presentations") demonstrated that they are beneficial to all parties involved. These programs result in greater judicial efficiency for EOIR, less time for aliens in DHS detention, and greater access for detained aliens to legal information, counseling, and pro bono representation.
Through such orientations, representatives from nonprofit organizations provide comprehensive explanations about immigration court procedures along with other basic legal information to large groups of detained
Page 1 of 3

Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 17 of 28

individuals. The orientations are nonnally comprised of three components: 1) the interactive group orientation, which is open to general questions; 2) the individual orientation, wherein non-represented individuals can briefly discuss their cases with experienced counselors; and 3) the self-help component, wherein those detainees who wish to pursue claims for relief are provided with self-help legal materials and assistance through group workshops, where appropriate.

EOIR currently maintains a contract (Blanket Purchase Agreement· BPA) with Norwich University to carry out a comprehensive Legal Orientation Presentation Training Program at six detention sites across the country. Serving as the Contracting Officer's Technical Representative (COTR), the Pro Bono Coordinator has worked with Norwich University, six non-profit agency subcontractors, EOIR components, DHS and local detention facility representatives to implement the programs at the following sites:

Detention/Immigration Court Subcontractor

1. Port Isabel, Texas

American Bar Association (through ProBAR)

2. Eloy, Arizona

Florence Immigrant & Refugee Rights Project (FIRRP)

3. Batavia, New York

Erie County Bar Association VLP

4. Seattle, Washington

Northwest Immigrant Rights Project (NWIRP)

5. Lancaster, California

Catholic Legal Immigration Network, Inc. (CLINIC)

6. Aurora, Colorado

Lutheran Immigrant & Refugee Services (LIRS), together with the

Rocky Mountain Immigrant Advocacy Network (RMIAN)

More than 23,000 detainees are expected to benefit from the program in the first 12 months of full operation, or roughly 20 percent of all DHS detainees who appear before the Immigration Courts each year. As of the end of August 2003, preliminary results have shown an average decrease in detained proceeding completion times of 1.5 days per detainee (from receipt to proceeding completion date), with three of the newest sites averaging 2.2 days (from first Master Calendar hearing to proceeding completion date) as compared to the 12-month period preceding each sites' start date.

II. The BIA Pro Bono Project.

Since its implementation in January of2001, the Project has succeeded in recruiting over 350 attorneys, law students and Accredited Representatives to write appeal briefs for over 250 DHS detainees who would have otherwise appeared without representation before the BIA. The Project was recently expanded to include certain non-detained case appeals, as well.

Under the Project, the Catholic Legallmmigration Network (CLINIC), Capital Area Immigrant Rights . (CAIR) Coalition, American Immigration Law Foundation (AILF) and National Lawyers Guild send experienced volunteer attorney "screeners" to the BIA Clerk's Office every week to review selected case appeal transcripts. After review, the screeners write redacted summaries for cases they believe to be most suitable for pro bono representation. These summaries are e-mailed to participating pro bono representatives throughout the country who may select cases in which to enter as counsel. Those representatives who accept a case under the Project receive a copy of the file, as well as additional time to file the appeal brie£

Legal representation in many of these cases has already had a meaningful impact. Since attorneys or accredited representatives usually identify and argue the issues better on appeal, immigrants with meritorious cases have a greater chance of success. Representation also reduces procedural errors and enables the BIA to provide a more effective and timely case review.

Page 2 of 3

Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 18 of 28
Til. Unaccompanied Alien Children in DHS/ORR Custody
Since early 2003, the Pro Bono Program, together with OCIJ, has been working with the newly-created Division for Unaccompanied Children's Services at the Office ofRefugee Resettlement (ORR) to discuss, among other matters, new initiatives aimed at improving legal assistance for this special population.
EOIR's involvement with ORR was anticipated by Section 462 of the Homeland Security Act in "developing a plan to be submitted to Congress on how to ensure that qualified and independent legal counsel is timely appointed to represent the interests of each such child," and in "compiling, updating, and publishing at least annually a state-by-state list of professionals or other entities qualified to provide guardian and attorney representation services for unaccompanied alien children."
Efforts are currently underway to develop and implement a pilot program in Chicago which would combine greater pro bono attorney involvement with a new volunteer 'Guardian Ad Litem' (GAL) component. The GAL would function in loco parentis in the context of any immigration court proceedings to encourage the child to participate to the fullest extent possible. The GAL would also make a determination as to the best interests of the child which may be offered to the attorney and/or immigration court as a recommendation.
Together with ORR, the Pro Bono Program is also forming an interagency pro bono committee to better coordinate national and local pro bono efforts to assist these children.
IV. Pro Bono Program Webpage
The Pro Bono Program has steadily expanded its heavily-visited internet webpage (#I beyond Homepage). The webpage currently includes an online version of the "List of Free Legal Service Providers," and a variety of links to governmental and non-governmental sites, including bar associations, law school immigration clinics, human rights groups and pro bono organizations providing access to asylum documentation and self-help legal materials (http://www.usdoj.gov/eoir/probono/probono.htm).
Also found on the Pro Bono Program webpage are the recently-posted "Immigration Court Representation Summaries." These concise reports provide detailed information regarding the number of case completions, as well as custody status, nationality, language, and forms of relief requested by individuals in removal proceedings. The reports are designed to assist pro bono groups in their efforts to assess the needs of their local communities in order to better direct their services.
V. Model Hearing Program
The Model Hearing Program is an educational program developed by the Pro Bono Program to improve the quality of advocacy before the court, as well as increase levels ofpro bono representation. Model Hearings consist of small-scale 'mock' trial training sessions held in the immigration court and presented by volunteer immigrationjudges. The training sessions, carried out in cooperation with partnering bar associations and/orpro bono agencies, provide practical and relevant 'hands-on' immigration court training to small groups of attorneys/law students with an emphasis on practice, procedure and advocacy skills. Participants receive training materials and CLE credit, and agree to perform a minimal level ofpro bono representation throughout the year. Since June of 2001, over 13 Model Hearing training sessions were held in the following court locations: San Diego, Dallas, York, Cleveland, Newark and New York City. Special thanks to the immigration court judges and staff in York, Pennsylvania, New York City, and Dallas for their help in facilitating Model Hearings this past year.
Page 3 of 3

Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 19 of 28

Appendix E: Facility Comparison Chart

Physical Setting Processing Accommodations
Food Services Medical Care
Education Recreation

Hutto
. 512-bed facility . Brownsville, Texas (30 miles outside
Austin)
. Former prison . Pod system
. 100 pan/tilt/zoom cameras
. @ $180 a day oer detainee at full caoacitv
. Detainees wear prison uniforms . Detainees not issued enough clothing to
accommodate the laundry schedule
. Detainees sleep in prison cells . Limit of two beds and a crib in each cell,
so larger families are separated at night
. Cell doors closed at night but not locked, laser beam prevents entry/exit
. If not sleeping in same room, parents cannot access children at night
. Residents confined to pod common area when other activities not scheduled
. Common area in pod equipped with TVs, video games, playing cards
. Adults and children given five minutes to shower
. Head counts several times a day
. No toys allowed in cells; nothing may be

Berks
. 84-bed facility
. Leesport, Pa. (1 hour outside Philadelphia)
. Former nursing home
. @ $195 a day per detainee
. Detainees permitted to wear own clothing except shoes
. Detainees sleep in dorm-style rooms
. Parents separated from children over five at night
. Guards stationed at dorm room doors at night
. Mixed reports regarding parental access
. to children at night Detainees confined to two common areas when other activities not scheduled
. Common areas equipped with sofas, TV, plastic toys, games, game table
. One toy, doll or stuffed animal allowed in room at night

attached to walls
. At time of visit, no stuffed animal or dolls . Menu repeats every week . Detainees not permitted to select food
. No food besides children's snacks may be taken out of cafeteria
. 10·20 minutes to eat
. 3,500 calories per day . Many complaints about food; children and

. Cafeteria style - detainees select their own food
. Shortage of culturally appropriate food and choice for vegetarians
. 45 minutes for each meal

pregnant women claim to be losing weight
. Medical screening at arrival
. Health care provided by PHS
. One nurse practitioner, one dentist, 5 days/week; doctor once/week
. Detainees submit medical call slip to request medical attention
. Medical care not received in a timely manner
. Medicines provided not appropriate
. Pregnant mothers reported not being provided with prenatal care
. Detainees reportedly receive dental care without the use of Novocain or anesthesia
. At time of visit, one hour of education per day (later increased to four)
. Teachers either state certified or eligible for certification
. Subjects include science, social studies, language arts, math and ESL
. Elementary classes just sing and color

• Medical screening at arrival
. Care administered through contract with family practice clinic
. Sick call seven days/week; nurse on call when physician not on site
. Medical services not always provided in timely fashion
. Medicines provided not appropriate
. No major complaints regarding medical service
. Dental care reportedly available only for . children
Education administered by Berks County
Intermediate Unit - four to five hours per day
. Classes governed by the Pennsylvania Alternative Curriculum Standards
. Students study English, social studies, math, science
. Each classroom equipped with computers

that utilizes PLATO program

. One hour of recreation Monday-Friday; none on weekends

. Recreation for minimum of one hour/day, seven days/week often more

Locking Up Family Values: The Detention of Immigrant Families

63

Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 20 of 28

Discipline
Access to Counsel
Telephone Access Visitation and Spiritual Support

. Recreation held in large gym equipped . with basketball hoops and balls,
kitchenettes, plastic trucks Children not permitted to have their own
. toys or to receive toys from outside the facility Families report never going outside, not
. being allowed to go outside on weekends Detainees not permitted to leave facility for recreational outings
. Library carts circulate to pods every five days
. Time-outs
. Verbal and psychological abuse by staff
. Recreation withheld as punishment
. Disproportionate punishment for small incidents and normal child behavior
. Threats of family separation frequently used as means of discipline
. Actual separation of days or months reportedly used as disciplinary measure
. Write-up of child or parent for child's misbehavior
. Disciplinary problems handled by sending entire family to counseling
. Climate control used for discipline
. Detainees provided with list of legal services; list also posted at phones
. Law library available . Two televideo courtrooms
. Attorney-client meetings conducted in
. private room, but parents must keep their children with them Attorneys limited to speaking with 10
. people per visit No Legal Orientation Program
. Four phones in common area
• Detainees able to purchase $10, $15 and
.. $20 phone cards All non-attorney visits are non-contact Communication occurs through telephone handset attached to wall, meaning that
. visitor can talk to only one member of family at a time Visitation hours limited to 8 a.m.-5 p.m. on weekends; detainees permitted only
. one trip to restroom during visitation All detained family members must
.. participate in any visitation Guards present in visitation rooms Spiritual counseling and services provided as needed; most services Christian; accommodations made for Muslims

. Outdoor recreation when weather permits
. Gym available for recreation; basketballs, nets, small scooters available
. Detainees participate in facility-run field .. trips
Organized activities for detainees Library cart rotates regularly
. Time-outs (sometimes as long as 30 minutes)
. Verbal and psychological abuse by staff
. Recreation withheld as punishment
. Disproportionate punishment for small incidents and normal child behavior
. Enforced silence of a week or more used as disciplinary measure
. Threats of family separation frequently used as means of discipline
. Actual separation of days or months reportedly used as disciplinary measure
. Many children lose respect for parents because of parents' lack of control at the facility
. Detainees provided with list of legal services
. Law library available . Some televideo courtrooms; actual
courtroom for masters
. Attorney-client visitation room (also used .. for asylum officer to conduct credible fear
interviews) No Legal Orientation Program Distance from major metropolitan area limits availability of pro bono counsel
. Two phones located in hallway
• Vending machine sells phone cards @ $1/minute
. Detainees permitted visitors 7 days/week, actual contact limited
. Guards present in visitation rooms . Service and spiritual counseling available
intermittently and depending on religion
. ,Transport to local churches discontinued

64

Locking Up Family Values: The Detention of Immigrant Families

Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 21 of 28
Appendix F: Acknowledgements
This report was written by Michelle Brane, director, detention and asylum program, Women's Commission for Refugee Women and Children, and Emily Butera, policy advocate for Lutheran Immigration and Refugee Service (LIRS). Content review was conducted by Andrea Black, network coordinator for Detention Watch Network; Susan Krehbiel, LIRS vice president for protection; Joan Timoney, Women's Commission director of advocacy and external relations; Matt Wilch, LIRS senior counsel for policy and advocacy; and Liana Del Papa, Women's Commission program specialist, advocacy and detention and asylum program. Additional content support was provided by Scott Kuhagen, LIRS assistant for access to justice; Clare Berke, LIRS legislative assistant; and Women's Commission interns. We would like to thank Ralston Deffenbaugh, LIRS president; Carolyn Makinson, Women's Commission executive director; and Annie Wilson, LIRS executive vice president, for their support and guidance. Style and copyediting performed by Valerie Anne Bost, LIRS publication specialist and Cassandra Champion, LIRS director for communications. Megan McKenna, Women's Commission senior coordinator, media and communications, provided content review and editing. Diana Quick, Women's Commission director of communications, provided editorial support. Grace Cheung, Women's Commission program manager, communications, designed the report.
The Women's Commission and LIRS wish to acknowledge the assistance of the University ofTexas Law School Immigration Clinic, which has shared with the authors of this report numerous accounts regarding the treatment of families at the T. Don Hutto Residential Center, and who interviewed many of their clients on our behalf. We would also like to acknowledge ICE staff, CCA staff and Berks staff for the time they took to show us their facilities.
Finally, the Women's Commission and LIRS wish to thank the legal service providers and academics who provided both logistical support and their expertise to the delegation. Above all, we would also like to express a special thanks to the courageous families who shared with us their testimonies of experiences in family detention.
Photos © Michelle Brane

Locking Up Family Values: The Detention of Immigrant Families

65

Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 22 of 28

Lutheran Immigration and Refugee Service 700 Light Street Baltimore, MD 21230 410.230.2700 lirs@lirs.org www.lirs.org

lUTHERAN iMMIGAAI!ON AND REFUGEE SERVICE

Women's Commission for Refugee Women and Children 122 East 42nd Street New York, NY 10168"1289 212.551.3115 wcrwc@womenscommission.org www. womenscommission.org

Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 23 of 28
EXHIBIT C:
ATTACHMENT 2

Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 24 of 28

VANITA OUPTA STAFF ATTORNEY, RACIAL JUSTICE PROORAM T/212.549.2607 vgupta@aclu.org

ACL.U I ' AMERICAN CIVIL LIBERTIES Ut<ION

By Facsimile February 21, 2007

AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET. 18TH FL. NEW YORK, NV 10004·2400 T/212.549.2500 WWW.ACLU.ORG
OFFICERS AND DIRECTORS NADINE STROSSEN PRESIDENT
ANTHONY 0. ROMERO EXECUTIVE DIRECTOR
RICHARD ZACKS TREASURER

Johnny Sutton

U.S. Attorney for the Western District ofTexas

United States Attorney's Office

·

601 NW Loop 410, Suite 600

San Antonio, Texas 78216

Fax: (210) 384-7312

Re: Release of Detained Families at T. Don Hutto Family Residential Center

Dear Mr. Sutton:

The ACLU represents several immigrant families that are detained at the T.
Don Hutto Family Residential Center in Taylor, Texas. As you may know, the Hutto facility houses adults as well as children ofall ages. The detention ofminors in the custody of Immigration and Customs
Enforcement (ICE), and the conditions in which such minors are detained, are governed by a Stipulated Settlement Agreement in the case ofFlores v.
Meese, No. 85-4544 (C.D. Cal.) (enclosed). The placement of our clients in the Hutto facility violates the Stipulated Settlement Agreement in numerous respects, as do conditions at the facility. For instance, ICE is requiredto actively seek the release ofminors from its custody, ,, 14, 18, 19, and in cases where detention appears necessary, minors must be placed in "the least restrictive setting appropriate to the minor's age and special needs.:'' , ·
11. ICE has not complied with either the letter or the spirit ofthe Flores agreement with respect to our minor clients.

Pursuant to, 24.E. ofthe Stipulated Settlement Agreement, I am writing to you now in an effort to informally resolve this matter without the need of federal court intervention. Based on ICE's failure to comply with the terms of the Flores Stipulated Settlement Agreement, we are asking that our minor clients immediately be released from the facility with their parents. We are specifically seeking the release of:

1. Egle M. Baubonyte 2. Saule Bunikyte 3. Rasa Bunikiene (mother ofEgle and Saule) 4. Sherona Verdieu

Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 25 of 28
5. Delourdes Verdieu (mother ofSherona) 6. Wesleyann Marieh Emptage 7. Rauitee Pamela Puran(mother ofWesleyann) 8. Aisha Ibhraine 9. Bahja Ibrahine 10. Mohammedlbrahine 11. Deka Warsanee (mother ofAisha, Bahja, and Mohammed) 12. Miryam Komo 13. Salwan Komo (father ofMiryam) 14. Neven Eisho (mother ofMiryam)
Because each ofthe minor children will be released to the custody ofa parent. such release is consistent with , 14 of the Flores agreement. Moreover, our clients are prepared to agree to any reasonable conditions of supervision in order to address any concerns the government may have with respect to possible flight risk. To our knowledge, there has never been any suggestion that any of our clients or their parents pose any danger that would require their detention.
I look forward to receiving your response by the close of business on Monday, February 26,2007.
Vanita Gupta Direct line: 212-549-2607
cc: Anthony Brown, Austin Chief, Assistant U.S. Attorney for the Western District of Texas (Fax: 512~916-5854)
Encl. Flores Stipulated Settlement Agreement

Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 26 of 28
EXHIBIT C:
ATTACHMENT 3

Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 27 of 28

LEGAL DEPARTMENT VANJTA GUPTA STAFf ATTORM:.''i RAr 14/. JUSTICE PROGR Htf
.5491607
vguf)ta.cpaclu org

ACL.U I AMERICAN CIVIL LIBERTIES UNION

March 1, 2007

By Facsimile

Victor Lawl'ence Department of Justice Office oflmmigxation Litigation National Press Building 52914th St Washington, D.. C.. 20045

AMERICAN CIVIL LIBERTIES UNION FOUNDATION LEGAL DEPARTMENT NATIONAL OFFICE 125 BROAO STREET 18TH FL NEW YORK. NY 10004·2400 T/212 549 2500 F/212 549 2651 W \CLU ORG
OFFICERS AND DIRECTORS NA01 NE STROSSEN PRESIDENT
ANTHONY D ~OMERO EXECUTIVE DIRECTOR
RICHARD ZACKS TRE:ASURER

Re: Release of Detained Families at T. Don Hutto Family Residential Center· and Written Assw·ance that ICE will not Retaliate Against These Families
Dea:r Mr. Lawrence:
I received a faxed letter from John F. Paniszczyn at the US. Attorney's office for the Westem Distiict of Texas dated February 22,2007, stating that he refeued my lettet dated February 21,2007 (see attached letter) to your office and that you will be directly handling this matter. As you know from my letter, the ACLU represents several immigxant families detained at the T. Don Hutto Family Residential Center in Taylor, Texas. Since I sent that letter, the ACLU now zepresents two more families.
Pursuant to~ 24.E of the Stipulated Settlement Agreement in the case of Flores v Meese, No. 854544 (C.D. Cal..), I am writing to you now in an effort to informally resolve this matter on behalf of these additional families without the need offedetal qourt intervention. Based on ICE's failure to comply with the tetms of the Flores Stipulated Settlement Agxeement, we a:r·e asking that our minor clients immediately be teleased fiom the facility with their parents. We are specifically seekipg the telease ?f: .

(1) Richa:rd Tome (2) Angelina I orne (3) Elsa Cmbajal (mother of Richard and Angelina Tome) (4) Kevin Yourdkhani (5) Masomeh Alibegi (mother of Kevin Yourdkhani) (6) Majid Yourdkhani (fatherofKevin Yourdkhani)

Because each ofthe minor childr·en will be released to the custody of a pm·ent, such release is consistent with , 14 of the Flores agreement Moreover, our clients are prepared to agx·ee to any reasonable conditions of supetvision in older to address any concerns the government may have with respect to. possible flight

Case 1:07-cv-00166-SS Document 2-4 Filed 03/06/07 Page 28 of 28

March 1, 2007 Page2 of2

risk. To our knowledge, there has never been any suggestion that any of OUt clients or their parents pose any danger that would I'equire their detention.
1 am also requesting an assurance in writing that ICE will not retaliate against oUt· clients by separating them from their parents, ot attempt to comply with Flores by releasing them from Hutto without theii parents' consent In a telephone
conversation on Febma:ry 27,2007, ICE National Juvenile Cootdinatot John Pogash indicated to one of our cooperating counsel that ICE would take no such actions against om clients.. Howevei, our clients remain in great fear that theii attempts to assert their rights under Flores will result in their 1Iansfet away from their parents. We ate therefore asking that this assmance be put in wtiting. Please get back to us immediately so that we can reassure out clients that they are protected.

AMERICAN CIVIL LIBERTIES UNION FOUNOATION

Very ttuly yows,
Vanita Gupta Direct line: 212-549-2607

cc: Johnny Sutton, U S. Attorney for the Western Disttict ofTexas Fax: (210) 384-7312

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 1 of 32
EXHIBIT D

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 2 of 32
IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS
DECLARATION OF GOURI BHAT Gouri Bhat, pursuant to 28 U.S.C. § 1746, makes the following declaration under penalty of perjury: 1. I am an attorney with the National Prison Project of the American Civil Liberties Union
Foundation (ACLU), which represents Wesleyann Emptage; Aisha Ibrahim; Bahja Ibrahim; Mohammed Ibrahim; Angelina Juliet Tome Carbajal; Richard Anderson Tome Carbajal; Kevin Yourdkhani; Egle Baubonyte; Saule Bunik.yte; and Sherona Verdieu. I make this Declaration in connection with the Complaints and accompanying motions filed on March 6, 2007 by each of the aforementioned individuals. 2. On January 24, 2007, the ACLU filed a motion for leave to amend an individual prose action in the United States District Court for the Southern District of California, with an attached Proposed Second Amended Complaint adding class claims on behalf of approximately 1000 immigration detainees at San Diego Correctional Facility (SDCF). See Kiniti v. Myers, Case No. OS·cv-1013 (S.D. Cal.). The Proposed Second Amended Complaint in Kiniti raised claims based on chronic and severe overcrowding and included five proposed named plaintiffs housed at SDCF in the custody of the Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE). 3. On the orders ofiCE officials, three of the proposed named plaintiffs in the Kiniti action were transferred out ofSDCF to Florence Service Processing Center on January 27, 2007, three days after the ACLU's filing. Counsel for the Kiniti plaintiffs, including myself and several other ACLU attorneys, were not notified of our clients' transfer in
1

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 3 of 32
advance, or at any point. A fourth proposed named plaintiff in the Kiniti action was discharged from SDCF on January 31, 2007, and then deported. Again, we were never notified of her discharge or deportation. 4. Two of the individual defendants in the Kiniti action-Julie L. Myers, Assistant Secretary, ICE; and John P. Torres, Director, Office of Detention and Removal Operations, ICE-are also defendants in the actions filed today by the ACLU on behalf of the above children detained at the T. Don Hutto Family Residential Center in Taylor, Texas. In addition, both the Hutto facility and SDCF are managed by Corrections Corporation of America, Inc., pursuant to contractual agreements with ICE. I declare under penalty ofperjury that the foregoing is true and correct.
Executed this 6th day of March 2007, in the District of Columbia.
2

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 4 of 32
EXHIBIT E

Case 1:07-cv-00166-SS U 1 1 I""'IIIH &..!l:11:.3 f &..!..::il J.'l I 1'" om I Document 2-5 Filed 03/06/07 Page 5 of 32
IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS
DECLARATION OF JDHN SARGENT, M.D. John Sm-gent, M.D. makes the following declaration under the penalty of petjury pursuant to 28 U.S.C. § .1746: L My name is Dr. John Sargent. I am a Board Certified Child and Adole.~cent Psychiatrist and Pediatrician and have 30 years experience as a practicing and academic physician. I practice in HarriN County, Texas and am Profcl'isor of Psychiatry and Pediatrics at Baylor College of Medicine in Houston. I have attached my curriculum vitae. I am over 18 years of age and have never been convicted of a felony or a crime in.voJving moral turpitude. 1am of sound mind and competent to make thi~ Declaration and the facts presented are true and correct. 2. Throughout my career I have treated children and adolescents who have experienced a wide range of traumatic events: physical abuse, sexual abuse, war, refugee experiences, exposure to domestic violence, rape and sexual harassment, serious accidental injury, difficult immigration and natural disasters including Hurricane Katrina. 1teach locally, nationally, and intemaLionally all varieties of health and mental health professionals about the effects of trauma upon children, adolescents and their families. I also teach about sources of resilience for children who experience adversity and about methods of treating and supporting trauma exposed children and youth. At l.his poinL in my career I am a recognized national expert on trauma and children. 3. I am aware that immigrant children and adolescents. many of whom are asylum seekers fleeing war and trauma, are detained by U.S. Immigration and Cu~Loms

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 6 of 32
Enforcement in a fanner Texas state prison, the T. Don Hutto facility in Taylor, Texas. The experience of being detained in a prison-like environment, for even relatively short periods, is extremely stressful for children and families and may represent retrnumatiz.ation and reenactment for these children. Without therapeutic support and appropriate programming the children may have difficulties in the facility. Throughout my clinical experience, in all research investigations and in the professional literature t.he key element identified to be necessary for the healing of children after trauma is the child's caring relationship with his mother and/or father. To help t:he children, the mother and/or the father need.'i to be available and able to provide support, care, affection and warmth for the children. All children are distressed by furced !Separation from either or both parents, especially if the duration of separation is uncertain. The children detained in the Hutto Prison are uniquely vulnerable to serious psychological ill effects of separation from their mothers or fathers. Separation of these children from their mothers or fathers is undeniably harmful, cruel and counter -therapeutic. It will harm the children and deprive them of the support and care they require to withstand the stresses of Lheir detention e.x.perience. It is unconscionable, unethical and must not be allowed.
I declare under penalty of perjury that the foregoing is true and correct.
EXECUTED on March 5, 2007

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 7 of 32
EXHIBIT F

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 8 of 32
IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS
DECLARATION OF DAVID R. BLACKBURN, PH.D. David R. Blackburn, Ph.D., makes the following declaration under penalty of perjury pursuant to 28 U.S.C. § 1746: 1. My name is Dr. David R. Blackburn. I am a clinical psychologist licensed to practice in the State of Texas, and I am certified by the Texas State Board of Psychologists. I have been licensed in Texas since 1990. I practice at the Scott & White Clinic, part of the Scott & White Memorial Hospital in Temple, Texas. My current curriculum vita is attached to this Declaration. I am over 18 years of age and have never been convicted of a felony or crime involving moral turpitude. I am of sound mind, and competent to make this Declaration. The facts stated in this Declaration are within my personal knowledge and are true and correct. 2. For a number of years, my practice has focused on working with children and families who have experienced a variety of psychological problems. I have experience with the trauma experienced by children separated from their parents, such as Russian children who were separated from their parents at an early age and later adopted by families in the United States. I also have experience working with families and children who were displaced by Hurricanes Katrina and Rita and who were housed in various types of large group shelters in Houston, and I am therefore familiar with the trauma experienced by children in that situation. 3. I am aware that U.S. Immigration and Customs Enforcement ("ICE") operates a detention facility for families with children at the former Hutto state prison in Taylor, Texas ("Hutto"), and that these children range in age from a few months old through teens. I have been asked to provide my professional opinion as to whether the children detained at Hutto would

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 9 of 32
likely suffer any psychological hann if they were to be involuntarily separated from their parents.
4. In my opinion, children who are detained in a prison-like setting will very likely ~uffer psychological hann and trauma from that event. For example, experiencing this type of trauma might later contribute to childhood depression, anxiety, and/or stress. Inadequately
"
managed stress can lead to withdrawal, aggression, physical illness, or poor coping skills such as drug and/or alcohol use. To reduce this trauma, it will be necessary to minimize the effects of any traumatic experience, that is, to normalize it as much as possible. In this case, keeping the children .and parents together would help normalize an otherwise traumatic situation.
5. If these children are then involuntarily removed from their parents, they will most likely suffer severe and long-lasting psychological trauma. As mentioned above, the separation of children from their parents would exacerbate the potential for more severe psychological difficulties and make the situation worse for those in charge of caring for these children. The severity of the trauma cannot be quantified, because it may be irreversible and it might take years of treatment and counseling to discover the full extent of the trauma. Therefore, it is my professional opinion that involuntarily separating the children detained in Hutto from their parents would likely cause immediate and likely irreparable psychological harm to those
. i
I
children. I declare under penalty of perjury that the foregoing is true and correct.
EXECUTED on March 1, 2007.
Bell County, Texas

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 10 of 32
EXHIBIT G

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 11 of 32

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

SAULE BUNIKYTE, by and through her )

next friend and mother, Rasa Bunikiene )

)

Plaintiff

)

)

~

)

)

MICHAEL CHERTOFF, Secretary of )

U.S. Department of Homeland Security )

(DHS); JULIE L. MYERS, Assistant

)

Secretary, U.S. Immigration and Customs )

Enforcement (ICE); JOHN P. TORRES, )

Director, Office of Detention and Removal )

Operations, ICE; MARC MOORE,

)

ICE Field Office Director; GARY MEAD, )

Assistant Director of Detention and Removal)

Operations at ICE, SIMONA COLON, ICE )

Officer in Charge; JOHN POGASH, ICE )

National Juvenile Coordinator,

)

____________D_e_fe_n_da_nt_s._____

)
)

Civil Action No.:

DECLARATION OF RASA BUNIKIENE Rasa Bunikiene makes the following declaration under penalty of perjury pursuant to 28 U.S.C. § 1746:
1. "I am mother ofSaule ("Sunny") Bunikyte, 9 years old, and Egle ("Anna") Baubonyte, 15 years old. We have been detained in Hutto since December 15, 2006.
2. I make this declaration on behalf of my daughter Sunny because she is too young to be capable of making a declaration herself.
3. One of the worst parts of being in Hutto is seeing my kids deprived of normal life, school, normal daily activities (sic). Detaining my children is an absolute overexercise of power by ICE. School is absolutely inappropriate here, and do not meet their level

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 12 of 32
of education. Now, when (it) they are back to normal life, I am not sure if they will be allowed to graduate from grade they are in now. Sunny has only been outside a handful of times since we arrived at Hutto. I am worried that she will become depressed, like me and Anna. 4. One morning Sunny woke up really early in the morning because she was sick and she could not sleep. There was an Iraqi family with three children named Danny, Diana and Andy in our pod. Sunny saw the Iraqi mom go into the Iraqi dad's room to put some cleaning stuff in there. One of the guards, a lady with long blonde hair who is middle aged, came and she told the Iraqi mom, you are not allowed to go in there and if you go in there again I will take away your children. 5. Only 30 minutes is allowed for all the children in the pod to take a shower, from 8:30 pm -9:00 pm. Sometimes the nicer guards take the kids earlier so it is not so rushed. One night when there were 28 kids in the pod, there were only three showers working, two had only very cold water and we could not use them. Officer Washington said we could not have any extra time. The parents were upset. ICE Officer Ramos and CCA Officer Mokry came, and Officer Ramos said "Only 1 minute per child in the shower." Sunny freaked out, she was crying, she felt bad because no kid can take a shower in 1 minute. She hates this place and she does not understand. 6. If Sunny were taken away from me, she would be seriously traumatized. She needs to be near her mother to prevent even more trauma and sadness. If Sunny were taken away, I would also go nuts. We both live in fear of this possibility.

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 13 of 32
L, EXECUTED on March 2007.
Rasa Bunikiene Williamson County, Texas

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 14 of 32
EXHIBIT H

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 15 of 32

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

EGLE BAUBONYTE, by and through her )

next friend and mother, Rasa Bunikiene )

)

Plaintiff

)

)

~

)

)

MICHAEL CHER,TOFF, Secretary of )

U.S. Department of Homeland Security )

(DHS); JULIE L. MYERS, Assistant

)

Secretary, U.S. Immigration and Customs )

Enforcement (ICE); JOHN P. TORRES, )

Director, Office of Detention and Removal )

Operations, ICE; MARC MOORE,

)

ICE Field Office Director; GARY MEAD, )

Assistant Director of Detention and Removal)

Operations at ICE, SIMONA COLON, ICE )

Officer in Charge; JOHN POGASH, ICE )

National Juvenile Coordinator,

)

____________D_e_fe_n_da_nt_s._____

)
)

Civil Action No.:

DECLARATION OF EGLE BAUBONYTE Egle Baubonyte makes the following declaration under penalty of perjury pursuant to 28
u.s.c. § 1746:
1. My name is Egle Baubonyte and I am fifteen years old. My mother is Rasa Bunikiene and my sister is Saule Bunikyte. Before ICE brought my family to Hutto I was a freshman at Prairie Ridge High School in Crystal Lake, IL. We have been at Hutto since December 15, 2006.
2.. Being in this facility is not the best experience. One of the things I don't like about it is living by someone else's rules. I honestly can't stand how some of these rules are too harsh. They're not for little kids. Also being closed in our

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 16 of 32
room with the same people every day and having nothing to do drives me nuts. It also seems like every officer has their own rules. I think officers should be more considerate for little kids. Some of them could be less harsh. 3. Education here is very low level. I'm learning nothing. The teacher only gives out packets of work but does not explain anything. Sometimes it gets really boring and I just sit there staring at the wall. Recreation time is always the best. Too bad we only get an hour of it. 4. In my opinion, even if they're trying to make this place nicer and look like an actual residential center, it is still a prison to me. There's no pediatrician. Nurses don't care about is babies sick or not (sic). They treat us like we're nothing. 5. I can't wait to get home. I miss my stepdad (Paul), my friends and even school. I'm afraid that I will not be able to graduate my ninth grade. I'm missing too much school and I'm not getting the credit I should be that could be sent to my school. 6. I am scared of the guards. I also remembered that the guard can have any criminal record as long as there are no deaths . . 7. .I am terrified of being separated from my mother.. 1arn becoming.seriously depressed and, without my mother, I think I would go completely nuts. If we were separated, I think she would, also. I cannot imagine what it would be like to be without her. We have been through enough already; we need each other to stay sane.

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 17 of 32
I declare under penalty of perjury that the foregoing is true and correct. EXECUTED on March j__, 2007.
I(gie Baubo..!}0e
Williamson County, Texas

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 18 of 32
EXHIBIT I

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 19 of 32

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

KEVIN YOURDK.HANI,

)

by and through his next friend and

)

mother, MASOMEH ALIBEGI,

)

Plaintiff

)

)

v.

)

)

MICHAEL CHERTOFF, Secretary of )

U.S. Department of Homeland Security )

(DHS); JULIE L. MYERS, Assistant

)

Secretary, U.S. Immigration and Customs )

Enforcement (ICE); JOHN P. TORRES, )

Director, Office of Detention and Removal )

Operations, ICE; MARC MOORE,

)

ICE Field Office Director; GARY MEAD, )

Assistant Director of Detention and Removal)

Operations at ICE, SIMONA COLON, ICE )

Officer in Charge; JOHN POGASH, ICE )

National Juvenile Coordinator,

)

_________De_fe_nda_nt_s. ___ ))

Civil Action No.:

DECLARATION OF MASOMEH ALIBEGI Masomeh Alibegi makes the following declaration under penalty of perjury pursuant to 28
u.s.c. § 1746:
1. "Myname is Masomeh Alib~gi and I am here with my husband Majid Yourdkhani and our son, Kevin Yourdkhani, who is nine years old.
2. On February 4, 2007, we were flying directly from Guyana to Canada when a passenger died on board and our flight was diverted to remove the body. No one told us where we were and we did not know what country we landed in, and we did not know Puerto Rico is part of the United States. An ICE officer there told us we would be interviewed within 72 hours. We asked to leave and not go back to Iran. The ICE officer told us we were in

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 20 of 32

the US and we would be safe and the US is better than Canada for asylum and we should stay in the US. They put my husband in jail with criminals and separated us for 5 days, and then on February, 9 2007, they sent us to Hutto. 3. I am very worried about my son Kevin here at Hutto. Kevin has lost 4 pounds in 10 days. The food is very bad and no one can eat it, everyone throws it out. Before we got commissary Kevin was so hungry. At night I have seen children fight for the snacks they give and the officers treat them poorly. I never thought I would see such a thing in the United States, children fighting for food. I saw my son fighting for food and it reminded me of the Holocaust. 4. Kevin has been sick three times. He has asthma. Often at the facility they run out of supplies and several requests must be made before they get the medicine. Kevin got muscle cramps. First the doctor said he was drinking too much water. They didn't get better. Then the doctor said to eat more bananas. 5. Everyone in the pod is really sick. Many kids have eye infections and I have seen the nurses using the same dropper to give kids eye drops over and over again and not cleaning it.

'

.

.

. I declare under penalty of perjury that the foregoing is true and correct..

l , EXECUTED on March 2007.

Masomeh Alibegi Williamson County, Texas

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 21 of 32
EXHIBIT J

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 22 of 32

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

KEVIN YOURDKHANI,

)

by and through his next friend and

)

father, MAJID YOURDKHANI,

)

Plaintiff

)

)

v.

)

)

MICHAEL CHERTOFF, Secretary of )

U.S. Department of Homeland Security )

(DHS); JULIE L. MYERS, Assistant

)

Secretary, U.S. Immigration and Customs )

Enforcement (ICE); JOHN P. TORRES, )

Director, Office of Detention and Removal )

Operations, ICE; MARC MOORE,

)

ICE Field Office Director; GARY MEAD, )

Assistant Director of Detention and Removal)

Operations at ICE, SIMONA COLON, ICE )

Officer in Charge; JOHN POGASH, ICE )

National Juvenile Coordinator,

)

__________ Defendants. __

)
)

Civil Action No.:

DECLARATION OF KEVIN YOURDKHANI Kevin Yourdkhani makes the following declaration under penalty of perjury pursuant to 28
u.s.c. § 1746:
1. "My name is Kevin Yourdkhani and I am nine years old. I am a Canadian citizen. My parents are named Majid Yourdkhani and Masomeh Alibegi.
2. On February 4, 2007, I was on an airplane with my parents flying from Guyana to Canada when a lady on the plane had a heart attack and died. The plane stopped and we all had to get out, we didn't know where we were but it turned out we were in Puerto Rico. They told us we were going to be able to get back on the plane but they held us

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 23 of 32
there for four days and they separated my dad and put him in a jail with criminals. On February 9, 2007, ICE took us and sent us to Hutto. 3. I share a cell with my mother and my dad is in a separate cell upstairs. I have to climb a high ladder to get into my bunk bed. My bed here is small and cold; it makes my back hurt. I hit the wall and am right next to the toilet; it smells very bad. My mom has to use the bathroom right in front of me. 4. It is hard to sleep because they leave the emergency light on all night. I begged my mom to get it turned off but she can't. 5. The food is garbage. They feed us beans all the time, all kinds, not healthy beans. We are lucky if we get 30 minutes to eat. It is usually 20 minutes and they are always rushing. Before we got commissary money, I was hungry all the time for five days. Now I can eat chips, cookies and chocolate milk. 6. Everybody in my pod is really sick right now. Some kids can't go to school. Lots of kids have eye infections. 7. We go to school for four hours every day. They put me in grade 4, but they won't help me learn. All we do is color and draw pictures and watch Spanish movies. Sometimes we just sit around and talk an~ do nothing. Once a week we watch English movies. There.are 25 kids in my class from 6 years old to 12 years old. 8. I like math but no one will help me, they are always learning ABCs and it is too easy. It is kindergarten level. The teacher doesn't have time to talk to me because she has to speak to all the Spanish kids. She can't help me because she is helping other kids who are not as advanced. I asked if I could go to middle school but they won't let me. My mom asked

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 24 of 32
if they could give me some homework so she could teach me but they don't have anything. 9. I was in my bed and my dad came to fix my bed. When the police came and (saw) my dad in my room, he said if he comes and sees my dad again in my room he's going to put my mom in a separate jail and my dad in a separate jail and me a foster kid. I cried and cried so much that I lost my energy and I went to sleep. I felt if I will.be separated I can never see my parents again, and I will get stepparents and they will hurt me or maybe they will kill me.
I declare under penalty of peijury that the foregoing is true and correct.
l , EXECUTED on March 2007.
Kevin Yourdkhani Williamson County, Texas

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 25 of 32
EXHIBIT K

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 26 of 32

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

SHERONA VERDIEU, by and through her )

next friend and mother, Delourdes Verdieu )

)

Plaintiff

)

)

v.

)

)

MICHAEL CHERTOFF, Secretary of )

U.S. Department of Homeland Security )

(DHS); JULIE L. MYERS, Assistant

)

Secretary, U.S. Immigration and Customs )

Enforcement (ICE); JOHN P. TORRES, )

Director, Office of Detention and Removal )

Operations, ICE; MARC MOORE,

)

ICE Field Office Director; GARY MEAD, )

Assistant Director of Detention and Removal)

Operations at ICE, SIMONA COLON, ICE )

Officer in Charge; JOHN POGASH, ICE )

National Juvenile Coordinator,

)

____________D_e_fe_n_da_nt_s._____

)
)

Civil Action No.:

DECLARATION OF SHERONA VERDIEU Sherona Verdieu makes the following declaration under penalty ofperjury pursuant to 28 U.S.C. § 1746:
1. My name is Sherona Verdieu and I am 16 years old. My mother is Delourdes Verdieu. We are from Haiti. We came to the United States after my father was kidnapped and killed because we couldn't pay ransom and the kidnappers said they would kill my mother too. We have been detained in Hutto since September 12, 2006. I only speak Creole, French and Spanish.
2. I feel very sad because I don't want to be here, this isn't a place for children

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 27 of 32
3. I have heard that sometimes the guards will separate us from our mothers if we complain too much. When I was at recreation time, a Haitian woman called Cheli Rose told me that one of the officials menaced her with the threat of separation from her child if she continued to cry. They said that she'd be placed in another cell away from her child. Cheli Rose is gone now.
4. When she told me this I felt very bad because I think that they could separate me from my mother as well, because I also cry sometimes. I want to be free from here because I cannot get adequate sleep here, and the food is bad and the school is not satisfactory nor are the clothes I wear. Sometimes I cannot sleep and I also cry because I think that my life will end here because my court date is very far away.
5. I don't ever want to be separated from my mother because I don't think that I can live separated from her. I want to be free and home at my aunt's with my mother. The reason that I am scared is that I love my mother very much and I can't live without her. Also if they separate me from my mother I won't be able to live happily because I love her very much. I don't think that I would be able to eat if she were taken away from me because she is very important in my life.
6. When I am free from this place I want to be with my mother and go to a school with my cousin, go to the cinema, the beach. When I finish school I want to learn how to be a nurse so that I can buy a house for me and my mother on the beach where we can watch the sharks and me and my mother will never go hungry.

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 28 of 32
This declaration has been read back to me in Spanish, and it is a true and accurate transcription of my statements. I declare under penalty of perjury that the foregoing is true and correct.
EXECUTED on March j_, 2007.
Sherona Verdieu Williamson County, Texas

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 29 of 32
EXHIBIT L

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 30 of 32

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

WESLEYANN EMPTAGE, by and through )

her next friend and mother, Raouitee

)

Pamela Puran

)

)

Plaintiff

)

)

v.

)

)

MICHAEL CHERTOFF, Secretary of )

U.S. Department of Homeland Security )

(DHS); JULIE L. MYERS, Assistant

)

Secretary, U.S. Immigration and Customs )

Enforcement (ICE); JOHN P. TORRES, )

Director, Office of Detention and Removal )

Operations, ICE; MARC MOORE,

)

ICE Field Office Director; GARY MEAD, )

Assistant Director of Detention and Removal)

Operations at ICE, SIMONA COLON, ICE )

Officer in Charge; JOHN POGASH, ICE )

National Juvenile Coordinator,

)

_____________D_e_fe_n_d_an_ts_. _____ ))

Civil Action No.:

DECLARATION OF RAOUITEE PAMELA PURAN

Raouitee Pamela Puran makes the following declaration under penalty of perjury pursuant to 28

u.s.c. § 1746:

.

.

'

.

'

'

.

'

'

1. My name is Raouitee Pamela Puran and I am the mother of Wesleyann Emptage.

She is four years old. We have been detained in Hutto since December 28, 2006.

2. I make this declaration on behalf of my child, Wesleyann Emptage, because she is

too young to be capable of making a declaration herself.

3. Running away from a situation from Guyana where my husband was kidnapped

and murdered and me and my daughter were threatened, we got trapped in a world that is not for

children. My daughter is being beaten by other children. She never fights back. She's not

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 31 of 32
eating, crying a lot and she has lost a lot of weight. The nights are cold, and they would keep turning on and off the lights all night and Wesleyann hardly sleeps. She would tell me, "Ma, it's cold, mama, can you make me some soup tomorrow?" She would tell my sister on the phone, "Auntie, could you tell mommy to cook me some chicken curry and rice?" It's hard for me to hear my daughter say these things. It really hurts.
4. I just need to get out and make a life for my daughter, for her to be free and happy, walk, talk and go to school as she likes to. That's why I came here. Education is not good [here]. Children in high school are doing elementary work. They are falling back on their educational background. Some of them would cry aloud while others would cry inside. You're not allowed to get books through the mail.
5. I fear for my daughter. She's innocent of everything: why should she go through this? I only did it because of her she deserved to be happy and free. That's all I ask and nothing else.
6. Wesleyann has heard the guards threaten that children who act up will be separated from their parents. Almost everyone has heard this. Wesleyann is terrified that something like that could happen to her. She is afraid of the guards because she thinks they have . the power to take me away from her.
7. IfWesleyann and I were separated, she would be completely traumatized. Being in jail has been hard enough on her, even with her mother for support. She is only four years old. She would be destroyed if her mother was taken away from her. Wesleyann has already lost her father. I am all she has left. And if Wesleyann and I were separated. I would also become even more depressed than I already am. My daughter is the most important thing in the world to me.

Case 1:07-cv-00166-SS Document 2-5 Filed 03/06/07 Page 32 of 32
Ideclare under penalty of perjury that the foregoing is true and correct. EXECUTED on March _f, 2007.
Raouit/ee Pamela Puran Williamson County, Texas

Case 1:07-cv-00166-SS Document 2-6 Filed 03/06/07 Page 1 of 21
EXHIBIT M

Case 1:07-cv-00166-SS Document 2-6 Filed 03/06/07 Page 2 of 21

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

MOHAMMED IBRAHIM,

)

by and through his next friend and

)

mother, DEKA WARSAME,

)

)

Plaintiff

)

)

v.

)

)

MICHAEL CHERTOFF, Secretary of )

U.S. Department of Homeland Security )

(DHS); JULIE L. MYERS, Assistant

)

Secretary, U.S. Immigration and Customs )

Enforcement (ICE); JOHN P. TORRES, )

Director, Office of Detention and Removal )

Operations, ICE; MARC MOORE,

)

ICE Field Office Director; GARY MEAD, )

Assistant Director of Detention and Removal)

Operations at ICE, SIMONA COLON, ICE )

Officer in Charge; JOHN POGASH, ICE )

National Juvenile Coordinator,

)

Defendants.

)

------------------------- )

Civil Action No.

DECLARATIONOFDEKA WARSAME

Deka Warsame makes the following declaration under penalty of perjury pursuant to 28 U.S.C. §

1746:

·· · 1. "My name is Deka Warsame. I have two daughters, Aisha Ibrahim (11 years old) and

Bahja Ibrahim (9 years old), and one son, Mohammed (7 years old). We are from

Somalia. We have been detained in Hutto since November 30, 2006. I speak only a

little bit of English, my children speak more. I am writing this for my children because

they are too young to explain everything and Mohammed can only write a little bit.

Case 1:07-cv-00166-SS Document 2-6 Filed 03/06/07 Page 3 of 21
2. I left my country with my children because the clans were fighting each other all around where we lived, every day and night bombs were dropping on the houses and people were bleeding and their arms and legs came off, there were not enough people to help and most people died. I was so afraid, a bomb fell on our house and then I decided to leave. My brother was a doctor, he delivered my baby Aisha, he was killed on his way to his office. My uncle was killed and my cousin was killed.
3. Until recently it was so cold we shivered all the time and we wore all our clothes all the time and sometimes blankets also, like a shawl wrapped around us while we walked around. They gave us a blanket that smelled like pee, it had a big yellow stain on it and it smelled very bad. Sometimes the clothes smell like oil and are scratchy. They gave my daughter Bahja stained shirts and pants, and dirty underwear. I don't have enough clothes for Mohammed and the ones they give me are also stained. Aisha has gotten mostly clean clothes.
4. One time the toilet blew up in my daughters' cell, when they flushed it~ it exploded upward and water hit the ceiling and came down the walls and it smelled. They let my daughters.·come into my room.
5. Of my three children my little son Mohammed needs me the most, he loves me so much. He won't even be separate from me to go to the bathroom. He cannot take care of himself or dress himself or bathe himself, he needs me. He sleeps with me every night. My girls are in a separate cell but after the count at night they come into my room and

Case 1:07-cv-00166-SS Document 2-6 Filed 03/06/07 Page 4 of 21
share one bed and my son and I share the other bed, that way they are not so cold and they are not so scared. I do not want to let them out of rny sight.
6. My daughter Bahja had a fight with another little girl at the end of January, the little girl got out of the line to get a drink and the guard said if you get out of line you can't come back and when the girl came back she pushed Bahja to get back in line and scratched her. An officer wrote them up for fighting and the case manager, Miss Parks, came to me and said Bahja has been fighting, if you cannot make your child behave I will separate your family, I will send your children to a different pod. Bahja had to sign a paper that said she would not do it again. I begged the case manager please for another chance to make my children behave, but it is hard because I am not with them at rec time and I cannot control them when they are not with me. They behave worse in here, they are angry and scared.
7. The case manager said the boss said I can have one chance but if the children don't behave first we will be separated into different pods and then if they still don't behave ICE will take them to another place. Mohammed was listening, I saw his face and he was so scared, his face looked wrong and he said to me "Mommy mommy, why would ICE do that, why would they do that" and he held on to me and he would not let go.
8. Mohammed told me he is tired, he cannot sleep because they leave the light in the cell on all night long. None of my children will eat the food that is served in the cafeteria, maybe they eat one meal or two there each week, it makes their stomachs hurt so they won't eat it. Mohammed has thrown up. The children eat the food from the commissary, only chips and chocolate cookies and honey bars and cupcakes and apple juice are for

Case 1:07-cv-00166-SS Document 2-6 Filed 03/06/07 Page 5 of 21
sale there, they don't have any healthy food there only junk food but the children will not eat the other food. Aisha has gotten sick two times and Mohammed has gotten sick one time. Mohammed is always cold and he can't get warm.
I declare under penalty of perjury that the foregoing is true and correct.
EXECUTED on March L, 2007.
Deka Warsane Williamson County, Texas

Case 1:07-cv-00166-SS Document 2-6 Filed 03/06/07 Page 6 of 21
EXHIBIT N

l

.

i

Case 1:07-cv-00166-SS Document 2-6 Filed 03/06/07 Page 7 of 21

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

AISHA IBRAHIM,

)

by and through her next friend and

)

mother, DEKA WARSAME

)

Plaintiff

)

)

v.

)

)

MICHAEL CHERTOFF, Secretary of )

U.S. Department of Homeland Security )

(DHS); JULIE L. MYERS, Assistant

)

Secretary, U.S. Immigration and Customs )

Enforcement (ICE); JOHN P. TORRES, )

Director, Office of Detention and Removal )

Operations, ICE; MARC MOORE,

)

ICE Field Office Director; GARY MEAD, )

Assistant Director of Detention and Removal)

Operations at ICE, SIMONA COLON, ICE )

Officer in Charge; JOHN POGASH, ICE )

National Juvenile Coordinator,

)

Defendants.

)

------------)

Civil Action No.:

DECLARATION OF AISHA IBRAHIM Aisha Ibrahim makes the following declaration under penalty of perjury pursuant to 28 U.S.C. § 1746:
1. "My name is Aisha Ibrahim and lam 11 years old. My mother is Deka Warsame. I have one brother named Mohammed Ibrahim and one sister named Bahja Ibrahim. We are from Somalia but we left because of the war. Before ICE brought me to Hutto I lived in Columbus Ohio where I was in the 61h grade at Eastmoore Middle School. We have been at Hutto since November 30, 2006.

Case 1:07-cv-00166-SS Document 2-6 Filed 03/06/07 Page 8 of 21
2. The hardest part of being here is that we don't get to get some more sleep. Is not enough. So were [sic] not allowed to go were [sic] we want some of the kids have shoes that is open everywhere. And the food is not good or non [sic] of everything is not good. T. Don Hutto is a bad place at 2003 or 2004 it was a real prison so its compare little bit but not good. T. Don Hutto. Bad Place. Prison.
3. When my sister Bahja got in trouble and the guards said they were going to separate my family I got so mad at Bahja and I was scared. Bahja knew how mad I was at her. How I not want to separate of my mom is that nobody is going to help me or you know maybe people can be mean to you or no one likes to be alone and some of the officer says that if you have a lot of reportes [sic] you will never see your mother again and I rather sleep with my mom. I would be scared I never got my mom back and I would think of how she took care of me when I was a baby.
I declare under penalty of perjury that the foregoing is true and correct." EXECUTED on March 1, 2007.
Aisha Ibrahim Williamson County, Texas

Case 1:07-cv-00166-SS Document 2-6 Filed 03/06/07 Page 9 of 21
EXHIBIT 0

Case 1:07-cv-00166-SS Document 2-6 Filed 03/06/07 Page 10 of 21

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

BAHJA IBRAHIM, by and through her )

next friend and mother DEKA WARSAME )

)

Plaintiff

)

)

~

)

)

MICHAEL CHERTOFF, Secretary of )

U.S. DepartmentofHomeland Security )

(DHS); JULIE L. MYERS, Assistant

)

Secretary, U.S. Immigration and Customs )

Enforcement (ICE); JOHN P. TORRES, )

Director, Office of Detention and Removal )

Operations, ICE; MARC MOORE,

)

ICE Field Office Director; GARY MEAD, )

Assistant Director of Detention and Removal)

Operations at ICE, SIMONA COLON, ICE )

Officer in Charge; JOHN POGASH, ICE )

National Juvenile Coordinator,

)

Defendants.

)

------------------------ )

Civil Action No.:

DECLARATION OF BAHJA IBRAHIM Bahjalbrahim makes the following declaration under penalty of perjury pursuant to 28 U.S.C. § 1746:
I. . My name is Bahja Ibrahim. My mother is named Deka Warsame and my brother is named Mohammed Ibrahim and my sister is named Aisha Ibrahim. We are from Somalia and we left because of the war. We used to live in Ohio where I was in fourth grade at Eastland Elementary School. We have been in Hutto since November 30, 2006.
2. I want to wear my own clothes. I don't like the food in here. It makes my stomach feel bad, sometimes cold some greesy [sic] most of the time.

Case 1:07-cv-00166-SS Document 2-6 Filed 03/06/07 Page 11 of 21

3. It is hard to be in here because no toys no good food no clean clothes. Everything is bad here.
4. It is not fair for us to be in here because we din't [sic] do nothing wrong. 5. I want to see my family most! I want to see my friends. I want to have fun and I want to eat from the restaurant food were [sic] my cousin use [sic] to take us! 6. I don't like to be separate from my mom I will cry and cry and cry for the rest of my life. I will [sic] like to stay with my family and not be separated! 7. The guard [sic] says if you misbehave will take away your reck [sic] time! 8. If you don't be good you can or will be separated from your mom. 9. I will never let them separate me and my family. 10. If they separated me from my mom I would feel mad and angry, I would feel like beating them up! 11. I don't like anything. I want to get out of here! I will be so happy to get out of here! 12. CCA. Bad place.

!d. eclare

under

penalty

ofperjury

that

the

foregoing

is

true
.

and

correct.

EXECUTED on March j_, 2007.

Bahja Ibrahim Williamson County, Texas

Case 1:07-cv-00166-SS Document 2-6 Filed 03/06/07 Page 12 of 21
EXHIBIT P

Case 1:07-cv-00166-SS Document 2-6 Filed 03/06/07 Page 13 of 21

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

RICHARD ANDERSON TOME

)

CARBAJAL and ANGELINA JULIET )

TOME CARBAJAL,

)

by and through their next friend and

)

mother, ELSA CARBAJAL,

)

Plaintiff

)

)

v.

)

)

MICHAEL CHERTOFF, Secretary of )

U.S. Department of Homeland Security )

(DHS); JULIE L. MYERS, Assistant

)

Secretary, U.S. Immigration and Customs )

Enforcement (ICE); JOHN P. TORRES, )

Director, Office of Detention and Removal )

Operations, ICE; MARC MOORE,

)

ICE Field Office Director; GARY MEAD, )

Assistant Director of Detention and Removal)

Operations at ICE, SIMONA COLON, ICE )

Officer in Charge; JOHN POGASH, ICE )

National Juvenile Coordinator,

)

____________D_e_fe_n_da_nt_s._____

)
)

Civil Action No.:

DECLARATION OF ELSA CARBAJAL Elsa Carbajal makes the following declaration under penalty of pe~ury pursu~t to 28 U.S.C. § 1746:
1. "My name is Elsa Carbajal. I was born in Honduras and was raised in Honduras. I have never used any other names, and I have never hurt anyone. I am 24 years old. I have 2 children and their names are Richard Tome and Angelina Tome, both born and raised in Honduras. I don't have any documents that allow me to stay in this country, but I have a great fear of returning to my country, I an1 afraid for my children and for myself and for my children. For the following that I am about to write.

Case 1:07-cv-00166-SS Document 2-6 Filed 03/06/07 Page 14 of 21
2. What happened to me is the worst thing that can happen to a woman. For me it is very difficult to recount it, as I feel a terrible terror in remembering it.
3. Madame judge, with all the respect that you deserve I ask for a few minutes to tell you what a disgrace has happened in my life.
4. In my country I was very happy with my two children, a did not need anything from anyone to be well off, and my children did not need anything form other people other than me. I worked tranquilly in my country. And then everything happened in the following way.
5. On the way home I was walking calmly home when on the road there was a man standing, but it never occurred to me that this man would harm me, when I walked passed him he walked very fast. Suddenly I felt he grabbed my hair and he put his weapon at me head, I was terrorized and thought that he would rob what I had in my wallet, but I did not think he would do what he did. It was the destruction of my life. He Violated Me! Maltreated.
6. That man mad me walk very far from my house,. He pulled me with great force and .. shouted '[perra] shut up,' because I was screaming at him not to kill me, that he could take whatever money I had, but no. He said he would kill me and he passed his gun by my head, my breast he shook it at me and shouted shut up, you [perra hija de puta]
7. I was trembling and horrified; I begged him not to do me harm. He lives nearby to my home, but I had never spoken to him. I went from my work to home and from my home to church. And I have never harmed anyone.
2

Case 1:07-cv-00166-SS Document 2-6 Filed 03/06/07 Page 15 of 21
8. When he began to take my clothes off I screamed for him not to harm me, for the love of God. But he just hit me, he raped me both vaginally and anally. I do nor want to write dirty words because I do not want to show any disrespect.
9. Madame Judge, he introduced his gun into my vagina, he passed the gun throughout my body, he played with my body and he laughed and he kept mistreating my physically. Madame Judge, please help me I don't want any more harm done to me. I have two wonderful children who need me.
10. When he raped me I asked him why, why, ifl had never done anything to anyone, much less to him. I never spoke with anyone or anything, but he just laughed at shouted shut up [perra], you deserve this and so much more. And he started to move his gun and, I shouted at him not to kill me, please don't kill me I have two children and he began to laugh a he started to play and told me, should I kill you or not kill you. And I begged him no, please, and I went down on my knees and begged him not to kill me. And he told me am your god. Your life belongs to me, I am the only one who gives orders to you, [perra]. He told me do you want an opportunity and I said yes, please don't kill me. And he said I am going to give you an opportunity.
11. I said please l will pever tell anyone what happened and he said shut up! I didn't say you could talk. Shut up, if you ever tell anyone I will kill you, you won't have even finished telling someone what happened when I kill you. And if someone realizes what happened I will kill you and your two children. And don't think I'm going to kill them, I will do the same thing to your two children that I just did to you now. No, no, I will never tell anyone anything, nothing never. Please no, I will never tell anyone, the
3

Case 1:07-cv-00166-SS Document 2-6 Filed 03/06/07 Page 16 of 21
children are little angels I can't have anything happen to them. Well, you know, I will kill you along with your children. 12. Suddenly he hit me a punch and he left and I stayed there for awhile crying. Then I went home, death in life. 13. I didn't hear anything, I shut myself inside my house. I took a shower and cried, cried, cried, and even still I cry. Nobody deserves such evil, such a great atrocity. This is the worst thing that could happen to a woman, it is such a terrible pain, such a trauma for all your life. 14. After that I went to a friend's house, at soon the man showed up and he terrorizes me. Now that terror is even greater. That was when I had no other exit, because no parent would have permitted so much pain and worse even doing harm to my children for the love of God! How can such terrible people exist that can play with our lives and destroy them. It is horrible and my heart hurts very much. 15. When I left my country nothing else mattered except getting my children to safety. When I left my country I felt he was always behind me, that he \vould that he would take my children and that he would do the same thing to them that he did to me. 16. It took me nearly two months to get here. I didn't know anyone. I thought anyone that came near me was going to harm me. I don't remember days, hours, months, nothing that my mind nor my heart could make calm. 17. Only to be sufficiently far away form my country to save my children. When I got here, the immigration agent brought me to this Center, when I came into this place. I felt that if I had to come here to make my children safe, and since I arrived here I feel somewhat secure and only you can protect me.
4

Case 1:07-cv-00166-SS Document 2-6 Filed 03/06/07 Page 17 of 21
18. When I thought everything was over, then they did some tests, not because they thought I was pregnant, but because they do the same tests to everyone. When we came here the nurse told me that I was pregnant, and I felt more scared, terrorized, I told her it could not be so. I cried a lot and I was frozen and I couldn't speak. They took me to an assistant of the Clinic, I couldn't speak but the doctors examined me. I told her what had happened and she measured my uterus and told me, I'm sorry but you are currently pregnant and you have to be strong for your baby that is on the way so that the baby will be strong and healthy. But what we never would have imagined was that unfortunately the baby was dead. The next week they took me to a clinic to give me an ultrasound, and in the ultrasound they didn't hear a heartbeat, and they did not know why. but at that moment, the measurements were exact, and she was very sorry.
19. For me this is another trauma in my life, it hurt my heart, first I was raped, and then threatened, I fled from my country where I was doing well, the trauma my children have suffered for everything that has happened. they have also suffered form this change in the lives we had, suddenly to abandon everything, to be fleeing, and now being in this place.
20. After they did the ultrasound the next week they took me again to the Clinic, and they gave me an abortion. From that day, it is terrible, days pass that I will never stay awake, my life is a nightmare, Madame Judge.
21. Since that day, I see a psychiatrist that is helping me move forward. Madame Judge, my terror in returning to my country is because of the harm that he'll do to my children.
5

Case 1:07-cv-00166-SS Document 2-6 Filed 03/06/07 Page 18 of 21
22. In Honduras that man has a father who works with the police, and I am sure that if I return to Honduras, they will harm my family, who are my son Richard Tome who is 5 [sic] years old and Angelina Torne who is 3 years old, and for them I have to fight and stay ahead.
23. Here we are protected the three of us, but they [my children] do not want to stay here. In the nights they cry and they ask me when are we going to leave here. They are having a terrible experience. My three year old daughter cries a lot and she tells me, "Mommy where is God [Diosito] that he doesn't want to help us, mommy tell God [Diosito] to come and take us out of here and take us to his house. Mommy, why do they have us as prisoners if we have never killed anybody."
24. This hurts my heart, I cannot take seeing my children suffer more. 25. Madame Judge, I beg you in the name of everything that is holy help me, help me. I
always speak with a social worker and she tells me, Elsa, you are a survivor, and unfortunately, many women have gone through the same experience as you and sadly not all of them survive, and I have to be more strong for my children, they only have me, and I only have them. And you have my life and the lives of my children in your hands, Madame Judge. We only have you, you decide what will happen in my life: in my future, and I beg you to help me. 26. In this Center my children are very sad, they think that they have done something wrong to be imprisoned in this jail. They ask me why no one is helping us, they tell me to ask God to get us out of here.
6

Case 1:07-cv-00166-SS Document 2-6 Filed 03/06/07 Page 19 of 21
27. Madame Judge, Only I feel safe here, they don't know why I brought them here, they ask me over and over again. Without a doubt they are experiencing a great psychological, moral, sentimental trauma.
28. Here the children are very limited, being stuck inside, the uniforms, the shirts, the food. My little girl will tum 4 years old April19 and she weighs (27/pounds) and she is not gaining weight. Here they only give us twenty minutes to eat and if we have not finished the officials say they are not interested, the time to eat has finished, and we have to go in line. And if the children have not finished eating, they tell us to throw away the food and get going. In some cases they have grabbed the food and thrown it in the trash in front of the children, and they cry because they say they are hungry.
29. In other occasions when they sometimes give us cookies~ my son wants to go and eat then, but they take them away and throw them in the trash. When this happens the children cry and cry. And they speak harshly to the children and they can't take anything with them and they are scared.
30. In some occasions, the children are afraid of the officials. On other occasions it is so cold, but they do not let us get blankets, yet they walk around with gloves. And if we take out the blankets they s}}out at us that we can't take out the blankets. But they go around very well dressed.
31. They wake us up at 5:45 or 5:30am. And at 6 am we have to have finished bathing ourselves. After that we have to eat in 20 minutes, then return to the pod to do nothing, they don·t allow us to sleep, only to sit and wait for the hours. days, moths to pass.
7

Case 1:07-cv-00166-SS Document 2-6 Filed 03/06/07 Page 20 of 21
32. Here it is cold and the children only have the right to have one sweater, three shirts, 3 pairs of underwear, 3 pants. We cannot have anything else here. I had two extra sweaters and they came in to search my room and they took them. And they told me it is not permitted to have more. They do not care that we are cold. They don't care if we eat or if we don't eat.
33. One day I was where the doctor is and lots of children were drawing with crayons. And an official went where they were and brusquely grabbed them. The official grabbed the papers that my daughter drew and my daughter was very afraid. In this moment, the social worker came in and asked what was going on, and when we told her she got very angry and told the official to give back the drawings and never to do that again because these are undefended children who have harmed no one and that is no way to treat children. To me, Kara is an angel.
34. Madame Judge, not just that happens here, but rather much much more. The thing that hurts me most is that the majority of the time the children are unhappy.
35. Imagine it, Madame Judge, what they are going through. And now I am begging you, you are the only person in my life who I have in my life right now to help me live a new and hopefully happy life. I speak to you in truth and with my heart in my hand.
36. May God bless you today, tomorrow, and always."
This declaration has been read back to me in Spanish, and it is a true and accurate transcription of my statements. I declare under penalty of perjury that the foregoing is true and correct.
8

Case 1:07-cv-00166-SS Document 2-6 Filed 03/06/07 Page 21 of 21

I declare under penalty of perjury that the foregoing is true and correct. EXECUTED on March _b 2007.

Elsa Carbajal

J \

Williamson County, Texas

9

 
 I'
Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 1 of 25

an 7C~ 166SS
APPENDIX IN SUPPORT ~LAINTIFF'S MOTION FOR A
TEMPORARY RESTRAINING ORDER AND PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION,
BOTH FILED MARCH 6, 2007

Exhibit A:

Stipulated Settlement Agreement in Flores v. Meese

Exhibit B:

December 12, 2001 Stipulation & Order in Flores v. Meese

Exhibit C:

Declaration ofVanita Gupta, Esq. with Attachments:

Attachment 1: Women's Commission Report: Locking Up Family Values: The Detention ofImmigrant Families
Attachment 2: February 21, 2007 Letter to United States Attorney Johnny Sutton
Attachment 3: March 1, 2007 Letter to Office of Immigration Litigation, Victor Lawrence

Exhibit D:

Declaration of Gouri Bhat, Esq.

Exhibit E:

Declaration of John Sargent, M.D.

Exhibit F:

Declaration of David R. Blackburn, Ph.D.

Exhibit G:

Declaration of Rasa Bunikiene, on behalf of Saule Bunikyte

Exhibit H:

Declaration of Egle Baubonyte

Exhibit 1:

Declaration of Masomeh Alibegi, on behalf of Kevin Yourdkhani

Exhibit J:

Declaration of Kevin Yourdkhani

Exhibit K:

Dedaration of Sherona Verdieu

Exhibit L:

Declaration of Raouitee Pamela Puran, on behalf of Wesleyann Emptage

Exhibit M:

Declaration of Deka Warsame, on behalf of Mohammed Ibrahim

Exhibit N:

Declaration of Aisha Ibrahim

Exhibit 0:

Declaration of Bahja Ibrahim

Exhibit P:

Declaration of Elsa Carbajal, on behalf of Richard Anderson Tome Carbajal and Angelina Juliet Tome Carbajal

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 2 of 25
EXHIBIT A

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 3 of 25

CENTER FOR HUMAN RIGHTS & CONSTITUTIONAL LAW Carios Holguin Peter A. Schey 256 South Occidental Boul~vard Los Angeles, CA 90057 (113) 388-8693

8/12/96

NATIONAL CENTER FOR YOUTH LAW Alice Bussiere James :Y!orales 114 Sansome Street, Suire 905 San Francisco. CA 94!04 (4!5) 453-3307

Attorn::ys for Plaintiffs

Michael Johnson Assistant United States Attorney 300 N. Los Angeles St., Rm. 7516 Los Angeles. CA 900 J 2

Aller. Hausman Office of Immigration Litigation Civil Division U.S. Depamncnt of Justice P.O. Box 878. Ben Franklin Stttion Washington, DC 20044

Attorneys for Defendants

Additional counsel listed next page

UNlTED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFOR.'iiA

JENNY LISETTE FLORES, et al., Plaintiff.<;.
-vsJANET RENO, Attorney General of the United States. et al.,
Defendants.

) Case No. CV &5-4544-RJK(Px)
)
) Stipulated Settlement ) Agreement
) ) ) ) ) )

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 4 of 25

1 CENTER FOR HUMAN RIGHTS & CONSTITUTIONAL LAW Carlos Holguin
2 ' Peter A. Schey 256 South Occidental Boulevard
3 Los Angeles, CA 90057 (213) 388-8693
4

NATIONAL CENTER FOR YOUTH LAW 5 Alice Bussiere

6

James Morales 114 Sansome Street, Suite 905

7 San Francisco, CA 94104 1 : (415) 453-3307

8 Attorneys for Plaintiffs

9 MICHAEL JOHNSON
10 Assistant United States Attorney 300 N. Los Angeles St., Rm. 7516
11 Los Angeles, CA 90012

12 ALLEN HAUSMAN

Office of Immigration Litigation 13 Civil Division

14

U.S. Department of Justice P.O. Box 878, Ben Franklin Station

15 Washington, DC 20044

16 Attorneys for Defendants

17 ·. ', Additional counsel listed next page

18

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA 19

JENNY LISETTE FLORES, et al., 20 i
'
Plaintiffs, 21

) Case No. CV 85-4544-RJK(Px) )
) Stipulated Settlement ) Agreement

22 -vs-

)

)

23 · JANET RENO, Attorney General

)

of the United States, et al.,

)

24

)

Defendants.

)

25

)

26

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 5 of 25
1
Plaintiffs' Additional Counsel: 2
ACLU FOUNDATION OF SOUTHERN CALIFORNIA 3 Mark Rosenbaum
1 Sylvia Argueta 4 1616 Beverly Boulevard
Los Angeles, CA 90026 5 Telephone: (213) 977-9500 6
STREICH LANG 7 Susan G. Boswell
Jeffrey Willis 8 1500 Bank of America Plaza
33 North Stone Avenue 9 Tucson, AZ 85701
Telephone: (602) 770-8700 10 11 Defendants' Additional Counsel:
12 ARTHUR STRATHERN MARY JAND CANDAUX
13 Office of the General Counsel U.S. Immigration & Naturalization Service
14 425 I St. N.W. Washington, DC 20536
15
Ill
16
17
18
19
20
21
22
23
24
25
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26

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 6 of 25

1

STIPULATED SETTLEMENT AGREEMENT

2

WHEREAS, Plaintiffs have filed this action against Defendants, challenging, inter alia,

the constitutionality of Defendants' policies, practices and regulations regarding the 3
detention and release of unaccompanied minors taken into the custody of the Immigration 4
and Naturalization Service (INS) in the Western Region; and

5 WHEREAS, the district court has certified this case as a class action on behalf of all

6 minors apprehended by the INS in the Western Region of the United States; and

7

WHEREAS, this litigation has been pending for nine (9) years, all parties have

8 conducted extensive discovery, and the United States Supreme Court has upheld the

9

constitutionality of the challenged INS regulations on their face and has remanded for
; !

10 further proceedings consistent with its opinion; and

WHEREAS, on November 30,1987, the parties reached a settlement agreement
11

requiring that minors in INS custody in the Western Region be housed in facilities meeting
12
certain standards, including state standards for the housing and care of dependent children, 13
and Plaintiffs' motion to enforce compliance with that settlement is currently pending before
14 the court; and

15

WHEREAS, a trial in this case would be complex, lengthy and costly to all parties

16 concerned, and the decision of the district court would be subject to appeal by the losing

parties with the final outcome uncertain; and

18

WHEREAS, the parties believe that settlement of this action is in their best interests

19 and best serves the interests of justice by avoiding a complex, lengthy and costly trial, and

20 subsequent appeals which could last several more years;

NOW, THEREFORE, Plaintiffs and Defendants enter into this Stipulated Settlement
21
Agreement (the Agreement), stipulate that it constitutes a full and complete resolution of 22
the issues raised in this action, and agree to the following:

23
I

DEFINITIONS

24

As used throughout this Agreement the following definitions shall apply:

25
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26

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 7 of 25

1. The term "party" or "parties" shall apply to Defendants and Plaintiffs. As the term

applies to Defendants, it shall include their agents, employees, contractors and/ or

successors in office. As the term applies to Plaintiffs, it shall include all class members.

2. The term "Plaintiff" or "Plaintiffs" shall apply to the named plaintiffs and all class

., members.

5

3. The term "class member" or 11class members" shall apply to the persons defined in

6 Paragraph 10 below.

7

4. The term "minor" shall apply to any person under the age of eighteen (18) years

8 who is detained in the legal custody of the INS. This Agreement shall cease to apply to any

9 , person who has reached the age of eighteen years. The term "minor" shall not include an

10 emancipated minor or an individual who has been incarcerated due to a conviction for a

11 criminal offense as an adult. The INS shall treat all persons who are under the age of

12

i
'!

eighteen but not included within the definition of "minor" as adults for all purposes,

including release on bond or recognizance. 13
5. The term "emancipated minor" shall refer to any minor who has been determined

14 to be emancipated in an appropriate state judicial proceeding.

15

6. The term 11licensed program" shall refer to any program, agency or organization

16 that is licensed by an appropriate State agency to provide residential, group, or foster care

17 services for dependent children, including a program operating group homes, foster homes,

18 or facilities for special needs minors. A licensed program must also meet those standards
19 .! for licensed programs set forth in Exhibit 1 attached hereto. All homes and facilities
operated by licensed programs, including facilities for special needs minors, shall be non20
secure as required under state law; provided, however, that a facility for special needs 21
minors may maintain that level of security permitted under state law which is necessary for 22
the protection of a minor or others in appropriate circumstances, e.g., cases in which a minor 23 has drug or alcohol problems or is mentally ill. The INS shall make reasonable efforts to
24 provide licensed placements in those geographical areas where the majority of minors are

25
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26

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 8 of 25

1 apprehended, such as southern California, southeast Texas, southern Florida and the

2 northeast corridor.

7. The term "special needs minor" shall refer to a minor whose mental and/ or

3

.~

physical condition requires special services and treatment by staff. A minor may have

:~

4

'

special needs due to drug or alcohol abuse, serious emotional disturbance, mental illness or

5 retardation, or a physical condition or chronic illness that requires special services or

6 treatment. A minor who has suffered serious neglect or abuse may be considered a minor

7 with special needs if the minor requires special services or treatment as a result of the

8 neglect or abuse. The INS shall assess minors to determine if they have special needs and, if

9 so, shall place such minors, whenever possible, in licensed programs in which the INS
10 places children without special needs, but which provide services and treatment for such
11 special needs. 8. The term "medium security facility" shall refer to a facility that is operated by a
12 program, agency or organization licensed by an appropriate State agency and that meets
13 those standards set forth in Exhibit 1 attached hereto. A medium security facility is designed
14 for minors who require close supervision but do not need placement in juvenile correctional
15 facilities. It provides 24-hour awake supervision, custody, care, and treatment. It maintains
16 stricter security measures, such as intensive staff supervision, than a facility operated by a

17 licensed program in order to control problem behavior and. to prevent escape. Such a

18 facility may have a secure perimeter but shall not be equipped internally with major
19 restraining construction or procedures typically associated with correctional facilities.
20 II SCOPE OF SETTLEMENT, EFFECTIVE DATE, AND PUBLICATION
9. This Agreement sets out nationwide policy for the detention, release, and 21
treatment of minors in the custody of the INS and shall supersede all previous INS policies
22
that are inconsistent with the terms of this Agreement. This Agreement shall become 23
effective upon final court approval, except that those terms of this Agreement regarding 24 placement pursuant to Paragraph 19 shall not become effective until all contracts under the
25 -5-
26

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 9 of 25
1 Program Announcement referenced in Paragraph 20 below are negotiated and
2 implemented. The INS shall make its best efforts to execute these contracts within 120 days after the court's final approval of this Agreement. However, the INS will make reasonable
3 efforts to comply with Paragraph 19 prior to full implementation of all such contracts. Once
4 all contracts under the Program Announcement referenced in Paragraph 20 have been
5 implemented, this Agreement shall supersede the agreement entitled Memorandum of
6 Understanding Re Compromise of Class Action: Conditions of Detention (hereinafter 7 "MOU"), entered into by and between the Plaintiffs and Defendants and filed with the
8 United States District Court for the Central District of California on November 30, 1987, and
9 the MOU shall thereafter be null and void. However, Plaintiffs shall not institute any legal
10 action for enforcement of the MOU for a six (6) month period commencing with the final 11 district court approval of this Agreement, except that Plaintiffs may institute enforcement
proceedings if the Defendants have engaged in serious violations of the MOU that have 12
caused irreparable harm to a class member for which injunctive relief would be appropriate. 13
Within 120 days of the final district court approval of this Agreement, the INS shall initiate 14 action to publish the relevant and substantive terms of this Agreement as a Service 15 regulation. The final regulations shall not be inconsistent with the terms of this Agreement.
16 Within 30 days of final court approval of this Agreement, the INS shall distribute to all INS
17 field offices and sub·offices instructions regarding the processing, treatment, and placement
18 I of juveniles. Those instructions shall include, but may not be limited to, the provisions
19 i summarizing the terms of the Agreement attached hereto as Exhibit 2. I' i'
20 III CLASS DEFINITION 10. The certified class in this action shall be defined as follows: "All minors who are
21 detained in the legal custody of the INS."
22 ,, IV STATEMENTS OF GENERAL APPLICABILITY
23 11. The INS treats, and shall continue to treat, all minors in its custody with dignity,
24 respect and special concern for their particular vulnerability as minors. The INS shall place
25 ·6-
26

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 10 of 25

1 each detained minor in the least restrictive setting appropriate to the minor's age and special

2 needs, provided that such setting is consistent with its interests to ensure the minor's timely ! :
appearance before the INS and the immigration courts and to protect the minor's well-being 3
and that of others. Nothing herein shall require the INS to release a minor to any person or 4
agency whom the INS has reason to believe may harm or neglect the minor or fail to present

5 him or her before the INS or the immigration courts when requested to do so.

6

v PROCEDURES AND TEMPORARY PLACEMENT FOLLOWING ARREST

7

12. Whenever the INS takes a minor into custody, it shall expeditiously process the

8 minor and shall provide the minor with a notice of rights, including the right to a bond

9 redetermination hearing if applicable. Following arrest, the INS shall hold minors in

10 facilities that are safe and sanitary and that are consistent with the INS's concern for the

11 1 particular vulnerability of minors. Facilities will provide access to toilets and sinks,
12 drinking water and food as appropriate, medical assistance if the minor is in need of I emergency services, adequate temperature control and ventilation, adequate supervision to
13 I protect minors from others, and contact with family members who were arrested with the
14 minor. The INS will segregate unaccompanied minors from unrelated adults. Where such
15
segregation is not immediately possible, an unaccompanied minor will not be detained with
16 an unrelated adult for more than 24 hours. If there is no one to whom the INS may release
17 the minor pursuant to Paragraph 14, and no appropriate licensed program is immediately

18 available for placement pursuant to Paragraph 19, the minor may be placed in an INS

19 detention facility, or other INS-contracted facility, having separate accommodations for
20 minors, or a State or county juvenile detention facility. However, minors shall be separated
from delinquent offenders. Every effort must be taken to ensure that the safety and well21
being of the minors detained in these facilities are satisfactorily provided for by the staff.
,
22 1 ~ 1 The INS will transfer a minor from a placement under this paragraph to a placement under
23 :' Paragraph 19 (i) within three (3) days, if the minor was apprehended in an INS district in
24 which a licensed program is located and has space available; or (ii) within five (5) days in all
25 -7-
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Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 11 of 25

1 other cases; except:

1. as otherwise provided under Paragraph 13 or Paragraph 21; 2

2. as otherwise required by any court decree or court-approved settlement; 3
3. in the event of an emergency or influx of minors into the United States, in 4
which case the INS shall place all minors pursuant to Paragraph 19 as

5

expeditiously as possible; or

6

4. where individuals must be transported from remote areas for processing or

7

speak unusual languages such that the INS must locate interpreters in order to

8

complete processing, in which case the INS shall place all such minors

9

pursuant to Paragraph 19 within five (5) business days.

10

B. For purposes of this Paragraph, the term "emergency" shall be defined as any act

or event that prevents the placement of minors pursuant to Paragraph 19 within the time 11
frame provided. Such emergencies include natural disasters (e.g., earthquakes, hurricanes, 12
etc.), facility fires, civil disturbances, and medical emergencies (e.g., a chicken pox epidemic 13
~ among a group of minors). The term "influx of minors into the United States" shall be
14 defined as those circumstances where the INS has, at any given time, more than 130 minors

15 eligible for placement in a licensed program under Paragraph 19, including those who have

16 been so placed or are awaiting such placement.

17

C. In preparation for an "emergency" or "influx," as described in Subparagraph B, the

18 INS shall have a written plan that describes the reasonable efforts that it will take to place all
19 I minors as expeditiously as possible. This plan shall include the identification of 80 beds that
are potentially available for INS placements and that are licensed by an appropriate State 20
agency to provide residential, group, or foster care services for dependent children. The 21
plan, without identification of the additional beds available, is attached as Exhibit 3. The 22
INS shall not be obligated to fund these additional beds on an ongoing basis. The INS shall
I j
23 I update this listing of additional beds on a quarterly basis and provide Plaintiffs' counsel
24 with a copy of this listing.

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26

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 12 of 25

1

13. If a reasonable person would conclude that an alien detained by the INS is an

2 adult despite his claims to be a minor, the INS shall treat the person as an adult for all
purposes, including confinement and release on bond or recognizance. The INS may 3
require the alien to submit to a medical or dental examination conducted by a medical 4
professional or to submit to other appropriate procedures to verify his or her age. If the INS 5
subsequently determines that such an individual is a minor, he or she will be treated as a
6 minor in accordance with this Agreement for all purposes.

7 VI GENERAL POLICY FAVORING RELEASE

8

14. Where the INS determines that the detention of the minor is not required either

9 to secure his or her timely appearance before the INS or the immigration court, or to ensure

10 the minor's safety or that of others, the INS shall release a minor from its custody without

11 unnecessary delay, in the following order of preference, to:

12

A. a parent;

B. a legal guardian; 13
c. an adult relative (brother, sister, aunt, uncle, or grandparent);
14 D. an adult individual or entity designated by the parent or legal guardian as

15

capable and willing to care for the minor's well-being in (i) a declaration

16

signed under penalty of perjury before an immigration or consular officer or

17

(il) such other document(s) that establish(es) to the satisfaction of the INS, in

18

its discretion, the affiant's paternity or guardianship;

19

E. a licensed program willing to accept legal custody; or

20

F. an adult individual or entity seeking custody, in the discretion of the INS,

21

when it appears that there is no other likely alternative to long term detention

and family reunification does not appear to be a reasonable possibility. 22
15. Before a minor is released from INS custody pursuant to Paragraph 14 above, the

23 custodian must execute an Affidavit of Support (Form I-134) and an agreement to:

24

A. provide for the minor's physical, mental, and financial well-being;

25 -9-
26

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 13 of 25

1

B. ensure the minor's presence at all future proceedings before the INS and the

2

immigration court;

c. notify the INS of any change of address within five (5) days following a move;
3 D. in the case of custodians other than parents or legal guardians, not transfer
4 custody of the minor to another party without the prior written permission of

5

the District Director;

6

E. notify the INS at least five days prior to the custodian's departing the United

7

States of such departure, whether the departure is voluntary or pursuant to a

8

grant of voluntary departure or order of deportation; and

9

F. if dependency proceedings involving the minor are initiated, notify the INS of

10

the initiation of a such proceedings and the dependency court of any

immigration proceedings pending against the minor. 11
In the event of an emergency, a custodian may transfer temporary physical custody of a
12
, minor prior to securing permission from the INS but shall notify the INS of the transfer as
13
soon as is practicable thereafter, but in all cases within 72 hours. For purposes of this

14 Paragraph, examples of an "emergency" shall include the serious illness of the custodian,

15 destruction of the home, etc. In all cases where the custodian in writing seeks written

16 permission for a transfer, the District Director shall promptly respond to the request.

17

16. The INS may terminate the custody arrangements and assume legal custody of

18 any minor whose custodian fails to comply with the agreement required under Paragraph
19 15. The INS, however, shall not terminate the custody arrangements for minor violations of
that part of the custodial agreement outlined at Subparagraph 15.C above. 20
17. A positive suitability assessment may be required prior to release to any
21
individual or program pursuant to Paragraph 14. A suitability assessment may include 22
such components as an investigation of the living conditions in which the minor would be
23 placed and the standard of care he would receive, verification of identity and employment
24 of the individuals offering support, interviews of members of the household, and a home

25
-10-
26

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 14 of 25

1 visit. Any such assessment should also take into consideration the wishes and concerns of

2 the minor.
18. Upon taking a minor into custody, the INS, or the licensed program in which the 3
minor is placed, shall make and record the prompt and continuous efforts on its part toward 4
family reunification and the release of the minor pursuant to Paragraph 14 above. Such
5 efforts at family reunification shall continue so long as the minor is in INS custody.

6 VII INS CUSTODY

7

19. In any case in which the INS does not release a minor pursuant to Paragraph 14,

8 the minor shall remain in INS legal custody. Except as provided in Paragraphs 12 or 21,

9 such minor shall be placed temporarily in a licensed program until such time as release can

10 be effected in accordance with Paragraph 14 above or until the minor's immigration

11 proceedings are concluded, whichever occurs earlier. All minors placed in such a licensed
program remain in the legal custody of the INS and may only be transferred or released 12
under the authority of the INS; provided, however, that in the event of an emergency a
13
licensed program may transfer temporary physical custody of a minor prior to securing 14
permission from the INS but shall notify the INS of the transfer as soon as is practicable 15 thereafter, but in all cases within 8 hours.

16

20. Within 60 days of final court approval of this Agreement, the INS shall authorize

17 the UnitedStates Department of Justice Community Relations Service to publish inthe

18 Commerce Business Daily and/ or the Federal Register a Program Announcement to solicit

19 ' proposals for the care of 100 minors in licensed programs.

20

21. A minor may be held in or transferred to a suitable State or county juvenile

detention facility or a secure INS detention facility, or INS-contracted facility, having 21

separate accommodations for minors whenever the District Director or Chief Patrol Agent 22
determines that the minor:

23 A. has been charged with, is chargeable, or has been convicted of a crime, or is

24

the subject of delinquency proceedings, has been adjudicated delinquent, or is

25
-1126

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 15 of 25

1

chargeable with a delinquent act; provided, however, that this provision shall

2

not apply to any minor whose offense(s) fall(s) within either of the following

categories: 3
i. Isolated offenses that (1) were not within a pattern or practice of 4
criminal activity and (2) did not involve violence against a person or the

5 use or carrying of a weapon (Examples: breaking and entering,

6

vandalism, DUI, etc. This list is not exhaustive.);

7

ii. Petty offenses, which are not considered grounds for stricter means of

8

detention in any case (Examples: shoplifting, joy riding, disturbing the

9

peace, etc. This list is not exhaustive.);

10

As used in this paragraph, "chargeable" means that the INS has probable cause

11

to believe that the individual has committed a specified offense;

B. has committed, or has made credible threats to commit, a violent or malicious
12 act (whether directed at himself or others) while in INS legal custody or while
13 in the presence of an INS officer;

14 i

c. has engaged, while in a licensed program, in conduct that has proven to be

15

unacceptably disruptive of the normal functioning of the licensed program in

16

which he or she has been placed and removal is necessary to ensure the

17

welfare of the minor or others, as determined by the staff of the licensed

18

program (Examples: drug or alcohol abuse, stealing, fighting, intimidation of

19

others, etc. This list is not exhaustive.);

D. is an escape-risk; or 20

E. must be held in a secure facility for his or her own safety, such as when the
21 INS has reason to believe that a smuggler would abduct or coerce a particular
22
minor to secure payment of smuggling fees.

23

22. The term "escape-risk" means that there is a serious risk that the minor will

24 : attempt to escape from custody. Factors to consider when determining whether a minor is

25
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26

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 16 of 25

1 an escape-risk or not include, but are not limited to, whether:

2

A. the minor is currently under a final order of deportation or exclusion;

B. the minor's immigration history includes: a prior breach of a bond; a failure to
3

appear before the INS or the immigration court; evidence that the minor is

4 indebted to organized smugglers for his transport; or a voluntary departure or

5

a previous removal from the United States pursuant to a final order of

6

deportation or exclusion;

7

c. the minor has previously absconded or attempted to abscond from INS

8

custody.

9

23. The INS will not place a minor in a secure facility pursuant to Paragraph 21 if

10 there are less restrictive alternatives that are available and appropriate in the circumstances,

such as transfer to (a) a medium security facility which would provide intensive staff 11

supervision and counseling services or (b) another licensed program. All determinations to 12
: place a minor in a secure facility will be reviewed and approved by the regional juvenile

13 coordinator.

14 i

24A. A minor in deportation proceedings shall be afforded a bond redetermination

15 hearing before an immigration judge in every case, unless the minor indicates on the Notice

16 , of Custody Determination form that he or she refuses such a hearing.

17.

B. Any minor who disagrees with the INS's determination to place that minor in a

18 particular type of facility, or who asserts that the licensed program in which he or she has

19 been placed does not comply with the standards set forth in Exhibit 1 attached hereto, may
seek judicial review in any United States District Court with jurisdiction and venue over the 20 1
matter to challenge that placement determination or to allege noncompliance with the 21
: standards set forth in Exhibit 1. In such an action, the United States District Court shall be
22
limited to entering an order solely affecting the individual claims of the minor bringing the
23 action.

24

C. In order to permit judicial review of Defendants' placement decisions as provided

25 -13-
26

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 17 of 25

1 in this Agreement, Defendants shall provide minors not placed in licensed programs with a

2 notice of the reasons for housing the minor in a detention or medium security facility.

With respect to placement decisions reviewed under this paragraph, the standard of review 3
for the INS's exercise of its discretion shall be the abuse of discretion standard of review.
4 With respect to all other matters for which this paragraph provides judicial review, the

5

standard of review shall be de novo review.

6

D. The INS shall promptly provide each minor not released with (a) INS Form 1-770;

7 (b) an explanation of the right of judicial review as set out in Exhibit 6, and (c) the list of free

8 legal services providers compiled pursuant to INS regulation (unless previously given to

9 the minor).

10

E. Exhausting the procedures established in Paragraph 37 of this Agreement shall

not be a precondition to the bringing of an action under this paragraph in any United 11

District Court. Prior to initiating any such action, however, the minor and/ or the minors'
12
attorney shall confer telephonically or in person with the United States Attorney's office in
13
the judicial district where the action is to be filed, in an effort to informally resolve the

14 minor's complaints without the need of federal court intervention.

15
VIII TRANSPORTATION OF MINORS

16

25. Unaccompanied minors arrested or taken into custody by the INS should not be

17 transported by the INS in vehicles with detained adults except

18

A. when being transported from the place of arrest or apprehension to an INS office,

19 or

20

B. where separate transportation would be otherwise impractical.

21

When transported together pursuant to Clause (B) minors shall be separated from

adults. The INS shall take necessary precautions for the protection of the well-being of such
22
minors when transported with adults.
23
26. The INS shall assist without undue delay in making transportation arrangements

24 to the INS office nearest the location of the person or facility to whom a minor is to be

25 -14-
26

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 18 of 25

1 released pursuant to Paragraph 14. The INS may, in its discretion, provide transportation to

2

minors.

3

IX TRANSFER OF MINORS

··1;

27. Whenever a minor is transferred from one placement to another, the minor shall

..

4

be transferred with all of his or her possessions and legal papers; provided, however, that if

5

the minor's possessions exceed the amount permitted normally by the carrier in use, the

6 possessions will be shipped to the minor in a timely manner. No minor who is represented

7 by counsel shall be transferred without advance notice to such counsel, except in unusual

8 and compelling circumstances such as where the safety of the minor or others is threatened

9 or the minor has been determined to be an escape-risk, or where counsel has waived such

10 notice, in which cases notice shall be provided to counsel within 24 hours following transfer.

11 X MONITORING AND REPORTS

12

28A. An INS Juvenile Coordinator in the Office of the Assistant Commissioner for

Detention and Deportation shall monitor compliance with the terms of this Agreement and 13
shall maintain an up-to-date record of all minors who are placed in proceedings and remain 14
in INS custody for longer than 72 hours. Statistical information on such minors shall be 15
collected weekly from all INS district offices and Border Patrol stations. Statistical
16 information will include at least the following: (1) biographical information such as each

17 minor's name,date of birth, and country of birth, (2) date placed in INS custody, (3) each ·

18 date placed, removed or released, (4) to whom and where placed, transferred, removed or

19 released, (5) immigration status, and (6) hearing dates. The INS, through the Juvenile

20 Coordinator, shall also collect information regarding the reasons for every placement of a
21 minor in a detention facility or medium security facility.
B. Should Plaintiffs' counsel have reasonable cause to believe that a minor in INS
22
legal custody should have been released pursuant to Paragraph 14, Plaintiffs' counsel may 23
contact the Juvenile Coordinator to request that the Coordinator investigate the case and 24
inform Plaintiffs' counsel of the reasons why the minor has not been released.
25 -15-
26

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 19 of 25

1

29. On a semi-annual basis, until two years after the court determines, pursuant to

2 ' · Paragraph 31, that the INS has achieved substantial compliance with the terms of this
Agreement, the INS shall provide to Plaintiffs' counsel the information collected pursuant to 3
Paragraph 28, as permitted by law, and each INS policy or instruction issued to INS 4
employees regarding the implementation of this Agreement. In addition, Plaintiffs' counsel
5 shall have the opportunity to submit questions, on a semi-annual basis, to the Juvenile
6 Coordinator in the Office of the Assistant Commissioner for Detention and Deportation

7 with regard to the implementation of this Agreement and the information provided to

8 Plaintiffs' counsel during the preceding six-month period pursuant to Paragraph 28.

9 Plaintiffs' counsel shall present such questions either orally or in writing, at the option of the
10 Juvenile Coordinator. The Juvenile Coordinator shall furnish responses, either orally or in
11 writing at the option of Plaintiffs' counsel, within 30 days of receipt. 30. On an annual basis, commencing one year after final court approval of this
12
Agreement, the INS Juvenile Coordinator shall review, assess, and report to the court 13
regarding compliance with the terms of this Agreement. The Coordinator shall file these
14
reports with the court and provide copies to the parties, including the final report
15 referenced in Paragraph 35, so that they can submit comments on the report to the court. In
16 each report, the Coordinator shall state to the court whether or not the INS is in substantial

17 compliance with the terms of this Agreement, and, if the INS is not in substantial

18 compliance, explain the reasons for the lack of compliance. The Coordinator shall continue

19 to report on an annual basis until three years after the court determines that the INS has

20 achieved substantial compliance with the terms of this Agreement.

31. One year after the court's approval of this Agreement, the Defendants may ask

.l,

21

the court to determine whether the INS has achieved substantial compliance with the terms

22

of this Agreement.

23 XI ATTORNEY-CLIENT VISITS

l ;

24

'·i.

:J

25

"!

26

32. A. Plaintiffs' counsel are entitled to attorney-client visits with class members -16-

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 20 of 25

1 even though they may not have the names of class members who are housed at a particular
2 location. All visits shall occur in accordance with generally applicable policies and
procedures relating to attorney-client visits at the facility in question. Upon Plaintiffs' 3
counsel's arrival at a facility for attorney-client visits, the facility staff shall provide 4
Plaintiffs' counsel with a list of names and alien registration numbers for the minors housed 5
at that facility. In all instances, in order to memorialize any visit to a minor by Plaintiffs'
6 counsel, Plaintiffs' counsel must file a notice of appearance with the INS prior to any
7 attorney-client meeting. Plaintiffs' counsel may limit any such notice of appearance to

8

1 ·

representation of the minor in connection with this Agreement.

Plaintiffs' counsel must

9 submit a copy of the notice of appearance by hand or by mail to the local INS juvenile
10 coordinator and a copy by hand to the staff of the facility.
B. Every six months, Plaintiffs' counsel shall provide the INS with a list of those 11
attorneys who may make such attorney~client visits, as Plaintiffs' counsel, to minors during
12
the following six month period. Attorney~client visits may also be conducted by any staff 13
attorney employed by the Center for Human Rights & Constitutional Law in Los Angeles,
14
California or the National Center for Youth Law in San Francisco, California, provided that
15 I such attorney presents credentials establishing his or her employment prior to any visit.

16

C. Agreements for the placement of minor in non-INS facilities shall permit attorney-

17 client visits, including by class counsel in this case.

18

D. Nothing in Paragraph 32 shall affect a minor's right to refuse to meet with

19 ! Plaintiffs' counsel. Further, the minor's parent or legal guardian may deny Plaintiffs'
20 counsel permission to meet with the minor.
21 XII FACILITY VISITS
33. In addition to the attorney-client visits permitted pursuant to Paragraph 32,
22
Plaintiffs' counsel may request access to any licensed program's facility in which a minor 23
has been placed pursuant to Paragraph 19 or to any medium security facility or detention
24 facility in which a minor has been placed pursuant to Paragraphs 21 or 23. Plaintiffs'
25
-17-
26

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 21 of 25
~;,

1 I counsel shall submit a request to visit a facility under this paragraph to the INS district

2 juvenile coordinator who will provide reasonable assistance to Plaintiffs' counsel by

conveying the request to the facility's staff and coordinating the visit. The rules and 3

,,

procedures to be followed in connection with any visit approved by a facility under this

,:... ~
fi.;

4

paragraph are set forth in Exhibit 4 attached, except as may be otherwise agreed by

5 Plaintiffs' counsel and the facility's staff. In all visits to any facility pursuant to this

6 I: Agreement, Plaintiffs' counsel and their associated experts shall treat minors and staff with

7 ' courtesy and dignity and shall not disrupt the normal functioning of the facility.

8

::
XIII TRAINING

9

34. Within 120 days of final court approval of this Agreement, the INS shall provide

10 appropriate guidance and training for designated INS employees regarding the terms of this

11 i i Agreement. The INS shall develop written and/ or audio or video materials for such
12 training. Copies of such written and/ or audio or video training materials shall be made available to Plaintiffs' counsel when such training materials are sent to the field, or to the
13 extent practicable, prior to that time.
14 XIV DISMISSAL
15 35. After the court has determined that the INS is in substantial compliance with this
16 Agreement and the Coordinator has filed a final report, the court, without further notice,
17 shall dismiss this action. Until such dismissal, the court shall retain jurisdiction over this
18 action.

19 XV RESERVATION OF RIGHTS

20

36. Nothing in this agreement shall limit the rights, if any, of individual class

·::;
~.J

21 members to preserve issues for judicial review in the appeal of an individual case or for

:~ j

22 class members to exercise any independent rights they may otherwise have.

23 , XVI NOTICE AND DISPUTE RESOLUTION

37. This paragraph provides for the enforcement, in this District Court, of the 24

1

!

·.,·. j

25

rr:

26

"~

,:j

-18-

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 22 of 25

1 provisions of this Agreement except for claims brought under Paragraph 24. The parties
2 shall meet telephonically or in person to discuss a complete or partial repudiation of this
Agreement or any alleged non-compliance with the terms of the Agreement, prior to 3
bringing any individual or class action to enforce this Agreement. Notice of a claim that 4
defendants have violated the terms of this Agreement shall be served on plaintiffs
5 addressed to:
6 CENTER FOR HUMAN RIGffiS & CONSTITUTIONAL LAW
7 Carlos Holguin Peter A. Schey
8 256 South Occidental Boulevard Los Angeles, CA 90057
9 NATIONAL CENTER FOR YOUTH LAW
10 Alice Bussiere James Morales
11 114 Sansome Street, Suite 905 12 San Francisco, CA 94104

13 and on Defendants addressed to:

14 Michael Johnson Assistant United States Attorney
15 300 N. Los Angeles St., Rm. 7516 Los Angeles, CA 90012
16 Allen Hausman
17 Office of Immigration Litigation Civil Division
18 U.S. Department of Justice
P.O. Box 878, Ben Franklin Station 19 Washington, DC 20044

20 XVII PUBLICITY

21

38. Plaintiffs and Defendants shall hold a joint press conference to announce this

22 Agreement. The INS shall send copies of this Agreement to social service and voluntary

23 agencies agreed upon by the parties, as set forth in Exhibit 5 attached. The parties shall 24 pursue such other public dissemination of information regarding this Agreement as the

25
-1926

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 23 of 25

1 parties shall agree.

2 XVIII ATTORNEYS FEES AND COSTS

3

39. Within 60 days of final court approval of this Agreement, Defendants shall pay to

Plaintiffs the total sum of$_ _, in full settlement of all attorneys' fees and costs in this 4
case. 5

XIX TERMINATION 6
40. All terms of this Agreement shall terminate the earlier of five years from the date

7 of final court approval of this Agreement or three years after the court determines that the

8 INS is in substantial compliance with the Agreement, except the following: the INS shall

9 continue to house the general population of minors in INS custody in facilities that are state-

10 licensed for the care of dependent minors.

11 XX REPRESENTATIONS AND WARRANTY

12

41. Counsel for the respective parties, on behalf of themselves and their clients,

13 represent that they know of nothing in this Agreement that exceeds the legal authority of
14 the parties or is in violation of any law. Defendants' counsel represent and warrant that they are fully authorized and empowered to enter into this Agreement on behalf of the
15 Attorney General, the United States Department of Justice, and the Immigration and
16 Naturalization Service, and acknowledge that Plaintiffs enter into this Agreement in reliance
17 on such representation.· Plaintiffs' counsel represent and warrant that they are fully
18 authorized and empowered to enter into this Agreement on behalf of the Plaintiffs, and
19 acknowledge that Defendants enter into this Agreement in reliance on such representation.

20 The undersigned, by their signatures on behalf of the Plaintiffs and Defendants, warrant

21 that upon execution of this Agreement in their representative capacities, their principals, 22 agents, and successors of such principals and agents shall be fully and unequivocally bound 23 hereunder to the full extent authorized by law.

24 Dated:._ _ _ _ _ __
25 -20-
26

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 24 of 25

XIX TER:VHNATION

- 40. All terms of this Agreement shall terminate the earlier of tive .vears after the date of tinal
court approval of this Agreement or three years after the court determines that the fNS is in substantiai

compliance \Vith this Agreement. except that rhe INS shall continue to house the general population of

minors !n JNS custody in facilities that are licensed tor the care of dependent minors.

XX REPRESENTAT!ONS AND \VARRA.NTY

41. Counsel tor the respective parties. on behalfof themselves and their ciients. represent that

they knmv of nothing in this Agreement that exceeds the legai authoriry of the parties or is in ilio[ation

of any law. Deiendams' counsel represent and warrant that they are tully authorized and empowered to

enter into this Agreement on behalf of the Attorney General, the United States Departmt:!nt of Justice.

and the Immigration and Natur:l!ization Service. and acknowledge that Plaintiffs enter into this

Agreement in reliance on such representation. Plaintiffs' counsel represent and warrant that they are

fully authorized and empowered w emer into chis Agreement on behalf of the Plaintiffs. and

acknowledge that Detendanrs enter into this Agreement in reliance on such representation. The

undersigned, by their signatures on behalf of the Plaintiffs and Defendants, warrant that upon execution

of this Agreement in their representative capacities, their principals. agents, and successors of such

principals and agents shall be fully and unequ1voca1ly bound hereunder to the fui!l!.xtent authoriz\!d by

0 Ulw.
For Defendants:

Signed:_..!J:;:..:::...=.-:.;::.~ .~-.·:- =~- -. .:. .: . .: : . :.: :. . . . : ~.: :=:. . !. ._Title:

Commissioner 1

INS

Dated:._-!..1+/....:..t-"-l~--.,..~...-4.:___

For Plaintiffs: Signed:_P_e_r_n_e_x_t_p_a_g_e________Title:________

Dated:_ _ _ _ _ _ _ __

22

Case 1:07-cv-00166-SS Document 2-1 Filed 03/06/07 Page 25 of 25

The foregoing stipulated settlement is approved as to form and content:

CENTER FOR HUMAN CONSTITUTIONAL LAW Carlos Holguin
Peter Schey

RIGHTS

AND

NATIONAL CE~'TER FOR YOUTH L\W Alice Bussiere James Morales

ACLU FO{JNDATION OF SOUTHER.N CALIFOR.'-i1A Mark Rosenbaum Sylvia A.rguera

Case 1:07-cv-00166-SS Document 2-2 Filed 03/06/07 Page 1 of 30
;~
EXHIBIT B
· . . ~ ·.

Case 1:07-cv-00166-SS Document 2-2 Filed 03/06/07 Page 2 of 30

·- ......i) l...~.......·...,~;-·-l-·!'.)!~ •

CENTER FOR HUi\·1AN
Car Ios HoIguin

RIGHTS &

(ONSTITU'liON

\ .L...~L_iA,,rW; , · ··~·

1n
• "

:;·,· ~:nC\ - - ...

2 Peter A Schey Charles Song

.
·

,., ~: :~!.~
..... ,

.!

:11

3 256 South Occidental Boulevard

· ,;,

4

Los Angeles, CA 90057 Telephone: (213) 388-8693; Fax: (213) 386-9484

5

LATHAM & WATKINS

6

Steven Schulman 555 Eleventh St.., NW, Suite 1000

7 Washington, DC 20004

Telephone: (202) 637-2184

8

Of counsel:

9

'r'OUTH L :\v\ CENTER 10 ,_\lice Bussiere

417 Montgomery Street, Suite 900 1l San Francisco, CA 94104

12 Telephone: (415) SB-3379 x 3903

13 Attm my; for plaintiff.:;

14

15

UNITED STATES DISTRICT COURT

16

(ENTR \L DISTRICT OF ( .!,LifOR:\11 \

17 IE~NY LISETII: FLORES, et <1l,

Case No. CV 85-45H-RJK(Px)

IS I
1
19 -vs-
1.1
I \_-,,[: i\i \\ ', -\llt11111..'\ CI..'IH!f~ll
l)f the L nited Slates, cll'll

Slii'LL \riU\ E\TF.!\01\C

SllllL\IF\f' :l.CRF[\1[\1 \:\T)f{1J\

OTHER PURPOSES; AND ORDER

\
·'

fHFl~F()\.

·---.... - . -~· ... .. ...... ·~··----------·-

........ .

l !

z:=; J
!
2tl I'II
!I
27 Ii,I
.2:-; !'

Case 1:07-cv-00166-SS Document 2-2 Filed 03/06/07 Page 3 of 30

2

IT IS HEREBY STIPULATED by and bet-vveen the par ties as follows:

3

1. Paragraph 40 of the Stipulation filed herein on January 17, 1997, is modified to r.ead

4 as follows:

5

"All terms of this .!\greement shall terminate £he earlier ef five years after t!:te Elate 0~

6

fiAal eot1rt approval of this .\greement or three years after the eourt detenT!ines t!:tat

7

the IN~ is ifl suestantial eempliar~ee \'lith this Agreemer.t, 45 days following dcfc•,ufm1t5'

8

publiratiou offlnn/Jegulatiolls znzplemmtmg this Agu·emenl

9

eJtee13t that Noturitlzstaudmg the foregoing, the INS shall continue to house the general

10

population of minors in INS custod) in facilities th.:1t are state-licensed for the care (Jf

11

dependent minors "

12 I I I

13

l+

15

16

17

18

19

2:0.

21
jl
E I
")-)'

.2+ 2:;

2P

)-
'-'

I I

b li

Case 1:07-cv-00166-SS Document 2-2 Filed 03/06/07 Page 4 of 30

2 For a period of six months from the date this Stipulation is filed, plaintiffs shall not

2 initiate legal proceedings to compel publication of final regulations implementing this

3 Agreement Plaintiffs agree to \-vork with defendants cooperatively toward resolving

4 disputes regarding compliance with the Settlement. The parties agree to confer regularly no

5 less frequently than once monthly for the purpose of discussing the implementation of and

6 compliance with the settlement agreement However, nothing hezein shall require plaintiffs

7 to forebem legal action to compel compliance with this Agreement ~vhere plaintiff class

8 members are suffering irreparable injury 9 Dated: December 7, 2001. 10 11 12 13 1+ 15

CENTER FOR HUMAN RIGHTS & CONSTITUTION \L l -\W Carlos Holguin Peter :l, Schey
L•\THAAl & \V\TKINS Steven Schulman
/-~
YOUTH LA.W CP'f(ER
~'I

16

17 Dated: Del.cmlwr-; 2ll0 l
18 ;I
19 II
i2U .
21 II
22 !i :i 21 !'

\rlhur Strathern
Office of the Ct•ne.t<ll Counsel
L S lmmigr<1li\)J1 6r \alut<lliJ,Ition Sl I\ iu_
-~ I

2-:; :1 I )nkd: lkn·mbt•r

2()()1

II

!! -'.1'• l'
-

1-:-

i'i'

\I

-~..., !i

·----..····------· L. \'!Ill -1 ~I

-
\

--
I'I:S

-----
I)JSTRl( ·1

-I-t'

---
I lCI

-

-

-

-

-

-

-

Case 1:07-cv-00166-SS Document 2-2 Filed 03/06/07 Page 5 of 30

DEC-07-2001 17!42

INS GENERAL COUNSEL

202 514 0455 P.02

, .
. .
I.

1 I

2. Fox a period of six months nom the date this Stipulation is filed, plaintiffs shall not

I

I

I

2 1I ; initiate legal proceedings to compel publication of final regulations implementing this

i

i 3 Agreement. Plaintiffs agree to work with defendants cooperatively towcu:d x·esolving I
4 ; disputes rega:z'ding compliance with the Settlement The parties agree to confer regularly no

5 less frequently than once monthly for the purpose of discussing the implementation of and

6 compliance with the settlement agreement.. However, nothing hezein shall require plaintiffs

7 ;j to forebear legal action to compel compliance with this Agreement where plaintiff class
'I
8 l! members are suffering irreparable injury.

9 Dated: December 7, 2001.. 10 : i 11

CENTER FOR HUMAN RIGHTS & (ONST1ITJ1IONAL LAW
Carlos Holguin Peter A Schey

12

13

14 :.
15
; ~
16 ..

17

ii
:

lATHAM & WATKINS Steven Schulman
YOUTH LAW (ENTER
Alice Bussiere
------..·---·--· ·------
Ca:dos Holguin, fot plaintiffs

18 Dated: December 7, 2001

19 I.

·I

I'

1,·,

20

21

Arthur Sttathern Office of the Genexal Counsel
US. Immig:ratio~7&p?aturalization Service
.. d'' 'i/
(J) U_i.L-.4-_ _ _ ______,--·

22

Arthur Strathern, for de_{endants

23

Per fax authoii%::J.tkm

24:

2.5 IT IS SO ORDERED
26 Dated: December i, 2001
?.7

---·-·-···--·--·----·---
UN!TFD SL\ rES DISTR!CI Tl.iDGE

.2B
- 3-

Case 1:07-cv-00166-SS Document 2-2 Filed 03/06/07 Page 6 of 30

PROOF OF SERVICE BY 1\IAII.

2

I, Carlos Holguin, declare and say as follows:

3

1 I am over the age of eighteen years and am not a party to this action. I am

4 employed in the County of Los Angeles, State of California. My business address is 256

5 South Occidental Boulevard, Los Angeles, California 90057, in said county and state

6

2. On December 7, :2001, I setved the attached STIPULATION on defendants in this

7 proceeding by placing a true copy thereof in a sealed envelope addressed to their attorneys

8 of record as follows:

9

Arthur Strathern

Office of the General Counsel

10

U.S Immigration & Natmalization Service

11

425 I St N. \\' Washington, DC 20536

12 13 and by then sealing said envelope and depositing the satrle, with postnge thereon fully

14 prepaid, in the mail at Los Angeles, California; that there is regular delivery of mail betV\een

15 the place of mailing and the place so addressed.

16

I declare under penalt~ of perjury that the foregoing is true t~nd correct

1i

Executed this1ft'day of December,2001, at Los :.\nge)es, C:tlifornia

IS II 19 II
II I

/
I,

(' '. .•. ...-

--· .4 I'. ·1/I 1//..

- - ~· --·---···-·_..'......-.....

........ ~-~

, '

 
 Case 1:07-cv-00165-SS Document 23 Filed 03/22/2007 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

FI[E[J

WESLEYANN EMPTAGE, by and through her next friend and mother, Raouitee Pamela Puran,
Plaintiff,
-vs-
MICHAEL CHERTOFF, Secretary of U.S. Department of Homeland Security; JULIE L. MYERS, Assistant Secretary, U.S. Immigration and Customs Enforcement (ICE); JOHN P. TORRES, Director, Office of Detention and Removal Operations, ICE; MARC MOORE, ICE Field Office Director; GARY MEAD, Assistant Director of Detention and Removal Operations at ICE; Simona Colon, ICE Officer in Charge; and JOHN POGASH, ICE National Juvenile Coordinator,
Defendants.
MOHAMMED IBRAHIM, by and through his next friend and mother, Deka Warsame,
Plaintiff,
-vs-
MICHAEL CHERTOFF, Secretary of U.S. Department of Homeland Security; et al.,
Defendants.
BAHJA IBRAHIM, by and through her next friend and mother, Deka Warsame,
Plaintiff,
-vs-
MICHAEL CHERTOFF, Secretary of U.S. Department ofHomeland.Security; et al.,
Defendants.

Case No. A-07-CA-158-SS
Case No. A-07-CA-161-SS Case No. A-07-CA-162-SS

Case 1:07-cv-00165-SS Document 23 Filed 03/22/2007 Page 2 of 4

AISHA IBRAIDM, by and through her next friend and mother, Deka Warsame,
Plaintiff,
-vs-
MICHAEL CHERTOFF, Secretary of U.S. Department of Homeland Security; et al.,
Defendants.
SAULE BUNIKYTE, by and through his next friend and mother, Rasa Bunikiene,
Plaintiff,
-vs-
MICHAEL CHERT6FF, Secretary of U.S. Department of Homeland Security; et al.,
Defendants.
EGLE BAUBONYTE, by and through her next friend and mother, Rasa Bunikiene,
Plaintiff,
-vs-
MICHAEL CHERTOFF, Secretary of U.S. Department of Homeland Security; et al.,
Defendants.
SHERONA VERDIEU, by and through her next friend and mother, Delourdes Verdieu,
Plaintiff,
-vs-
MICHAEL CHERTOFF, Secretary of U.S. Department of Homeland Security; et al.,
Defendants.

Case No. A-07-CA-163-SS Case No. A-07-CA-164-SS Case No. A-07-CA-165-SS Case No. A-07-CA-166-SS

Case 1:07-cv-00165-SS Document 23 Filed 03/22/2007 Page 3 of 4

KEVIN YOURDKHANI, by and through his next friend and mother, Masomeh Alibegi,
Plaintiff,
-vs-
MICHAEL CHERTOFF, Secretary of U.S. Department of Homeland Security; et al.,
Defendants.

Case No. A-07-CA-167-SS

ORDER BE IT REMEMBERED that on the 20th day of March 2007 the Court held a hearing in the above-styled cases. The parties were represented by counseL The Court considered the minor Plaintiffs' request for apreliminary injunction ordering the immediate release ofthe minor Plaintiffs and their parents, and ordering access to Plaintiffs and their medical records for Plaintiffs' counsel and experts. The Court now confirms its oral orders with the following: It is ORDERED that within SEVEN [7] days ofthe entry ofthis Order, the parties shall file the following additional briefing and evidence: Plaintiffs and Defendants shall file affidavits describing each party's attempts to comply with
the exhaustion requirements of Paragraph 24 of the Flores Settlement. Plaintiffs and Defendants shall file affidavits detailing what proceedings regarding bond or
parole, if any, have been held with regard to each Plaintiff. Defendants shall file any available evidence relating to the licensing exemption allegedly
granted the Hutto facility by the State of Texas. The parties shall confer and submit a proposed scheduling order for expedited discovery and
trial. To the extent the parties cannot agree on this schedule, each party may submit its own proposed scheduling order.

Case 1:07-cv-00165-SS Document 23 Filed 03/22/2007 Page 4 of 4
Plaintiffs and Defendants shall file supplemental briefing regarding (1) any contentions that provisions of the Flores settlement apply only to unaccompanied minors; (2) the effect of the claimed license exemption on the Flores "licensed program" requirements; and (3) the effect oflegal proceedings for release, including bond, parole, and habeas corpus proceedings, on Plaintiffs' request for equitable release. Either party may file a response to these arguments within SEVEN [7] days of the entry of these supplemental briefs.
The Court is troubled by the evidence presented at yesterday's hearing, in particular by the evidence that Plaintiffs' access to private consultation with their attorneys is severely limited. Hutto is a detention facility, not a penitentiary. Even in the penitentiary, lawyers can see their clients privately. Whatever the inconvenience may be to ICE, CCA, or any other organization in the alphabet soup responsible for the Hutto facility, this Court find it hard to imagine a legitimate reason for rules giving immigrant detainees fewer rights to counsel than federal felons. Therefore,
IT IS ORDERED that the restrictions on the number of clients an attorney can see per visit and the requirement that children attend their parents' attorney visits be REMOVED immediately.
SIGNED this the 0?.( ...tday of March 2007.
sti::r?~
UNITED STATES DISTRICT JUDGE

 
 Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 1 of 29
CLOSED, CONSOLIDATED, LEAD_CASE
U.S. District Court [LIVE] Western District of Texas (Austin) CIVIL DOCKET FOR CASE #: 1:07−cv−00164−SS

In re Hutto Family Detention Center Assigned to: Judge Sam Sparks Member case: (View Member Case) Related Cases: 1:07−cv−00158−SS
1:07−cv−00456−SS 1:07−cv−00454−SS 1:07−cv−00460−SS 1:07−cv−00461−SS 1:07−cv−00459−SS 1:07−cv−00310−SS 1:07−cv−00309−SS 1:07−cv−00452−SS 1:07−cv−00380−SS 1:07−cv−00453−SS 1:07−cv−00458−SS 1:07−cv−00457−SS 1:07−cv−00381−SS 1:07−cv−00455−SS 1:07−cv−00383−SS 1:07−cv−00382−SS 1:07−cv−00384−SS Cause: 42:1983 Civil Rights Act Plaintiff
Saule Bunikyte by and through her next friend and mother, Rasa Bunikiene TERMINATED: 05/29/2007

Date Filed: 03/06/2007 Date Terminated: 08/29/2007 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by Saule Bunikyte PRO SE Barbara Hines The University of Texas Law School Immigration Clinic 727 E. Dean Keeton Austin, TX 78705 (512)232−1310 Fax: 512/232−9171 Email: bhines@law.utexas.edu TERMINATED: 05/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED Dennis D. Parker American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004 212−549−2500 Email: dparker@aclu.org TERMINATED: 05/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED Elora Mukherjee American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 2 of 29
212−549−2500 Email: emukherjee@ecbalaw.com TERMINATED: 05/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gouri Narayan Bhat Berk Law, PLLC 4408 Camacho St. Austin, TX 78723 (512) 785−5144 Fax: 512/814−2010 Email: gouri@berklawdc.com TERMINATED: 05/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Judy Rabinovitz Immigrants' Rights Project 125 Broadway, 18th Floor New York, NY 10004−2400 (212) 549−2618 Email: jrabinovitz@aclu.org TERMINATED: 05/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Graybill ACLU Foundation of Texas P. O. Box 12905 Austin, TX 78711 (512) 478−7300 Fax: (512) 478−7303 Email: lgraybill@aclutx.org TERMINATED: 05/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sean Gorman Ahmad, Zavitsanos, Anaipakos, Alavi &Mensing P.C. 1221 McKinney Suite 3460 Houston, TX 77010 (713) 655−1101 Fax: (713) 655−0062 Email: sgorman@azalaw.com TERMINATED: 05/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen J. Lable LeBoeuf, Lamb, Greene &MacRae LLP 260 Franklin St., 23rd floor Boston, MA 02110 617−748−6852 Fax: 617−897−9052 Email: stephen.lable@llgm.com TERMINATED: 05/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tom−Tsvi M. Jawetz National Prison Project of the ACLU 915 15th Street, NW

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 3 of 29
7th Floor Washington, DC 20005 202−548−6610 Fax: 202−393−4931 Email: tjawetz@npp−aclu.org TERMINATED: 05/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanita Gupta American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 212−549−2607 Fax: 212−549−2651 Email: vgupta@aclu.org TERMINATED: 05/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Consol Plaintiff
Egle Baubonyte by and through her next friend and mother, Rasa Bunikiene TERMINATED: 05/29/2007

represented by Egle Baubonyte PRO SE
Barbara Hines (See above for address) TERMINATED: 05/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis D. Parker (See above for address) TERMINATED: 05/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elora Mukherjee (See above for address) TERMINATED: 05/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gouri Narayan Bhat (See above for address) TERMINATED: 05/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) TERMINATED: 05/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Graybill (See above for address) TERMINATED: 05/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sean Gorman (See above for address)

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 4 of 29

TERMINATED: 05/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen J. Lable (See above for address) TERMINATED: 05/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tom−Tsvi M. Jawetz (See above for address) TERMINATED: 05/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) TERMINATED: 05/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Consol Plaintiff
Sherona Verdieu by and through her next friend and mother, Delourdes Verdieu TERMINATED: 04/19/2007

represented by Barbara Hines (See above for address) TERMINATED: 04/19/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D. Parker (See above for address) TERMINATED: 04/19/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) TERMINATED: 04/19/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gouri Narayan Bhat (See above for address) TERMINATED: 04/19/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy Rabinovitz (See above for address) TERMINATED: 04/19/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Graybill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Gorman (See above for address) TERMINATED: 04/19/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 5 of 29

Stephen J. Lable (See above for address) TERMINATED: 04/19/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tom−Tsvi M. Jawetz (See above for address) TERMINATED: 04/19/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) TERMINATED: 04/19/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Consol Plaintiff
Susana Rodriguez Blanco by and through her next friend and mother, Belkys Susana Blanco Perez

represented by Barbara Hines (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Lafond LeBoeuf, Lamb, Greene &MacRae LLP 125 West 55th Street New York, NY 10019 (212) 424−8000 Fax: (212) 424−8500 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gouri Narayan Bhat (See above for address) TERMINATED: 04/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy Rabinovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Graybill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Gorman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 6 of 29

Stephen J. Lable (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tom−Tsvi M. Jawetz (See above for address) TERMINATED: 05/19/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Consol Plaintiff
Yarely Maribel Vasquez Sanchez by and through her next friend and mother, Sandra Maribel Sanchez Matamoros

represented by Barbara Hines (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Lafond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gouri Narayan Bhat (See above for address) TERMINATED: 04/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy Rabinovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Graybill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Gorman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen J. Lable (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tom−Tsvi M. Jawetz

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 7 of 29

(See above for address) TERMINATED: 05/19/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Consol Plaintiff
Andrea Osorio Restrepo by and through her next friend and mother, Liliam Amparo Restrepo Mejia

represented by Barbara Hines (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Lafond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gouri Narayan Bhat (See above for address) TERMINATED: 04/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy Rabinovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Graybill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Gorman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen J. Lable (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tom−Tsvi M. Jawetz (See above for address) TERMINATED: 05/19/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanita Gupta

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 8 of 29

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Consol Plaintiff
Antony Alexander Marti Grijalva by and through his next friend and mother, Blanca Elizabeth Grijalva

represented by Barbara Hines (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Lafond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gouri Narayan Bhat (See above for address) TERMINATED: 04/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy Rabinovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Graybill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Gorman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen J. Lable (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tom−Tsvi M. Jawetz (See above for address) TERMINATED: 05/19/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Consol Plaintiff

represented by

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 9 of 29

Jeniffer Castillo−Padilla by and through her next friend and mother, Lilian Padilla−Torres

Barbara Hines (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Lafond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gouri Narayan Bhat (See above for address) TERMINATED: 04/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy Rabinovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Graybill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Gorman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen J. Lable (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tom−Tsvi M. Jawetz (See above for address) TERMINATED: 05/19/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Consol Plaintiff
Antony Castanon Nartatez by and through his next friend and mother, Sheila Nartatez Ordonez

represented by Barbara Hines (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Lafond

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 10 of 29

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gouri Narayan Bhat (See above for address) TERMINATED: 04/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy Rabinovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Graybill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Gorman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen J. Lable (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tom−Tsvi M. Jawetz (See above for address) TERMINATED: 05/19/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Consol Plaintiff
Jonathan Castanon Nartatez by and through his next friend and mother, Sheila Nartatez Ordonez

represented by Barbara Hines (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Lafond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D. Parker (See above for address)

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 11 of 29

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gouri Narayan Bhat (See above for address) TERMINATED: 04/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy Rabinovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Graybill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Gorman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen J. Lable (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tom−Tsvi M. Jawetz (See above for address) TERMINATED: 05/19/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Consol Plaintiff
Marco Antonio Toruno−Altamirano by and through his next friend and father, Marco Antonio Toruno−Gutierrez

represented by Barbara Hines (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Lafond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) LEAD ATTORNEY

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 12 of 29

ATTORNEY TO BE NOTICED

Gouri Narayan Bhat (See above for address) TERMINATED: 04/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy Rabinovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Graybill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Gorman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen J. Lable (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tom−Tsvi M. Jawetz (See above for address) TERMINATED: 05/19/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Consol Plaintiff
Fredy Lindolofo Pineda−Brisuela by and through his next friend and mother, Orbelina Brisuela

represented by Barbara Hines (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Lafond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gouri Narayan Bhat (See above for address) TERMINATED: 04/29/2009 LEAD ATTORNEY

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 13 of 29

ATTORNEY TO BE NOTICED

Judy Rabinovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Graybill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Gorman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen J. Lable (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tom−Tsvi M. Jawetz (See above for address) TERMINATED: 05/19/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Consol Plaintiff
Marusia Razmias bya dn through her next friend and mother, Marusia Niculescu

represented by Barbara Hines (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Lafond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gouri Narayan Bhat (See above for address) TERMINATED: 04/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy Rabinovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 14 of 29

Consol Plaintiff
Paola Osorio Restrepo by and through his next friend and mother, Liliam Amparo Restrepo Mejia

Lisa Graybill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sean Gorman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen J. Lable (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tom−Tsvi M. Jawetz (See above for address) TERMINATED: 05/19/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Barbara Hines (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carol A. Lafond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis D. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elora Mukherjee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gouri Narayan Bhat (See above for address) TERMINATED: 04/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Graybill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 15 of 29

Sean Gorman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen J. Lable (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tom−Tsvi M. Jawetz (See above for address) TERMINATED: 05/19/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Consol Plaintiff
Gladys Elizabeth Martinez by and through her next friend and mother, Blanca Elizabeth Grijalva

represented by Barbara Hines (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Lafond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gouri Narayan Bhat (See above for address) TERMINATED: 04/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy Rabinovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Graybill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Gorman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen J. Lable

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 16 of 29

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Consol Plaintiff
Jose Fernando Erazo Paredes by and through his next friend and mother, Donella Erazo Paredes

represented by Barbara Hines (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Lafond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gouri Narayan Bhat (See above for address) TERMINATED: 04/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy Rabinovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Graybill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Gorman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen J. Lable (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tom−Tsvi M. Jawetz (See above for address) TERMINATED: 05/19/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address)

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 17 of 29

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Consol Plaintiff
Esther Donaire−Padilla by and through her next friend and mother, Lilian Padilla−Torres

represented by Barbara Hines (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Lafond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gouri Narayan Bhat (See above for address) TERMINATED: 04/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy Rabinovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Graybill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Gorman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen J. Lable (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tom−Tsvi M. Jawetz (See above for address) TERMINATED: 05/19/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Consol Plaintiff
Marjorie Alejandra Martinez Grijalva by and through her next friend and

represented by Barbara Hines (See above for address)

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 18 of 29

mother, Blanca Elizabeth Grijalva

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Lafond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gouri Narayan Bhat (See above for address) TERMINATED: 04/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy Rabinovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Graybill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Gorman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen J. Lable (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tom−Tsvi M. Jawetz (See above for address) TERMINATED: 05/19/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Consol Plaintiff
Joseline Vanessa Mendez−Sanchez by and through her nex friend and mother, Ana Maria Sanchez−Ordonez

represented by Barbara Hines (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Lafond (See above for address) LEAD ATTORNEY

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 19 of 29

ATTORNEY TO BE NOTICED

Dennis D. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elora Mukherjee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gouri Narayan Bhat (See above for address) TERMINATED: 04/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judy Rabinovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Graybill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean Gorman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen J. Lable (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tom−Tsvi M. Jawetz (See above for address) TERMINATED: 05/19/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Consol Plaintiff
Kimberly Dayan Sanchez−Ordonez by and through her next friend and mother, Ana Maria Sanchez−Ordonez

represented by Barbara Hines (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carol A. Lafond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis D. Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 20 of 29

Elora Mukherjee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gouri Narayan Bhat (See above for address) TERMINATED: 04/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Graybill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sean Gorman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen J. Lable (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tom−Tsvi M. Jawetz (See above for address) TERMINATED: 05/19/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Michael Chertoff Secretary of U.S. Department of Homeland Security (DHS)

represented by Edward Earl Wiggers U.S. Department of Justice 1331 Pennsylvania Ave. # 1148 Washington, DC 20004 202−616−1247 Email: edward.wiggers@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor Lawrence U.S. Department of Justice 450 5th Street, NW Rm 6052 Washington, DC 20044 202−305−8788 Email: victor.lawrence@usdoj.gov LEAD ATTORNEY

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 21 of 29

ATTORNEY TO BE NOTICED

Defendant
Julie L. Myers Assistant Secretary, U.S. Immigration and Customs Enforcement (ICE)

represented by Edward Earl Wiggers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victor Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
John P. Torres Director, Office of Detention and Removal Operations, ICE

represented by Edward Earl Wiggers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victor Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Marc Moore ICE Field Office Director

represented by Edward Earl Wiggers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victor Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Gary Mead Assistant Director of Detention and Removal Operations at ICE

represented by Edward Earl Wiggers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victor Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Simona Colon ICE Officer in Charge

represented by Edward Earl Wiggers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victor Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
John Pogash ICE National Juvenile Coordinator

represented by Edward Earl Wiggers (See above for address) LEAD ATTORNEY

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 22 of 29
ATTORNEY TO BE NOTICED
Victor Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neutral Magistrate Andrew W. Austin

Date Filed 03/06/2007 03/06/2007
03/06/2007 03/06/2007
03/06/2007 03/06/2007 03/06/2007 03/06/2007 03/06/2007 03/06/2007 03/06/2007 03/06/2007
03/06/2007 03/06/2007
03/09/2007 03/09/2007 03/13/2007

# Docket Text
1 COMPLAINT ( Filing fee $ 350 receipt number 405299), filed by Saule Bunikyte. (Attachments: # 1 Exhibit part 1 of 1)(tdk, ) (Entered: 03/06/2007)
2 MOTION for Temporary Restraining Order by Saule Bunikyte. (Attachments: # 1 Appendix part 1 of 5# 2 Appendix part 2 of 5# 3 Appendix part 3 of 5# 4 Appendix part 4 of 5# 5 Appendix part 5 of 5)(tdk, ) (Entered: 03/06/2007)
3 MOTION for Preliminary Injunction by Saule Bunikyte. (tdk, ) (Entered: 03/06/2007)
4 MOTION for Leave to Exceed Page Limitation of Plaintiff's motion for temporary restraining order and motion for a preliminary injunction by Saule Bunikyte. (tdk, ) (Entered: 03/06/2007)
5 MOTION to Appear Pro Hac Vice by Tom−Tsvi M. Jawetz by on behalf of Saule Bunikyte. (tdk, ) (Entered: 03/06/2007)
6 MOTION to Appear Pro Hac Vice by Gouri Bhat by on behalf of Saule Bunikyte. (tdk, ) (Entered: 03/06/2007)
7 MOTION to Appear Pro Hac Vice by Vanita Gupta by on behalf of Saule Bunikyte. (tdk, ) (Entered: 03/06/2007)
8 MOTION to Appear Pro Hac Vice by Lisa Graybill by on behalf of Saule Bunikyte. (tdk, ) (Entered: 03/06/2007)
9 MOTION to Appear Pro Hac Vice by Elora Mukherjee by on behalf of Saule Bunikyte. (tdk, ) (Entered: 03/06/2007)
10 MOTION to Appear Pro Hac Vice by Judy Rabinovitz by on behalf of Saule Bunikyte. (tdk, ) (Entered: 03/06/2007)
11 MOTION to Appear Pro Hac Vice by Dennis Parker by on behalf of Saule Bunikyte. (tdk, ) (Entered: 03/06/2007)
12 Summons Issued as to Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash, U.S. Attorney and U.S. Attorney General (tdk, ) (Entered: 03/06/2007)
13 ORDER denying 2 Motion for TRO Signed by Judge Sam Sparks. (ja, ) (Entered: 03/07/2007)
ORDER Setting Hearing on 3 MOTION for Preliminary Injunction: Motion Hearing set for 3/20/2007 09:00 AM before Honorable Sam Sparks.. Signed by Judge Sam Sparks. (see doc # 13 for order) (ja, ) (Entered: 03/07/2007)
Pro Hac Vice Fee Paid by Gouri Bhat, Lisa Graybill, Vanita Gupta, Dennis Parker; Filing fee $ 100.00, receipt number 405318. (ja, ) (Entered: 03/09/2007)
Pro Hac Vice Fee Paid by Tom−Tsvi M. Jawetz, Elora Mukherjee, Judy Rabinovitz; Filing fee $ 75.00, receipt number 405317. (ja, ) (Entered: 03/09/2007)
14 ORDER granting Dr. Clark access to T. Don Hutto Family Res. Cntr...... Signed by Judge Sam Sparks. (ja, ) (Entered: 03/13/2007)

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 23 of 29

03/16/2007 03/16/2007 03/16/2007
03/16/2007 03/19/2007 03/19/2007 03/19/2007
03/19/2007 03/20/2007
03/20/2007 03/20/2007 03/20/2007
03/20/2007 03/22/2007 03/23/2007 03/26/2007

15 MOTION to Appear Pro Hac Vice by Stephen Maurice Ryan for Stephen J. Lable by on behalf of Saule Bunikyte. (Ryan, Stephen) (Entered: 03/16/2007)
16 MOTION for Leave to Exceed Page Limitation by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash. (Lawrence, Victor) (Entered: 03/16/2007)
17 Memorandum in Opposition to Motion re 3 MOTION for Preliminary Injunction Reply to Equitable Remedies Sought By Plaintiff, filed by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash. (Attachments: # 1 Affidavit Declarations of Moore/Perry# 2 Exhibit Exhibits 1, 2)(Lawrence, Victor) (Entered: 03/16/2007)
18 DEFICIENCY NOTICE to Atty Lawrence: re 16 MOTION for Leave to Exceed Page Limitation. Certificate of service is deficient. See notice. (ja, ) (Entered: 03/19/2007)
19 DEFICIENCY NOTICE to Atty Lawrence: re 17 Memorandum in Opposition to Motion. Certificate of Service is deficient. See notice for instructions. (ja, ) (Entered: 03/19/2007)
20 MOTION for Leave to Exceed Page Limitation in Plaintiff's Reply in Support of Her Motion for a Preliminary Injunction by Saule Bunikyte. (Attachments: # 1 Proposed Order)(Graybill, Lisa) (Entered: 03/19/2007)
21 REPLY to Response to Motion re 3 MOTION for Preliminary Injunction, filed by Saule Bunikyte. (Attachments: # 1 Appendix Part 1 of 8# 2 Appendix Part 2 of 8# 3 Appendix Part 3 of 8# 4 Appendix Part 4 of 8# 5 Appendix Part 5 of 8# 6 Appendix Part 6 of 8# 7 Appendix Part 7 of 8# 8 Appendix Part 8 of 8)(Graybill, Lisa) (Entered: 03/19/2007)
22 ORDER granting 15 Motion to Appear Pro Hac Vice as to Stephen Lable Signed by Judge Sam Sparks. (ja, ) (Entered: 03/20/2007)
23 Minute Entry for proceedings held before Judge Sam Sparks : Motion Hearing held on 3/20/2007 re 3 MOTION for Preliminary Injunction filed by Saule Bunikyte, (Minute entry documents are not available electronically.). (Court Reporter Lily Reznik.) (ja, ) (Entered: 03/21/2007)
26 Witness List. (ja, ) (Entered: 03/26/2007)
28 Exhibit List by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash, Saule Bunikyte.. (dm, ) (Entered: 03/26/2007)
ORAL ORDER granting 5 Motion to Appear Pro Hac Vice, granting 6 Motion to Appear Pro Hac Vice, granting 7 Motion to Appear Pro Hac Vice, granting 8 Motion to Appear Pro Hac Vice, granting 9 Motion to Appear Pro Hac Vice, granting 10 Motion to Appear Pro Hac Vice, granting 11 Motion to Appear Pro Hac Vice Signed by Judge Sam Sparks. (ja, ) (Entered: 03/29/2007)
Pro Hac Vice Fee Paid by Stephen J. Lable; Filing fee $ 25, receipt number 405513. (ja, ) (Entered: 04/04/2007)
24 ORDER for briefs....lifting restrictions on atty visits... . Signed by Judge Sam Sparks. (ja, ) (Entered: 03/22/2007)
25 NOTICE Status Report by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash (Lawrence, Victor) (Entered: 03/23/2007)
27 SUPPLEMENT to 17 Memorandum in Opposition to Motion, Supplement to Defendants' Reply to Equitable Remedies Sought By Plaintiffs by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash. (Attachments: # 1 Affidavit Declaration of Marc J. Moore 03.26.07# 2 Exhibit Exhibit A to MJM Declaration# 3 Exhibit Exhibit B to MJM Declaration# 4 Exhibit Exhibit C to MJM Declaration# 5 Exhibit Exhibit D to MJM Declaration# 6 Exhibit Exhibit E to MJM Declaration# 7 Exhibit Exhibit F to MJM Declaration# 8 Exhibit Exhibit G to MJM Declaration# 9 Exhibit Exhibit H to

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 24 of 29

03/27/2007
03/28/2007
03/28/2007 03/29/2007 03/29/2007 03/29/2007
03/30/2007
04/02/2007 04/03/2007 04/05/2007 04/05/2007
04/05/2007
04/05/2007 04/06/2007 04/06/2007 04/06/2007

MJM Declaration)(Lawrence, Victor) Modified on 4/6/2007 to delete exhibits− SEALED BY COURT ON 4/6/07 (ja, ). (Entered: 03/26/2007)
29 TRANSCRIPT of Proceedings held on March 20, 2007. Proceedings Transcribed:Injunction for Equitable Relief. Court Reporter: Lily Reznik. NOTE: Transcript document is not available online. (original transcript filed in A−07−cv−158) (ja, ) (Entered: 03/28/2007)
30 SUPPLEMENT to 25 Notice (Other) SUPPLEMENT TO STATUS REPORT FILED ON MARCH 23, 2007 by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash. (Lawrence, Victor) (Entered: 03/28/2007)
31 SUMMONS Returned Executed Michael Chertoff; Julie L. Myers; John P. Torres; Marc Moore; Gary Mead; Simona Colon; AND John Pogash ALL served on 3/14/2007, answers due 5/14/2007. (ja, ) (Entered: 03/29/2007)
32 BRIEF by Saule Bunikyte. (Graybill, Lisa) (Entered: 03/29/2007)
33 MOTION for Leave to Exceed Page Limitation by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash. (Lawrence, Victor) (Entered: 03/29/2007)
34 SUPPLEMENTAL MEMORANDUM to 17 Memorandum in Opposition to Motion,, 27 Supplement,, Defendants' Supplemental Brief and Filing of Additional Evidence by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash. (Attachments: # 1 # 2 # 3 # 4)(Lawrence, Victor) Modified on 4/6/2007 to delete exhibits 6SEALED BY COURT ON 4/6/07 (ja, ). (Entered: 03/29/2007)
35 ATTACHMENT Exhibit 5 to Supplemental Memorandum to 34 Supplemental Memorandum, by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash. (Lawrence, Victor) Additional attachment(s) added on 4/11/2007 (ja, ). Modified on 4/11/2007 to replace SEALED document per order on 4/11/07 (ja, ). (Entered: 03/30/2007)
36 MOTION for Leave to Exceed Page Limitation by Saule Bunikyte. (Graybill, Lisa) (Entered: 04/02/2007)
37 ORDER granting 36 Motion for Leave to File Excess Pages Signed by Judge Sam Sparks. (ja, ) (Entered: 04/04/2007)
38 MOTION for Leave to Exceed Page Limitation by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash. (Lawrence, Victor) (Entered: 04/05/2007)
39 SUPPLEMENTAL MEMORANDUM to 32 Brief, 34 Supplemental Memorandum, Defendant's Reply to Plaintiffs' Supplemental Brief by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash. (Lawrence, Victor) (Entered: 04/05/2007)
40 BRIEF by Saule Bunikyte Response Brief. (Attachments: # 1 Appendix Appendix of Exhibits# 2 Exhibit Lisa Graybill Declaration with Attachments# 3 Exhibit John Sargent Declaration and CV# 4 Exhibit INS Memoranda# 5 Exhibit Griselda Ponce letter to Marc Moore)(Graybill, Lisa) (Entered: 04/05/2007)
41 MOTION for Leave to Exceed Page Limitation by Saule Bunikyte. (Graybill, Lisa) (Entered: 04/05/2007)
42 ORDER granting 38 Motion for Leave to File Excess Pages Signed by Judge Sam Sparks. (ja, ) (Entered: 04/06/2007)
43 ORDER granting 41 Motion for Leave to File Excess Pages Signed by Judge Sam Sparks. (ja, ) (Entered: 04/06/2007)
44 SUPPLEMENT to 40 Brief, Response Brief by Saule Bunikyte. (Lable, Stephen) (Entered: 04/06/2007)

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 25 of 29

04/06/2007 04/06/2007 04/09/2007
04/11/2007 04/13/2007 04/13/2007 04/13/2007 04/13/2007 04/18/2007 04/18/2007
04/18/2007 04/18/2007 04/19/2007 04/23/2007
04/27/2007
04/27/2007
04/30/2007

45 ATTACHMENT Ex.KK to 44 Supplement by Saule Bunikyte. (Lable, Stephen) (Entered: 04/06/2007)
46 Order Sealing EXHIBITS contained juvenile's medical records. Signed by Judge Sam Sparks. (ja, ) (Entered: 04/06/2007)
47 ORDER granting in part and denying in part 3 Motion for Preliminary Injunction, ORDER that Marc Moore be present at all further hearings, ORDERED the case is set for trial in August 2007, parties to submit proposed scheduling order Signed by Judge Sam Sparks. (ja, ) (Entered: 04/09/2007)
48 Order Sealing Document containing medical records 35 . Signed by Judge Sam Sparks. (ja, ) (Entered: 04/11/2007)
49 ORDER that the above styled cases shall be consolidated for all purposes under the case style In re Hutto Family Detention Center, Case No. A−07−CA−164−SS.. Signed by Judge Sam Sparks. (jk, ) (Entered: 04/13/2007)
50 AMENDED ORDER re 48 Order Sealing EXHIBITS containing medical records 35 . Signed by Judge Sam Sparks. (jk, ) Modified on 4/13/2007 to correct document link (jk, ). (Entered: 04/13/2007)
51 AMENDED ORDER re 46 Order Sealing EXHIBITS containing juvenile's medical records. Signed by Judge Sam Sparks. (jk, ) (Entered: 04/13/2007)
Notice of Correction: re 50 Order. Corrected document link. (jk, ) (Entered: 04/13/2007)
52 NOTICE of Voluntary Dismissal by Sherona Verdieu (Lable, Stephen) (Entered: 04/18/2007)
53 MOTION to Dismiss and, in the Alternative, Motion to Stay Proceedings to Enable Parties to Devote Full Resources to Resolving All Claims Brought Under Paragraph 24 of the Flores Settlement Agreement by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash. (Attachments: # 1 Exhibit A−D)(Lawrence, Victor) (Entered: 04/18/2007)
54 Proposed Order to 53 by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash. (Lawrence, Victor) Modified on 4/18/2007 to correct event (ja, ). (Entered: 04/18/2007)
MOTION to Stay (contained in doc 53 ) by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash. (td, ) (Entered: 05/11/2007)
55 ORDER of dismissal, granting re 52 Notice of Voluntary Dismissal filed by Sherona Verdieu, . Signed by Judge Sam Sparks. (ja, ) (Entered: 04/19/2007)
56 Scheduling Recommendations/Proposed Scheduling Order In re Hutto Family Detention Center by Egle Baubonyte. (Attachments: # 1 Exhibit Ex. A, Declaration of Vanita Gupta, April 23, 2007# 2 Exhibit Ex. A, Attachment 1# 3 Exhibit Ex. A, Attachment 2)(Graybill, Lisa) (Entered: 04/23/2007)
57 Scheduling Recommendations/Proposed Scheduling Order and Request for the Court to Assign a Magistrate to Facilitate Settlement Discussions by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash. (Lawrence, Victor) (Entered: 04/27/2007)
58 Scheduling Recommendations/Proposed Scheduling Order in the Event the Court Denies Defendants' Motion to Dismiss by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash. (Lawrence, Victor) (Entered: 04/27/2007)
59 BRIEF by Egle Baubonyte Response to Defendants' Motion to Dismiss. (Attachments: # 1 Exhibit Ltr from Marc Moore to Griselda Ponce# 2 Exhibit Letter from Marc Moore to Barbara Hines# 3 Exhibit Declaration of Rasa Bunikiene)(Gupta, Vanita) (Entered: 04/30/2007)

Case: 1:07-cv-00164-SS As of: 06/08/2012 09:27 AM CDT 26 of 29

05/01/2007 05/01/2007 05/10/2007
05/10/2007 05/11/2007
05/11/2007 05/17/2007 05/18/2007 05/24/2007 05/24/2007 05/24/2007 05/29/2007 05/29/2007 05/30/2007 06/11/2007 06/11/2007

60 DEFICIENCY NOTICE to Atty Vanita Gupta: re 59 Brief, (ja, ) (Entered: 05/01/2007)
61 ATTACHMENT Proposed Order to 59 Brief, by Egle Baubonyte. (Gupta, Vanita) (Entered: 05/01/2007)
64 ORDER DENYING 57 Request for the Court to Assign a Magistrate Judge to Facilitate Settlement, filed by Michael Chertoff,, John Pogash,, John P. Torres,, Julie L. Myers,, Marc Moore,, Gary Mead,, Simona Colon, DENYING 53 MOTION to Dismiss and, in the Alternative, Motion to Stay Proceedings filed by Michael Chertoff,, John Pogash,, John P. Torres,, Julie L. Myers,, Marc Moore,, Gary Mead,, Simona Colon. Signed by Judge Sam Sparks. (jk, ) (Entered: 05/11/2007)
65 ORDER Status Conference set for 5/29/2007 08:30 AM in Courtroom before Honorable Sam Sparks.. Signed by Judge Sam Sparks. (jk, ) (Entered: 05/11/2007)
62 REPLY to Response to Motion re 53 MOTION to Dismiss and, in the Alternative, Motion to Stay Proceedings to Enable Parties to Devote Full Resources to Resolving All Claims Brought Under Paragraph 24 of the Flores Settlement Agreement, filed by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash. (Attachments: # 1 Exhibit Exhibits A to E)(Lawrence, Victor) (Entered: 05/11/2007)
63 MOTION for Leave to Exceed Page Limitation by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash. (Lawrence, Victor) (Entered: 05/11/2007)
66 ORDER granting 63 Motion for Leave to File Excess Pages Signed by Judge Sam Sparks. (jg3, ) (Entered: 05/17/2007)
67 MOTION for Reconsideration re 64 Order, Terminate Motions,, by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash. (Attachments: # 1 Exhibit Exhibits A and B# 2 Proposed Order)(Lawrence, Victor) (Entered: 05/18/2007)
68 RESPONSE to Motion re 67 MOTION for Reconsideration re 64 Order, Terminate Motions,,, filed by Egle Baubonyte, Sherona Verdieu, Susana Rodriguez Blanco, Yarely Maribel Vasquez Sanchez, Saule Bunikyte. (Jawetz, Tom−Tsvi) (Entered: 05/24/2007)
69 DEFICIENCY NOTICE to Atty Tom−Tsvi Jawetz: re 68 Response to Motion (jg3, ) (Entered: 05/24/2007)
70 ATTACHMENT Proposed Order to 68 Response to Motion by Egle Baubonyte. (Gupta, Vanita) (Entered: 05/24/2007)
71 ORDER granting 67 Motion for Reconsideration; dismissing claims of plaintiffs Egle Baubonyte and Saule Bunikyte as moot... Signed by Judge Sam Sparks. (jg3, ) (Entered: 05/29/2007)
72 Minute Entry for proceedings held before Judge Sam Sparks : Status Conference held on 5/29/2007 (Minute entry documents are not available electronically.). (Court Reporter Lily Reznik.)(jg3, ) (Entered: 05/29/2007)
73 SCHEDULING ORDER: Amended Pleadings due by 6/10/2007.,Joinder of Parties due by 6/10/2007...limiting scope of discovery...set for hearing on August 3...docket call remains set....Andrew W. Austin added.. Signed by Judge Sam Sparks. (jg3, ) (Entered: 05/30/2007)
74 TRANSCRIPT of Proceedings held on May 29, 2007. Proceedings Transcribed:Status Conference. Court Reporter: Lily Reznik. NOTE: Transcript document is not available online. (jg3, ) (Entered: 06/11/2007)
75 Minute Entry for proceedings held before Judge Sam Sparks : Telephone Conference held on 6/11/2007 (Minute entry documents are not available electronically.). (Court Reporter Lily Reznik.)(jg3, ) (Entered: 06/11/2007)

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06/13/2007 06/15/2007 06/15/2007 06/20/2007 06/22/2007
07/06/2007
07/06/2007
07/10/2007 07/11/2007 07/23/2007 07/24/2007 07/27/2007 07/27/2007 08/08/2007

76 NOTICE of Filing report on inspection of detention facility by Andrew W. Austin (mc2, ) (Entered: 06/13/2007)
77 NOTICE of Voluntary Dismissal by Yarely Maribel Vasquez Sanchez (Attachments: # 1 Proposed Order Proposed Order)(Lable, Stephen) (Entered: 06/15/2007)
78 NOTICE of Voluntary Dismissal by Yarely Maribel Vasquez Sanchez AMENDED, with Amended Proposed Order (Gupta, Vanita) (Entered: 06/15/2007)
79 Minute Entry for proceedings held before Judge Sam Sparks : Telephone Conference held on 6/20/2007 (Minute entry documents are not available electronically.). (Court Reporter Lily Reznik.)(jk, ) (Entered: 06/21/2007)
80 WITNESS/EXHIBIT/EXPERT LIST by Susana Rodriguez Blanco, Yarely Maribel Vasquez Sanchez, Andrea Osorio Restrepo, Antony Alexander Marti Grijalva, Jeniffer Castillo−Padilla, Antony Castanon Nartatez, Jonathan Castanon Nartatez, Marco Antonio Toruno−Altamirano, Fredy Lindolofo Pineda−Brisuela, Marusia Razmias, Paola Osorio Restrepo, Gladys Elizabeth Martinez, Jose Fernando Erazo Paredes, Esther Donaire−Padilla, Marjorie Alejandra Martinez Grijalva, Joseline Vanessa Mendez−Sanchez, Kimberly Dayan Sanchez−Ordonez. (Bhat, Gouri) (Entered: 06/22/2007)
81 MOTION to Appear Pro Hac Vice by Stephen J. Lable for Carol A. Lafond by on behalf of Egle Baubonyte, Susana Rodriguez Blanco, Yarely Maribel Vasquez Sanchez, Andrea Osorio Restrepo, Antony Alexander Marti Grijalva, Jeniffer Castillo−Padilla, Antony Castanon Nartatez, Jonathan Castanon Nartatez, Marco Antonio Toruno−Altamirano, Fredy Lindolofo Pineda−Brisuela, Marusia Razmias, Paola Osorio Restrepo, Gladys Elizabeth Martinez, Jose Fernando Erazo Paredes, Esther Donaire−Padilla, Marjorie Alejandra Martinez Grijalva, Joseline Vanessa Mendez−Sanchez, Kimberly Dayan Sanchez−Ordonez. (Lable, Stephen) (Entered: 07/06/2007)
82 Amended MOTION to Appear Pro Hac Vice by Stephen J. Lable for Carol A. Lafond by on behalf of Susana Rodriguez Blanco, Yarely Maribel Vasquez Sanchez, Andrea Osorio Restrepo, Antony Alexander Marti Grijalva, Jeniffer Castillo−Padilla, Antony Castanon Nartatez, Jonathan Castanon Nartatez, Marco Antonio Toruno−Altamirano, Fredy Lindolofo Pineda−Brisuela, Marusia Razmias, Paola Osorio Restrepo, Gladys Elizabeth Martinez, Jose Fernando Erazo Paredes, Esther Donaire−Padilla, Marjorie Alejandra Martinez Grijalva, Joseline Vanessa Mendez−Sanchez, Kimberly Dayan Sanchez−Ordonez. (Lable, Stephen) (Entered: 07/06/2007)
83 ORDER terminating 81 Motion to Appear Pro Hac Vice; granting 82 Motion to Appear Pro Hac Vice (Lafond) Signed by Judge Sam Sparks. (jg3, ) (Entered: 07/10/2007)
Pro Hac Vice Fee Paid by Carol A. Lafond; Filing fee $ 25, receipt number 406957. (jg3, ) (Entered: 07/13/2007)
84 WITNESS/EXHIBIT/EXPERT LIST by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash. (Lawrence, Victor) (Entered: 07/23/2007)
85 ORDER.... Docket Call set for 7/30/2007 01:30 PM in Courtroom before Honorable Sam Sparks.... Signed by Judge Sam Sparks. (jg3, ) (Entered: 07/24/2007)
86 ORDERED that the docket call scheduled for July 30, 2007 and the hearing scheduled for August 3, 2007... are CANCELLED. Signed by Judge Sam Sparks. (td, ) (Entered: 07/27/2007)
87 Notice of Alternative Dispute Resolution Outcome: Setted during ADR. Amount of fee: n/a. (mc2, ) (Entered: 07/27/2007)
88 SUPPLEMENTAL REPORT OF MEDIATOR...signed by United States Magistrate Judge Austin... (jg3, ) (Entered: 08/08/2007)

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08/17/2007 08/20/2007
08/21/2007 08/24/2007 08/26/2007
08/29/2007 08/29/2007 04/01/2009 04/10/2009 04/10/2009 04/29/2009 05/13/2009

89 MOTION to Continue Defendants' Motion to Postpone Trial Date to Enable the Parties to Continue Settlement Discussions by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Lawrence, Victor) (Entered: 08/17/2007)
90 MOTION to Continue Trial Date and Set Deadline for Submission of Final Settlement Agreement by Susana Rodriguez Blanco, Yarely Maribel Vasquez Sanchez, Andrea Osorio Restrepo, Antony Alexander Marti Grijalva, Jeniffer Castillo−Padilla, Antony Castanon Nartatez, Jonathan Castanon Nartatez, Marco Antonio Toruno−Altamirano, Fredy Lindolofo Pineda−Brisuela, Marusia Razmias, Paola Osorio Restrepo, Gladys Elizabeth Martinez, Jose Fernando Erazo Paredes, Esther Donaire−Padilla, Marjorie Alejandra Martinez Grijalva, Joseline Vanessa Mendez−Sanchez, Kimberly Dayan Sanchez−Ordonez. (Attachments: # 1 Proposed Order)(Bhat, Gouri) (Entered: 08/20/2007)
91 ORDER TO SHOW CAUSE: Show Cause Hearing set for 8/24/2007 02:00 PM before Honorable Sam Sparks.. Signed by Judge Sam Sparks. (jg3, ) (Entered: 08/21/2007)
93 Minute Entry for proceedings held before Judge Sam Sparks : Show Cause Hearing held on 8/24/2007 (Minute entry documents are not available electronically.). Parties to continue mediation with Judge Austin on 8/24/07... (Court Reporter Lily Reznik.)(jg3, ) (Entered: 08/27/2007)
92 Joint MOTION for Settlement Approval by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash, Susana Rodriguez Blanco, Andrea Osorio Restrepo, Antony Alexander Marti Grijalva, Jeniffer Castillo−Padilla, Antony Castanon Nartatez, Jonathan Castanon Nartatez, Marco Antonio Toruno−Altamirano, Fredy Lindolofo Pineda−Brisuela, Marusia Razmias, Paola Osorio Restrepo, Gladys Elizabeth Martinez, Jose Fernando Erazo Paredes, Esther Donaire−Padilla, Marjorie Alejandra Martinez Grijalva, Joseline Vanessa Mendez−Sanchez, Kimberly Dayan Sanchez−Ordonez. (Attachments: # 1 Exhibit A − Final Settlement Agreement and Exhibits A−D# 2 Exhibit B − Plaintiffs' Proposed Order# 3 Exhibit C − Defendants' Proposed Order)(Bhat, Gouri) (Entered: 08/26/2007)
94 ORDER granting 92 Motion for Settlement Agreement... All other pending motions dismissed as MOOT... ORDER all parties herein are bound by the terms of this Settlement Agreement... Signed by Judge Sam Sparks. (Attachments: # 1 Exhibit A: Settlement Agreement) (jg3, ) (Entered: 08/29/2007)
95 ORDER DISMISSING CASE. Signed by Judge Sam Sparks. (jg3, ) (Entered: 08/29/2007)
96 ORDER REGARDING MEDIATION. Signed by Judge Andrew W. Austin. (mm5) (Entered: 04/01/2009)
97 MOTION to Withdraw as Attorney for Plaintiffs by Antony Castanon Nartatez, Jonathan Castanon Nartatez, Fredy Lindolofo Pineda−Brisuela, Jose Fernando Erazo Paredes. (Attachments: # 1 Exhibit Certificate of Service, # 2 Proposed Order Proposed Order)(Hines, Barbara) Modified on 4/13/2009 to include all filing parties (mm5, ). (Entered: 04/10/2009)
Notice of Correction: re 97 MOTION to Withdraw as Attorney for Plaintiffs. ***Docket entry modified to include ALL filing parties as indicated on pleading. In the future, ensure that ALL filing parties are selected.*** (mm5, ) (Entered: 04/13/2009)
98 ORDER GRANTING 97 Motion to Withdraw as Attorney by Ghouri Bhat. Signed by Judge Sam Sparks. (mm5, ) (Entered: 04/29/2009)
99 MOTION to Withdraw as Attorney re Tom−Tsvi M. Jawetz by Egle Baubonyte, Sherona Verdieu, Susana Rodriguez Blanco, Yarely Maribel Vasquez Sanchez, Andrea Osorio Restrepo, Antony Alexander Marti Grijalva, Jeniffer Castillo−Padilla, Antony Castanon Nartatez, Jonathan Castanon Nartatez, Marco Antonio Toruno−Altamirano, Fredy Lindolofo Pineda−Brisuela, Marusia Razmias, Paola Osorio Restrepo, Gladys Elizabeth Martinez, Jose Fernando Erazo Paredes,

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05/19/2009 09/29/2009
09/29/2009 10/06/2009

Esther Donaire−Padilla, Marjorie Alejandra Martinez Grijalva, Joseline Vanessa Mendez−Sanchez, Kimberly Dayan Sanchez−Ordonez, Saule Bunikyte. (Attachments: # 1 Proposed Order Proposed Order, # 2 Exhibit Certificate of Service)(Hines, Barbara) (Entered: 05/13/2009)
100 ORDER GRANTING 99 Motion to Withdraw as Attorney by Tom−Tsvi M. Jawetz. Signed by Judge Sam Sparks. (mm5) (Entered: 05/19/2009)
101 Joint MOTION to Dismiss Hutto Cases with Prejudice by Michael Chertoff, Julie L. Myers, John P. Torres, Marc Moore, Gary Mead, Simona Colon, John Pogash. (Lawrence, Victor) Modified on 9/30/2009 to include plaintiffs as filing parties (mm5, ). (Entered: 09/29/2009)
Notice of Correction: re 101 Joint MOTION to Dismiss Hutto Cases with Prejudice. ***Docket entry modified to include plaintiffs as filing parties.*** (mm5, ) (Entered: 09/30/2009)
102 ORDER GRANTING 101 Motion to Dismiss Hutto Cases with Prejudice. Signed by Judge Sam Sparks. (mm5, ) (Entered: 10/06/2009)

 
 APPENDIX IN SUPPORT OF PLAINTIFFS' SUPPLEMENTAL BRIEF IN SUPPORT OF THEIR MOTIONS FOR PRELIMINARY INJUNCTIONS,
FILED MARCH 29, 2007

Exhibit DD:

Decimation of Vanita Gupta, Esq., March 29, 2007

Attachment 1: Decimation of Griselda Ponce, Esq., Mmch 28, 2007

Attachment 2: Declmation of Rasa Bunikiene, Mmch 29,2007

Attachment 3: Declaration of Carlos Holguin, Esq., March 19, 2007

Exhibit EE:

Match 23, 2007 Letter to Office ofImmigration Litigation, Victor Lawrence

Exhibit FF:

Plaintiffs' Proposed Scheduling Ordel fOI Expedited Discovery and Trial

Exhibit DD

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

DECLARATION OF VANITA GUPTA

Vanita Gupta, pUisuant to 28 U.SC § 1746, makes the following decimation

under penalty of perjUly:

I

I run an attorney with the Racial Justice PlOgrrun of the American Civil

Liberties Union Foundation, which represents Wesleyann Emptage; Egle Baubonyte;

Saule Bunikyte; and Sherona Verdieu. I make this Decimation regmding plaintiffs'

attempt to informally resolve this matter prior to filing suit pUisuant to this COUIt'S Order,

entered on Mmch 22, 2007

2. On February 21, 2007, I sent by fax a letter to Johnny K Sutton, U S.

Attorney for the Western District of Texas A true and conect copy of this letter is

attached, and has already been entered into this COUIt'S record as Attachment 2 to Exhibit

C of the Appendix Filed in Support of Plaintiff's Motion for a Temporary Restraining

Order and Plaintiffs Motion for a Preliminmy Injunction, Both Filed Mmch 6, 2007 In

the letter, I explained that the American Civil Liberties Union ("ACLU") represents

several immigrant families that me detained at the T Don Hutto Frunily Residential

Center ("Hutto") I wlOte that the placement of OUI clients in Hutto violates the

Stipulated Settlement Agreement in the case of Flores v Meese, No 85-4544 (CD. Cal.)

(,'Flores Settlement") in numelOus respects, as do the conditions at the facility The letter

explicitly stated that "[p]Ulsuant to ~ 24.E of the Stipulated Settlement Agreement, I

[Vanita Gupta] run writing to you now in an effort to informally resolve this matter

without the need offederal court intelvention" The lettel also provided notice of the names of our clients and the resolution we are seeking.
3. Paragraph 24(E) of the Stipulated Settlement Agleement states that pliol to bringing an action to challenge Immiglation and Customs Enforcement's ("ICE") noncompliance with the Flor es Settlement, "the minOi and/or the minols' attomey shall confel telephonically 01 in pel son with the United States Attomey's office in the judicial distlict where the action is to be filed, in an effOit to infOimally resolve the minor's complaints without the need offederal court intelvention." Pursuant to this provision, I faxed the FeblUary 211etter to the United States Attomey's office in the Westem District of Texas
4. At noon on FeblUalY 22, co-counsel Judy Rabinovitz and I attempted to reach Mr Sutton by telephone His voicemail system answered. We left a message notifying Mr. Sutton of our faxed lettel the day before, and explained that we are lepresenting several children detained at Hutto, that we believe that their detention violates the Flores Settlement, that we are leaching out to him pursuant to a requirement in the Settlement to see if we can resolve this matter without the need fOi federal court intelvention. Neither Judy Rabinovitz nOi I received a call back flam MI. Sutton in Iesponse to our lettel 01 to our phone call.
5. Instead, on FeblUary 22,2007, John F Paniszczyn, Assistant U.S. Attomey for the Westem District of Texas, San Antonio Division, sent a lettel by fax that is time stamped 12:24pm. A tlUe and cOllect copy of this lettel is attached as Attachment 1 This letter stated that my letter dated FeblUalY 21, 2007 had been fOlwarded to VictOi Lawrence ofthe Department ofJustice, Office ofImmigration Litigation ("OIL") in

Washington, D.. C , and that that office "will be diI ectly handling any issues addressed in

your conespondence." It fUlther stated that "[a]ccordingly, we have refened YOUlletter

and attachment to the attention of Victor Lawrence, an attomey with that office. Please

direct YOUl inquiries related to the above referenced matter to Mr. Lawrence's attention."

Though our letter had been forwar ded to Mr. Lawrence, and the fact and substance of our

voicemail message had been communicated to him, neither I nor co-counsel received any

communication fiom OIL in response to either

6

I did not receive Mr Paniszczyn's faxed letter until the evening of

February 28, 2007 because it was mistakenly placed in another ACLU attomey's office

and that attomey was out of town until February 28,2007 DUling this time, I thought
that the u.s Attomey's Office of the Western District of Texas was still the office that I

should be contacting to seek to informally resolve this matter without the need for

litigation. As a result, I placed another call with Mr. Sutton on February 27, and left a

second voicemail message saying that I had not yet heard back as to my letter dated

February 21. I did not get a return call flOm either Mr . Sutton or Mr. Lawrence. The

very next day after I received Mr. Paniszczyn's fax, I sent a letter directed to Mr

Lawrence that copied Mr Sutton A true and correct copy of this letter is attached as

Attachment 3 to Exhibit C of the Appendix Filed in Support of Plaintiff's Motion for a

Temporary Restraining Order and Plaintiff's Motion for a Preliminary Injunction, Both

Filed March 6, 2007 This letter restated the substance of OUI first letter but added the

names of several new clients and requested a written aSSUlance flOm ICE that its officials

would not retaliate against our clients.. The pUlpose ofthe March 1 letter was to ensure

that ICE had an accUlate and comprehensive list of the clients on whose behalfwe are

seeking a resolution Neither I nOi co-counsel received a response flOm either the US

Attorney's Office 01 Mr Lawrence

7

On March 2,2007, the ACLU and co-counsel emailed to several repOiters

a media advisory that was embargoed until Tuesday, March 6, at 9am, the date and time

that we intended to file complaints on behalf of OUi clients if we did not hear back flOm

opposing counsel. Ihe media advisOlY alerted the media that on I uesday, March 6, the

ACLU and co-counsel would hold a press conference to announce the filing of lawsuits

on behalf of several children detained at Hutto At any point between the email

distribution ofthis advisOlY on March 2 until we filed the morning of March 6, plaintiffs'

cOlllsel could have and would have cancelled or postponed the filing pUisuant to a return

call or communication fiom opposing counsel indicating a willingness to confer to try to

resolve this matter informally without the need for federal COUIt intervention It is for this

very reason that the media advisory was embar goed until March 6.

8

Opposing counsel's assertion that he did not learn of OUi February 21, 22,

and 27th attempts at conferring with the US Attorney until March 1, 2007 is inconsistent

with the facts of the case Mr.. Paniszczyn's letter clearly stated that OUI February 21

letter had been fOlwarded to Mr LaWi ence, and that he therefore knew that we wer e

attempting to confer with opposing counsel to attempt to resolve this matter informally

without the need fOi federal COUIt intervention. FUithermore, at the hearing on March 20,

2007, Mr. LaWience admitted that he knew ofoUi February 21 letter and OUi February 22

call (See Ir Hrg March 20, 2007, at 33-34) Since Mr. LaWience had OUi February 21

letter in his possession, there was no point in my sending him a second one - Mr

LaWience was well-aware by OUi February 21 letter and OUi February 22 phone call that

we were attempting to confer with the U.S. Attorney's Office and by extension, pursuant to Mr Paniszczyn's letter, the Office ofImmigration Litigation, in this matter.
9.. The letter that we sent on February 21, followed by the messages we left on Mr Sutton's voicemail on FeblUary 22 and on FeblUary 27, were both explicit in their mention ofour interest in informally resolving the matter without the need of federal court intervention. The March I letter that we sent provided an update of the client list as well as sought a written assurance from ICE that its officials would not retaliate against our clients, but did restate that we were interested in resolving the matter without the need offederal court intervention The only communication we received from opposing counsel between February 21 and March 6, the date that we filed the complaints and other motions on behalf of our clients, was the letter from Mr.. Paniszczyn on February 22 that did not respond to the substance of our FeblUary 21 letter but only informed us of OIL's involvement
10 There is no question based on the record developed so far that Mr. Lawrence knew of our attempts to comply with Paragraph 24(E) ofthe Flores Settlement as ofFebruary 22, 2007 and that Mr Sutton had received our initial letter seeking to confer on FeblUary 21 Mr. Lawrence chose not to respond to our multiple requests in writing and by phone Between our initial February 21 letter seeking to confer and the date of our filing, two weeks passed during which we did not get any communication from the U.S Attorney's Office or OIL regarding the substantive content of our two letter s and two phone calls Even if Mr.. Lawrence wishes to claim that oUI media advisory cast our filing in stone, which it did not, he still had nine days during which he did not respond to the substantive content of our initial letter and our phone call, both of

which explicitly stated that we were seeking to confer to avoid federal court litigation. We did not hem back, and, therefore, we filed on March 6, having exhausted the available alternative remedy provided in Pmagraph 24(E) ofthe Flor es Settlement
11 Attached hereto as PI Ex DD, Attachment 1 is a true and COHect copy of the Declmation of GIiselda Ponce detailing what proceedings regmding bond or pm ole, if any, have been held with regmd to her clients Sherona Verdieu and her mother, Delourdes Verdieu, and Wesleyann Emptage and her mother, Pamela PUIan
12 Attached hereto as PI Ex DD, Attachment 2 is a true and correct copy of the Declmation of Rasa Bunikiene detailing what proceedings regarding bond or pm ole, ifany, have been held with regmd to her and her children Egle Baubonyte and Saule Bunikyte
13 Attached hereto as PI. Ex DD, Attachment 3 is a true and correct copy of the Declaration of Cmlos Holguin describing the intent of original Flores counsel in drafting the Settlement as well as the INS's pre-Flores practice offamily detention.
I declme under penalty ofperjury that the foregoing is true and correct
EXECUTED on Mmch21 , 2007
Vanita Gupta, Esq.

Attachment 1 to
Exhibit DD

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fN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS
DECLARATION OF GRISELDA PONCE
i
I, Gtiselilil' Ponce, pursuant to 28 US . C. § J746, make the following declaration under penalty of peljur~:
i
I. I am an aftomey with a solo practice, Law Office of Griselda Ponce, witi. mailing address as 11900 Metric Boulevard, Suite J-167, Austin, Texas, 78758
2. I represent De10urdes Verdieu and her thhteen-year-old daughter, Sherona Verdieu, in their immigration proceedings. 1 also represent Raouitee Pamela Pumn and her four-year· old daughter, Wesleyann Emptagc, in their immigration proceedings. I understand that Wesleyann and Sherona are plaintitTs in lawsuits in the Western District of Texas where
they are dttempting to enforce their rights Wlder the Flores Agreement. I make this Declaration pursuant to this Court's Order, entered on March 22, 2007, in those cases.
Sherona Verdieu's Immigration Proceedings 3. Sherona and her mother fled persecution in Haiti.. Because Ms. Verdieu feared for her own safety and her daughter's safety, they traveled to the United States to reunite with theh family members. Ms. Verdieu and Sherona arrived at the Miami airpOit and presented their own expired passports. At that time, both Ms. Vcrdieu and Sherona told the immigtation officials that they fear·ed persecution in Haiti.. The two were taken into
ICE custody, and were transported to Hutto on September 12, 2006. They have been
detained at Hutto evcr since, for over six-and-a-halfmonths. 4. On September J8, 2007, a trained asylum officer found that Ms. Verdieu and Sherona
had a credible fear of persecution if retrrrned to Haiti and recommended that their cases

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be refeu'cd to the immigration court for a full healing on their asylum claims., On September 26, 2006, Notices to Appeal were issued to Sherona and her mother
commencing regular removal proceedings against them, Issuance of these Notices meant that Sherona and her mother were no longer 8uJ.:,ject to expedited removal and that they were allowed to pUIsue asylum claims before the immigration comt.
5. A healing on Ms" Veldieu's and Sherona's asylum applications is schedl" ted before the immigration court on April 25, 2007.
6. Sherona and her mother ale not eligible for a bond hearing before an immigmtion judge, because they were detained upon arrival at the FOlt Lauderdale airpolt and are therefOIe classified as "arriving aliens," Under pertinent immigration regulations, immigration judges are withoutjmisdiction to review ICE's custody determinations for "alliving aliens." 8 C.,fo K§ l003.19(h)(2)(i)(B)
7, Sherona and her mother, however, are eligible forrelease on parole, 8 nS"c. I 182(d)(5) (authOIizing parole of any applicant for admission "tor urgent humrulltar,an reasons or
signiticant public benefit''); 8 CFR. 2125 (delegating parole authOlity to various ICE
officials including field office directols), Indeed, ICE guidelines favor release on parole for asylum applicants who have passed the credible fear screen, can establish identity, and have a place to live and means ofsuppOIt. Sherona's mother, Ms., Verdieu, has a
u..s.. citizen sister - Melonne Clelvil Verdieu - who has offered to care for and support
both Sherona and her mother in her' home in Miami, Florida, and to ensure that they will comply with all laws governing their immigra.tion proceedings, 8. Sherona. and Ms. Verdieu have submitted two parole requests to defendants, asking for their release to Melonne Verdieu. The first palole request was submitted on October 3,

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2006 to ICE Field Officc Director, Marc J. Moore. Mt. Moore denied the pamle request without any reason by letter dated November 7, 2006, Four months later, on Murch 16, 2007, Shel'Ona and Ms" Verdieu renewed theit parole requests in another lettel [0 Mr Moore. Defendant's have yet to respond to their ..mewed parole requests 9" Sherona and her mother meet all thc requirements for parole to their family member, Melonne Verdieu, First, a trained asylum officeI' has found that Ms Vetdieu has a credible fear oipersecution ifrctu.med to Haiti., Second, both her and Sherona's identities have been clearly established" Third, they have strong ties to a family relative who is a U.S" citizen and who is able to support them in Miami, Florida. Fourth, Ms Verdieu is not subject to any bars to a:;ylum, And fifth, the continued detention of both Sherona and her mother for over six months at Hutto gives lise to additional, serious humanitarian and public-interest considerations. 10" A troubling hllIIUlllitarian concern that directly impacts my representation of my Y()llllg client is that developing the a:;ylum ca:;e has requited me to communicate traumatic infOImation from the mother through Sherona who acts as translator for her mother" I have attempted numerous times to solicit help ofan independent translator but the travel time to thc detention center fOJ most translators is 1 Y, hours let alone the time it will take to discuss the actual asylum claim with my clients., If they were released, they could travel to the translator's location and wc could communicate with more ease and bettcr prepare their case for final hearing.. Time is of the essence in this case because as stated earlicr, their fmal hearing is set tbr April 25, 2007. 11 . Secondly, I visited my client Sherona today and found my client with a readily visible colony of small blisters coveling her nose and part ofher upper lip" This has caused my

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yOlUlg client much discomfort including fever, a sore throat, severe cough and according to her has been spreading since it began on Saturday, March 24, 2007 The medical center reports being unsure what is causing it. 12 There is no time limit within which ICE must respond to Sherona and Ms. Verdieu's renewed parole requests.. I do not know whether ICE will grant their ren.:wed parole requests or when they might do so. In general, however, it has been my experience that
the ICE Field Office does not gIant release on parole to asylum seekers like M~. Verdieu who have passed their credible fear SCIeens and are detained at Hutto. Nor can Shcrona
and her mother seek review of the par·ole denial by an immigration judge or any other administrative body. W"sleyanD Emptage's Immigration Proceedings 13 Wesleyann and her mother fled persecution in Guyana. Because Ms. PUI'an feared for her own safety and Wesleyann's safety, they tr·aveled with improper docUIJlI'nts to join finnily members in the United States. Upon landing in the United States, Ms. PUlan told officials at the aUpOlt that she was afraid to return to Guyana. Hcr l·213, Record of Deportable Alien, prepared on December 24, 2006 states that she was to be processed for a credible fear interview. WesJeyann and her mother were taken into ICE custody on December 24, 2006 and were transpOIted to Hutto on December 28, 2006. 14. When Wesleyaan and her mother arrived at Hutto, they were not given a list of free legal selvices providers. In fact, they only received such a list on February 13, 2007, after they had already been detained at Hutto fOI six weeks. Even then, the li!l1: onega! service providers given to them was different from the one normally plOvided by the immigration

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courts in San Antonio, Texas, and contained inooTt'eCI information For example, the address listed for the Political Asylum Prqject of Austin is wrong, 15, On ot' about December 29, 2006, Ms" Pumn requested a credible fem interview" But Ms, Puran was not pl'Ovided with!IJI interview until FebluaIY 15,2007, more tban six weeks after her initial request and initial apprehension, 16, At her cnldible fem interview, a traincd asylum officer found that Ms" Puran had a credible fear of persecution if she were returned to ('myana and recommended that she be referred to re/:.'lI1ar removal proceedings to pUlsue her application for asylum before an immigration judge"
11 Subsequently, on Fehrumy 27, 2007, a Notice to Appem was issued to Ms. Puran
commencing such proceedings, Issuance of the Notice meant that Ms" Puran was no longer subject to expedited removal proceedings an,d was allowed to pUIsue her asylum claim before the immigration court, Weslcyann was not issued a Notice to Appear until March 14, 2007 18, The Notice to Appear selved on Ms" Puran did not classify her as !lD atriving alien, thus making her e1igiblc for bond" However, ICE filed a different notice to appear (NT A) with thc COUlt, substituting the signed second page with a ditIerent first page which chmges Ms. Pur!lD as an aniving alien. This subsequent NIA was never properly selved on my client but was filed with the COllI!. 1 was not awme that ICE did not properly serve my client with the same notice that they filed with the inmrigl'atioll COUlt until I appem'cd in court on Mmch 27, 2007.. rhe Court admonished DHS for such a c1eady unethical practice on March 27, 2007 and DRS repeatedly refused to acknowledge any
wrongdoing even though it was clear from the documentation before the Court,

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19. Wesltlyann and Ms. Puran's next hearing is APIil 17,2007, at which time Ms. Puran will file her application for asylum.
20. Neither Ms. Puran nor Wesleyann is eligible for a bond hearing before the immigration judge because they were detained upon arrival at the Fort Lauderdale airJ!0lt and are therefore classified as "arTiving aliens" At a bond hearing on March 27, 2007, the Immigration Judge $igncd an order· acknowledging the Court Ja.cksjurisdiction to order release on bond in this case. Under pertinent immigration regulations, immigration judges EIle without jurisdiction to y·eview ICE's custody determinations for "arriving aliens" 8 CF.R.§ 1003. 19(h)(2)(i)(B)..
2 L Wesleyann and her mother, however, are eligible for release on parole. 8 U .S . C, IIS2(d)(5) (authorizing parole of any applicant for admission "for mgent humanitarian
reasons or significant public benefit''); 8 C"F,R, 212..5 (delegating parole authoritr to
various ICE officials including field office directors) Indeed, ICE guidelines favor release on par'oJe for asylum applicants who havc passed the credible fear screen, can establish identity, and have a place to live and means of support. The aunt ofWeslcyann and the sister ofMs. Puran - Paula lIarrypaul, a U.s. citizen - and her husband, Rohan
Harrypaul, are eager to care for and support both Wesleyann and Ms" PUI11ll in their home in New York, New York, and to ensure that they will comply with all laws goveming
their immigration proceedings 22. On March 16,2007, Wesleyann and Ms" Puran submitted parolc request, to ICE Field
Officc Director, Mr Moore, asking for release to thei, family members Neither Ms. Puran noT' WcsJeyann nor I have received any response.,

MAR-28-2007 WED 23:52 TEL: 2125492680+

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23. Wcsleyann and Ms. Puran meet all requirements for parole of asylum seekers: First, a trained asylum officer has found that Ms. Puran has a credible tear ofpersecution if retuIned to Guyana. Second, the identities ofboth Ms. Puran and Wesleyann have been c1ea!Iy established. Third, they have strong ties to a family relative (Ms. PLUan' s sister)
who is a u.s. citizen and who is able to support both of them in New York, New York.
Fourth, Ms. Puran is not subject to any statutory grounds of ineligibility fOI asylum. Fifth, the continued detention of both Ms. PLUan and Wesleyann at Hutto for three months gives rise to additional, serious humanitarian and public-interest considerations 24. There is no time limit within which ICE must respond to Wesleyann and Ms. Puran's renewed parole requests" I do not know whether ICE will grant their request for lelcase on parole. In geneJaI, however, it has been my experience that the ICE Field Office does not grant release on parole to asylum seekers like Ms. Puran and her child Weslcyann who have passed credible feal screens and are detained at Hutto. Nor can Wesleyann and her mother seek review ofthe parole denial by an immigration judge or any other administrative body.
I declare under penalty of peljury that the foregoing is true and correct.
EXECUTED on Marchz.8 , 7.007

MAR-28-2007 WED 23:52 TEL: 2125492680+

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Attachment 2 to
Exhibit DD

IN IFill UNITED STATES DISTRICT eOlIRT WES TERN DIS TruCT OF TEXAS
DECLARATION OF RASA BUNIKIENE I, Rasa Blmildenc, pursuant to 28 USC § 1746, make the tgHowing declaration under
penalty of pcrjUly: I am the mother of Eglc Ballbonytc and Saulc Bunikytc My daughters are plainti ITs in lawsuits in the Western District of Tcxas where they are attempting to enforce their righls tmdcr the
Flores Agreement I make this Declaration pursuant 10 Ihis Court's Order, entered on March 22,
2007, in Ihose ca~es. 2 Egle <lnd Saule amved in the United Stales on MUTch 8,2005 as conditional permanent residents
On December 15,2006, they anived with me at Tmmigration COUlt in Chicago, lllinois in response to Noti(oes to Appear for immigration proceedings. The govcnmlent has charged that OUI pcnnanent rcsidont statlls is not valid When we appcru·ed at the Immigration COUll, ICE officers - without any warning - took Egle, Saule, and me into custody. We were transported to Hutto, and we have been there ever since.
3 My husband and lJglc and Saule's stepfather is Paul II Veluzque~, a US ciliz.en. Mr
Velazquez is eager to care for and SUppOlt my daughters and me in his home in Chicago, lllinois, ,md to ensure thai we will comply with all laws governing am immigration proceedings 4 In recent months, we were represented in our immigration proceedings by Rosa Maria D MacNeil of Rosa Maria D. MacNeil & Associates, located at 2035 S Arlington Heights Road. Suite 115, !\.tIington Heights, Illinois, 60005 Ms. MacNeil was completely ineffective as c:ounsd She messed up our legal liIings arId did not return phone calls. I have been trying to reach her in order to firc her since Mrud126, 2007, but she has .not returned any 01 my multiple
1

phone calls I will fire h~r as soon as Ircaeh her on the phone The ACLU attoIncys
representing my daughters were unable to gel in touch with Ms., MacNeil regarding this COUll's Order of Mru'CII 22, 2007, despite repeated uttempts Because I am currently searching for a new immigration attorney, I am submitting this declaration about my immigration proceedings ruJd those of my dUllghters 5. Ms, MacNeil tricd to gel Eglc, Suule, and me released from Hutto by Jiling motions for bond. She appeured for bond hearings before Immigration Judge Zuniga in San Antoni(J, Texas All tiuee motions for bond were denied hecause she did not do the paperwork correctly" 6" Subsequently, Ms" MacNeil filed motions with the San Antonio IUlInigration Court reque~(ing that venue in £gle, SaLlIe, ruJd my cases be transferred back to Chicago, lllinois. Those motions were gIanted. As a rcsult, the immigIlltion cases of all three lire now pending in the Chicago inunigtation (;omt 7.. On Ma['~h 26, 2007, Ms MacNeil appearcd before [mmigIution Judge Katzvilis in Chicago. My daughtels and I appeared via teleconCerencing, Ms. MacNeil tiled motions for redetermination of bond Ibr Egle, Sallk, and me asking that we be released to M1 VeJu>:qucz. Judge KatzviJis de,nied all the motions without hearing them and determined that any custody redetermination should be made by the San Antonio immigration judge who originally heard the bonc1rcqllest Ms. MacNeil )'liled to file an appeal and no bond healing has been held Judge Katzvalis, however, did order that ulllhrcc of us be brought back to Chicago prior to !lleil mcrits hearing on Aplil 26,2007.. My understanding is that this order does not require our immediatc release fiom Hutto, except 1'00thc pCliod of time that we ure lransfcl'l'ed to Chicago fOT the hearing. Whcn we arrive in Chicago for our hearing, I d() not know where ICE intends to detain US or what they
2

plan to do. Because ICE has no family detention facilities in Chicago, I am <;ollcemed that the girls could potentially face separation from me 8 Ms MacNeil ,ays she has filed 1-751 waiveIs (Petitions to Remove the Conditions of Residence) on behalf ofboth Egle and Saule She also vvas supposed to file an asylum petition on my behalf, and investigate othet fOlms of relief but has not done so. 111e approyaJ of any of these fOlms ofleli cfwill allow Egle and Saule to remain in the United States. 9 J understand that Egle and Saule's attorneys at the ACLU have filed additional documents in support ofthei!' request thaltbe girls be released flom Hutto" In particulat,
in accordance with paragraph 15 of the Flores Agreement, Mr. Velazquez has executed an Affida\it of Support (Form I- 1.34) for both girls." 111 that affidavit, Mr Velazquez guarantees that he is "willing and able to recei,e, maintain and support" EgJe and Saule,
and that lleither of them will "become a public ~hatge dming. her stay in the United States" Defendants received this Affidavit of Support on March 19,2007, but have not yet responded to Egle and Saule's requests fOi release fiDm Hutto" I declare under penalty ofpcrjury that the foregoing is true and conecl
EXECUTED on Mrucbi-Y, 20(}7
Rasa Bunikiene
3

Attachment 3 to
Exhibit DD

TN THE UNITED srATES DISTRICT COURT WESTERN orSTRICI OF TEXAS
DECLARATION OF CARLOS HOLGUIN Carlos Holguin makes the fol1o"Wing declru'ation under penally of peljlllY, pmsusnt (0 28 U.S C § 1746: I My mlffie is Carlos Holguin; I am General Counsel with the Center for H,lman Rights and Constitl.ltiol'..al Law Foundation. I have served in this capacity since 1984 The eerlie; is a non· profit, public interest legal foundation dedicated to fUIthering and protectirlg the civil, constitutional anc human rights of immigrants, lefugees, children and the poor. My plactice focuses on legal, legislative and educational wOlk on behalf of immigrants and refugees. I have served as lead <md co. counsel in numerous impoct cases involving df.!pottation, political asylunl, and the lights ofjuveniles., 2, I am lead counsel. for the plaintiffs in Flores v. Meese, No 85..cv-4544 (CD. CaL), and am one ofthe oliginal team or attomeys \iv'ho investigated, filed, litigated, settled. and then sought to enforce the settlement in the Flores class action.. I make the f{)UowiJ1..g statements based on my personal knowledge ofthe hist of the Flotes litigation and the intent of the parties in entedng into the Januaty 1997 St ulated Settlement Agreement ("Flores Settlement"). 3, From before the Flores caSe "'as filp,ct, through the si g of the Flores Settlement in 1997, farniIies with children were commonly detained j INS custody, although the(e were no designated "famiJy detention facilities." Before e flares case was filed, unaccomprulied minors and families that included mino were typically detained by the INS in make8hift detention facilities, such as rented hote s with razor wire truOWIl up

around them. Whether or not the mmms were accompanied by a pax'ent was immaterial to claim~ Iaised in Flores regarding substandard conditions and treatment minor. experienced during INS detention, or to the need for specific standards to protect millOlS and ensUle that the faciiities in which they were detained were appropriate to th&~ age and special needs.. The Flores Settlement was intended to pr'otect all minOI'S in ICE custody, whether accompanied or not. 4. The Flore, plaintiffs filed an enforcement motion on January 26, 2004, supported by voluminous evidence of non-compliance by Flores defendants. In litigating this mati.on o,er the ne;<t 22 months, the plaintiffs obtained still more evidence of seriOlls ,iolations of the Flores Settlement The Flores plaintiffs withdrew their enforcement motion or, or around November 14, 2005, because the parties had leached certain agreements on a process aimed at imp, Qving the treatment and conditions experienced by minors in the custody onCE and QRR, 5 The withdrawal ofthe January 26, 2004 enforcement motion ended litigation on that particular motion, but did not terminate the Flores Settlement or affect the ongoing enforceability of its provisions.
J declare under penalty of pe:rjUIY that the foregoing is true and cor
z

Exhibit EE

VANIIAGUPIA STAFF ATTORNEY RACIAL JUSTICE PROGRAM TI2l2.S49.2607 vgupta@ac]u org

AMERICAN CIVIL LIBERTIE~UNION

By Email and First Class Mail March 23, 2007

AMERICAN CIVIL LI8ERTIES UNION FOUNDATION NATIONAL OFFICE 125 BROAD STREET 18TH FL NEW YORK. NY 10004··2400 T/212 54'! 2500 WWW ACLU ORG
OFFICERS AND DIRECTORS NADINE STR05SEN PRESIDENT
ANTHONY D. ROMERO EXECUTlVf. DIRECTOR
RICHARD ZACKS TREASURER

VictOl LaWI'ence Edward Wiggers Deprutment of Justice Office ofIrrnnigration Litigation National Press Building 529 14th St Washington, D..C. 20045
Re: Emptage v. Chertaff, No. 07-cv-158 (W.D. Tex,,), and Related Cases
Deru Victor:
PCI' yOUi request on OUi telephone call yesterday, which included my co-counse! Judy Rabinovitz and yom co-counsel Edwrud Wiggers, I am writing to memO! ialize several points raised on that call
First, Judy and I requested a copy ofthe licensing letter that you referenced dUling the March 20, 2007 heruing as soon as possible (before the filing deadline) so that we can respond appropriate!y in om supplemental briefing on the issue.. You stated that you would ask yom client to see ifthat is possible.
Second, Judy and I broached the possibility of streamlining the filings by submitting one blieffor all related cases, which could include specific facts for each client as necessruy We could then present this to the Judge's law c1eIk as a way to cut down on the paper, and ifthe Comt approves of this method of filing, we would file one brief You stated that you would ask yom client to see if that is feasible
Third, you requested the name of the clerk with whom OUi colleagues spoke about getting an expedited trmsclipt Her nrune is Lily Iva Reznik, and hernumbeI is (512)916-5564.
FOUlth, Judy and I raised the need fO! both pruties to come up with a date and a scheduling oldeI fClI expedited discovery and liial We stated that it would probably be better to settle on a trial date md then to work on a scheduling Older for discovery. When Judy raised the possibility of trial in

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

May, you stated that you did not think that would be possible and that it was not your impression that the Judge could hear the case so soon because of his booked trial schedule. You stated that you would need to confer with yOUi client before you could speak about this. Both pruties decided that we will speak about this scheduling matter on Tuesday, March 27, 2007 at 10run EST.
Fifth, pUisuant to the Judge's statements about the need to confer and cooperate with opposing counsel, pruticulruly as regruds discovery matters, Judy and I requested several initial sets of documents in prepruation for trial While these requests are certainly not an exhaustive list of what we will be requesting through expedited discovery, they identifY documents that we definitely need at this junctUl'e and that rue cleru!y relevant to the issues to be tried. Specifically, we requested the following:
I.. All cOlrespondence, emails, memOlanda and documents related to licensing of the Hutto facility by appropriate state agencies, including but not limited to the Texas Deprutment of Family and PlOtective Services
2. The A -files, medical records and educational records for all our clients and pruents who rue detained at Hutto
3. All couespondence, emails, memOlanda and documents related to the applicability of the Flores Settlement to frunily detention and efforts to bring the Hutto facility into compliance with Flores.
4 All correspondence, emails, memoranda and documents related to prepruation for media and NGO tOUIS of the Hutto facility, and attorney efforts to visit clients at Hutto.
5 All policy materials related to medical, dental and mental health crue, including documents reflecting current health care staffing
6 All conespondence, emails, memoranda and documents about the Hutto fucility and family detention policies in general prepared by 01 sent to defendants ChertofI, Myers and TOiles.
You stated that you would speak with yOUi client and get back to us on these requests and asked us to memorialize the request in writing, which we have done here. You also stated that some of these documents rue protected by attorney-dient confidentiality. We rue requesting those documents which are not. However, we ale now also requesting a privilege log fOi those documents as to which you ru·e asserting privilege
Lastly, again pursuant to the Judge's statements encouraging both pruties to work things out as much as possible, Judy and I stated OUi interest

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

in trying to work things out as regards our clients Judy stated that at least
one of the mothers of OUl clients will likely file a habeas action seeking release, and that others may follow suit She asked whether you could speak to yom client about releasing our clients on parole as they are clearly eligible. You asked for the name of the mother of am clients who plans to file the habeas action, which we gave to you. Judy then explained that all of am clients and their mothers have close family members with legal status with whom they can live dudng the pendency oftheir immigration proceedings, whom have agreed to support them and to ensure their timely appear·ance in COUlt She further noted that they are prepar·ed to agree to electronic monitoring as well if that is deemed necessary. You indicated that you would speak with your client about this and get back to us
In the COUlse of this conversation, you also inquired as to what the impact would be on the litigation if ICE were to release the clients.. We stated that our concerns about the Hutto facility would not disappear given that there are other detained children at Hutto whose confinement also violates the Flores settlement, but that OUl immediate goal is to work out a remedy that ends the iueparable harm OUl clients are suffering We indicated that we would be open to discussing the larger issue of ongoing non-compliance with Flores at the Hutto facility, but that om concern at this point is obtaining relief for these plaintiffs You also added that your client believes that ICE is complying with Flores on all of the important provisions Obviously, this is a matter of dispute However, as we stated yesterday, part of the reason for our call was to make clear that we are willing to discuss working things out, both in terms of the relief for our clients as well as long-term remedies for family detention in general and the Hutto facility
We look fOIwatd to speaking with you on Tuesday, Mar·ch 27, 2007
at lOam EST
Sincerely,
~A/VY27---·
Vanita Gupta, Esq.

Exhibit FF

PLAINTIFFS' PROPOSED SCHEDULING ORDER FOR EXPEDITED DISCOVERY AND TRIAL
Pm suant to Local Comt Rule 16(c) of the Westem District of Texas, Plaintiffs hereby submit their PIOposed Scheduling Order For Expedited Discovery And TriaL Despite conferring with counsel for Defendants on both March 23, 27, and 28, 2007, the parties were unable to reach an agreement with regard to scheduling Therefore, Plaintiffs hereby request a July 16, 2007 trial date and submit the following proposed scheduling order for the related cases filed Mmch 6,2007:

I

A report on altemative dispute resolution in compliance with Local Rule

CV-88 shall be filed by April 20, 2007.

2

The pmties asserting claims for relief shall submit a written offer of

settlement to opposing pmties by May 1,2007, and each opposing party shall respond, in

writing, by May 10, 2007.

3

The pmties shall file all motions to mnend or supplement pleadings or to

join additional parties by May 15, 2007.

4

All pmties asserting claims for relief shall file their designation of

testifying experts and shall serve on all parties, but not file, the materials required by

FedRCivP 26(a)(2)(B) by May 15,2007 Pmties resisting claims for relief shall file

their designation of testifying experts and shall serve on all pmties, but not file, the

materials required by FedR CivP 26(a)(2)(B) by May 31, 2007 All designations of

rebuttal experts shall be filed within 15 days of receipt of the report of the opposing

expert

5 An objection to the reliability of an expert's proposed testimony under

Federal Rule of Evidence 702 shall be made by motion, specifically stating the basis for

the objection and identifying the objectionable testimony, within 15 days ofreceipt of the

Wlitten repOIt of the expert's proposed testimony, OI within 15 days of the expert's

deposition, if a deposition is taken, whichever is later.

6

The parties shall complete all discovery on OI before June 15,2007

Counsel may by agreement continue discovery beyond the deadline In light ofthe

compressed trial schedule, the parties shall cooper ate whenever possible in responding to

Wlitten discovery in the shOItest practicable time flame and shall not insist on the

maximum response period designated in the Federal Rules of Civil Procedure

7

This case is set for trial [docket call, OI jury selection1on July 16, 2007 at

9:00 am The parties should consult Local Rule CV-16(e) regarding matters to be filed

in advance of trial.

SIGNED AND ENTERED this

day of _ _ _ _ _~" 2007

SAM SPARKS UNITED STATES DISTRICT JUDGE

2

 
 American Civil Liberties Union : Landmark Settlement Announced in Federal Lawsuit Challengi... Page 1 of 3

URL: http://www.aclu.org/immigrants/detention/31469prs20070827.html

Landmark Settlement Announced in Federal Lawsuit Challenging Conditions at Immigrant Detention Center in Texas (8/27/2007)

ACLU Urges Congress to End Policy of Detaining Immigrant Children

FOR IMMEDIATE RELEASE CONTACT: media@aclu.org

AUSTIN, TX -- The American Civil Liberties Union today announced a landmark settlement with U.S. Immigration and Customs Enforcement (ICE) that greatly improves conditions for immigrant children and their families inside the T. Don Hutto detention center in Taylor, Texas. Dozens of children were released from the facility with their families as a result of the litigation. The settlement is expected to be approved shortly by Judge Sam Sparks of the United States District Court for the Western District of Texas.
"This is a huge victory not only for the children and families that have been released from Hutto, but for every detainee held at the facility, now or in the future," said Vanita Gupta, a staff attorney with the ACLU's Racial Justice Program. "Though we continue to believe that Hutto is an inappropriate place to house children,conditions have drastically improved in areas like education, recreation, medical care, and privacy."

EN ESPAÑOL > Se anuncia acuerdo negociado sin precedentes, en demanda entablada en los tribunales federales, impugnando las condiciones en un centro de detención para inmigrantes en Texas (8/27/2007)

The settlement is the result of extensive litigation and mediation in consolidated lawsuits filed earlier this year against Michael Chertoff, Secretary of the U.S. Department of Homeland Security (DHS), and six officials from ICE on behalf of 26 immigrant children. The children are between the ages of 1 and 17, and were detained at Hutto with their parents who, in almost all cases, were awaiting determinations on their asylum claims.The ACLU, the ACLU of Texas, the University of Texas School of Law Immigration Clinic, and the international law firm of LeBoeuf, Lamb, Greene & MacRae LLP brought the lawsuits.

Since the original lawsuits were filed in March 2007, all of the 26 children represented by the ACLU and cocounsel have been released.The final six children were released days before the settlement was finalized, and are now living with family members who are U.S. citizens and/or legal permanent residents while pursuing their asylum claims.

For the children, the release day was very emotional. Andrea Restrepo, a 12-year-old child from Colombia, had been held in Hutto in a small cell for nearly a year with her mother and 9-year-old sister.

"I feel much better, I feel tranquil, I can do things now I couldn't do there," said Restrepo. "I am trying to forget everything about Hutto. I feel free. It was a nightmare."

Conditions at Hutto have gradually and significantly improved as a result of the groundbreaking litigation.

http://www.aclu.org/immigrants/detention/31469prs20070827.html

8/31/2007

American Civil Liberties Union : Landmark Settlement Announced in Federal Lawsuit Challengi... Page 2 of 3

Children are no longer required to wear prison uniforms and are allowed much more time outdoors. Educational programming has expanded and guards have been instructed not to discipline children by threatening to separate them from their parents.
"The ACLU has long been concerned with poor conditions in immigration detention centers, but the inhumane conditions in which the children at Hutto lived before this litigation demanded our immediate attention," said Gouri Bhat, an attorney with the ACLU's National Prison Project."This agreement with ICE will make permanent important changes that already have been made and will ensure additional improvements in the future."
"The litigation has achieved enormous results," said Sean R. D. Gorman, a partner with LeBoeuf, Lamb, Greene & MacRae LLP, which provided pro bono representation to the children."Instead of punishing asylum seekers by treating them like criminals, the settlement requires ICE to treat children more like children — with the care and compassion that exemplify American values."
Soon after the litigation commenced, ICE instituted a policy of detaining at Hutto only families placed in expedited removal proceedings and began to issue bonds for asylum seekers who passed their credible fear interviews.
"Imprisoning families who have fled their home countries under fear of persecution from their own governments, and detaining them in jail-like conditions, was an indescribable trauma for many of the children we represented," said Barbara Hines, Director of the University of Texas School of Law Immigration Clinic. "We are hopeful that by limiting the population at Hutto to families in expedited removal except in exigent circumstances, and adopting more meaningful release procedures, that the length of stay for children will be significantly reduced."
Additional improvements ICE will be required to make as a result of the settlement include allowing children over the age of 12 to move freely about the facility; providing a full-time, on-site pediatrician; eliminating the count system so that families are not forced to stay in their cells 12 hours a day; installing privacy curtains around toilets; offering field trip opportunities to children; supplying more toys and age-and languageappropriate books; and improving the nutritional value of food. ICE must also allow regular legal orientation presentations by local immigrants' rights organizations; allow family and friends to visit Hutto detainees seven days a week; and allow children to keep paper and pens in their rooms. ICE's compliance with each of these reforms, as well as other conditions reforms, will be subject to external oversight to ensure their permanence.
Despite the tremendous improvements at Hutto, the facility remains a former medium security prison managed by the Corrections Corporation of America, a for-profit adult corrections company. In recent years, Congress has repeatedly directed DHS to keep immigrant families together, either by releasing them or using alternatives to detention. Where detention is necessary, Congress has said immigrant families should be housed in nonpenal, homelike environments. The ACLU remains adamant that detaining immigrant children at Hutto is inappropriate, and calls on Congress to compel DHS to find humane alternatives for managing families whose immigration status is in limbo.
"We are thrilled at what we were able to accomplish through litigation and mediation," said Lisa Graybill, Legal Director of the ACLU of Texas. "But the fact remains that our government should not be locking up innocent children — period. That is not what America is about. It is time for Congress to intervene and end the policy of family detention."
The Hutto lawsuits were filed by Gupta and Elora Mukherjee of the ACLU's Racial Justice Program; Bhat and Tom Jawetz of the ACLU's National Prison Project; Judy Rabinovitz of the ACLU's Immigrants' Rights Project;

http://www.aclu.org/immigrants/detention/31469prs20070827.html

8/31/2007

American Civil Liberties Union : Landmark Settlement Announced in Federal Lawsuit Challengi... Page 3 of 3
Graybill of the ACLU Foundation of Texas; Hines of the University of Texas School of Law Immigration Clinic; and Gorman, Stephen J. Lable and Carol A. Lafond of the law firm LeBoeuf, Lamb, Greene & MacRae LLP.
More information about Hutto and the ACLU's litigation is available online at: www.aclu.org/hutto
© ACLU, 125 Broad Street, 18th Floor New York, NY 10004 This is the Web siteof the American Civil Liberties Union and the
ACLU Foundation. Learn more about the distinction between these two components of
the ACLU.
User Agreement | Privacy Statement | FAQs

http://www.aclu.org/immigrants/detention/31469prs20070827.html

8/31/2007

 
 ICE/DRO RESIDENTIAL MANAGEMENT STANDARD
ADMISSION AND RELEASE

I. PURPOSE AND SCOPE. Residents are admitted to or released from a facility in a secure and orderly fashion.
II. EXPECTED OUTCOMES. The expected outcomes of this Standard are as follows:
1. Each adult resident will be searched upon admission to ensure facility safety, security, and good order.
2. Each minor resident will be searched upon admission using the least intrusive methods available.
3. Each resident’s personal property and valuables will be checked upon admission for contraband which, if found, will then be inventoried, receipted, and stored.
4. Each resident’s identification documents will be secured in the resident’s file.
5. Each resident will be medically screened upon admission to protect the health of the resident and others in the facility.
6. Each resident will be given an opportunity upon admission to shower and be issued clean clothing, bedding, towels, and personal hygiene items.
7. Each resident will undergo screening interviews and complete questionnaires and other forms upon admission.
8. Each newly admitted resident will be kept separated from previously admitted residents until in processing is completed and housing is assigned.
9. Each newly admitted resident will be oriented to the facility through written material on facility policies, rules, prohibited acts, and procedures and, in some facilities, by viewing an orientation video.
10.Residents will be released, removed, or transferred from a facility only when staff have followed specified procedures and completed required forms.
11.The facility will maintain accurate records and documentation on all residents’ admission, orientation, and release.
12.Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
13.The standard complies with federal laws and with DHS regulations regarding residents with special needs.

Admission and Release

1

III. DIRECTIVES AFFECTED This Residential Management Standard is a new standard.
This Standard incorporates the “Strip Search Guidelines for Admission to Detention Facility” originally communicated via a Memorandum for Regional Directors dated 4/14/2003 from the Director, Office of Detention and Removal. These guidelines are revised to reflect that no minor may be strip searched. No adult resident may be strip searched without the expressed approval of ICE.
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non­ government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
American Correctional Association 4th Edition Standards for Adult Local Detention Facilities: 4-ALDF-2A-08, 2A-17, 2A-19, 2A-20, 2A-21, 2A-22, 2A-23, 2A-24, 2A-25, 2A-26, 2A-27, 2A-28, 2A-29, 2A-30, 2A-32, 2A-33, 2C-03, 2C-04, 2C-05, 3A-01, 4B­ 02, 4B-06, 4C-29, 5B-18, 6A-05, 7D-11, 7D-20.
FLORES v. Reno
October 15, 2007, Memorandum from DRO Director John Torres, “Change Notice: Admission and Release- National Detention Standard Strip Search Policy.”
V. EXPECTED PRACTICES
1. Overview of Admission, Orientation, and Release As detailed below, each facility is required to implement written policies and procedures for the intake and reception of newly arrived residents and to provide them information about facility policies, rules, and procedures. At intake, residents are searched or screened using metal detection equipment, and their personal property and valuables are checked for contraband. Residents are allowed to keep and utilize personal clothing or utilize clothing alternatives provided by the facility. Personal items and clothing not kept or allowed will be inventoried, receipted, and stored. Each resident’s identification documents are secured in the resident’s file. Medical screening protects the health of the resident and others in the facility, and the resident must shower prior to being admitted to the general population. Upon admission each resident is issued clean clothing, bedding, towels, and personal hygiene items.
Each new arrival undergoes screening interviews, and completes questionnaires and

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other forms. For safety, security, and good order of the facility, each newly arrived resident is kept separated from the general population until he or she is assessed, classified, and housed accordingly.
Each new arrival is oriented to the facility through written material in the form of a handbook or equivalent, is appraised of the facility’s rules and prohibited acts, and, in some facilities, may have an opportunity to view an orientation video.
Before a resident’s release, removal, or transfer from a facility, staff must follow specified procedures and complete various forms.
2. Intake and Reception
a. Search of Resident All residents shall be searched upon admission, in accordance with the Search Standard. Ordinarily, such searches shall include:
1) Screening with a metal detector,
2) A search of his or her clothing.
During admission to a facility, or at any time thereafter, pat-downs shall not be conducted on any resident unless a reasonable and articulated suspicion can be documented. No child resident under age14 may be the subject of a pat-down search without the expressed authorization of the facility administrator or the assistant facility administrator.
A pat search (or “pat down”) is an inspection of a resident, using the hands. The inspector uses his or her sense of touch when patting or running the hands over the clothed resident’s body. It is considered the least intrusive of the body searches and should only be conducted by a staff member of the same gender.
A pat search does not require the resident to remove clothing, although the inspection includes a search of the resident's clothing and personal effects.
A hand-held and/or stationary metal detector shall be available and will be used in lieu of a pat search whenever possible.
Staff shall afford all residents a degree of dignity and respect. Residents shall be afforded privacy when changing and showering during admission. No resident will be strip searched absent articulable reasonable suspicion that the detainee is secretly concealing contraband on his or her person. Strip search of a resident in a family residential center shall not be conducted.
Minor residents shall generally not be pat searched unless they are 14 years or older and there is an articlable reason to conduct a pat search. Minors shall be screened only upon entry to the facility. Screening procedures for minors age 14 years or older may include the following:
1) Screening with a metal detector,
2) A search of his or her clothing.

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3) A thorough pat down if articulated suspicion exists that the minor may be carrying contraband. Children shall never be separated from their respective parent[s] during the admission process unless shown that such separation is necessary to protect the child, or an immediate threat to the safety, security, and good order of the facility can be shown to exist.
All newly arriving residents shall be required to change into new clothing after arrival to the facility and prior to placement in general housing.
b. Search of Clothing and Personal Items

Staff shall focus search efforts on commonly used hiding and smuggling places, 
 such as pockets, waistbands, seams, collars, zipper areas, cuffs, and shoe exteriors and interiors, including under the inner soles.
Staff shall also inspect all open containers, and inventory and store factory-sealed durable goods in accordance with facility procedures.
Items discovered during the search of a resident or his or her property shall be identified as:
1) Contraband and processed in accordance with the Residential Detention Standard on Contraband, or
2) Funds, valuables, or other personal property, to be kept in the resident's possession or inventoried, receipted, stored, or mailed to an address provided by the resident, in accordance with the Residential Detention Standard on Funds and Personal Property.
c. Visual Searches (“Strip Searches”)
Staff shall not strip search a resident as part of the admission process. Should any conditions exist that staff feel would warrant a strip search of any individual in a family residential center, the resident will be taken to the admissions area until an interview can be conducted by ICE staff. Staff will utilize non-intrusive search methods such as a pat down. If it is determined that any resident may have a weapon or hard contraband on their person, upon authorization of the ICE Facility Administrator, an ICE/DRO Officer may move the resident to a private area for further search. A private area is defined as an area that affords privacy and where observation is limited to members of the same gender.
Upon establishment of reasonable suspicion that hard contraband is present on the person of a resident, staff must document the basis for that reasonable suspicion. Facts supporting a basis for reasonable suspicion may include the result of a metal detector screening, the results of an intake interview, reports from other detainees or witnesses, the results of a criminal history or national security database check, the presence of tattoos or some other articulable basis to believe that the detainee has a terrorist or gang affiliation, or any articulable behavior or gestures suggesting an attempt to conceal contraband.
Once this information is documented, the resident shall be moved to a private area, and required to surrender clothing to an officer of the same gender. The resident

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shall change out into new clothing, however, shall not be required to remove undergarments unless the presence of contraband is noted and presents a clear and present danger to the staff member or resident.
Visual or strip searches may not be authorized or conducted without the expressed consent of the ICE facility administrator. A visual search or strip search shall only be conducted by two ICE Officers of the same gender as the resident and only in circumstances where it can be shown that a life or public safety issue is clearly established. A visual search or strip search may never be conducted on a child under age14 without the authorization of the Field Officer Director or JFRMU.
In any instance where a parent must be searched, the search shall not be performed in the presence of any child. In any instance where a child must be searched, the parent must be present.
A visual search (or “strip search”) is a visual inspection of all body surfaces and body cavities. The inspector shall not touch any skin surface of the resident. However, the inspector may request that the resident move parts of the body to permit visual inspection. It is considered more intrusive than a pat search and shall be made in a manner designed to assure as much privacy to the resident as practicable.
Such searches will be conducted in a manner that preserves the resident’s dignity.
d. Showers
Every resident must shower (or be bathed if an infant or young child) before entering his or her assigned unit. During the resident's shower, an officer of the same gender shall remain in the immediate area but shall not observe the shower process.
e. Search of Baggage and Personal Property
 In accordance with the Detention Standard on Funds and Personal Property, 
 each facility shall have a procedure for inventory and receipt of resident baggage and personal property (other than funds and valuables, which are addressed below).
Identity documents, such as passports, birth certificates, and driver’s licenses, shall be inventoried and given to ICE/DRO staff for placement in the resident's A-file.
Staff shall prepare an itemized list of the resident’s baggage and personal property, using the Personal Property Inventory Form. If a resident has no baggage, staff shall use a facility container to store his or her personal property.
f. Missing Resident Property
When a newly arrived resident claims his or her property has been lost or left behind, staff shall complete a Form I-387, “Report of Resident’s Missing Property.” IGSA facilities shall forward completed I-387s to ICE/DRO.
g. Funds and Valuables
In accordance with the Detention Standard on Funds and Personal Property, each facility shall institute procedures for inventory and receipt of resident funds and

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valuables.
h. Medical Screening To protect the health of the resident and others in the facility, each facility shall medically screen each newly arrived resident, in accordance with the Detention Standard on Medical Care.
i. Establishment of a Resident Detention File As part of the admission process, staff shall open a resident detention file that shall contain all paperwork generated by the resident's stay at the facility. Reference is made to the Detention Standard on Detention Files.
2. Clothing and Bedding In accordance with the Detention Standard on Clothing, Bedding, Towels, and Personal Hygiene Items, staff shall issue those items that are appropriate for the facility environment and local weather conditions.
3. Housing Staff shall use the documentation accompanying each new arrival for use in determining the most appropriate method for housing each family. ICE/DRO shall provide only the information needed for ensuring that family units classification.
Under no circumstances may non-ICE/DRO personnel have access to the resident’s Afile.
The classification process determines the appropriate level of custody for each resident. Once this is established, staff can issue the resident clothing/wristband in the appropriate color for his or her classification level.
New residents shall remain separated from the general population during the admissions and orientation intake.
4. Admissions Documentation An order to detain or release the resident (Form I-203 or I-203a), bearing the appropriate official signature, must accompany each newly arriving resident. Facilities shall forward the resident's A-file or temporary work file to the ICE/DRO office with jurisdiction. Staff shall prepare specific documents in conjunction with each new arrival to facilitate timely processing, classification, medical screening, accounting of personal effects, and reporting of statistical data.
The A-File or temporary work file must accompany the arriving resident, unless ICE/DRO and facility officials have authorized other arrangements.
Forms requiring completion include, but are not limited to, the Alien Booking Record (Form I-385); the medical questionnaire; the housing assignment card, and any others used by the booking entity.

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5. Orientation All facilities shall have a medium to provide ICE/DRO residents an orientation to the facility. Orientation procedures must be approved in advance by the JFRMU.
6. Resident Handbook In accordance with the Detention Standard on Resident Handbook, each facility shall issue to each newly admitted resident a handbook (or equivalent) that fully describes all policies, procedures, and rules in effect at the facility.
If a resident does not understand the language of the handbook, the facility administrator shall provide a translator or may use a language line for orientation and scheduled meetings.
7. Releases Staff must complete certain procedures before any resident's release, removal, or transfer from the facility. Necessary steps include completing and processing forms, closing files, fingerprinting; returning personal property; and reclaiming facility-issued clothing, bedding, etc. ICE/DRO shall approve release procedures. The facility must identify and have in place all necessary procedures that ensure the completion of all paperwork, verification of the resident to be released or transferred, and shall document that all releases are properly ordered by ICE. The facility shall ensure verification for residents to be released through the use of photos, biometrics, or other system designed to prevent the accidental release of residents.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

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 ICE/DRO RESIDENTIAL STANDARD
CONTRABAND

I. PURPOSE AND SCOPE. Contraband is identified, detected, controlled and properly disposed, thereby protecting residents and staff and enhancing facility security and good order.
II. EXPECTED OUTCOMES. The expected outcomes of this Standard are as follows:
1. Contraband will be identified, detected, controlled, and disposed of properly.
2. Resident personal property that would be considered contraband within the facility will be mailed to a third party or stored until the resident’s release, unless that property is illegal or a threat to safety or security
3. Contraband that may be evidence in connection with a violation of a criminal statute will be preserved, inventoried, controlled, and stored so as to maintain and document the chain of custody.
4. Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
5. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED: None
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non­ government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment. American Correctional Association 4th Edition Standards for Adult Local Detention Facilities: 2C-01, 2C-02, 2C-06.

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V. EXPECTED PRACTICES
1. "Hard" and "Soft" Contraband: “Contraband is anything residents are not authorized to have in their possession.
a. Hard contraband includes any item that: 1) Is inherently dangerous, including but not limited to weapons (knives, guns, “zip-guns,” ammunition, explosives, flammable liquids, brass knuckles, poison, etc.)
2) Is a tool or device that could be used to escape (rope, bolt cutters, keys, etc.)
3) Could otherwise interfere with security, safety, or the good order of facility operations (intoxicants, prohibited currency, sensitive or confidential facility documents, etc)
4) Is a narcotic and/or other controlled substances not dispensed or approved by the medical department, not used as prescribed, or in the possession of a resident other than for whom it was prescribed. Staff shall consult the facility pharmacist or other health services staff when uncertain about whether a prescribed medication represents contraband. Medicine the resident brings into the facility upon arrival shall be forwarded to the facility medical staff for disposition.
A resident found in possession of hard contraband could face corrective actionor criminal prosecution.
b. Soft contraband includes “nuisance” items that do not pose a direct and immediate threat to safety but has the potential to create dangerous or unsanitary conditions in the facility, such as excess papers that create a fire hazard, inappropriate written materials, food items that are spoiled or retained beyond the point of safe consumption, etc.
2. Procedures for Handling Contraband
 All facilities shall have written policy and procedures for the handling of contraband.

a. Seizure of Contraband. Staff shall seize contraband: 1) Found in the physical possession or living area of a resident including that of a resident awaiting voluntary return.

2) From common areas,

3) From incoming or outgoing mail,
4) Discovered during admission in-processing,
Exceptions may occur only upon written authorization of the facility administrator.
b. Religious Items. The facility administrator shall ordinarily consult a religious authority before the confiscation of a religious item that is “soft” contraband.

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c. Disputed Ownership. When a resident's claimed ownership of potential contraband material is in question, staff shall: 1) Inventory and store item pending verification of ownership;
2) Provide the resident a copy of the inventory as soon as practicable and place a second copy in the resident’s Residential file. The resident shall have seven days following receipt of the inventory to verify ownership of the listed items.
3) Staff shall deny claims:
a) Arising from the unauthorized use of government property.
b) For any item acquired without authorization from another resident.
If the resident cannot establish ownership, staff shall attempt to resolve the situation, but if ownership cannot be reasonably established, the property may be destroyed, as described below.
3. Resident Property That Is Contraband. Staff shall seize any soft contraband and/or hard contraband. As long as the contraband is not illegal under criminal statutes and would not otherwise pose a threat to security, staff shall inventory and receipt the property and mail to a third party, or store with the resident’s other stored personal property, in accordance with the Residential Standard on “Funds and Personal Property.” If the resident chooses not to provide an appropriate mailing address, or is financially able but unwilling to pay the postage, the facility administrator -- after providing the resident with written notice of the intent to destroy the property and how to prevent that outcome-- may dispose of the property in accordance with Destruction of Contraband below.
4. Evidence of a Crime. Contraband that may be evidence in connection with a violation of a criminal statute shall be preserved, inventoried, controlled, and stored so as to maintain and document the chain of custody and reported to the appropriate law enforcement authority for action and possible seizure. Many types of hard contraband are illegal under 18 U.S.C. Section 1791.
5. Government Property. Contraband that is government property shall be retained as evidence for possible corrective action or criminal prosecution, after which, as is appropriate, it may be:
a. Returned to the issuing authority,
b. Returned to normal stock for reuse, or
c. Destroyed, with approval of the facility administrator.
6. Destruction of Contraband Hard contraband may be destroyed when no longer needed for corrective action or criminal prosecution. It may also be kept for official use (for example, as a training tool) if secured in a designated secure room when not in use. The facility administrator shall establish a procedure for the destruction of contraband items.
Procedures shall include at a minimum:

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a. The Assistant Facility Administrator for Operations, or equivalent, determines whether an item shall be destroyed.
b. The Assistant Facility Administrator for Operations sends the facility administrator a memorandum through official channels, describing what is to be destroyed and why.
c. The facility administrator generally holds an item of questionable ownership for 120 days before considering its destruction, to afford the resident ample opportunity to obtain verification of ownership and/or appeal the decision in accordance with the Residential Standard on “Grievance Procedures.”
Where disciplinary action is appropriate, the facility administrator shall defer his/her decision about the property until the disciplinary case, including appeals, is resolved. d. The staff member who physically destroys the property and at least one official observer shall attest, in writing, to having witnessed the property's destroyed e. A copy of the property disposal record is placed in the resident’s Residential file. Records of property disposal shall remain on file for at least two years to ensure its availability for any subsequent investigation of a tort claim.
7. Canine Units While canine units maybe used for contraband detection with the written approval of JFRMU, canine units will not be maintained at or near the facility. A canine search will never be conducted in the presence of residents. Their use for force, control, or intimidation of residents is prohibited.
8. Notice to Residents
 The resident handbook, or equivalent, shall notify residents of the following:

a. The facility's rules and procedures governing contraband. b. The applicability of the Residential Standard on Funds and Personal Property,
as it relates to contraband.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

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_______________ Date

 
 ICE/DRO RESIDENTIAL STANDARD
CORRESPONDENCE AND OTHER MAIL

I. PURPOSE AND SCOPE. Residents will be able to maintain ties with their families, the community, legal representatives, and consular officials through correspondence.
II. EXPECTED OUTCOMES. The expected outcomes of this Residential Standard are:
1. Residents will be able to maintain ties with their families, the community, legal representatives, and consular officials through correspondence.
2. Residents will become aware of the facility’s rules on Correspondence and Other Mail through information contained in the Resident Handbook or another form of communication that is provided to each resident upon admittance in English, Spanish, and other languages most widely spoken among residents. Translation or interpretation services will be provided to residents who are not proficient in English.
3. The amount and content of correspondence residents send at their own expense will not be limited except if needed for order and security.
4. Indigent residents will receive a specified postage allowance to maintain community ties and the necessary postage for privileged correspondence.
5. Residents will have access to publications.
6. Incoming and outgoing mail will be opened to inspect for contraband and to intercept cash, checks, and money orders.
7. General correspondence will not be read or rejected, except if needed for order and security, and residents will be notified in writing when correspondence is withheld in part or in full.
8. Residents will be permitted to send and receive Special Correspondence to persons and organizations as identified in this standard. Outgoing and incoming correspondence from persons and organizations as identified in this standard will be opened to inspect for contraband only in the presence of the resident, unless waived by the resident or unless contamination of the correspondence is suspected.
9. Incoming and outgoing letters will be held for no more than 24 hours and packages no more than 48 hours, excluding weekends, holidays, and emergency situations.
10.Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
11.The standard complies with federal laws and with DHS regulations regarding residents with special needs.

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III. DIRECTIVES AFFECTED. None
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non­ government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment. American Correctional Association 4th Edition, Standards for Adult Detention Facilities: 4 ­ ALDF-5B-05, 5B-06, 5B-07, 5B-08, 5B-09, 5B-10, 2A-27, 2A-60, 6A-02, 6A-04, 6A-06, 6A-09.
V. EXPECTED PRACTICES
1. General Each facility shall have written policy and procedures relating to resident correspondence and other mail. The amount of correspondence a resident may receive or send at his or her own expense shall not be limited; however, for reasons of safety, security, and the orderly operation of the facility, non-correspondence mail (such as packages and publications) shall be subject to certain restrictions.
2. Indigent Residents Indigent residents may mail correspondence and packages at government expense, in accordance with the following guidelines:
a. Reasonable correspondence relating to a legal matter. OCC shall be consulted prior to any determination that the amount of legal mail is not “reasonable.”
b. Three one-ounce letters per week c. Packages deemed necessary by ICE/DRO such as clothing, personal items, items
needed for return to country of origin, etc.
3. Resident Notification The facility shall notify residents of its rules on correspondence and other mail through a resident handbook, or equivalent, provided to each resident upon admittance. At a minimum, the notification shall include the following:
a. That a resident may receive mail.

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b. The mailing address of the facility and instructions on how envelopes should be addressed.
c. That a resident may send mail, the procedure for sending mail, and instructions on how outgoing mail must be addressed.
d. That general correspondence and other mail addressed to residents will be opened and inspected in the resident’s presence, unless waived by the resident or unless the facility administrator authorizes inspection without the resident being present, for security reasons.
e. The definition of Special Correspondence, including instructions on the proper labeling of mail as “Special Correspondence.” If not properly labeled, correspondence will not be treated as “Special Correspondence.” The notification shall clearly state that it is the resident's responsibility to inform those outside the facility of this labeling requirement who wish to send “Special Correspondence” to the resident.
f. That Special Correspondence may only be opened in the resident's presence, and may be inspected for contraband, but not read.
g. That a package may neither be sent nor received without advance arrangements approved by the facility administrator, as well as the mechanism for obtaining such approval.
h. A description of the type of mail that may be rejected by the facility or the type mail that the facility will not allow a resident to keep in his or her possession at the facility.
i. That identity documents (passports, birth certificates, etc.) mailed to the resident will be turned over to ICE/DRO for placement in the resident’s Alien file. Upon request, the resident will be provided a copy of each document, certified by an ICE/DRO staff to be a true and correct copy.
j. The procedure for obtaining writing instruments, paper, and envelopes.
k. The procedure for purchasing postage, and the rules for providing indigent and certain other residents free postage.
The facility shall make all reasonable effort to provide key information, in writing, to residents in languages spoken by any significant portion of the facility's resident population. All residents will receive this information through an oral orientation as described in the Residential Standard for “Admission and Release.”

4. Mail Processing Resident correspondence and other mail shall be delivered to the resident and to the postal service on regular schedules.
a. Incoming correspondence shall be distributed to residents on the day it is received.
b. Outgoing correspondence shall be delivered to the postal service no later than the day after it is received by facility staff, or placed by the resident in a designated mail depository, excluding weekends and holidays. An exception may be made for

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correspondence or other mail that requires special handling for security purposes. Under exceptional circumstances, Special Correspondence may be held for 48 hours, to verify the status of the addressee or recipient.
c. Incoming priority, overnight, certified mail, and deliveries from a private package delivery service, etc. shall be recorded in a logbook maintained by the facility.
5. Packages Each facility shall implement policies and procedures concerning resident packages.
6. Inspection of Incoming Correspondence and Other Mail
a. General Correspondence and Other Mail Staff shall open and inspect incoming general correspondence and other mail (including packages and publications) in the presence of the resident. Incoming general correspondence may be read to the extent necessary to maintain security, as authorized by the facility administrator.
Inspection is generally for the purpose of detecting contraband. The reading of mail, which requires approval of the facility administrator, may be conducted at random. Mail may also be read when a specific documented security concern arises with respect to an individual resident, to reveal such information as: escape plots, plans to commit illegal acts, plans to violate institution rules, etc.
b. Special Correspondence “Special Correspondence” is the term for residents’ written communications to or from private attorneys and other legal representatives; government attorneys; judges; courts; embassies and consulates; the President and Vice President of the United States; members of Congress; the Department of Justice; the Department of Homeland Security; the U.S. Public Health Service; and representatives of the news media.
Correspondence shall only be treated as Special Correspondence if the title and office of the sender (for incoming correspondence) or addressee (for outgoing correspondence) are unambiguously identified on the envelope, and the envelope is labeled as “Special Correspondence.”
All facilities shall implement procedures for inspecting Special Correspondence for contraband in the presence of the resident.
Staff shall neither read nor copy Special Correspondence. The inspection shall be limited to the purposes of detecting physical contraband and confirming that any enclosures qualify as Special Correspondence.
7. Inspection of Outgoing Correspondence and Other Mail
a. General Correspondence and Other Mail Outgoing general correspondence and other mail may be inspected and read if:
1) The addressee is another resident, or an alien detained in a detention or other

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facility operated by or on behalf of a law enforcement agency.
2) There is reason to believe the item might present a threat to the facility's secure and orderly operation, endanger the recipient or the public, or facilitate criminal activity.
b. Special Correspondence Outgoing Special Correspondence shall not be opened, inspected, or read.
Staff shall treat outgoing correspondence as Special Correspondence only if the name, title, and office of the recipient are clearly identified on the envelope, and the envelope is labeled as “Special Correspondence.”
8. Rejection of Incoming and Outgoing Mail All facilities shall implement policies and procedures addressing mail that will be accepted and mail that will be rejected by the facility.
Incoming and outgoing general correspondence and other mail may be rejected to protect the security, good order, or discipline of the institution; to protect the public; or to deter criminal activity.
When incoming or outgoing mail is confiscated or withheld (in whole or in part), the resident shall be notified and be given a receipt.
Correspondence and publications that may be rejected include, but are not limited to:
a. Material that depicts, describes, or encourages activities that could lead to physical violence or group disruption, for example, material dealing with the subjects of selfdefense, survival, weaponry, armaments, explosives, and incendiary devices.
b. Information regarding escape plots, plans to commit illegal activities, or to violate ICE/DRO rules or facility guidelines.
c. Information regarding the production of drugs or alcohol.
d. Sexually explicit material.
e. Threats, extortion, obscenity, or gratuitous profanity.
f. A code, cipher, or other form of encryption.
g. Other contraband. A package received without the facility administrator’s prior authorization is considered contraband.
Rejected mail shall be considered contraband and handled as detailed below.
Both sender and addressee shall be provided written notice, signed by the authorizing official, with an explanation, when the facility rejects incoming or outgoing mail. The facility administrator shall ordinarily consult a religious authority before the confiscation of a religious article that is considered “soft contraband.”
9. Contraband Recording and Handling When staff finds an item that must be removed from a resident’s mail, he, or she shall

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make a written record including the following:
a. The resident's name and A-number
b. The name of the sender and recipient
c. A description of the mail in question
d. A description of the action taken and the reason for it (including significant dates)
e. The disposition of the item and the date of disposition
f. The staff’s signature
g. Prohibited items discovered in the mail shall be handled as follows:
1) A receipt shall be issued to the resident for all cash, which shall be safeguarded and credited to the resident’s account in accordance with the Residential Standard on ”Funds and Personal Property.”
2) Identity documents (passports, birth certificates, etc.) shall be placed in the resident's A -file. Upon request, the resident shall be provided with a copy of the document, certified by an ICE/DRO staff to be a true and correct copy.
3) Other prohibited items found in the mail shall be handled in accordance with the Residential Standard on “Contraband”; however, at the discretion of the facility administrator, soft contraband may be returned to the sender.
4) The facility administrator shall ensure that facility records of the discovery and disposition of contraband are accurate and current.
10.Postage Costs The facility shall generally not limit the amount of correspondence residents may send at their own expense, except to protect public safety, or facility security and order.
The facility shall provide a postage allowance at government expense under two circumstances:
a. The resident is indigent.
b. The facility does not have a system for residents to purchase stamps, so all residents receive a postage allowance.
Free postage is generally limited to letters weighing one ounce or less, with exceptions allowed for Special Correspondence; however, in compelling circumstances, the facility may also provide free postage for general correspondence and other mail.
Residents who qualify for a postage allowance, as defined above, shall be permitted to mail at government expense:
a. A reasonable amount of mail each week, including at least five pieces of Special Correspondence and five pieces of general correspondence.
b. All correspondence related to a legal matter, including correspondence to a legal representative, potential legal representative, and any court.

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c. Packages containing personal property, when the facility administrator determines that storage space is limited and that mailing the property is in the government's best interest. See the Residential Standard on " Funds and Personal Property” for detailed information.
11.Writing Instruments, Paper, and Envelopes The facility shall provide writing paper, writing implements, and envelopes at no cost to residents.
12.Correspondence with Representative of the News Media A resident may use Special Correspondence to communicate with the news media. A resident may not receive compensation or anything of value for correspondence with the news media. A resident may not act as a reporter or publish under a byline. Representatives of the news media may initiate correspondence with a resident; however, it shall be treated as Special Correspondence only if the envelope is properly addressed with the name, title, and office of the media representative, and clearly labeled as “Special Correspondence.”
13. Notaries, Certified Mail, and Miscellaneous Needs Associated With Legal Matters If a resident without legal representation requests certain services in connection with a legal matter (notary public, certified mail, etc.), and has no family member, friend, or community organization able to provide assistance, the facility shall assist the resident. If it is unclear whether the requested service is necessary in pursuit of a legal matter, the respective Chief Counsel should be consulted.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

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 ICE/DRO RESIDENTIAL STANDARD
DISCIPLINE AND BEHAVIOR MANAGEMNT

I. PURPOSE AND SCOPE: Facility standards of conduct and enforcement of those standards are expected in order to provide a safe and orderly living environment. Facility authorities will manage discipline and behavioral problems in a manner that ensures the safety and welfare of staff, residents, and visitors.
II. EXPECTED OUTCOMES: The expected outcomes of this Standard are:
1. Residents will be informed of facility rules and regulations, prohibited a cts, disciplinary sanctions that may be imposed, and the procedure for appealing disciplinary findings.
2. Each facility will have graduated severity scales of prohibited acts and disciplinary consequences.
3. Where permitted by facility policy, staff will informally settle minor transgressions by mutual consent, whenever possible.
4. Staff who witness a prohibited act that cannot or should not be resolved informally, or have reason to suspect one, will prepare a clear, concise, and complete Incident Report.
5. Each Incident Report will be objectively and impartially investigated by a person of supervisory rank.
6. When appropriate, a serious incident that may constitute a criminal act will be referred to the proper investigative agency, and the administrative investigation will be suspended, pending the outcome of that referral.
7. At each step of the disciplinary process, the detainee will be advised of his or her rights.
8. A Management Review Committee (MRC) will further investigate and adjudicate the incident and may impose minor sanctions or refer the matter to a higher level disciplinary panel.
9. A three-member Executive Review Panel (ERP) will conduct formal hearings on Incident Reports referred from an MRC and may impose higher level sanctions for “Greatest” and “High” level prohibited acts.
10.Detainees appearing before the ERP will be afforded a staff representative, upon request, or automatically if the detainee is illiterate, has limited English language skills, or otherwise needs special assistance.
11.Actions of the ERP will be reviewed by the facility administrator, who may concur with the findings and conclusions or may modify them.
12.At all steps and levels in the disciplinary process, any sanctions imposed will be commensurate with the severity of the committed prohibited act and intended to encourage the detainee to comply with the rules and regulations.

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13.All steps of the disciplinary process will be done within the required time limits.
14.At all steps of the disciplinary process, accurate and complete records will be maintained, and the detainee will receive the copies to which he or she is entitled.
15.If a resident is found not guilty at any stage of the disciplinary process, the incident records will not be included in the detainee’s file (even if they are retained elsewhere for statistical or historical purposes).
16.Residents will be able to appeal disciplinary decisions through a formal grievance process.
17.Residents do not receive any discipline or punishment that is considered to be harsh, cruel, unusual, unnecessary, demeaning, or humiliating.
18.Residents under age 12 will not be referred for disciplinary review.
19.Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
20.The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED: None
IV. REFERENCES: The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non­ government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
American Correctional Association, 4th Edition, Standards for Adult Local Detention Facilities: 4-ALDF-3A-01, 3A-02, 6C-01 through 6C-19.
Pennsylvania Welfare Code Chapter 3800: Child Residential and Day Treatment Facilities.
Texas Department of Family and Protective Services: Minimum Standards for General Operations and Residential Treatment Centers
V. APPLICABILITY: The standards provided in this Standard shall apply to all ICE F amily Residential Centers.
See the separate “Definitions” Standard for the meaning of certain terms used in this document.

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VI. EXPECTED PRACTICES:
Care providers shall implement a disciplinary and behavioral management program that meets adult and child welfare best practice standards. Behavioral management strategies shall be based on a system of privileges and shall not be punitive in nature.
Care providers shall have written policies and procedures regarding the disciplinary and behavioral modification program used at the facility. All staff shall be trained in effective behavioral modification techniques. The behavioral management system shall be implemented uniformly and explained to an arriving resident in a language that he or she understands. Each family shall receive a copy of the disciplinary and behavioral management system in writing during intake.
Behavior management shall be positive in its development, implementation and outcome. Behavioral management strategies shall include staff-child interactions that are proactive and not reactive in nature. Non-restraining procedures (such as verbal interventions, loss of privileges and time out) should always be the first methods of management for minors. Mechanisms shall be developed to reinforce positive behaviors that include parental intervention, whenever possible. Clinicians shall assist in identifying the causes of the minor’s negative behavior in order to develop appropriate treatment and staff intervention plans. These causes may include trauma, neglect, poor modeling or socialization, poor attachments, attention seeking and learned helplessness. Staff shall discuss with minors and their parents ways to meet behavioral needs in a productive way, when possible, as well as ways to address causes to assist in appropriate behavior.
The behavioral modification program shall include rules for the program, rewards and consequences, a list of minor and major behavioral infractions and systemic feedback from staff to each resident, with particular attention to the needs of minors.
Care providers shall have written rules that specify acts prohibited while residing at the program and consequences that may be imposed for various degrees of violation. The written rules shall be posted in a common area, reviewed at least annually and updated when necessary. The rules must be written in a way that is easily understandable by residents and their minor children and should be provided in the languages of the majority of residents in the facility. When a literacy or language problem prevents a resident from understanding the written rules, a staff member or interpreter shall assist the resident in understanding them. Care providers shall ensure that the standards for rules and discipline are formulated with consideration of the range of ages and maturity and are culturally sensitive to the needs of residents in federal custody.
1. Guidelines
Each residential facility holding ICE detainees, who are part of a defined family unit in custody, will have a Behavioral Management Program that includes access to an administrative disciplinary process. This program shall have progressive levels of reviews, appeals, procedures, and documentation procedures. The relevant policy and procedures shall clearly define resident rights and responsibilities.
a. The following procedure outlines the recommended requirements for disciplinary measures with regards to the discipline of minors:
1) Only a caregiver known to and knowledgeable of a child may discipline

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the child.
2) All disciplinary actions recommended and taken must be explained to the parent of the affected minor.
3) Each disciplinary measure must:
a) Be consistent with established policies and procedures;
b) Not be physically or emotionally damaging to the child;
c) Be individualized to meet each child's needs;
d) Be appropriate to the child’s level of understanding, age, and developmental level; and
e) Be appropriate to the incident and severity of the behavior demonstrated.
f) The goal of each disciplinary measure is to teach the child acceptable behavior and self-control. The caregiver must explain the reason for the disciplinary measure when the caregiver imposes the measure.
b. Administrative action may not be capricious or retaliatory.
1) Corporal punishment, or the threat of corporal punishment, may never be used on a child. Corporal punishment is the infliction of punishment on any part of a child’s body as a means of controlling or managing the child’s behavior. It includes:
a) Hitting or spanking a child with a hand or instrument; or
b) Forcing or requiring the child to do any of the following as a method of managing or controlling behavior:
i. Perform any form of physical exercise, such as running laps or doing sit-ups or push-ups;
ii. Hold a physical position, such as kneeling or squatting; or
iii. Do any form of “unproductive work.” “Unproductive work” is work that serves no purpose except to demean the resident.
1) Examples include moving rocks or logs from one pile to another or digging a hole and then filling it in. Unproductive work is never an appropriate behavior management tool.
2) “Unproductive work” does not include work that corrects damage that the resident’s behavior caused. For example, a child who intentionally defaces a fence or wall may be required to paint that portion defaced. A logical

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consequence as a behavioral management tool is acceptable.
c. Minor residents under the age of 12 may not be subjected to administrative review. Parents whose children exhibit hostile or antisocial behavior will be referred to the MRC for review.
d. Minor residents 12 and older will not be presented for administrative review without notification being made to their parents(s), and shall only be submitted for administrative review after all other efforts to include counseling have been conducted. If after attempting an informal resolution, the minor remains disruptive and continues to fail to follow established facility rules, the minor and parent(s) shall be referred for administrative review.
e. In addition, the following actions are prohibited as punishments involving a minor of any age: 1) Any harsh, cruel, unusual, unnecessary, demeaning, or humiliating discipline or punishment 2) Denial of mail or visits with their families as discipline or punishment 3) Threatening with the loss of placement as discipline or punishment; 4) Using sarcastic or cruel humor, and verbal abuse; 5) Maintaining an uncomfortable physical position, such as kneeling or holding the arms out; 6) Pinching, pulling hair, biting, or shaking a child; 7) Putting anything in or on a child’s mouth, such as soap or tape; 8) Humiliating, shaming, ridiculing, rejecting, or yelling at a child; 9) Subjecting a child to abusive or profane language; 10)Placing a child in a dark room, bathroom, or closet; 11)Requiring a child to remain silent or inactive for inappropriately long periods of time for the child’s age; 12)Confining a child to a highchair, box, or other similar furniture or equipment as discipline or punishment; 13)Denying basic child rights as discipline or punishment; 14)Withholding food that meets the child’s nutritional requirements; and; 15)Using or threatening to use emergency behavior intervention as discipline or punishment.

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16)Seclusion, defined as placing a child in a locked room, is prohibited. A locked room includes a room with any type of door-locking device, such as a key lock, spring lock, bolt lock, foot pressure lock or physically holding the door shut.
Staff may not impose or allow imposition of the following sanctions for a resident, adult or minor, at a family residential center: corporal punishment; deviations from normal food services; deprivation of clothing, bedding, or items of personal hygiene; deprivation of correspondence, telephone, or visitation privileges; deprivation of physical exercise or access to recreation, deprivation of school or education. No punishment shall require confinement in any locked room or space.
f. The facility shall not hold a resident accountable for his/her conduct if a medical authority finds him/her mentally incompetent.
g. The resident handbook or equivalent, issued to each resident upon admittance, shall provide notice of the facility’s rules of conduct, and of the sanctions imposed for violations of the rules. Among other things, the handbook shall advise residents of the following:
1) The right to protection from personal abuse, corporal punishment, unnecessary or excessive use of force, personal injury, disease, property damage, and harassment;
2) The right of freedom from discrimination based on race, religion, national origin, sex, handicap, or political beliefs;
3) The right to pursue a grievance in accordance with written procedures (provided in the handbook);
4) The right to correspond with persons or organizations, consistent with safety, security, and the orderly operation of the facility; and
5) The right to due process, including the prompt resolution of an administrative disciplinary matter (in accordance with the rules, procedures, and sanctions provided in the handbook).
6) Copies of the rules of conduct and administrative sanctions will be posted in English, Spanish, and/or other languages spoken by significant numbers of residents, as follows:
a) Disciplinary Severity Scale
b) Prohibited Acts
c) Sanctions
2. Incident Reports Officers who witness a prohibited act or have reason to suspect one has been committed shall prepare and submit an incident report. All incident reports must state the facts clearly concisely, and completely. Reports also will identify the officer(s), the resident(s), and all who are witness to the incident.

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ICE review approval is required for the incident-report forms used in family residential centers.
It is expected that minor rules violations will be settled informally by mutual consent, whenever possible. If, however, the officer involved believes informal resolution is inappropriate or unachievable, he/she shall prepare an Incident Report and Notice of Violations and forward it to the appropriate supervisor before the end of the assigned shift.
The incident report shall cite the relevant rule or standard without quoting it in its entirety. For example, for destruction of government property, the report would cite, briefly, “Code 218-Destroying Government Property.”
If the officer observes anything unusual in the resident's behavior or demeanor, he/she shall so note in the report. The reporting officer shall also list all staff, contract officers or resident witnesses to the incident, and the disposition of any physical evidence (contraband, property, etc.) relating to the incident. The reporting officer will sign the report and include title, date and time the report was signed. The shift supervisor shall review all incident reports before going off duty.
3. Investigations All incident reports shall be investigated within 24 hours of the incident.
The investigating staff member must be a supervisor or higher and shall have had no prior involvement in the incident, either as a witness or an officer at the scene. No incident shall be investigated by line staff. All incidents require a minimum of a supervisory investigation and review. If the facility has a designated investigator, the incident may be investigated by that staff member. The position of investigator may not be a designated position for the purposes of circumventing this standard and must be a full-time trained employee. Minors may not be questioned outside the presence of a parent unless the incident is between the parent and child. Any allegation involving a criminal offense will be immediately referred to the appropriate law enforcement authority and no interviews shall be conducted
The investigating Staff Member shall:
Commence the investigation within 24 hours of receipt of the incident report.
a. Advise the resident of the right to remain silent at each stage of the administrative process, and ensure he/she has a complete listing of resident rights.
b. Advise the resident that silence may not be used to support a findingagainst the resident.
c. Provide the resident(s) with a copy of the incident report/notice of charges at least 24 hours before the start of administrative proceedings.
d. Advise the resident of his/her right, if applicable, to an initial hearing before the Management Review Committee (MRC) within 24 hours of his/her notification of charges.
e. Terminate the investigation if the incident is under investigation elsewhere, e.g.,

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on criminal grounds, unless and until the agency with primary jurisdiction concludes its investigation or indicates that it will not pursue the matter.
f. Record personal observances and other potentially material information.
g. Prepare a factual report of the investigation, including the location or disposition of any physical evidence.
1) Forward to the MRC all reports relevant to the disciplinary hearing. NOTE: policy expressly prohibits providing a copy of any such report(s) to the resident at this stage of the disciplinary process.
Management Review Committee (MRC) All facilities shall establish an intermediate level of investigation/adjudication to adjudicate low or moderaterules infractions. They shall also ensure that theresidentis afforded all the rights listed under “Resident Rights in MRC Proceedings,” as provided below.
The MRC conducting an administrative review of rules infractions shall be composed of three members. For minor rules infractions, the committee shall consist of a Unit Manager, an ICE Supervisory Officer, and one facility staff member with a minimum rank of Captain.
The MRC shall not include the reporting officer, the investigating officer, or an officer who witnessed or was directly involved in the incident. Only if virtually every available officer witnessed or was directly involved in the incident shall an exception to this rule occur.
The MRC will conduct hearings and, to the extent possible, informally resolve cases involving low to moderate level offenses, in accordance with the list of charges and related sanctions. Unresolved cases and cases involving serious charges are forwarded to the Executive Review Panel (ERP).
The MRC shall have authority to:
a. Conduct hearings and informally resolve incidents involving low or moderate violations.
b. Consider written reports, statements, and physical evidence.
c. Hear pleadings on the part of the resident.
d. Make findings that a resident did or did not commit the rule violation(s) or prohibited act(s) as charged, based on the preponderance of evidence.
e. Impose minor sanctions in accordance with the table of prohibited acts and associated sanctions.
The resident in MRC proceedings shall have the right to:
a. An MRC hearing within 24 hours of the end of the investigation

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b. Attend the hearing (excluding committee deliberations) unless security considerations prevent the resident's attendance. In this instance, the committee must document the security considerations.
c. Present statements and evidence in his/her own behalf.
d. Appeal the committee's determination through the resident appeal process. The MRC shall:
a. Advise the resident of above-listed rights and procedures before the hearing.
b. Refer to the ERP any incident involving a serious violation. This includes code violations in the "Moderate” or categories (100s and 200s).
c. Serve the resident with:
1) A copy of the MRC decision and sanctions imposed; or
2) Written notification of charges and hearing before the ERP.
d. If the resident's case is being referred to the ERP, advise the resident, in writing, of:
1) The opportunity to call witnesses and present evidence before the ERP; and
2) The opportunity to a have a staff representative assist him or her before the ERP.
4. Staff Representation
The Facility Administrator (FA) or designee shall, upon the resident's request, assign a staff representative to help prepare a defense. This help will be automatically provided for illiterate residents, residents with limited English-language skills, and residents without means of collecting and presenting essential evidence.
a. A staff representative must be a full-time employee.
b. Because of the potential conflict of interest, theFA, members of the ERP and of the MRC initially involved in the case, eyewitnesses, the reporting and investigating officers, and anyone else with a stake in the outcome shall not act as staff representative.
c. The resident may select his/her staff representative, barring anyone identified in 4b, above.
d. The ERP shall arrange for the presence of the staff representative selected by the resident. If that staff member declines or is unavailable, the resident has three choices. He/she may select a different representative; wait for the unavailable staff member to become available (within a reasonable period); or proceed without a staff representative.
e. A staff member declining to serve as a resident's representative must state the reason on the staff representative form.

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f. If several staff members decline, the FA shall assign a staff member to serve as that resident's staff representative.
g. The staff representative shall be free to speak to witnesses and to present evidence on the resident's behalf, including any mitigating circumstances.
h. The ERP shall allow the staff representative enough time to speak with the resident and interview witnesses. The standard pre-hearing preparation time will suit most cases. However, the ERP may grant a postponement if required to prepare an adequate defense.
i. The ERP shall consider the reliability of information provided by a confidential informant before considering it in the disciplinary proceedings.
j. The ERP may withhold the confidential informant's identity from the staff representative. While the staff representative may challenge the substance of any confidential information the ERP discloses, he/she may not question its reliability (pre-established by the ERP).
k. When the resident cannot effectively present his/her own case, the FA shall appoint a staff representative, even if not requested by the resident.
5. Executive Review Panel All family residential centers housing ICE residents shall have an executive review panel to adjudicate resident incident reports. Residents assigned to residential facilities may not be placed into segregation or lock down housing. Where chronic violations are noted, the ERP may designate placement of a family unit into an orientation and counseling housing unit. The only purpose for placement into this unit is to ensure that all resources are made available for assisting residents to properly conform to facility rules and to ensure the safe and orderly operation of the facility. Placement into an intensive supervision unit is not to be used as punishment and may only be used for the amount of time needed to ensure the proper orientation and counseling of an affected resident or family unit.
At each center:
a. The ERP will consist of three members, including the chairperson.
b. The FA shall appoint the two members of the panel. The ICE Operations Manager shall appoint one ICE official.
The panel shall not include the reporting officer, the investigating officer, a member of the referring MRC, or anyone who witnessed or was directly involved in the incident. Only if virtually every available officer witnessed or was directly involved in the incident shall an exception to this rule occur.
The panel shall consist of at least one manager who holds the rank of Chief or higher, one unit manager, and one ICE officer with a rank of Supervisory Immigration Enforcement Agent or higher.

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The ERP shall have authority to:
a. Conduct hearings on all charges and allegations referred by the MRP.
b. Call witnesses to testify.
c. Consider written reports, statements, physical evidence, and oral testimony.
d. Hear pleadings by residents and staff representatives.
e. Make findings that the resident did or did not commit the rule violation(s) or prohibited act(s) as alleged, based on the preponderance of evidence.
f. Impose sanctions as listed and authorized in each category.
The ERP shall:
a. Verify that theresident has been advised of the procedures as identified above.
b. Advise the resident that he or she may waive the hearing and admit having committed the offense.
c. Conduct the hearing on the first business day after receiving the ERP referral, unless the resident waives the 24-hour notification provision, requesting an immediate hearing. In cases where a hearing is delayed, the reason(s) must be documented (e.g., a continuing investigation of facts, their unavailability of one or more essential witnesses, etc.) and approved by the OIC.
d. Prepare a written record of its proceedings. This record must show that the resident was advised of his/her rights. It must also document the evidence considered by the Panel and subsequent findings; the decision and sanctions imposed, along with a brief explanation.
e. Forward the entire record to the FA, who may (a) concur; (b) terminate the proceedings; or (c) impose stiffer or lesser sanctions.
f. Serve the resident with written notification of the decision.
6. Postponement of Disciplinary Proceedings All facilities shall permit hearing postponements or continuances under certain circumstances.
Circumstances justifying postponement or continuance of a hearing might include: defense preparation, physical or mental illness, security, escape, disciplinary transfer, deportation, or pending criminal prosecution.
An uncooperative resident may also cause a delay in the proceedings, either because of inappropriate behavior during the hearing process or a refusal to participate in a productive manner.
7. Duration of Penalties The duration of penalties shall be within established limits. Neither the panel recommending sanctions nor the FA making the final decision shall impose arbitrary sanctions outside these limits.

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a. Punishments range from the withholding of specified privilege(s) to recommended removal from the residential center and program. Segregation may not be used as a form of penalty in any form at a residential center.
b. The disciplinary report and accompanying documents are not inserted in the file of a resident who is found not guilty. However, the facility may retain the material in its own files for institutional uses (statistical, historical, etc.).
c. Best Practice Suggestions for dealing with Minors:
Disciplinary measures should be consistent among caregivers. Using positive methods of discipline and guidance encourage self-esteem, self-control, and selfdirection. Positive methods of discipline include the following:
1) Using praise, positive reinforcement, and encouragement of good behavior instead of focusing only on unacceptable behavior;
2) Reminding a child of behavior expectations daily by using clear, positive statements;
3) Talking with the child about the situation;
4) Focusing on the rule to learn and the reason for the rule;
5) Focusing on solutions that are respectful, reasonable, and related to the problem behavior, rather than blaming or focusing on consequences;
6) Redirecting the child's attention or behavior using positive statements;
7) Providing prior notice of possible consequences for inappropriate behaviors;
8) Giving the child acceptable choices or alternatives;
9) Using brief supervised separation or time away from the group or situation, when appropriate for the child’s understanding, age, and development. Best practice suggests that quiet time or time out from the group should be limited to no more than one minute per year of the child’s chronological or developmental age. However, this time frame may need to be adjusted for some children, such as a child who has attention-deficit disorder. Time out is not appropriate for infants and is not recommended for toddlers, since they are too young to understand this intervention;
10)Arranging the environment to allow safe testing of limits;
11)Using kind but firm action;
12)Giving logical consequences that are appropriate to the situation and severity of the behavior; and
13)Withholding privileges.
d. Acceptable Corrective Sanctions for Minors:
Sanctions in subparagraphs 1. and 4. (below) may be imposed by the MRP. Sanctions in sub paragraphs 1. through 5. may be imposed by the ERP.

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1) Referral to Counseling
2) Restriction to Housing Area, not to exceed 72 hours
a) When a minor resident is restricted to housing, they must be afforded a minimum of one hour of outdoor activity time daily.
b) The minor may be restricted to the dayroom area but may not be forced to remain in his/her room except during a time out period.
c) No sanction may restrict a minor from attending required school classes or religious practices.
3) Minor residents who are 12 years old and older may have their free movement privilege suspended for up to 14 days. Such a suspension would require that the parent supervise all activities for that time period.
4) Loss of extracurricular activity time such as movie night.
5) Loss of field trip privileges for up to 45 days.
Corrective action may not interfere with such daily functions as eating and sleeping. Disciplinary actions may not adversely impact a child’s health, physical or psychological well-being or deny a child regular meals, sufficient sleep, exercise, medical care, the right to correspondence, or legal assistance.
e. Acceptable Corrective Sanctions for Adults:
Sanctions in subparagraphs a. through d. (below) may be imposed by the MRP.
Sanctions in subparagraphs a. through e. may be imposed by the ERP.
1) Referral to Counseling
2) Require attendance in Parenting Classes
3) Additional work details such as:
General housekeeping
1) Loss of Commissary
2) Restriction to housing Area, not to exceed 72 hours.
Imposition of such a sanction must take into account the ages of minor children and the negative impact this sanction would have on minor’s who were not involved in the charged offense.
Sanctions are designed to correct poor behavior and are meant to encourage better behavior within a family residential center. Their use should be limited to those instances where other intervention has been tried and has been unsuccessful.
f. The MRP/ERP do not have the authority to remove any resident from a facility on the basis of a finding of guilty for any offense. The ERP shall recommend removal to the Chief, JFRMU, of any resident who presents an immediate or continuing threat to the good order, safety, and welfare of the facility.

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8. Disciplinary Severity Scale and Prohibited Acts All facilities shall have graduated scales of offenses and disciplinary consequences, as provided in this section.
Family residential centers shall adopt, without changing, the offense categories and administrative sanctions set forth in this section.
Prohibited acts are divided into three categories: "Major," "Moderate," and "Low." The sanctions authorized for each category (see table of sanctions, below) will be imposed only if the resident is found to have committed a prohibited act and no other method of behavioral modification has been found to be effective. Due to the nature of the facility as a residential family facility, sanctions should be used as a last resort and only as a means to correct behavior that threatens the safety and welfare of residents, staff, and visitors.
a. Low offenses: For all “Low” offenses, staff is afforded the opportunity to resolve these incidents through immediate counseling or referral to a counselor for discussion. This is particularly important during the first 30 days of a residents stay and acclamation to the facility. Staff may, at their discretion, also initiate an incident report
b. Moderate offenses: All moderate offenses are reviewed by the MRP for accuracy and completeness. Once reviewed, the MRP shall concur with the charged offense and refer the matter for review by the ERP, or, the MRP may dismiss or defer the charged offense based on a lack of evidence or the need to obtain additional information.
c. Major offenses: All “Major’ offenses require the immediate notification of the Chief, JFRMU, and the Field Office Director. Where a resident is deemed to be an immediate threat to themselves or others, the resident shall be immediately removed to a secure facility pending a full and complete investigation. Permanent removal of a resident from a residential family facility may only be authorized by the Chief, JFRMU. Such authorization will only be given when it can be established that the continued presence of the resident, minor or adult, would jeopardize the safety and welfare of themselves or others.
LOW OFFENSES:
1. (101) Being in an Unauthorized Area – Being in an area that is designated through verbal, written, or posted orders as “off limits” to residents.
2. (102) Disorderly Conduct – Behavior such as loud talking, yelling, or pushing which disrupts the orderly running of the facility.
3. (103) Failure of Parent/Legal Guardian to Appropriately Manage Children’s Behavior – For parents who allow their children to be unruly, disrespectful, or insubordinate while in their presence.
4. (104) Failure to Follow Verbal or Posted Rules and/or Regulations – Not following specific rules and/or orders which have been designated for the

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clean, safe, orderly operation of the facility which residents have been told in advance through posting or have been given verbally by an employee of the facility or person who has charge of the resident at the time. This includes not following the procedures established by the facility for taking count.
5. (105) Fighting – Exchange of words or body contact in anger wherein no injury requiring medical attention occurs, such as horseplay.
6. (106) Gambling – Operate or act in any game of chance involving betting or waging of goods or other valuables.
7. (107) Possession of Gambling Paraphernalia – Having in one’s control, items for use in operating or acting in any game of chance involving betting and wagering of goods or other valuables.
8. (108) Self Mutilation – Inflicting injury on one’s self, such as cutting on one’s own body or tattooing.
9. (109) Smoking – Smoking tobacco of any form in any area of the facility.
10. (110) Unauthorized Receipt or Possession of any Item of Value – Receiving or having in one’s possession any item of value which has been obtained through false pretenses, threats, or stealing.
11. (111) Unexcused Absence from Place of Assignment – Being away, without authorization from an appropriate supervisor, from the place of assignment such as housing area, recreation area, health services, etc.
12. (112) Use of Vulgar, Abusive, or Obscene Phrases/Language
13. (113) Failure to Maintain Personal Hygiene or Personal Hygiene of Child – Not having a clean body or clothes.
14. (114) Unsanitary and Disorderly Housing Conditions – Not keeping a clean, neat living area. The area should be kept in a manner so that all possessions are stored in an organized manner in areas designated for such. The area should be free from dirt and clutter.
15. (115) Possession of Non-Dangerous Contraband (Soft Contraband) – Possession of contraband items that are not allowed at the facility but are not capable of causing serious injury or harm to self or others, including tobacco products.
16. (116)Unauthorized Use of Telephone – Using the telephone during unauthorized times.
17. (201) Refusal to Submit to a Reasonable Suspicion Drug Test - Not providing a urine sample for use in reasonable suspicion drug testing.
MODERATE OFFENSES:
1. (202) Positive Reasonable Suspicion Drug Test – Testing positive for an illegal drug or un-prescribed controlled substance.

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2. (203) Theft – Unauthorized taking of something that belongs to someone else.
3. (204) Destruction, Alteration, or Damage to Property (Under $1,000.00) – Destroying, changing or hurting property of the facility or any other person.
4. (205) Forgery or Unauthorized Reproductions of Documents or Articles (Excluding Money) – Counterfeiting, forging, or reproducing without approval, any document, article, identification, or security documents.
5. (206) Hindering an Employee in the Performance of Their Duties – Acting in such a way to interrupt an employee during their work time such as causing delays or giving false information.
6. (207) Refusal to Submit to a Reasonable Suspicion Search.
7. (208) Child Neglect – Failure to give care and proper attention to a child (Non-Injury)
8. (209) Verbal Sexual Harassment of a Resident. Acting in such a manner as to create a hostile residential environment for other residents regardless of age or gender.
MAJOR OFFENSES: Suspicion of any of the following offenses requires immediate notification of ICE and separation form the general population.
1. (301) Arson – Starting or causing to be started a fire which could or does cause damage to person(s) or property.
2. (302) Assault/Battery – A non-sexually related attack upon the body of another person with the intention of harming or causing serious injury.
3. (303) Rape – Sexual contact of any person without his or her consent, or of a person who is unable to consent or refuse; and contact between the penis and the vagina or the penis and the anus including penetration, however slight; or contact between the mouth and the penis, vagina, or anus; or penetration of the anal or genital opening of another person by a hand, finger, or other object (i.e. penetration or oral sodomy).
4. (303) Sexual Assault – Abusive contact of any person without his or her consent for the purpose of sexual gratification or arousal or of a person who is unable to consent or refuse; and intentional touching, either directly or indirectly or through the clothing, of the genitalia, anus, groin, breast, inner thigh or buttocks of any person. Sexual assault excludes incidents involving penetration or oral sodomy.
5. (304) Attempt/Conspiracy to Commit a Major Offense – An offense for residents who do not actually commit the offense but participate in one (1) or more of the following ways:
a. (304a) Attempts to commit the major offense;
b. (304b) Solicits another or others to commit the major offense;

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c. (304c) Conspires with another or others to commit the major offense; and/or
d. (304d) Facilitates the action of another or others in committing the major offense.
6. (305) Child Abuse – Treating a child cruelly, roughly, wrongly, improperly, or in an insulting manner.
7. (306) Child Neglect – Failure to give care and proper attention to a child resulting in endangerment or injury to a child.
8. (307) Confirmed STG Affiliation/Activity – Affiliated or participating in a gang-related activity.
9. (308) Counterfeiting, Forgery, or Unauthorized Reproduction of Money
10. (309) Death of Any Person – Any act of which the end result is the death of any person including employees, visitors/volunteers, and/or other residents.
11. (310) Destruction, Alteration, or Damage to Property ($1,000 or more) ­ Destroying, changing or hurting property of the facility or any other person.
12. (311) Hostage Taking – Holding a person(s) against their will as a security for the fulfillment of certain terms.
13. (312) Escape – Leaving the grounds of the facility or from the custody of an employee outside of the facility without permission.
14. (313) Insurrection – Participation or encouraging another to participate in unauthorized activity such as protesting or rioting.
15. (314) Possession of Dangerous Contraband (Hard Contraband) ­ Possession of contraband items that are not allowed at the facility and are capable of causing serious injury or harm to self or others. This includes deadly weapons, items altered to be used as weapons, drugs and drug paraphernalia.
16. (315) Sexual Misconduct – This includes, but is not limited to, the following acts:
a. (315a) Exposing the genitals or buttocks to an employee, visitor/volunteer, or resident for the purpose of sexual gratification or arousal.
b. (315b) Masturbation where an employee, visitor/volunteer, or other resident can see the act
17. (316) Intimidating or Threatening Another with Harm – Telling someone, through actions or words, that harm will come to them.
18. (317) Possession of Drugs or Intoxicants – Possession of any drugs or intoxicants which have not been prescribed or approved by the health services department for use.

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19. (318) Violation of any Federal, State, or Local Law – Any act, through not specifically listed in this policy, that would be considered either a felony or misdemeanor under federal laws or under the state laws in which the resident is housed.
9. Documents All documents relevant to the incident, subsequent investigation, hearing(s), etc., will be completed and distributed in accordance with facility procedures.
Documents will be prepared and distributed as follows:
Incident Report/Notice of Charges The officer shall prepare a report and submit it to the facility supervisor immediately after the incident takes place. If the incident is resolved informally, the officer will so note on the original report, which will then be forwarded to the Chief of Security and a copy forwarded to ICE.
If the MRC is to be involved, the supervisor shall serve the resident with a copy of the Notice of Infractions upon completion of the investigation, no less than 24 hours before the MRC hearing.
The MRC receives the original copy.
If the MRC hears the matter, the ranking member of that committee shall serve the resident with a copy of the Incident Report/Notice of Violations indicating their decision. The MRC, upon conclusion of its proceedings, will forward the entire record to either the Chief of Detention or the ERP, as appropriate.
Investigation Report Original-submitted to the MRC. 
 Resident does not receive a copy

UDC Report of Findings and Action
Original-served on the resident after the committee issues its findings

Copy-to the resident detention file (guilty finding only)

Notice of ERP Hearing
Original-served on resident

Copy-resident detention file

Resident Rights at ERP Hearing Original-served on resident

Copy-facility detention file

ERP Report
Original-resident detention file

Copy-resident


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10. Confidential Information When a decision relies on information from a confidential informant, the MRC or ERP shall include in the hearing record the factual basis for finding the information reliable.
11. Notice to Residents The resident handbook shall notify residents of the following: a. The facility process for managing and handling rules violations. b. The prohibited acts and potential sanctions for prohibited acts: c. The procedure for appealing sanctions or adverse administrative findings.
12. Family Shelter Facilities Family Residential Facilities are subject to review under both adult and juvenile care standards. Family Residential Management is unique to ICE and as such no specific monitoring tool exists independently of this standard. The goal of ICE is to ensure family unity during the immigration court process. Given the unique nature of these facilities in that they are less than secure and house only non-delinquent/criminal or non-violent residents, many of the ICE National Detention Standards for adult detention are inappropriate for use at these centers. Each facility must rely on a program that places a continued emphasis on voluntary acceptance of facility rules and general respect between staff and residents. Many sanctions within this program rely heavily on communication and counseling with the end goal remaining family unification. The continued good order and general security of the facility relies on the residents continued voluntary cooperation within the confines of each facility. The most severe sanction that can be issued is removal from the facility and placement within alternative secure locations. It is the goal of ICE to avoid such sanctions whenever possible.
Standard Approved:

______________________________ John P. Torres Director Office of Detention and Removal

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_______________ Date

Discipline and Behavioral Management

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 ICE Family Residential Standard

EDUCATIONAL POLICY

I. PURPOSE AND SCOPE. All children residing in an ICE Residential Family Facility who reach the minimum age required by applicable state law shall be provided with educational services and programming appropriate to the minor’s level of development and communication skills in a structured classroom setting.
II. EXPECTED OUTCOMES: The expected outcomes of this Standard are as follows:
1. All eligible juveniles will be administered an Initial Educational Assessment within three days of their arrival to the facility.
2. All eligible juveniles will be provided with a minimum of one-hour daily instruction in each of the core subjects, Monday through Friday, on a year-round schedule.
3. All teaching staffs are qualified to teach in accordance with state licensing requirements.
4. All curricula and associated texts and learning materials are based on state requirements and best practices.
5. Comprehensive education files will be maintained on each student. 6. All children with disabilities and/or in need of special education and related
services are identified, located, evaluated, and referred to an appropriate agency for intervention. 7. All facilities shall convene an IEP Team, consisting of staff from the following disciplines: education, medical, mental health, administration, social work, and physical education.
8. Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
9. The standard complies with federal laws and with DHS regulations regarding residents with special needs.

III. DIRECTIVES AFFECTED None

IV. REFERENCES
The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non-government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
Individuals with Disabilities Education Improvement Act of 2004.

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IV. STANDARDS AND PROCEDURES
1. Guidelines
a. Each residential family facility will have an Education Department that is structured to provide comprehensive educational services and programs to children eligible for formal education as defined by applicable state laws and regulations.
b. Educational services will be provided in a structured classroom setting Monday through Friday, excluding holidays and are modeled after a year-round program in accordance with applicable State regulations.
c. Children not eligible for formal education as defined by applicable state laws and regulations shall be provided with age-appropriate child development toys and reading materials, to be made readily available in housing and common areas.
d. Students will be provided with a minimum of one-hour daily instruction in each of the following core subjects; Science, Social Studies, Math, Language Arts (Reading/Writing), and Physical Education.
e. While education services will focus primarily on the development of basic academic competencies, the secondary focus shall be on English Language Training. Teaching staff are required to be certified ESL instructors, or actively enrolled in an ESL certification program.
f. Each student shall be administered an Individuals Educational Assessment within three days of his/her arrival at the facility. Assessments will be readministered o n a 90-day rotation to track individual student progress. Copies of all assessments will be filed in the student’s individual education files.
g. A Special Needs Assessment shall be administered to each student upon arrival, and included in each Individual Education File. If special needs are identified during the intake process, copies of the assessment will be provided to all members of the multidisciplinary special needs team for intensive oversight.
h. Pre-Kindergarten instruction shall be provided to e ligible four-year-old children in accordance with State requirements. Pre-K instruction shall provide comprehensive child development services such as educational, health, nutritional, and social services to eligible four-year-old children and their families.
i. A Code of Conduct for both students and staff will be made available to staff, students and their families, in English and Spanish, and will be posted in common areas in both the school and housing units. Other translation services will be provided on an as-needed basis.
j. Educational field trips shall be provided for knowledge reinforcement; field trips may occur either on or off-site.

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2. Individual Needs Assessments
a. All children eligible for educational services will be administered an Initial Educational Assessment within three days of their arrival at the facility.
b. The assessment tool will be in keeping with state and local requirements, will be universally applied to all eligible children, and will include nationally accepted, scientifically valid testing methods.
c. Assessments will be administered by either a state-certified teacher, a teacher in a state-approved certification program, or a staff member otherwise eligible to teach in that respective state.
d. All assessments will be conducted in a location and manner that supports the individual privacy of each juvenile.
e. Assessment interviews will be conducted in the child’s primary language. Only qualified interpreters shall be used when the interviewer does not speak the language of the juvenile. To protect the juvenile’s privacy, potential interpreters shall not be current residents of the facility. Should an appropriate interpreter not be available, telephonic translation services shall be utilized.
f. When applicable, students will be re-tested utilizing the same testing instrument every 90 days to monitor academic progress.
g. Copies of all assessments will be made available to parents for their review upon request.
h. Copies of all assessments will be placed in the student’s education file, and will be available for review by ICE/DRO staff upon request.
3. Placement
a. Students will be assigned to a specific grade or grade cluster based on educational assessment outcomes.
b. Should a conflict occur whereby a student is on a significantly different developmental level than his or her age would otherwise suggest, the student shall be assigned primarily on age range. This decision will be made in coordination with the facility’s Multidisciplinary Special Needs Team. In the event a student is placed in a classroom with students learning markedly more advanced techniques and theories than he or she is capable of learning, an Individual Education Plan IEP will be created for that student following special education testing. The IEP will be reviewed every 30 days by the Special Needs Team.

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4. General Education Services
a. Educational services are provided in a structured classroom setting Monday through Friday, excluding holidays, and are modeled after a year-round program in accordance with applicable State regulations. Classroom environments will be modeled after traditional school settings. Learning environments will reflect students’ positive learning accomplishments and shall display learning materials that reflect cultural diversity.
b. Educational services will be designed to meet the unique educational needs of the immigrant juvenile population. Linguistically appropriate educational materials shall be available.
c. Students files shall contain the following documents, as applicable: Initial and subsequent Assessments; progress reports; requests for parent-teacher conference and follow-up notes; Special Needs Assessments; Individual Education Plans; follow-up reviews.
d. Lesson plans and curricula are developed by teaching staff, are based on a state approved model program, and are available for review in each classroom. All teaching staff will submit weekly lessons plans to the Administrator for his or her review and approval.
e. Educational field trips are provided for subject-oriented activities involving art, career education, home economics, technical education, mathematics, music, science, social studies, physical education, acculturation, and interdisciplinary trips. Field trips can occur either on or off-site. No fewer than four field trips per year per grade cluster shall occur. All proposed field trips must receive the approval of Chief, JFRMU and parental consent must be given prior to a child’s participation in any event not part of the daily curricula whether that event occurs on or off-campus.
f. Student files include the following documentation for each student: Initial and subsequent Individual Educational Assessment; Special Needs Assessment; Progress Reports; Report Cards.
g. Acculturation services and learning will be incorporated into lessons plans, activities and seminars on a daily basis.
h. Telephonic translation services will be available in each classroom.
5. Evaluation and Reporting
a. Student attendance is recorded twice daily for morning and afternoon sessions, and records of attendance are maintained and available for review upon request.
b. Student progress reports are distributed to all students on a regular and consistent schedule, and facility policy encourages the scheduling of parentteacher conferencing to discuss student achievement.

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c. Any student that completes the learning requirements for the maximum learning level shall be provided the opportunity for learning advancement such as independent study, special projects, pre-GED classes, and college preparatory tutorial, among others.
d. In accordance with applicable state law and upon the recommendation of teaching staff, a student may request to be administered the Government Equivalency Degree (GED) test. Those students approved for testing must first be administered the GED pre-test to assess suitability and possible remedial tutoring. Copies of all requests for GED testing and test results will be filed in the student’s educational file.
e. A memorandum confirming a student’s dates of enrollment will be provided to all students at the time of their departure. An educational assessment and/or transcripts will be provided upon request to institutions of learning on behalf of the student.
6. Staffing Requirements and Training
a. Teaching staff is qualified and certified to teach in accordance with State regulations.
b. The student/teacher ratio does not exceed 20:1, or is in compliance with State policy and requirements.
c. Teaching staff is ESL certified, or enrolled in an ESL certification program.
d. The Education Department is administered and supervised by a person qualified and trained as an Administrator, in accordance with State requirements.
e. There is on file and available for review a Staff Development Plan that includes, at a minimum, the following topics: ESL strategies and materials; Instructional best practices; No Child Left Behind (NCLB) rules and regulations; and Lesson Plan development. The Staff Development Plan shall be in accordance with prescribed state requirements.
f. Written policy ensures that staff is provided with pre-service and ongoing training on mental health issues, including but not limited to how to respond to emergencies such as suicide attempts or threats; how to observe, prevent, document and respond to signs and symptoms of depression, PTSD, physical and sexual abuse, and behavior management approaches. Refresher training occurs no less than twice yearly.
g. Written policy ensures that staff is provided with pre-service and ongoing training on cultural awareness and sensitivity, child development theory, and acculturation training. Refresher training occurs no less than twice yearly.
h. Written policy ensures that staff is provided with pre-service and ongoing training in First Aid, CPR, and AED. Ongoing and additional training is in accordance with applicable State requirements.

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i. Written policy ensures that staff is provided with pre-service and continuing training in ICE policies and procedures, prohibition against providing legal advice or counsel to facility residents, and the privacy rights of residents
j. All training sessions are documented in staff personnel files and are available for review upon request.

7. Equipment and Supplies
a. Classrooms will be equipped with textbooks based on the respective state’s educational policy and directives for each of the core subjects excluding Physical Education.
b. Each child shall be issued a textbook that is appropriate for classroom use, and teaching staff will be provided with the Instructor’s Edition. Should a state curriculum require additional materials to complete the goals and objectives of that particular course of study, the facility will ensure that these materials are provided to each student and teacher as needed. If the materials are perishable, they will be replaced on a rotating basis commensurate with the curriculum timeline and rotation of students.
c. All classrooms will be equipped with a desktop computer with Internet access, and attendance and grading software.
d. Classrooms will have manipulatives readily available and developmentally appropriate to each classroom and as required by lesson plans and curricula. Each student shall have the tools necessary to complete a particular task on their own, except when the curriculum calls for a group or partnered activity.
e. Classrooms shall have writing instruments to include colored pencils and crayons, writing paper, drawing paper, construction paper, and graph paper as needed and required by curricula tasks and objectives.

8. Library Services
a. Library services shall be provided and available to all residents. The library shall provide residents with appropriate reading material in languages other than English for use during leisure time. Reading material shall reflect racial and ethnic diversity and interests and be appropriate for various levels of competency.
b. Every effort shall be made to become part of a local library system and participate in a lending program that will be utilized to augment on-site library services. Participation in a local library system will not supplant an on-site residential library.
c. Each facility shall utilize the U.S. Department of Education’s Blue Ribbon School Program’s best practices library benchmark in determining the number of items in per library based on how many patrons are eligible to utilize the library. In facilities with less than 200 students, the total size of the library collection will number 3,000. While it is recommended that a book that has aged 20 years should be replaced, each area of the collection should be

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evaluated by the staff librarian before any books are rotated out of the library, and replaced. Each facility shall have a written policy outlining the policies and procedures for library services, to include hours of operation, length of time a patron may reserve a book, and penalties for misuse of library services.

9. Student Files
a. Student files shall be securely maintained in the Education Department to ensure the privacy of the juvenile. Files will be available for review at all times by ICE/DRO staff.
b. Should a parent schedule a conference to discuss his or her child’s academic progress, the file shall be made available during the conference for review.
c. Student files shall contain the following documents, as applicable: Initial and subsequent Assessments; progress reports; requests for parent-teacher conference and follow-up notes; Special Needs Assessments; Individual Education Plans; follow-up reviews.

10. Terms Used Concerning Special Education
Certain terms are defined as follows for purposes of interpreting and administering special education.
• ARD refers to the Admission, Review, and Dismissal Committee assigned to a student.
• IDEA means the Individuals with Disabilities Education Improvement Act of 2004, and any subsequent amendments to the statute.
• IEP means the Individual Education Program established for an eligible student pursuant to IDEA.
• IFSP refers to the Individualized Family Service Program. • LEA means the Local Education Agency, responsible for furnishing
special education services for all eligible children in its jurisdiction.
• SEA refers to the State Education Agency.

11. Special Education Services - Facilities All facilities shall coordinate and therefore provide the following special education services to eligible children:

a. Routine Screening at Intake: Facility Staff will fill out the Preliminary Questions section of the Educational Services Eligibility Worksheet Form for each person for whom it seeks the assistance of the LEA and deliver or make the form available to LEA within 2 days. In addition, Facilities will develop and implement a public awareness effort that focuses on the early identification of children who are eligible for services. Facility staff will also attend training to familiarize them with the process involved in identifying and

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assessing children potentially in need of early intervention or special education services. Facilities will utilize standardized screening tools as approved by the respective state and in use by the LEA
b. Furnishings and Equipment: Facility Staff will provide the LEA with necessary space, furnishings, and equipment located within the facility, including, but not limited to, desks, chairs, or any other furnishings or equipment that the LEA deems necessary for the proper delivery of services.
c. Access to Students by LEA: Facility Staff will permit access to students by the LEA instructional and assessment personnel and ARD Committee members as required for instruction, assessment, testing, participation in ARD meetings, and other matters required for provision of educational services under IDEA or other state or federal statutes.
d. Access During Normal School Hours: The LEA will be presumed to require access to students during normal student hours. For purposes of this standard, normal school hours will be 8:00 am until 4:00 pm, Monday through Friday, on a year-round schedule.
e. Off-site Availability of Services: Transportation services will be provided for those eligible students whose special education needs cannot be met onsite at the facility, or whose ARD Committee members have determined would be better served off-site or at a designated LEA location.
f. LEA Access to Student Records: The facility will provide designated LEA personnel with appropriate student information, including educational records, for purposes of determining eligibility for educational services; to the extent such provisions are permitted without violating the student’s privacy rights.
g. Classrooms and Related Facilities: Facility Staff will make available for the LEA’s use of a space for instruction, testing, or assessment, and an ARD Committee meeting room. Such facilities will be made available for use by the LEA according to a mutually agreed upon schedule.

12. Special Education Services – Procedures with LEA A member of the IEP Team will participate in ARD Committee meetings when LEA assistance has been requested.

Facility Staff with assure procedural safeguards required by IDEA are following on all matters on which LEA’s assistance has been requested, including, but not limited to:

a. Notification to LEA and parents of change in conditions of residency affecting a student’s participation in educational or other activities as specified in the student’s IEP.

b. Notice to the student and parent of ARD meetings.

c. Notice to students of procedural safeguards on forms to be provided by LEA.

d. Assist LEA in obtaining consent from students and parents for assessment, initial placement, and reevaluation.

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e. Notify LEA of student communications to Facility Staff regarding IDEA or other educational services.
13. Special Education Services – Coordination with LEA Facility staff will coordinate with the LEA to provide for the education and related services for eligible students. The following services shall be provided:
a. Determination of Eligibility for Services and Curriculum: For students identified by the Facility IEP Team, the facility will coordinate with the LEA to determine whether the students are eligible to receive educational services under IDEA and/or other statutes through the LEA, and will provide a free and appropriate public education for all students determined by LEA to be eligible for such services.
b. Classroom Instruction: For students with an IEP, the Facility will coordinate with the LEA to provide classroom teachers and other personnel necessary to meet the requirements of IDEA and other state or federal requirements applicable to the LEA. Such services will be provided as dictated by the conditions of the IEP and the requirements of IDEA.
c. Instructional Materials: For identified and eligible students, the Facility will coordinate with the LEA to provide books and other instructional and evaluation materials, including computer software that is necessary as determined by an ARD Committee, to provide services sufficient to meet IDEA and other applicable state and federal requirements during the Lea’s normal school year.
d. ARD Committee Meeting and Notices: The Facility will coordinate with the LEA to provide an IEP for each identified and eligible student, and will convene ARD Committee meetings as required to meet IDEA requirements. The LEA will provide notice of all meetings to the Facility, and the Facility IEP Team will provide notice directly to the student and parents.
Standard Approved:

______________________________ John P. Torres Director Office of Detention and Removal

_____________________ Date

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 ICE/DRO RESIDENTIAL STANDARDS

EMERGENCY PLANS

I. PURPOSE AND SCOPE. Contingency plans are in place to quickly and effectively respond to any emergency situations that arise and to minimize their severity, thereby providing a safe environment to residents and staff.
These general emergency plans are in addition to those developed under the facility’s health authority for control of communicable diseases (including avian flu).
II. EXPECTED OUTCOMES. The expected outcomes of this Standard are as follows:
1. Each facility will have in place contingency plans to quickly and effectively respond to any emergency situations that arise and to minimize their severity.
2. Staff will be trained at least annually in emergency preparedness and implementation of the facility’s emergency plans.
3. An evacuation plan will be in place in the event of a fire or other major emergency, and the plan will be locally approved and updated at least annually.
4. Events, staff responses, and command-related decisions during and immediately after emergency situations will be accurately recorded and documented.
III. DIRECTIVES AFFECTED. None
IV. REFERENCES
The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non-government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
American Correctional Association 4th Edition, Standards for Adult Detention Facilities: 4-ALDF-1C-01, 1C-02, 1C-03, 1C-04, 1C-05, 1C-06(?).
ICE/DRO Residential Standard on Environmental Health and Safety that provides requirements and guidelines for avoiding and mitigating dangerous situations, specifically in regard to fires, environmental hazards, and evacuations.
ICE/DRO Residential Standard on Use of Physical Force and Restraints that provides requirements and guidelines for emergency situations that require the use of force.
Memorandum dated 7/14/2006 on Escape Reporting from the ICE/DRO Director, which specifies requirements for the reporting, tracking, and investigating of the escape of an ICE/DRO resident.

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V. EXPECTED PRACTICES
1. Staff Training Each facility shall include emergency preparedness as part of the initial orientation and training provided all new employees, and all staff shall be trained at least annually on the facility’s emergency p lans.
Other related training requirements are specified throughout this document, including but not limited to facility “climate” monitoring, Special Response Team (SRT), Hostage Negotiation Teams, video equipment, and the Incident Command Post.
2. Preventive Action a. Climate Monitoring
Staff awareness of changes in facility "climate," promptly reported, can be of critical importance in defusing a potentially explosive situation. Residential management experience indicates that certain circumstances may predictably contribute to increased tensions in a detained population. Often such issues can be controlled or lessened before they escalate into some sort of incident or disturbance.
Staff shall be trained to watch for signs of mounting tension among the resident population, such as a sudden increase in the number of resident requests and incident reports, sullen, restless, and short-tempered behavior, or residents avoiding contact with staff.
Factors known to exacerbate tensions that may lead to group disturbances include, but are not limited to:
� Racism, � Heightened complaints about food, � Dissatisfaction with the performance or attitude of staff,
� Increasing complaints about recreation, medical care, visiting, mail, etc., � Prohibited sexual activity, and
� Inaccurate or incomplete information about resident cases or facility policies.
b. Staff Actions
Staff may improve their chances of preventing and deescalating resident unrest by:
� Discussing plans, programs, and procedures among themselves, and communicating as much as possible to residents;
� Treating residents fairly and impartially;
� Reducing misunderstandings among residents, for example, by enforcing and explaining rules that prevent any individual or group from imposing its will on other residents;

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� Resolving misunderstandings and conflicts as they arise;
� Encouraging participation in work and recreational programs; � Routinely reporting on facility climate and resident attitudes to the facility
administrator; and � Alerting supervisors at the first sign(s) of trouble, group hostilities, etc.
Quick, decisive staff action can prevent the start or spread of a disturbance.
The facility administrator shall develop written procedures for staff to follow when reporting an emergency.
c. Pre-Incident Considerations When all attempts to defuse a volatile situation have failed, the facility administrator shall determine how to proceed, based on considerations of safety (residents, personnel, general public), property, protection and, if applicable, the safety and welfare of hostages.
3. Contingency Plan Development a. Basic Planning
1) Responsibility
All emergency contingency plans shall comply with the ICE/DRO standards for confidentiality, accountability, review, and revision included in this section.
Each plan shall include procedures for rendering emergency assistance to another ICE/DRO facility, for example, supplies, transportation, and temporary housing for residents, personnel, and/or TDY staff.
The Assistant Facility Administrator for Operations is the individual responsible for developing each contingency plan and implementing it when an emergency situation occurs. In the development process, he or she shall tap the expertise of all department heads and ensure all departments have “ownership” of the plan.
Each facility shall ensure an accurate inventory of equipment identified in Attachment L, “Emergency Preparedness Status Report,” of the Emergency Preparedness Program document and shall review that inventory at least twice annually to ensure its accuracy.
2) Planning with Other Agencies Each Facility shall develop contingency plans with local, State, and Federal law enforcement agencies and formalize those agreements with Memoranda of Understanding (MOU).
� Facility legal staff and/or the respective Field Office Chief Counsel should review references to arrest authority, use of intermediate and deadly force, jurisdiction, outside-agency involvement, etc.

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� The facility administrator and representatives from the affected agencies shall cosign each MOU.
� Simulated exercises to test the plans shall occur on a regular, mutually agreed-upon basis.
� The plans shall be reviewed at least annually.
If any Local, State, or Federal agencies decline to participate, the facility administrator shall make periodic contact to revisit the issue.
The Facility is required to forward copies of their contingency plans and each MOU that pertains to those plans, to the Field Office Director and the Chief JFRMU when they are signed; when they are updated, and upon completion of the mandatory annual review of the plans.
b. Keeping Plans Current

The Assistant Facility Administrator for Operations shall:

� Update the plans as often as necessary and forward them for facility administrator approval. If the facility administrator requests changes, the Assistant Facility Administrator for Operations shall incorporate them and resubmit the plans within 30 days.
� Plan and schedule annual contingency plan reviews, with participation from every department head.
� Document each annual review in the master copy of the Contingency Plan File, even if the review resulted in no modifications.
c. Safeguarding Plan Confidentiality
Every plan that is being developed or is final must include a statement prohibiting unauthorized disclosure of the plan. Staff may not discuss any aspect of a plan within earshot of a resident, a visitor, or anyone else not specifically designated as someone who is authorized access to the information set forth in the plan.
The Assistant Facility Administrator for Operations (AFAO) shall determine who will be designated as persons authorized to have access to the plans, listing in writing the names of said persons and whether they are employees of ICE/DRO or other cooperative entities; where copies of the various plans are to be stored; and in what quantity the plans are to be reproduced. A master copy of each plan shall be kept outside the facility, along with an itemized list of the number of plans that have been created, the names of the persons who are authorized access to the plans, and where to find each specific copy of the plans.
The AFAO shall implement a checkout system that accounts for all plans at all times, with safeguards against resident access. The release of contingency plan details to unauthorized persons without the prior written approval of the Facility Administrator or the [AFAO] Assistant Facility Administrator for Operations will result in disciplinary action.

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d. Organization of the Contingency Plan File � General Plans. A general section is to contain, policy, procedures, and plans common to most emergency situations. � Contingency-Specific Plans. The sections that follow the general section are to contain contingency-specific plans, as detailed below. They need not repeat what is in the general section and shall contain only the exceptions and/or additions applicable to the particular contingency.
4. General Implementation of Contingency Plans
Each facility shall establish written policy and procedures addressing, at a minimum: chain of command, incident command post/center, staff recall, staff assembly, emergency response components, use of force, videotaping, records and logs, utility shutoff, employee conduct and responsibility, public relations, facility security, etc.
The respective Field Office Director shall maintain up-to-date data on the physical capacities of each facility in order to allow for a quick assessment of the scope of the emergency and the most immediate and best source(s) of assistance available to respond to the emergency.
a. Facilities Chain of Command The facility administrator shall identify the chain of command for directing operations in an emergency.
b. Incident Command Post
1) Equipment for the Command Post
The facility shall set up a primary command post outside the perimeter that, at a minimum, is equipped as follows.
(a) Internal/external phone capabilities � Two private outside lines:
o A speakerphone for open conference calls among the facility, Field Office, and JFRMU.
o A second line to handle all other calls.
� A separate line for internal communications.
(b) Radio equipment equipped for facility frequencies, local law enforcement communications and, if possible, other Federal law enforcement agencies;
(c) A computer with Internet capabilities. (d) Facility plot plan, including property maps, up -to-date building
blueprints, local maps, and overhead photographs; (e) Videotapes of building interiors within the secure perimeter (showing
doors, windows, closets, ceilings, floors, etc.); (f) Escape-post kits, including maps, directions, etc. (as detailed below
under the contingency-specific plan for escape); (g) Contingency plans – one or more copies;

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(h) Hostage Negotiation Team equipment; (i) Videotape player/television; (j) Voice-activated recorder or conventional tape recorder; (k) Assault/breaching plans; and (l) An Emergency Kit containing logbooks, blank rosters, purchase
orders, writing utensil and any other items determined to be essential by the AFAO.
2) Staffing the Incident Command Post
The Facility Administrator shall control the decision making process, until the arrival of a senior ICE official at the discretion of the Field Office Director and JFRMU.
Command Post staffing shall include, but is not limited to, the following:
• Facility Administrator or Incident Commander;
• Assistant Facility Administrator for Operations;
• A person designated by the Assistant Facility Administrator for Operations to document and record the emergency situation and the responses thereto in chronological order;
• A person responsible for maintaining open lines of communications with the ICE/DRO, throughout the situation; and,
• A person responsible for controlling traffic in and out of the Command Post. To control incoming and outgoing Command Post traffic, the Assistant Facility Administrator for Operations may implement a temporary pass system or take such other measures as are necessary to restrict access to the facility.
To ensure alertness:
� Command Post staff must determine a safe and appropriate rotation of shifts from available personnel.
� Relief personnel shall take over from the Command Post staff promptly after each shift.
� The rotation of staff shall include additional staff to relieve the assigned staff, if available, for short breaks during each shift to avert the mistakes and misjudgments that fatigue or stress can cause.
3) Activating the Command Post The Assistant Facility Administrator for Operations shall activate the Command Post at the Facility Administrator's direction.
The activated Command Post shall immediately open the conference-call line to the Field Office and JFRMU. The Field Office Director and the Chief JFRMU may wait until the dimensions of the unfolding incident are known before deciding to activate their command posts.

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The facility's Command Post shall remain activated 24 hours a day until the situation is resolved or the facility administrator determines it is no longer useful.
4) Testing and Training
Ongoing emergency preparedness activities shall include activation of the Command Post phone lines and other logistical support systems at least monthly to test the equipment and familiarize the staff with the Command Post and its equipment.
c. Emergency Recall List As detailed in the Residential Standard on Facility Security and Control, the facility Control Center is required to maintain a list of the phone numbers of every staff member, including the administrative/support services staff members, the local emergency response components, and the local law enforcement agencies. Once a month the call-down procedures to designated staff should be initiated to verify the accuracy of the information listed.
For emergency response purposes, the Control Center shall also maintain up -to­ date Field Office and JFRMU contact information.
d. Assembly of Staff
The facility administrator shall:
� Develop Control Center procedures for executing an all-staff recall;
� Designate primary and secondary areas for staff assembly, preferably in a location where the assembled staff cannot be observed by residents; and
� Identify, for each primary and secondary area, whether a specific contingency or emergency condition might require the designation of additional locations or other special exceptions for staff assemblage.
e. Emergency Response Components
The Facility Administrator shall ensure that appropriate personnel are trained under the Disturbance Control Program (DCP) and that a Special Response Team (SRT) and Hostage Negotiation Team (HNT) are established and maintained in accordance with ICE policies and directives.
The DCP is composed of trained staff who are able to don protective equipment capable of providing a non-lethal, unarmed response to a crisis, and who have available to them at a location not within the facility, special equipment to include standard riot batons, chemical agents, stun and impact munitions.
The SRT is a highly-trained, well-equipped, tactical team capable of providing both lethal and non-lethal options.
The HNT is composed of trained negotiators whose goal is to bring a successful resolution to a crisis through verbal dialogue.
If the facility does not have the capacity to establish or maintain these Emergency Response Teams, the Facility Administrator shall develop

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agreements (MOU) or liaisons with local, State, or Federal agencies, as appropriate.
f. Use of Force
Any force that must be employed to control an emergency situation shall be in accordance with the Residential Standard on Use of Physical Force and Restraints and any other applicable ICE policies on the use of force.
g. Video Equipment
At least one video camera shall be maintained in the Control Center for use in emergency situations, and the facility administrator shall ensure that it is maintained, tested, and supplied as required in the section on “Maintaining Video Recording Equipment,” in the Residential Standard on Use of Physical Force and Restraints.
Shift supervisors, along with other designated staff, shall be trained in the requirements and procedures for video-taping use-of-force incidents, and shall be trained in the use of video equipment, including the identification of tapes and photographs by date and location.
h. Records and Logs
The Facility Administrator or the Assistant Facility Administrator for Operations shall designate the Incident Command Post staff member who shall keep a contemporaneous date-and-time chronological record of events during the emergency, including, but not limited to: all command -related discussions, noting the names of the persons involved in the discussions; the decisions made; the phone numbers and persons contacted; and radio transmissions and responses received. Where possible, radio transmissions shall be documented by a voiceactivated recorder.
Command Post staff shall also maintain a reading file to update the relief staff reporting for duty.
i. News Media/Public Relations
The ICE Public Information Officer is responsible for coordinating briefings with news and television media. Information shall not be released through any other source.
j. Facility Security
The Facility Administrator shall provide written procedures for,
• Resident roll-call in accordance with the Residential Standard on Resident Census
• Intensifying security, Emergency Security Measures;
• Security key access (issuance and accountability, drop chute, etc.); and
• Evidence preservation.

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k. Health Services Responsibilities
The contingency plan shall specify procedures for providing immediate and follow-up medical care to residents and staff, with alternative or back-up procedures explained for a variety of emergency scenarios.
l. Food Service Responsibilities The contingency plan shall specify procedures for updating the Food Service Administrator when emergency conditions change the number of people who will be requiring food service.
The Food Service Administrator (FSA) shall make contingency plans for providing meals to residents and staff during an emergency, including additional resources available from the local community, and the projected costs of using those resources, which the FSA shall ascertain during the planning phase.
1) Maintenance Department Responsibilities
The contingency plan shall provide for emergency utility control, including plot plans identifying water and gas shut-off valves and electricity on-off switches. It is recommended that the utility shut-off valves or switches be photographed, mapped and included in the contingency plans for quick identification during an emergency.
2). Employee Conduct and Responsibility The contingency plan shall address professional conduct and responsibility, including what to do if taken hostage that may include instructions and guidelines on:
� Staying calm and controlling emotions,
� Being deliberate - thinking before speaking or acting, � Accepting the reality of the situation, � Using a mild tone when speaking with captors,
� Observing captors, mentally noting their distinguishing characteristics (physical features, weapons, clothing, etc.),
� Responding to captors' orders, � Eye contact and other interactions with captor(s), � Telephone communications,
� Escape attempts.
3) Facility Access Routes
The plan shall specify alternative access routes which enable emergency personnel to reach the facility if the main approach becomes dangerous or inaccessible (i.e., a civil disturbance, extreme weather conditions, fire, etc.).
4) Nearby Residents The plan shall specify how and when staff shall notify nearby residences of the situation, including the type of emergency, actions being taken, evacuation routes, if applicable, and special precautions. The process of

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notifying nearby residents of the emergency situation should be coordinated with the ICE Public Affairs Office whenever possible to avoid and anticipate an adverse reaction to the information.
5) Communications Equipment/Radio The plan shall specify whether the remote battery-charging units shall be maintained in the Control Center or outside the secure perimeter. A determination as to the type of radios being used in the facility should dictate the location of the battery charging units. If the radios can be taken off-line and rendered useless, the battery charging units may be maintained inside the secure perimeter. If not, they should remain outside the secure perimeter.
m. Post-Emergency Procedures The post-emergency part of the plan shall include, among other things, the following action items:
1) Segregating the residents involved in the incident;
2) Collecting written reports;
3) Preserving evidence;
4) Accountability (equipment, staff, etc.);
5) Damage assessment and repair of the facility;
6) Documentation of the nature and extent of any injuries;
7) Coordinating legal actions/prosecutions;
8) Debriefing and follow-up;
9) General review and critique of the emergency operations and management, with a follow-up agenda, including, but not limited to: � Monitoring the resident climate, and � Revising the Contingency Plan.

n. Contingency-Specific Plans

The facility shall compile individual contingency-specific plans, as needed, in the following order:

1. Fire 2. Work/Food Strike 3. Disturbance 4. Escape/Missing Child 5. Hostages (Internal) 6. Search (Internal) 7. Bomb Threat

8. Extreme Weather, i.e. hurricane, earthquake 9. Civil Disturbance 10. Environmental Hazard 11. Resident Transportation System Emergency 12. Evacuation 13. Nationwide Lockdown 14. Staff Work Stoppage 15. Other site-specific plans

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o. Fire The safety/maintenance supervisor shall develop a comprehensive Fire Control Plan, in accordance with the Fire Prevention and Control section of the Residential Standard on Environmental Health and Safety.
The Assistant Facility Administrator for Operations shall develop a procedural outline for shift supervisors in the event a fire occurs during non-duty hours.
m. Work/Food Strike The facility administrator shall determine the course of action to pursue, based on whether:
� Strikers have announced when the strike shall end; � There is violence; � The number of residents involved; � The prospects for neutralizing the problem.
q. Disturbance (Internal) After determining the course of action to pursue, the facility administrator shall direct staff to implement the action plan, which shall cover, at a minimum:
1) Controlling utilities;
2) Available emergency entrances, for example : Food Service, housing areas, etc.;
3) Trained emergency responders/other staff and equipment;
4) Perimeter security, including crowd, traffic, and media control;
5) Shutting down resident telephone systems;
6) Notification of outside agencies;
7) Remove controlled substances from the pharmacy area.
r. Escape/Missing Child Facility administrator shall develop plans in response to escapes or reports of a missing child.
1).. The facility administrator shall deploy staff to primary, secondary, and directional escape posts, designating a timekeeper/recorder for each:
� Primary. Fixed and mobile posts near the facility; � Secondary. Fixed and mobile posts beyond the immediate facility
area; � Directional Posts. No fixed location and based on situational
intelligence that indicates a direction for the search.
2). The facility administrator shall immediately notify local, State, and Federal law enforcement agencies of the escape or report of a missing child.

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3). Escape-post equipment kits shall be stored in the Command Center, and include, at a minimum:
(a). Flashlight;
(b). Restraints (handcuffs and/or flex-cuffs);

(c). Packet containing post location, map(s), fact sheet highlighting 
 arrest authority, search procedures, apprehension techniques, etc.;

(d). Radio;
(e) Binoculars, if applicable.

4). Escape by aircraft:

(a) Observe and record aircraft description: colors, registration or tail number, direction of flight, etc.;
(b) Notify local law enforcement and Federal Aviation Administration;
(c) Firing on aircraft is prohibited, except to return fire originating from the aircraft. Even in that case, however, the usual deadly-force considerations apply, and staff must carefully weigh the consequences (the aircraft may crash into a building, the pilot is most likely under duress, etc.).
s. Hostage Situations
1). ICE/DRO Field Office Hostage Situation Management Plan The Field Office Hostage Situation Management Plan shall make available the essential logistical support, local and/or backup resources (equipment, expertise, personnel) to any affected facility in the jurisdiction.
(a) The Field Office and JFRMU shall jointly provide designated facilities with well-trained and equipped hostage negotiators/Hostage Negotiation Teams (HNTs).
(b) The Field Office plan shall identify, for each facility, the backup personnel, mental health professionals, and others as needed during a prolonged crisis. The Field Office shall maintain a list of all ICE/DRO hostage-negotiation trainers/consultants and trained negotiators in the jurisdiction.
(c) The Field Office Director, in consultation with the facility administrator, shall ensure the availability of Crisis Support Teams, consisting of trained counselors/therapists to:
� Provide post-crisis services to staff and families, and � Upon request, assist facility administrator to develop site-
specific emergency plans for victims and their families.

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2). Hostage Negotiation Teams (HNT’s)
(a) Each facility’s core negotiation group (generally the team leader, primary negotiator, and mental health expert) shall attend Hostage Negotiation Training.
� Requirements for the team leader include: experience and skill applying to hostage negotiation principles and strategies, working effectively under stress, and proven leadership ability. The facility administrator shall generally select a department head as the team leader.
� Negotiators must possess strong verbal/interpersonal skills, personal maturity, a commitment to negotiation as the key to conflict resolution, flexibility, and a history of working well under pressure.
(b) The Headquarters JFRMU shall:
� Maintain a roster of ICE/DRO personnel who are trained in hostage negotiation and qualified and available for work on an HNT in any ICE/DRO facility; and
� Provide copies to the Field Offices and keep them updated.
(c) HNT members shall convene for no less than eight hours of duty time every quarter to plan, practice negotiation scenarios, consult with other law enforcement agencies, etc. To solidify working relations and complementary strategies and techniques/tactics, an SRT member shall serve as team liaison and routinely attend the negotiation team's monthly sessions.
(d) Whenever possible, the negotiation team shall conduct annual joint training sessions with negotiators from other law enforcement agencies and maintain contact with counterparts in other agencies.
(e) Training exercises integrating the activities of the Command Post, HNT and SRT shall occur eve ry six months to underscore the importance of a total facility response to a hostage situation. As participants collaborate and interact, they will experience how the other operational teams think and function, as well as what each can contribute in a crisis.
(f) Every negotiation team shall have access to portable communication equipment, or "throw phones." To operate the equipment when needed in an emergency, team members shall have access to the equipment for routine practice sessions. A communications equipment expert, thoroughly familiar with the operation of the throw phone, should be available to each negotiation team during practical exercises.
(g) Each facility shall maintain a list of translator services, in the event one is needed for hostage negotiation.

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(h) Each facility should also consider having available an electronic translator, such as the Phraselator, a hand-held computer that translates more than 1000 spoken English phrases into other languages.
3) Chain of Command As a general rule, the Facility Administrator will ensure the Field Office Director and JFRMU are apprised of every aspect of the crisis on a pre­ determined schedule until the crisis is resolved or until ICE/DRO assumes command and control of the incident. JFRMU may at its discretion assume control of a large-scale operation involving coordination with other ICE/DRO components and law enforcement agencies.
(a) The facility administrator shall immediately report a hostage situation to the Field Office Director, who shall in turn notify the JFRMU. The facility administrator shall assign a senior manager to serve as liaison with the Field Office and JFRMU..
(b) ICE/DRO shall notify the FBI and other agencies, as appropriate, of the situation.
(c) Circumstances may exist where external law enforcement agencies assume command authority unless federal regulations prevail.
4). Contain the Disturbance and Secure the Facility (a) Prevent movement into or out of the scene of the hostage area;
(b) Add exterior, armed patrols;
(c) Terminate resident telephone usage;
(d) Limit or curtail staff radio usage;
(e) Remove visitors and civilians, including contract employees and volunteers;
(f) Recall residents for immediate official count;
(g) Remove residents from the hostage area. If in a housing unit, move the residents into temporary housing, in accordance with written, site-specific procedures;
(h) Conduct staff roll call, in accordance with written procedures, to determine the number and identity of hostages.
5). Negotiations
The facility administrator shall have no hands-on involvement in the negotiation process. Once the emergency response component has contained and stabilized the immediate situation, the trained HNT shall take over.
(a) Hostage negotiators act as intermediaries between the Incident Command Post and the hostage-takers, keeping the lines of

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communication with the captors open and maintaining calm, while working toward a nonviolent resolution.
(b) The HNT shall generally include:
(1) Team leader (manages negotiations; Command Post liaison);
(2) Primary negotiator (communicates directly with hostage takers);
(3) Secondary negotiator (advises/assists/spells primary negotiator);
(4) Mental health professional (observes, provides psychological analyses/ assessments and advice; monitors stress levels/emotional climate); and
(5) Note taker (documents every communication to/from hostage takers).
(c) Hostage negotiators shall have no decision-making authority. Negotiators shall maintain close contact with the decision-makers and persons in charge of tactical assault teams via periodic briefings on the status of the negotiations.
(d) Certain issues are not open to negotiation, such as releasing the hostage-taker(s) from custody, providing weapons, arranging a hostage exchange, and immunity from prosecution.
(e) Third-party participation in negotiations shall be consultative only.
(f) Unless formally involved in the negotiations, staff shall have no contact with the hostage-takers.
6) Status of Certain Staff During and After a Hostage Situation (a) Regardless of individual rank or authority facility personnel shall, under normal conditions, discount instructions/orders/suggestions from any supervisor or other staff member who is a hostage.
(b) A staff member with a relative or close associate among the hostages shall be relieved from duty, responsibility, and authority pending resolution of the incident.
(c) Emergency plans shall specify the procedures for screening freed hostages for medical and psychological problems. � The U.S. Public Health Service (USPHS) shall coordinate and conduct the screenings and debriefings of all hostages and other employees involved in the disturbance. � Psychological screenings shall take place within 36 to 48 hours of the hostages' release to guide decisions about counseling/therapy and work reentry.
� The USPHS shall advise the senior official in charge of any employees who may be unfit for duty.

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(d) The facility administrator shall ensure that there is a debriefing with the former hostages after their psychological and medical screenings, unless USPHS staff advises postponement.
(e). Emergency plans shall also provide for the debriefing of personnel not taken hostage, but significantly involved in the operation to free the hostages.
7). Hostage Family Services (a) ICE/DRO shall notify the hostages' families of the situation as early as possible.
(b) If the situation is not resolved quickly, the Field Office Director (or designee) shall identify the members of the Crisis Support Team and direct them to establish a family service center at the facility. � The Crisis Support Team shall be distinct from the HNT. � The two teams shall have no members in common.
(c) At the family service center, the Crisis Support Team shall provide members of affected families accurate information, updates and breaking news, and professional advice and help. Among other things, the families may form mutual support groups.
(d) The Crisis Support Team shall directly address children's stress and stress-generated behavior. The Employee Assistance Program may assist with the family's stress management.
8) Media In accordance with the Residential Standard on News Media Interviews and Tours, the ICE public affairs officer handling press releases and inquiries is responsible for:
� Situating any media representatives who are present in an area where their presence will not interfere with emergency operations.
� Arranging regular briefings.
t. Search (Internal)
1) Search Teams The shift supervisor shall serve as search coordinator, dispatching separate two-person search teams for every missing resident, at least one of whom shall be thoroughly familiar with the assigned search area.
The supervisor shall instruct them regarding which keys to draw, which search method to use, areas with nonstandard construction features (temporary or permanent); and the designated radio frequency.
2) Equipment � Master blueprint or schematic for search coordinator; � Separate blueprints for each search area;

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� Radios (one per team); � Flashlights; � Restraints; � Ladders; � Tools as needed; � Cell phone
u. Bomb Threat
1) Immediate Response (a) Phone Threat. The facility administrator shall develop a "script" for staff to follow upon receiving a telephoned bomb threat and make it available at every staff telephone for instant access.
(FBI Bomb Threat DATA Form, DOJ 370)
The objective of the scripted questions is to secure the following information from and about the caller:
� Bomb location � Time set for detonate � Type of explosive � Caller's affiliation/self-identification (credibility of threat) � Caller's gender, accent, tone, other characteristics.
(b) Mail Threat. The facility administrator shall instruct staff to consider suspect any letter or package with:
� Oily/greasy stains/discoloration; � An incorrect title/department for the addressee; � The addressee's name misspelled; � Disproportionate weight relative to the size of the envelope or
box; and/or: � No return address.
(c) Written Threat. Upon receipt of a written threat, staff shall treat the paper or other means of communication as they would any other evidence -- preventing unauthorized handling of the material and saving all material associated with the delivery (envelope, wrapping, etc.).
(d) In-Person Threat. Staff shall elicit as much information as possible from the person who has delivered an in-person threat while simultaneously contacting a supervisor.

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2) Searching for a Bomb The shift supervisor shall notify the local fire department and hospital, in addition to the Assistant Facility Administrator for Operations, facility administrator, safety/maintenance supervisor, and other appropriate facility officials and ICE.
(a) Search teams shall report any suspicious object immediately upon discovery. At least one member of each search team shall know the assigned area well enough to spot changes, for example, unusual objects, items moved from their normal locations, etc.
(b) If appropriate, the facility administrator shall order a power shutdown.
3). If a Bomb Is Found (a) Team members shall not attempt to move or deactivate the device.
(b) To prevent accidental activation of the device, team members shall not use radios, body alarms, cell phones, any and all electronic equipment capable of emitting an RF signal.
(c) Incoming traffic shall cease.
(d) The shift supervisor shall notify the bomb removal agency listed in the written procedures.
(e) Staff shall clear and secure all areas within the threat zone.
4). After an Explosion (a) The designated emergency response personnel shall implement precautionary measures, ensuring safe evacuation of remaining occupants, including those with injuries in accordance with written procedures, that assume: � Structural damage � Additional bomb(s). � Casualties
(b) The Bureau of Alcohol, Tobacco, and Firearms, the Federal Bureau of Investigations, the local fire chief, or other explosive expert shall conduct the investigation.
v. Extreme Weather After defining and mapping the interior and perimeter-post areas, the facility administrator shall:
1) Prepare a separate map showing locations of all interior posts. Set up and equip fog-patrol posts; establish procedures and assign responsibility for ensuring equipment is available and in working order at all times.
2) Prepare another map showing locations of all perimeter/exterior posts.
Store multiple copies of the interior and perimeter-post maps in the Control Center and Incident Command Center.

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3) Ensure that the perimeter security has been enhanced with additional staff.
4) Remove objects and items which could become airborne and act as missiles during high winds.
5) Ensure staff is appropriately provided with necessary foul weather gear.
6) Ensure generators are functioning properly and have an adequate supply of fuel for a protracted situation.
7) Ensure that if institution is placed on recall status, a briefing with staff occurs.
8) It is suggested that if the facility is placed in recall status, an explanation shall be provided to the resident population outlining the reasons for the recall and the anticipated duration.
w. Civil Disturbance 1) Scenarios
The plan shall address various scenarios, for example, a single event (small/large); several coordinated events at one or more locations, at one or staggered times; type of event and individuals involved; other law enforcement agency involvement, etc.
Depending on the scenario, the plan shall specify procedures for multiple deployments involving the same and/or different kinds of equipment and teams, in the event of simultaneous demonstrations.
2) Basic Procedures
The plan shall specify procedures for standard activities, including, but not limited to, the following:
� Denying access to facility property (barricades, roadblocks, etc.), � Using riot equipment with the general public, � Notifying/involving other law enforcement agencies, � Establishing holding areas, � Marking unmarked property lines, � Medical care, � Environmental Hazard
x. Safe Harbors (shelter in place) The facility administrator shall identify and equip one or more "safe harbor" areas in the facility. � These designated areas shall have the capacity to house a large number of residents safely and securely for two or three days (gym, auditorium, food service area, etc).

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� Every designated safe harbor shall maintain supplies of, among other things, duct tape, plastic, and other items intended for use during an environmental hazard.
Every department (food service, medical, maintenance, recreation, administration, etc.) shall have written procedures, and at least three days' provisions, for use in temporary quarters. The objective is to disrupt the daily routine as little as possible.
y. Procedures When There Is an Environmental Hazard
1) The facility administrator shall designate staff to seal off the specified area(s) in a timely manner. � Staff shall receive the necessary training as part of the facility's emergency-preparedness training program. � The plan shall specify how often and where the specialized training shall occur. � The plan shall specify that all employees will receive the training.
2) The safety/maintenance supervisor shall, if necessary, shut down ventilation units (cooling/heating systems, fans, etc.).
3) The shift supervisor shall direct the residents' orderly transfer to the safe harbor areas.
4) Staff shall transport resident identification cards to the safe harbor areas, to ensure accountability.
5) Residents may take no personal property into safe harbor areas. 6) When the danger has passed, the shift supervisor shall direct the
residents’ return to their housing areas, after which staff shall conduct a population count. 7) If environmental conditions worsen or fail to improve within an acceptable time frame, the facility administrator shall implement the facility's Evacuation Plan.
z. Resident Transportation System If an emergency occurs while residents are being transported, the facility administrator shall, upon request, provide any or all of the following: � vehicular escort
� personnel � mechanical assistance � medical assistance
� transportation (if vehicle disabled) � notification to other law enforcement agencies
� holdover lodging.

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aa. Evacuation
It is suggested tha t facilities enter into contract negotiations with vendors who are 75 – 100 miles from their facilities to provide resources at an agreed upon cost in advance of potential emergency events. The purpose of this is, if the local area is affected, community resources will ordinarily be directed towards hospitals, nursing homes, schools, etc.
1) The facility's plan shall factor in all variables, and combinations of variables, that may precipitate or affect a mass evacuation, such as the following contingencies, and their repercussions:
(a) Minimal warning/preparation time; (b) Weather-related complications for example, tornadoes,
hurricanes, blizzards, etc. (c) An area-wide disaster would limit facility access to State and local
emergency services (police, fire department, hospitals, military) and transportation provider; (d).At least 10 percent of the staff fail to respond when recalled. The type and scope of the emergency would determine whether and by how much that percentage might increase.
2) For every evacuation scenario, the plan shall:
(a) Identify and prepare a list of suppliers to provide essentials during the emergency;
(b) Prepare an alternative list, identifying product substitutions and alternative suppliers;
(c) Assign priorities among the essentials listed, recognizing the likelihood of shortages occurring during an area-wide emergency.
3). The facility administrator shall secure as many signed contracts, agreements, and commitments for transportation and supplies when needed Federal and other public-sector resources are unavailable.
4). Pre-Evacuation Procedures
(a) Emergency staff recall (time permitting); (b) Implement procedures to retrieve/pack residents' personal
property, central files, medical records, etc.; (c) Implement department-by-department procedures to transport
material needed to conduct daily operations at the temporary site: personnel files, blank rosters, forms, etc.; (d) Deploy emergency equipment;
(e) Notify State and local authorities; and (f) Conduct (exit) emergency count.
5) Facility Shutdown
(a) Verify the count; (b) Implement the internal search plan, if appropriate;

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(c) Apply emergency utility controls; and (d) Secure the site, to extent possible.
6) Transition to Temporary Site
(a) Confirm the previously projected number of vehicles needed for:
• Residents
• Supplies. (b) Record vehicular data, including number and source(s); (c) Reconfirm security arrangements with other ICE/DRO
components, the Bureau of Prisons, U.S. Marshals Service, local and State agencies, and the military; (d) Confirm staffing/assignments, including TDY arrangements.
(7) Family Management
(a) Provide a plan of action to accommodate management of family units during emergencies.
(b) Develop a response plan when family units are separated temporarily or permanently due to unexpected illness, evacuation, or unforeseen circumstance causing an unexpected and unavoidable separation of minors and the parents or guardians.
aa. Nationwide Lockdown In the event there is a compelling need to secure all ICE/DRO facilities, the JFRMU shall notify Field Office Directors, who shall notify the facility administrators to implement restrictive movement plans in family residential centers.
1) The facility administrator shall implement the following procedures:
(a) Emergency count; (b) Staff briefing (may include interim increase to 12-hour shifts); (c) Suspend resident access to telephones and televisions; (d) Suspend visitation. Designated staff shall attempt to contact
individuals with visits planned. Residents may notify interested persons of the lockdown and suspension of visits by mail; (e) Initiate staff secure movements within the facility; (f) Activate the Incident Command Post; (g) Contact specialized personnel and teams, as appropriate, etc.); 2) The facility administrator shall inform the residents, in writing, why restrictions are necessary, what to expect, and how long it is likely to last. The facility administrator shall provide this resident notification as soon as possible after implementing the necessary procedures (as provided in preceding paragraph).
3) Health Services staff shall return to their regularly scheduled duties.

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4) When the nationwide lockdown is terminated, the facility administrator shall:
� Relax the restriction systematically, according to written procedures.
� Implement a Recovery Plan.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

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 ICE/DRO RESIDENTIAL STANDARD
ENVIRONMENTAL HEALTH AND SAFETY

I. PURPOSE AND SCOPE: High facility standards of cleanliness and sanitation, safe work practices, and control of hazardous substances and equipment are employed at the facility, thereby protecting residents, staff, volunteers, and contractors from injury and illness.
II. EXPECTED OUTCOMES. The expected outcomes of this Standard are as follows:
1. Maintenance of facility cleanliness and sanitation. 2. Compliance with all applicable safety and sanitation laws, ensured by documented
internal and external inspections and corrective action when indicated. 3. Compliance with all applicable fire safety codes. Facility furnishings will meet fire
safety performance requirements. Periodic safety drills will be scheduled. 4. Control and safe use of flammable, poisonous, toxic, and caustic materials. 5. Written plans and training will advise staff of required procedures in emergency
situations, including those that require evacuation from the facility. 6. A plan providing for immediate release of residents from locked areas, will be in place
and will include a secondary back-up system. 7. Emergency exits will be clearly marked, clear from obstruction, sufficient in number,
and properly positioned. 8. The need for emergency repairs will be negated and if necessary, replacement parts
will be available to minimize or avoid the creation of life-threatening situations. 9. Disease transfer will be minimized by proper sanitation of barbering equipment and
supplies. 10.Pests and vermin pests will be controlled and eliminated. 11.The facility’s potable water source will be safe. 12.Emergency lighting and life-sustaining functions will be maintained and periodically
tested. 13.Garbage and hazardous waste will be disposed of safely and in compliance with
applicable government regulations. 14.Where required, residents have regular access to translation services and/or are
provided information in a language that they understand. 15.The standard complies with federal laws and with DHS regulations regarding residents
with special needs.

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III. DIRECTIVES AFFECTED. None
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non­ government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
American Correctional Association 4th Edition, Standards for Adult DetentionFacilities: 4­ ALDF-1A-01, 1A-02, 1A-03, 1A-07, 1C-01, 1C-02, 1C-03, 1C-04, 1C-05, IC-07, 1C-08, 1C-09, 1C-10, 1C-11, 1C-12, 1C-13, 1C-14, 1C-15, 4B-07, 4C-18.
NFPA Standards
U.S. Public Health Service Report on Carcinogens
V. EXPECTED PRACTICES – HAZARDOUS MATERIALS Every facility shall establish a system for storing, issuing, using, and maintaining inventories of and accountability for hazardous materials. The effectiveness of any such system depends on written policies, procedures and precautions, and also on adequate supervision and responsible behavior of staff and residents to precisely follow instructions and take prescribed precautions, including the use of safety equipment.
A list of common flammable, toxic, and caustic substances is included at the end of this Residential Standard as Table A.
1. Personal Responsibility Every individual who uses a hazardous substance must:
a. Be knowledgeable about and follow all prescribed precautions,
b. Wear personal protective equipment when indicated, and
c. Immediately report hazards or spills to the designated authority.
2. Protective Equipment a. Protective eye and face equipment shall be required where there is a reasonable probability of injury that can be prevented by such equipment. These areas of the facility shall be conspicuously marked with eye hazard warning signs.
b. OSHA-approved eyewash stations shall be installed in designated areas throughout the facility, and all employees and residents in those areas shall be instructed in their use.

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3. Inventories Every area shall maintain a running inventory of the hazardous substances (flammable, toxic, or caustic) used and stored there. Inventory records shall beseparately maintained for each substance and entries for each logged on a separate card (or equivalent) that is filed alphabetically showing dates, quantities, etc.
4. Material Safety Data Sheets Files Every department or other area of the facility using hazardous substances shall maintain a file of Material Safety Data Sheets (MSDSs) that includes a list of the locations where hazardous substances are stored, along with a plant diagram and legend. Department heads are responsible for providing a copy of each file to the Safety Officer and Maintenance Supervisor.
a. MSDSs provide vital information on individual hazardous substances, including instructions on safe handling, storage, disposal, prohibited interactions, etc.
b. Staff and residents shall readily have continuous access to the MSDSs for the substances with which they are working.
c. Because changes in MSDSs occur often and without broad notice, staff must:
1) Review the latest issuance from the manufacturers of the relevant substances,
2) Update the MSDS files as necessary, and
3) Forward any changes to the Maintenance Supervisor, so that copy is kept current.
5. Master Index The Maintenance Supervisor shall compile all of the following:
a. A master index of all hazardous substances in the facility and their locations,
b. A master file of MSDSs, and
c. A comprehensive, up-to-date list of emergency phone numbers (fire department, poison control center, etc.).
The Maintenance Supervisor shall maintain this information in the safety office (or equivalent), and a copy shall be provided the local fire department.
Documentation of all reviews shall be maintained in the MSDS master file.
6. General Guidelines Regarding Hazardous Substances Issuance. Flammable, caustic, and toxic substances (hazardous substances) shall be issued (that is, drawn from supply points to canisters or dispensed) only under the supervision of the designated staff.
Amounts. All hazardous substances shall be issued in single-day increments, that is, the amount needed for one day’s work.

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Supervision. Qualified staff shall closely monitor residents working with hazardous substances.
Accountability. Inventory records for a hazardous substance must be kept current before, during, and after each use.
7. Flammable and Combustible Liquids
a. Any liquid or aerosol labeled “Flammable” or “Combustible” must be stored and used as prescribed on the label required by the Federal Hazardous Substances Labeling Act.
b. Lighting fixtures and electrical equipment installed in flammable liquid storage rooms must meet National Electrical Code requirements in hazardous locations.
c. Every hazardous material storage room shall: 1) Be of fire-resistant construction and properly secured;
2) Have self-closing fire doors at each opening;
3) Be constructed with either a four-inch sill or a four-inch depressed floor; and
4) Have a ventilation system (mechanical or gravity flow) within 12 inches of the floor, which provides at least six air changes per hour.
d. Every storage cabinet shall: 1) Be constructed according to code and securely locked at all times;
2) Stand clear of open passageways, stairways, and other emergency exit areas;
3) Be conspicuously labeled: “Flammable -- Keep Fire Away”; and
4) Contain not more than 60 gallons of Class I or Class II liquids, or more than 120 gallons of Class III liquids.
e. Storage rooms and cabinets may be entered only under secure conditions and under the supervision of authorized staff.
f. A portable container that is not the original shipping containers must be an approved safety can, listed or labeled by a nationally recognized testing laboratory. Each shall bear a legible label that identifies its contents.
g. Excess liquids shall remain in original containers, tightly closed, in the storage room or cabinet.
h. The MSDS shall govern use of a particular flammable or combustible liquid.
i. Only authorized staff may dispense flammable and combustible liquids, using acceptable methods for drawing or transferring these liquids.
Drawing from or transferring any of these liquids into containers indoors is prohibited except:
1) Through a closed piping system;
 2) From a safety can;


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3) By a device drawing through the top; or 4) By gravity, through an approved self-closing system.
An approved grounding and bonding system must be used when liquids are dispensed from drums. j. Without exception, cleaning liquids must have a flash point at or above 100� F (for example, Stoddard solvents, kerosene). Cleaning operations must be in an approved parts-cleaner or dip tank fitted with a fusible link lid with a 160� F meltingtemperature link. k. Staff shall follow MSDS directions:
 1) To dispose of excess flammable or combustible liquids.
 2) In case of a chemical spill.

8. Toxic and Caustic Substances a. All toxic and caustic materials must be stored in secure areas, in their original containers, with the manufacturer’s label intact on each container. b. Authorized staff only shall draw/dispense these substances, in accordance with the applicable Material Safety Data Sheet(s). c. Staff shall either return unused amounts to the original container(s) or, under certain circumstances, to another suitable, clearly labeled container in the storage area. d. MSDS directions shall determine the disposal and spill procedures for toxic and caustic materials used in the facility.
9. Poisonous Substances Poisonous substances or chemicals pose a very high (Class I) caustic hazard due to their toxicity, for example, methyl alcohol, sulfuric acid, muriatic acid, caustic soda, tannic acid, etc. Methyl alcohol, variously referred to as wood alcohol and methanol, is commonly found in industrial applications (for example, shellac thinner, paint solvent, duplicating fluid, solvents for leather cements and dyes, flushing fluid for hydraulic brake systems):
a. If ingested, methyl alcohol can cause permanent blindness or death. b. Staff must directly supervise the use of any product containing methyl alcohol,
except for products containing methyl alcohol in a much diluted state. If shoe dye that contains methyl alcohol is issued to residents, it may contain only the smallest workable quantity of methyl alcohol. c. Immediate medical attention is vital any time methyl alcohol poisoning is suspected.
10. Other Toxic Substances
a. Permanent antifreeze containing ethylene glycol shall be stored in a locked area

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and dispensed only by authorized staff. b. Typewriter cleaner containing carbon tetrachloride or tricholorochane shall be
dispensed in small quantities and used under direct staff supervision.
c. Cleaning fluids containing carbon tetrachloride or tetrachloride or tricholoroethylene must be strictly controlled.
d. Glues of every type may contain hazardous chemicals. When use of a nontoxic product is not possible, staff must closely supervise all stages of handling. The toxic glues must be stored in a locked location.
e. The use of dyes and cements for leather requires close supervision. Nonflammable types shall be used whenever possible.
f. Ethyl alcohol, isopropyl alcohol, and other antiseptic products shall be stored and used in the medical department only, under close supervision. To the extent practicable, such chemicals shall be diluted and issued only in small quantities so as to prevent any injuries or lethal accumulation.
g. Pesticides not approved by the Environmental Protection Agency, such as DDT and 1080 (sodium fluoracetate), are prohibited. The Maintenance Supervisor is responsible for purchasing, storing (in a locked area), and dispensing all pesticides used in the facility.
h. The Maintenance Supervisor or other staff member responsible for herbicides must hold a current state license as a Certified Private Applicator. Persons applying herbicides must wear proper clothing and protective gear.
i. Lyes may be used only in dye solutions and only under the direct supervision of staff.
11. Labeling of Chemicals, Solvents, and Other Hazardous Materials The facility administrator shall individually assign the following responsibilities associated with the labeling procedure:
a. Identifying the hazardous nature of materials adopted for use;
b. Requiring use of properly labeled containers for hazardous materials, including any and all miscellaneous containers into which employees might transfer the material;
c. Teaching staff the meaning of the classification code and the MSDS, including the safe handling procedures for each material, and impressing on staff the need to ensure containers are properly labeled; and
d. Placing correct labels on all smaller containers when only the larger shipping container bears the manufacturer-affixed label.
12. Controlled Hazardous Materials Certain substances require special treatment, including careful planning before use, which goes beyond attention to the warning label. These controlled materials are classified according to the type of hazard and the nature of the restrictions imposed for their safe

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use, as specified in OSHA regulations.
Class I: Industrial Solvents. These include industrial solvents and chemicals used as paint thinners, degreasers, and cleaning agents that may have toxic properties and low flash points, making them dangerous fire hazards.
Class II: Restricted Materials. Beryllium, its a lloys and compounds, and silver solder containing cadmium pose a danger to workers, for whom special precautions must be taken.
Class III: Recognized Carcinogens. OSHA-listed carcinogens are governed by the OSHA regulations provided in 29 CFR 1910.1000.
Although asbestos appears on the OSHA list, it is exempt from the regulation when: � No asbestos fibers will be released into the air during handling and use; and � The asbestos consists of firmly bound fibers contained in a product, for example, a transit pipe, wallboard, or tile (except when being sawed or otherwise handled in a way that releases fibers into the air).
Class IV: Suspected Carcinogenic, Teratogenic, and Mutagenic Materials. Chemical agents, substances, mixtures, and exposures listed in the biennial Report on Carcinogens issued by the U.S. Public Health Service, in accordance with the Public Health Service Act; the Maintenance Supervisor shall ensure the facility has and complies with the provisions of the latest edition.
VI. EXPECTED PRACTICES – FIRE PREVENTION AND CONTROL
1. Fire Safety Codes Every facility shall comply with standards and regulations issued by:
a. The Environmental Protection Agency (EPA) and OSHA,
b. The American Correctional Association "mandatory" Expected Practices,
Mandatory ACA Expected Practice 4-ALDF-1C-07 requires that the facility conform to applicable federal, state, and/or local fire safety codes, and that the authority having jurisdiction document compliance. A fire alarm and automatic detection system are required, as approved by the authority having jurisdiction (or there is a plan for addressing these or other deficiencies within a reasonable time period). If the authority approves any variance, exceptions, or equivalencies, they must not constitute a serious life-safety threat to the occupants of the facility.
c. Local and national fire safety codes, and
d. The applicable standards of the American Society for Testing and Materials, American National Standards Institute, and Underwriters' Laboratories or Factory Mutual Engineering Corporation.
New construction, alterations, and renovations, shall comply with:
a. The latest revision or update of the BOCA National Building Code (issued by

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Building Officials and Code Administrators International), b. The Uniform Building Code, or c. The Standard Building Code, in accordance with 40 USC Title 619 and local law. If the local government does not mandate adherence to a particular code, construction must conform to the BOCA National Building Code. In addition, the construction shall comply with the latest edition of the National Fire Protection Association's NFPA 101, Life Safety Code and National Fire Codes (NFCs). If the fire protection and life safety requirements of a local building code differ from NFPA 101 or the NFCs, the requirements of NFPA 101 and the NFCs shall take precedence and be recognized as equivalent to the local building code.
2. Inspections A qualified departmental staff member shall conduct weekly fire and safety Inspections. Facility maintenance (safety) staff shall conduct monthly inspections. Written reports of the inspections shall be forwarded to the facility administrator for review and, if necessary, corrective action determinations. The Safety Officer and Maintenance Supervisor shall maintain inspection reports and records of corrective action in the safety office.
3. Fire Prevention, Control, and Evacuation Plan Every facility shall develop a fire prevention, control, and evacuation plan to include, among other things, the following:
a. Control of ignition sources; b. Control of combustible and flammable fuel load sources; c. Provisions for occupant protection from fire and smoke; d. Inspection, testing, and maintenance of fire protection equipment, in accordance
with NFPA codes, etc.; e. Monthly fire inspections;
f. Installing fire protection equipment throughout the facility, in accordance with NFPA 101, Standard for Portable Fire Extinguishers;
g. Accessible, current floor plans (buildings and rooms); prominently posted evacuation maps/plans; exit signs and directional arrows for traffic flow; with a copy of each revision filed with the local fire department;
h. Conspicuously posted exit diagram conspicuously posted for and in each area.
4. Fire Drills Monthly fire drills shall be conducted and documented separately in each facility department.

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a. Fire drills in housing units, medical clinics, and other areas occupied or staffed during non-working hours shall be timed so that employees on each shift participate in an annual drill.
b. Residents shall be evacuated during fire drills, except in areas where safety would be jeopardized or in medical areas where patient health could be jeopardized or, in individual cases when evacuation of patients is logistically not feasible. Where residents are not evacuated, staff shall simulate drills.
c. Emergency-key drills shall be included in each fire drill, and timed. Emergency keys shall be drawn and used by the appropriate staff to unlock one set of emergency exit doors not in daily use. NFPA recommends a limit of four and onehalf minutes for drawing keys and unlocking emergency doors.
5. Exit Diagram In addition to a general area diagram, the following information must be provided on existing signs:
a. English and Spanish instructions;
b. "You Are Here" markers;
c. Emergency equipment locations.
New signs and sign replacements shall also identify and explain "Areas of Safe Refuge."
VII.EXPECTED PRACTICES – HAIR CUTTING OPERATIONS Sanitation in hair cutting operations is of the utmost concern because of the possible transfer of diseases through direct contact or by towels, combs and clippers. Towels must not be reused after use on one person. Instruments such as combs, clippers and scissors shall not be used successively on residents without proper cleaning and disinfecting.
1. For sanitation reasons, it is preferable that hair-cutting operations be located in a separate room, with hot and cold running water, that is not used for any other purpose. The floors, walls, and ceilings should be smooth, nonabsorbent, and easily cleaned, and there should be sufficient light.
2. Each hair cutting room should be provided with all equipment and facilities necessary for maintaining sanitary procedures for hair care, including covered metal containers for waste, disinfectants, dispensable headrest covers, laundered towels, and haircloths.
3. Between resident “customers,” all hair care tools that came in contact with a resident shall be cleaned and effectively disinfected. Ultraviolet lights are appropriate after sterilization only for maintaining the tools.

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4. Detailed hair care sanitation regulations should be conspicuously posted in each barbershop for the use of all hair care personnel and residents. Cotton pads, absorbent cotton, and other single or dispensable toilette articles may not be reused, and shall be placed in a proper waste receptacle immediately after use. The common use of brushes, neck duster, shaving mugs, and shaving brushes must be prohibited.
5. No barber or beautician shall serve any resident when the skin of the resident’s face, neck, or scalp is inflamed, scaling, contains pus, or is erupted, unless service of such resident is performed in accordance with the specific authorization of the Chief Medical Staff. No person who is infested with head lice shall be served.
VIII. EXPECTED PRACTICES – MEDICAL OPERATIONS
1. Needles and Other Sharp Objects An established uniform procedure shall be provided for the safe handling and disposal of used needles and other potentially sharp objects to prevent both mechanical injury and the percutaneous transmission of infectious disease organisms, especially the hepatitis B virus (HBV) and the human immunodeficiency virus (HIV).
Accidental injuries from sharp objects (sharps) are common in health care programs, mostly from needle sticks caused by attempting to recap hypodermic needles. A uniform procedure for used needles and other disposable sharps is necessary to reduce the number of such injuries by preventing the secondary handling of needles and other dangerous sharp objects used in the delivery of medical care.
Sharps are defined as all disposable or discarded items derived from resident care that could potentially transmit disease via direct subdermal inoculation. Items included are: hypodermic needles and syringes, scalpel blades, glass vials or ampoules, containing materials deemed to be infectious, burrs, glass cartridges, or lancets.
2. Standard Precautions (previously termed “Universal Precautions”) Staff shall routinely take precautions to prevent contact with blood or other body fluids.
a. Gloves shall be worn for touching blood and body fluids, mucous membranes, or non-intact skin of all patients, for handling items or surfaces soiled with blood or body fluids, and for performing venipuncture and other vascular access procedures.
Gloves shall be changed after contact with each resident.
b. Masks and protective eye wear or face shields shall be worn during procedures that are likely to generate droplets of blood or other body fluids, to prevent exposure of mucous membranes of the mouth nose or eyes.
c. Gowns or aprons shall be worn during procedures that are likely to generate splashes of blood or other body fluids.
d. Hands and other skin surfaces shall be washed immediately and thoroughly if contaminated with blood or other body fluids. Hands shall be washed immediately after gloves are removed.

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e. All health-care workers shall take precautions to prevent injuries caused by needles, scalpels, and other sharp instruments or devices during procedures, when cleaning used instruments, during disposal of used needles, and when handling sharp instruments after procedures.
f. To prevent needle stick injuries, needles shall not be recapped, purposely bent or broken by hand, removed from disposable syringes, or otherwise manipulated by hand. After use, disposable syringes and needles, scalpel blades, and other sharp items shall be placed in puncture-resistant containers for disposal.
g. Large-bore reusable needles shall be placed in a puncture resistant container for transport to the reprocessing area.
h. Although saliva has not been implicated in HIV transmission, to minimize the need for emergency mouth-to-mouth resuscitation, mouthpieces, resuscitation bags or other ventilation devices shall be available for use in areas in which the need for resuscitation is predictable.
I. Health-care workers who have exudative lesions or weeping dermatitis shall refrain from all direct patient care and from handling patient care equipment until the condition resolves.
j. Pregnant health-care workers are not known to be at greater risk of contracting HIV infection than health-care workers who are not pregnant; however, if a health care worker develops HIV infection during pregnancy, the infant is at risk of infection from perinatal transmission. Because of this risk, pregnant health care workers shall be especially familiar with and strictly adhere to precautions to minimize the risk of HIV transmission.
Implementation of universal blood and body fluid precautions for all residents eliminates the need for the use of isolation category of "Blood and Body Fluid Precautions" previously recommended by the Centers for Disease Control for individuals known or suspected to be infected with blood-borne pathogens. Isolation precautions shall be used as necessary if associated conditions, such as infectious diarrhea or tuberculosis, are diagnosed or suspected.
3. Accidental Needle Sticks
Should an individual receive a needle stick or be cut while handling potentially contaminated sharps, he or she shall be counseled regarding baseline testing for HBV and HIV and referred to their usual source of health care. If the injury also involves a person who is a known source of possible infection, that person shall also be tested for HBV and HIV. The incident shall be immediately reported as an occupational injury and documented in accordance with applicable regulations for commissioned staff and civil service employees, respectively.
The leading health service provider’s exposure-control plan shall be followed in the event of a needle stick.

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4. Inventory
An inventory shall be kept of those items that pose a security risk, such as sharp instruments, syringes, needles, and scissors and shall be checked weekly by an individual designated by the medical facility Health Service Administrator (HSA) or equivalent.

5. Handling Without removing, the needles or replacing the needle covers, staff shall place used (disposable) syringes in a plastic disposal box or container.
a. Disposal Containers Use only commercially available, biohazardous-waste sharps containers approved by the National Institute of Safety and Health (for example, a "Winfield Sharps Container.").
Since they have been found to puncture easily, do not use milk cartons or plastic milk jugs or other plastic containers of similar thickness.
Containers shall be of approximately two-gallon capacity in order to be of sufficient size to receive various types of sharps.
Under no circumstances shall an item be removed from the container.
b. Location Containers shall be located on top of counters or, if on the wall, at least five feet above ground, and shall never sit on the floor.
c. Disposal When the disposal box is one-half to two-thirds full, the lid shall be closed and locked, tape shall be placed over the top of the lid to indicate that it is ready for disposal. The container shall be labeled with the words "infectious waste" or with the universal biohazard symbol, and placed in the proper area for removal and disposal.
Sharps shall be considered as infectious waste, and final disposal of the container and contents shall be through a commercial contractor that handles disposal of infectious waste in accordance with all local and federal regulations.
The HSA shall make arrangements for disposal with an approved contractor and is responsible for validating that the contractor's disposal methods are in accordance with all infectious and hazardous waste disposal laws and regulations. Arrangements shall be made with local hospitals, if possible, for disposal with the hospitals' own infectious waste.

6. Environmental Health in Medical Operations
While many of the following considerations, precautions, and specific procedures apply to situations that typically arise in medical operations, they are applicable wherever such incidents arise.
Blood and body fluid clean-up, for example, could be needed anywhere in a facility after a work-related injury or a use-of-force incident.

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a. General Housekeeping
The key to the prevention and control of nosocomial infections due to contaminated environmental surfaces is environmental cleanliness. Responsibility for ensuring the cleanliness of the medical facility lies with the HSA or with an individual designated by the HSA or other health care provider.
Using an acceptable health agency standard as a model, the HSA shall establish:
1) Cleaning equipment; cleansers; disinfectants and detergents to be used,
2) Methods of cleaning, and
3) The frequency of cleaning and inspections.
The HSA or designee shall make a daily visual inspection of the medical facility noting the condition of floors, walls, windows, horizontal surfaces, and equipment.
Proper housekeeping procedures include the cleaning of surfaces touched by residents or staff with fresh solutions of appropriate disinfectant products, applied with clean cloths, mops, or wipes. Cleaned surfaces need not be monitored microbiologically since the results of such tests have been shown not to correlate with infection risk. Floors, walls, beds, tables, and other surfaces that usually come in contact with intact skin require low-level disinfection.
Since these surfaces are rarely associated with the transmission of infections to patients or personnel, extraordinary attempts to disinfect or sterilize these surfaces are not indicated.
Horizontal surfaces in resident care areas are cleaned on a regular basis, when soiling or spills occur and in short-stay units when a resident is discharged. Cleaning of walls, blinds, or curtains is indicated only when visibly soiled.
Ordinarily, the Chief Nurse (or equivalent) is responsible for training all staff and residents in using proper housekeeping procedures and proper handling of hazardous materials and chemicals.

1). General Cleaning
a) All horizontal surfaces shall be damp-dusted daily with an approved germicidal solution.
b) Windows, window frames, and windowsills shall be cleaned on a regular schedule, but do not require daily cleaning.
c) Furniture and fixtures shall be cleaned daily.
d) Floors shall be mopped daily and when soiled using the double-bucket mopping technique, and with a hospital disinfectant-detergent solution mixed according to the manufacturers directions. A clean mop head shall be used each time the floors are mopped.
e) Waste containers shall be lined with plastic bags and the liner shall be changed daily. The container itself shall be washed at least weekly, or as needed when it becomes soiled.

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f) Cubicle curtains shall be laundered monthly or during terminal cleaning following treatment of an infectious patient.
2). Isolation Cleaning
a) An approved germicidal detergent solution shall be freshly prepared in accordance with the manufacturer's specifications for each cleaning.
b) After cleaning the isolation room, mops and cleaning cloths shall be laundered before being reused.
c) Dirty water and used disinfecting solutions shall be discarded and the buckets and basins disinfected before being refilled. Items used in cleaning an isolation (contaminated) room shall never be taken into another area.
d) Linens shall be carefully removed from the bed and double bagged for transport.
e) All waste materials shall be double bagged and disposed of as contaminated waste.
3). Terminal Cleaning
a) Every item in the room must be cleaned with an approved hospital germicidal solution.
b) When applicable, linen shall be stripped from the bed, with care taken not to shake linen. Linen shall be folded away from the person and folded inward into a bundle, then removed with minimal agitation.
c) When applicable, all reusable receptacles such as drainage bottles, urinals, bedpans, water pitchers shall be emptied and rinsed with germicidal solutions.
d) All equipment that is not to be discarded, such as IV poles, respirators and suction machines, shall be washed with an approved germicidal solution following manufacturer's guidelines for cleaning the specific piece of equipment.
e) When applicable, mattresses and pillows covered with durable plastic covers shall be thoroughly washed with the approved germicidal solution.
f) When applicable, beds shall be washed thoroughly using a small brush soaked in the germicidal solution to gain access to small holes and crevices, to areas between the springs, and the casters.
g) All furniture shall be washed with a germicidal detergent solution. Use a small brush if necessary. Outside and underside as well as legs and casters must also be washed.
h) Wastebaskets shall be thoroughly washed with a germicidal solution after trash has been removed.
i) Telephones shall be thoroughly cleaned with a clean cloth soaked in the

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germicidal solution. The earpiece and mouthpiece shall be unscrewed, scrubbed, dried, and replaced.
j) Walls and ceilings need not be washed entirely, but areas that are obviously soiled shall be washed with germicidal solution.
k) All toys and recreational equipment remaining in medical clinic area shall be disinfected daily.
4) Choice of Disinfecting Materials Hospital grade disinfectant-detergent formulations registered by the Environmental Protection Agency may be used for environmental surface cleaning, but the physical removal of microorganisms by scrubbing is probably as important as any antimicrobial effect of the cleaning agent used.
Therefore cost, safety, and acceptance by staff can be the criteria for selecting any such registered agent. The manufacturer's instructions for use shall be followed exactly.
b. Blood and Body Fluid Clean-up Spills of blood and body fluids shall be cleaned up and the surface decontaminated in such a manner as to minimize the possibility of workers becoming exposed to infectious organisms, including HIV and HBV. A suitable cleanup kit shall be maintained for use in cases of spills of blood and body fluids. Cleanup kits may be obtained from commercial sources, or kits may be put together by ICE/DRO HSD staff or leading health care provider.
1). Making a Clean-up Kit To prepare a cleanup kit for blood and body fluid spills, package the following materials in a 12" x 15" clear" Ziploc" bag:
a) Gloves, rubber or vinyl, household type, (2 pair)Clean absorbent rags (4)
b) Absorbent paper towels (15)
c) Disposable bag marked "Contaminated" size 23"x10"x39", minimum thickness 1.5 mils. Clear plastic bag 13”x10”x39”, minimum thickness 1.5 mils.
d) Bottle of "hospital disinfectant” (containing quaternary ammonium chlorides in at least 0.8% dilution), or a bottle of household bleach such as "Clorox" or "Purex" (5.25 % sodium hypochlorite).
2) Selection of Disinfectants Quaternary disinfectants are less effective against Hepatitis B, while dilute solutions of sodium hypochlorite are reported extremely effective against both HIV and the Hepatitis B virus and therefore have been recommended for use in environmental decontamination procedures rather than quaternary ammonium compounds. Chlorine in solution inactivates virus quickly and efficiently but must reach the virus

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particles to do so.
Proteinaceous materials may interfere with the ability of the appropriate disinfectant solution to reach the virus particles. Since quaternary disinfecting compounds may act as a detergent as well as a disinfectant, their use may help in the cleaning and removal of proteinaceous materials from surfaces.
A facility may wish to use one of these compounds to help clean the surface and then follow with the use of chlorine solution for final disinfection. Using one disinfectant compound rather than two would keep the procedure as simple as possible. By following the mechanical procedure listed in the article, most blood or fluids would be removed from the surface before application of the disinfectant, so the use of sodium hypochlorite solution shall be sufficient.
3) Selection of Gloves Household or industrial rubber gloves have been recommended for use rather than surgical rubber gloves. Surgical gloves are somewhat porous and are less resistant to mechanical damage and punctures during cleanup procedures.
4) Use of Residents as Housekeeping Workers Resident workers may be used to assist in cleaning the medical facility. Residents shall be allowed to clean floors, walls, and to remove trash, but shall not be allowed to clean medical equipment.
5) Instructions for Use of Clean-Up Kit a). Open the bag and remove the supplies.
b) Depending on the type of disinfectant in the kit, take out bottle of "hospital disinfectant,” or prepare a dilute solution of sodium hypochlorite. To prepare a 1:10 dilution of 5.25% sodium hypochlorite, mix 1 part of 5.25 % sodium hypochlorite (common household bleach) with 10 parts water.
c) Open the large clear plastic bag and the large bag marked "Contaminated.” Place them next to each other.
d) Put on one pair of gloves.
e) Use paper towels to absorb as much of the fluid as possible; then place paper towels in the large clear plastic bag.
f) Pour the solution carefully onto the spill area. Dispose of the empty bottle in the large, clear plastic bag. Leave disinfectant in place for 15 minutes.
g) Use the rags to clean the area, and place rags in the large clear plastic bag.
h) Tie off the clear plastic bag and place it inside the large plastic bag marked "Contaminated."
j) Remove gloves carefully and place them in the plastic bag marked "Contaminated.”

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j) Put on the second pair of gloves and tie the "Contaminated" trash bag closed.
K) Dispose of the "Contaminated" trash bag properly in a contaminated-waste receptacle.
l) Dispose of the second pair of gloves in the contaminated-waste receptacle. m) Wash your hands. n) Prepare a new clean-up kit.
NOTE: Do not place linen or non-disposable articles in the "Contaminated" trash bag.
c. Hazardous and Infectious Waste Disposal Infectious and hazardous waste generated at a medical facility shall be stored and disposed of safely and in accordance with all applicable federal and state regulations. For identified wastes that represent sufficient risk of causing infection or injury during handling and disposal some special precautions appear prudent.

1) Definitions
Hazardous or infectious waste is defined as: microbiology laboratory waste;human blood and blood products; sharps (all discarded items derived from patient care in medical facilities which could potentially transmit disease via direct subdermal inoculation or present a risk of injury & skin penetration); laboratory and other chemicals; certain drugs such as neoplastic.
Miscellaneous biomedical waste is defined as waste materials that are not specifically defined as infectious waste. Such waste includes bandages, dressings, casts, catheters, and disposable pads.
Waste from residents in isolation is not considered to be infectious waste unless it falls within the specific definition of infectious waste as stated above.

2) Collection and Storage Infectious waste must be separated from the general waste stream and clearly labeled as infectious:
a) Infectious waste shall be double-bagged and tied and labeled "Infectious Waste."
b) The bags must be impermeable, commercially supplied red bags, intended specifically for biohazard waste storage.
c) Miscellaneous biomedical waste shall be double-bagged and tied but need not be labeled as infectious.

3) Treatment and Disposal Blood products and designated body fluids shall be poured slowly and carefully

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down a toilet to prevent splash. Compacting of untreated infectious waste is prohibited. The waste disposal contractor must meet all state or and local requirements for transportation and disposal.
IX. EXPECTED PRACTICES – GENERAL ENVIRONMENTAL HEALTH AND SAFETY
1. General Environmental Health Environmental health conditions shall be maintained at a level that meets recognized standards of hygiene, including those from the:
a. American Correctional Association, b. Joint Commission on the Accreditation of Health Organization (JCAHO), c. Occupational Safety and Health Administration, d. Environmental Protection Agency, e. Food and Drug Administration, f. National Fire Protection Association's Life Safety Code, and g. National Center for Disease Control and Prevention. The Health Services Department or Facility equivalent shall assist in the identification and correction of conditions that could adversely impact the health of residents, employees, and visitors. The facility sanitation consultant is responsible for developing and implementing policies, procedures, and guidelines for the environmental health program that are intended to evaluate and eliminate or control as necessary, sources of injuries and modes of transmission of agents or vectors of communicable diseases. The sanitation consultant shall: a. Conduct special investigations and comprehensive surveys of environmental
health conditions, and b. Provide advisory, consultative, inspection, and training services regarding
environmental health conditions. The medical facility Health Services Administrator is responsible for:
a. Implementing a program that assists in maintaining a high level of environmental sanitation, and
b. Providing recommendations to the facility administrator concerning environmental health conditions, in consultation with the sanitarian consultant.
2. General Housekeeping The facility administrator shall ensure that staff and residents maintain a high standard of facility sanitation and general cleanliness. The General Housekeeping standards detailed above under Environmental Health in Medical Operations provide guidance for resident housing and similar areas.

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3. Pests and Vermin The facility administrator shall contract with licensed pest-control professionals to perform monthly inspections to identify and eradicate rodents, insects, and vermin. The contract shall include a preventative spraying program for indigenous insects and the provision of call-back services as needed.
4. Certification of Facility Water Supply An approved state laboratory shall test samples of drinking and wastewater to ensure compliance with applicable standards.
5. Emergency Electrical Power Generator Emergency power generators shall be tested at least every two weeks for one hour, during which time, the oil, water, hoses, and belts shall be inspected for mechanical readiness to perform in an emergency situation. The emergency generator shall also receive quarterly testing and servicing from an external generator service company (or otherwise in accordance with the manufacturer’s instructions). Among other things, the technicians shall check starting battery voltage, generator voltage and amperage output. Other emergency equipment and systems shall be tested quarterly, and needed follow-up repairs or replacement shall be accomplished as soon as feasible.
6. Garbage and Refuse 1) Refuse includes all garbage, rubbish, and other putrescible and non-putrescible solid waste, except the solid and liquid waste discharged into the sanitary sewer system of the facility. 2) Garbage and refuse shall be collected and removed as often as necessary to maintain sanitary conditions and to avoid creating health hazards. 3) Methods for handling and disposing of refuse affects the local environment, compliance with the requirements of local and federal agencies is essential.
Standard Approved:

John P. Torres Director Office of Detention and Removal

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Date

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TABLE A

Common Flammable, Toxic, and Caustic Substances


Class I Liquids Gasoline Benzene (Petroleum ether) Acetone Hexane Lacquer Lacquer thinner Denatured alcohol Ethyl alcohol Xylene (Xylol) Contact cement (flammable) Toudi (Toluene) Methyl ethyl ether Methyl ethyl ketone Naphtha Y, M, and P
Class II Liquids Diesel fuel Motor fuel Kerosene Cleaning solvents Mineral spirits Agitene
Class III Liquids Paint (oil base) Linseed oil Mineral oil Neatsfoot oil Sunray conditioner Guardian fluid

Toxic Substances Ammonia Chlorine Antifreeze Duplicating fluid Methyl alcohol Defoliants Herbicides Pesticides
Caustic Substances Lye Muriatic acid Caustic soda Sulfuric acid Tannic acid

 
 ICE/DRO RESIDENTIAL STANDARD
ESCORTED TRIPS FOR NON-MEDICAL EMERGENCIES

I. PURPOSE AND SCOPE. Residents may visit critically ill members of their immediate family or attend their funerals under certain circumstances through emergency staff-escorted trips into the community.
II. EXPECTED OUTCOMES. The expected outcomes of this Standard are:
1. Within the constraints of safety and security and while under constant staff supervision, selected residents will be able to visit critically-ill members of their immediate family or attend family member’s funerals.
2. Safety and security will be primary considerations in planning, approving, and escorting a resident from a facility for a non-medical emergency.
3. Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
4. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED. None
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non­ government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment. American Correctional Association 4th Edition Standards for Adult Local Detention Facilities: 4-ALDF-1B-06. ICE/DRO Residential Standard on “Searches of Residents”
ICE/DRO Residential Standard on “Land Transportation”
ICE/DRO Residential Standard on “Use of Force”

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V. EXPECTED PRACTICES
1. Non-Medical Emergency Trip Requests and Approvals On a case-by-case basis, and with approval of the JFRMU and in collaboration with the respective Field Office, the ICE facility administrator may allow a resident who is an immediate family member – under ICE/DRO staff escort – to visit:
a. A critically-ill member of his or her immediate family, or
b. A funeral of an immediate family member.
"Immediate family member" is defined as a parent (including stepparent or foster parent), brother, sister, biological, step- or adopted child, and spouse (including common-law spouse).
“Critically Ill” is defined as a family member who is confined to a hospital and whose condition is life threatening or has the immediate potential to become life threatening.
The Chief JFRMU is the approving official for non-medical emergency e scorted trips, and may delegate in writing this authority to the ICE facility administrator for any resident who is determined by ICE/DRO as a resident not requiring a high degree of control and supervision.
The facility administrator shall designate staff to help residents prepare requests for non­ medical emergency trip requests.
The designated staff member shall forward the completed resident request to ICE/DRO, so that the ICE facility administrator may make an informed recommendation to JFRMU. ICE/DRO staff shall review the merits of the request and consult with Immigration Enforcement Agents, medical staff, the resident's family, and any other people deemed by ICE to be able to provide relevant information. On the basis of the information collected, the ICE/DRO staff shall report to the ICE facility administrator on the appropriateness of the resident’s travel plan and the amount of supervision it would entail.
2. Types of Trips and Travel Arrangements
a. Local Trip A “local” trip is travel that involves up to a 10-hour absence from the facility.
b. Extended Trip An “extended” trip is travel, which involves more than a 10-hour absence including overnight stays.
c. Travel Arrangements and Costs ICE/DRO shall make all travel arrangements; however, travel involving a commercial carrier may not commence until the resident or person acting on his or her behalf has submitted an open paid-in-full ticket or electronic-ticket voucher in the resident’s name. The cost of the resident’s round-trip transportation on a commercial carrier must be paid by the resident, the resident’s family, or other approved source by the JFRMU.

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ICE/DRO assumes all other costs. As needed, ICE/DRO shall provide overnight housing. ICE/DRO shall pay the travel costs incurred by the transporting staffs.
3. Selection of Escorts No fewer than two escorts are required for each trip. The ICE facility administrator shall select and assign the roles of the transporting staff (escorts) and delegate to one staff member the decision-making authority for the trip. Ordinarily, probationary staff members may not be assigned, and in no case may more than one probationary staff member be on an escort team.
4. Supervision and Restraint Requirements Except during any period that the resident is housed in a residential facility, transporting staff shall maintain constant and immediate visual supervision of a resident under escort, and shall follow the policy and procedures in:
a. The ICE/DRO Residential Standards on " Transportation (By Land)” and “Use of Physical Force and Restraints”
b. The ICE Enforcement Standards on "Escorts" and "Use of Restraints”
c. The ICE Enforcement Standard on “Use of Firearms,” if the escorts are armed during the trip
In all circumstances involving the travel of minors, staff must take into account the special needs of minors such as travel seats, meals, access to medicine, etc. 5. Training
Escort staffs and others, as appropriate, shall receive training on: a. This Residential Standard b. The other standards, policies, and procedures listed above
6. Escort Instructions
a. Escorts shall follow the applicable policies, standards, and procedures listed above.
b. Routes, meals, and lodging (if necessary) shall be arranged prior to departure. c. Escorts shall follow the schedule included in the trip authorization, arriving at and
departing from the places and events at the specific times listed. d. For security reasons, the trip route and schedule shall be kept confidential. e. The responsible transporting staff shall report unexpected developments to the
Control Center of the originating facility. Control Center staff shall relay the information to the highest-ranking supervisor on duty, who shall issue instructions for completion of the trip.

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f. Escorts shall deny the resident access to any intoxicant, narcotic, drug paraphernalia, or drug not prescribed for his or her use by the medical staff.
g. Residents shall not be placed in restraints unless exigent circumstances necessitate their use. If necessary, the transporting staff may increase the minimum restraints placed on adult residents at the outset of the trip when it can be shown that staff safety is at issue. The resident shall visit the deathbed or attend the funeral in restraints only when the use for restraints can reasonably be articulated as necessary for the safety of the resident and staff. Residents under the age of 18 shall not be placed in restraints without written authorization from the ICE facility administrator. Such authorization must show cause for the need of restraints and must outline the limitations on their use.
h. Prior to commencing the trip, escorts shall advise residents, including minors, of the rules that will be effective during the trip.
i. The escorted resident may not:
1) Bring discredit to ICE/DRO
2) Violate any federal, state, or local law
3) Make unauthorized phone call(s)
4) Arrange any visits without the express permission of the facility administrator
j. If the resident breaches any of these rules, the responsible staff may decide to abort the trip and immediately return to the facility.
k. Residents shall not be subject to any form of random testing upon return from a non­ medical emergency escort; however, they shall be referred to medical authority for consultation in circumstances that warrant further medical attention.
l. Staffs may not accept gifts or gratuities from the resident or any other person in appreciation for performing escort duties or for any other reason.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

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 ICE/DRO RESIDENTIAL STANDARD
FOOD SERVICE
I. PURPOSE AND SCOPE. Residents are provided a nutritionally balanced diet that is prepared and presented by a sanitary and hygienic food service operation.
II. EXPECTED OUTCOMES. The expected outcomes of this Standard are:
1. All residents will be provided nutritionally balanced diets that are reviewed at least quarterly by food service personnel, and at least annually by a certified dietician.
2. Sound safety and sanitation practices will be applied in all aspects of food service and dining room operations.
3. Dining room facilities and operating procedures will provide sufficient space and time for residents to eat meals in a relatively relaxed, unregimented atmosphere.
4. Food service facilities and equipment will meet established government health and safety codes, as documented by an independent, outside source.
5. Any resident assigned to work in food service operations. Will be screened and cleared medically in advance.
6. Food service areas will be continuously inspected by food service staff and other assigned personnel on schedules determined by the food service administrator andin accordance with applicable policy requirements.
7. Stored food goods will be maintained in accordance with required conditions and temperatures.
8. Therapeutic medical diets and supplemental food will be provided as prescribed by appropriate clinicians.
9. Special diets and special ceremonial meals will be provided for residents whose religious beliefs require the adherence to religious dietary laws.
10. Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
11. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED. None
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from

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various subject matter experts, review and comment from various government and non­ government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
American Correctional Association Standards for Adult Local Detention Facilities, 4th Edition: 4 -ADLF-4A-01 through 4A-18. (Five of those Expected Practices are mandatory for accreditation: 4A-07, 4A-11, 4A-13, 4A-15, and 4A-16.)
V. EXPECTED PRACTICES
1. Administration
Food Service Administrator or Equivalent. The food service program shall be directly supervised by a professional food service administrator (FSA) who is responsible for:
� Planning, controlling, directing, and evaluating food service � Training and developing the cook foremen � Managing budget resources � Establishing standards of sanitation, safety, and security � Developing nutritionally satisfactory menus and evaluating their acceptance by
residents � Developing specifications for the procurement of food, equipment, and supplies � Establishing a training program that ensures operational efficiency and a high-
quality food service program.
Ordinarily, a food service department is also staffed by one or more cook supervisors (CS) and cook foremen (CF). Organizational structure may differ between facilities, particularly when food service is provided by a food service contractor. References to the CS and CF in this Residential Standard describe typical duties for those positions, although the functions may be performed by others in the organizational structure.
2. Security a. Custody and Security The facility’s custody and security policy and procedures shall address the buildings or portions of buildings housing the food service department.
The facility’s training staff shall devise and provide appropriate training in resident custodial issues to all food service personnel. This training shall include, but not be limited to, ICE/DRO’s Residential standards.

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b. Knife Control
The knife cabinet must be equipped with an approved locking device. The onduty CF, under direct supervision of the CS, shall maintain control of the key that locks the device. Knives must be physically secured to workstations when used outside a secure cutting room. Any resident using a knife must receive direct staff supervision at all times.
Knife approved for use must have a steel shank through which a metal cable can be mounted. The facility's tool control staff is responsible for mounting the cable to the knife through the steel shank.
The FSA/CS shall monitor the condition of knives and other food service utensils, disposing of items not in good working order and ordering replacements. If a knife is misplaced or lost, staff shall immediately notify the FSA and assistant facility administrator for operations. Concurrent with this notification, staff shall hold residents who may have had access to the missing knife in the area until a thorough search is conducted. The responsible CS shall provide the details of the loss in a written report to the assistant facility administrator for operations.
c. Key Control The knife cabinet shall meet the tool-control standards of the U.S. Occupational Safety and Health Administration, as well as any site-specific standards developed by the facility.
The control room staff shall issues keys only in exchange for a name chit from receiving staff. Under no circumstances shall residents have access to facility keys.
The CS shall return the keys to the control room before going off duty. At no time may anyone carry facility keys outside the facility.
d. Controlled Food Items/Hot Items All facilities shall have procedures for handling food items including but not limited to the following:
1) Yeast or Yeast Products All yeast and yeast products must be stored in an area with no resident access, preferably in a locked metal yeast cabinet for which the food service department has only one key. The locked yeast cabinet should be kept in a locked area.
Until the yeast is thoroughly incorporated as an ingredient in the item being prepared, only one member of the food service staff, closely supervised, may handle and dispense it.
Staff shall keep a record of the yeast inventory (in pounds and ounces), indicating quantity of receipt and issue, balance on hand, and the record-keeper’s initials.

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2) Other Food Items Mace, nutmeg, cloves, sugar, and alcohol-based flavorings also require special handling and storage.
� The purchase order for any of these items shall specify the special-handling requirements for delivery.
� Staff shall store and inventory these items in a secure area in the food service department.
� Staff shall directly supervise use of these items.
3. Resident Workers
a. Resident Workforce Residents may volunteer for work in accordance with the Residential Standard on “Voluntary Work Program.”
The number of residents assigned to the food service department shall be based on a quota developed by the FSA and approved by the facility administrator. The quota shall provide staffing according to actual needs, eliminating over- or understaffing.
b. Resident Job Descriptions The FSA shall review resident job descriptions annually to ensure that they are accurate and current with requirements. Before starting work in the department, the resident shall sign for receipt of his or her job description. A copy of the resident’s job description shall remain on file for as long as the resident continues to work in the food service department.
c. Resident Orientation and Training To ensure a quality food service program and instill good work habits, each CS shall instruct newly-assigned resident workers in the rules and procedures of the food service department. During orientation and training sessions, the CS shall explain and demonstrate safe work practices and methods, and shall identify the safety features of individual products and equipment.
Training shall also include workplace hazard recognition and deterrence, including the safe handling of hazardous materials. Residents shall learn to use and understand protective devices and clothing, and to report any malfunctions or other safety-related problems to their supervisors.
The CS must document all training in each resident’s Residential File.
d. Resident Work Hours and Pay Residents shall work and be paid in accordance with the Residential Standard on “Voluntary Work Program.”

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e. Meals for Food Service Workers
The FSA shall establish the meal schedules for resident food service workers.
Resident workers shall receive the same fare as other residents. Cook supervisors may not allow residents to prepare "special" dishes or condiments for their own (or another resident’s) consumption. Food service employees shall also ensure that resident workers do not eat between meals.
Resident workers assigned to the staff dining room may be allowed to eat in that area. All others shall eat in the main dining room. When scheduling permits, resident workers are allowed to eat with their family members.
f. Resident Clothing
Residents assigned to the food service department shall have a neat and clean appearance.
Unless the facility administrator establishes another policy, the resident uniform shall consist of the following: white, summer-type uniform pants and short-sleeved shirts; safety work shoes; and a white paper hat or white “baseball” cap. White aprons or smocks of either cloth or disposable plastic may be part of the uniform.
� Residents with hair shoulder-length or longer shall be required to wear a hair net on their hair, under their hats or caps.
� Residents with facial hair shall be required to wear beard guards when working in the food preparation or food serving areas.
� Residents working in the garbage room, dish machine room, pan-washingarea, etc., shall be required to wear rubber or plastic aprons suited to the task and rubber boots, if required for sanitation or safety.
� Residents working in refrigerated and freezer areas shall be provided appropriately insulated clothing.

4. Food Service Dining Room/Satellite Feeding Operations
a. General Policy
Residents shall be served three meals every day, at least two of them hot. The dining room schedule must allow no more than 14 hours between the evening meal and breakfast.
Meals shall always be prepared, delivered, and served under staff (or contractor) supervision.
Meals shall be served in as unregimented a manner as possible. To this end, the FSA’s table arrangement must facilitate free seating, ease of movement and must accommodate all ages including infants and toddlers. Residents must be afforded a reasonable amount of time to complete their meal while assisting children. No time limits shall be established regarding total time allowed to complete meals.

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Display and Service
The following procedures apply to the display, service, and transportation of food to the mainline:
1) Before and during the meal, the CS in charge shall inspect the line to ensure:
� All menu items are ready for consumption
� Food is appropriately presented
� Sanitary guidelines are observed, with hot foods maintained at a temperature of at least 140° F (120° F in food trays), and foods that require refrigeration maintained at 41° F or below.
2) Every open food item and beverage shall be protected from contaminants by easily cleaned sneeze-guards, cabinets, display cases, or other such equipment.
3) Servers must wear plastic gloves whenever direct contact with food or beverage is possible. They must use tongs, forks, spoons, ladles, or other such utensils to serve any food or beverage; serving with hands alone, with no utensil, is strictly prohibited.
4) Servers shall use scoops, tongs, or other approved utensils when handling or dispensing ice for consumption. The FSA should consider the practicability of purchasing automatic ice-dispensing equipment.
5) Utensils shall be sanitized:
� As often as necessary to prevent cross-contamination and other foodhandling hazards during food preparation and service
� After every food preparation or service session
� Again, if necessary, immediately before being used
6) Sugar, condiments, seasonings, and dressings available for self-service shall be provided in individual packages, closed dispensers, or automated condiment-dispensing systems. Salad dressings may be served in open containers if the serving ladle extends beyond the top edge of the container.
7) If the facility does not have enough equipment to maintain the minimum or maximum temperature required for food safety, the affected items (for example, salad bar staples such as lettuce, meat, eggs, cheese) must be removed and discarded after two hours at room temperature.
Food shall be delivered from one place to another in covered containers. These may be individual containers, such as pots with lids; or larger conveyances that can move objects in bulk, such as enclosed, satellite-feeding carts.
All food safety provisions (sanitation, safe handling, storage, etc.) shall apply to food in transit.

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8) Soiled equipment and utensils must be transported to the appropriate receptacles in closed containers.
b. Dining Room Supervision
The facility shall assign a supervisor to be responsible for supervising the dining room and for ensuring the safety and welfare of residents.
c. Dining Room Workers The CF in charge shall train dining room workers in the requirements of the job, including how to perform specific tasks. A basic task of all dining room workers is to keep the tables and floors clean during the meal service. Once the meal service is over and the residents have left the room, the workers can undertake major cleaning tasks.
d. Serving Lines The serving counter shall be designed and constructed to separate and insulate hot foods from cold foods. The serving line shall be constructed in a manner that allows residents to view and choose from a variety of selections. A transparent "sneeze guard" is required.
e. Salad Bars and Hot Bars Food items at salad bars and hot bars shall be arranged for logical and efficient service. Salad bars shall be set up for self-service. A transparent "sneeze guard" is required.
f. Beverage Counter/Bar
Self-service beverage-and-ice stations shall be designed for quick and easy access. These stations shall be designed for service that is sanitary and efficient, including traffic flow.
g. Meal tickets The facility may establish a meal ticket program for employees and guests. ICE/DRO staff are prohibited from receiving free meals from any contractor.
Menu Planning
h. General Policy The FSA shall base menu selections on a nutritional program that meets minimum government guidelines. The suggested ICE/DRO standard menu cycle is 35 days.
The food service program significantly affects morale and attitudes of residents and staff, and creates a climate for good relations between the facility and the residents.
The overall goal of a quality food service program is to provide access to appetizing meals that meet the nutritional needs of the residential population. The FSA shall consider the ethnic diversity of the facility’s resident population when

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developing menu cycles. While each facility must meet all ICE/DRO standards and follow required procedures, individuality in menu planning is encouraged.
The FSA is responsible for food service program planning, and resource allocation and use.
i. Nutritional Analysis A registered dietitian with experience in both adult and pediatric meal service shall conduct a complete nutritional analysis, at least annually, of every master-cycle menu planned by the FSA. The dietitian must certify menus before implementation. If necessary, the FSA shall modify the menu in light of the nutritional analysis, to ensure nutritional adequacy.
If the master-cycle menus changes exceed five percent of the menu during the year, the cycle should be reevaluated, to maintain the integrity of the nutritional analysis.
5. Food Preparation
a. General Policy The CS or equivalent is responsible for ensuring that all items on the master-cycle menu are prepared and presented according to approved recipes. This includes assessing the availability and condition of ingredients required by particular recipes, and communicating supply needs to the FSA. Therefore, the CS shall review upcoming menu items as much in advance as possible.
The CS has the authority to change menu items when necessary. Every such change or substitution must be documented and forwarded to the FSA. The CS shall exercise this menu changing authority as infrequently as possible. Resident cooks, bakers and vegetable-preparers can prepare the same items with consistency only by repeatedly following the approved recipes.
Knowledge of ingredients, quantities, and food-preparation techniques and procedures is essential for producing quality products.
b. Preparation Guidelines Food shall be prepared with minimal manual contact. Food service workers shall thoroughly wash fruits and vegetables with fresh water before cooking or serving them raw.
A worker shall only taste test with a clean fork or spoon; using a food-preparation utensil awaiting washing is prohibited. Test-tasting utensils, unless disposable, must be washed after every use.
Any food cooked at a lower temperature than provided below constitutes a food safety hazard, and shall not be served. Food service staff and resident workers involved in cooking shall ensure that foods are cooked at the required temperatures:

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� Raw eggs, fish, meat, and foods containing these items -- 145° F, or higher.
� Game animals, comminuted (ground) fish and meats, injected meats, and eggs not intended for immediate consumption --155 F° degrees or higher.
� Stuffing containing fish, meat or poultry -- 165° F or higher.
� Roast beef and corned beef -- 145° F or higher.
� Potentially hazardous foods that have been cooked and then refrigerated should be quickly and thoroughly reheated at a minimum of 165° F before being served. Steam tables, warmers, and similar hot food holding equipment are prohibited for the rapid reheating of these foods.
� After being reheated to 165° F, the food may be maintained at 140° F on a heated steam line, or equivalent warming equipment.
The facility shall obtain pasteurized milk and milk products from approved facilities only. Manufactured milk products shall meet federal standards for quality.
The facility may use reconstituted dry milk and dry milk products for cooking and baking, and in instant desserts and whipped items. If reconstituted in-house, the dry milk and milk products shall be used for cooking purposes only. Powdered milk reconstituted in an approved milk-dispensing machine, or “mechanical cow,” may be used for drinking purposes. To ensure wholesomeness, an approved laboratory shall test milk produced in the mechanical cow for presence of bacteria twice monthly. The mechanical cow shall be disassembled, cleaned, and sanitized before and after each use.
Powdered milkshake or ice cream mix reconstituted in an approved ice cream machine may be used. An approved laboratory shall test dairy-based products produced in the machine for the presence of bacteria monthly. The ice cream machine shall be disassembled, cleaned, and sanitized before and after each use.
Liquid, frozen, and dry eggs and egg products are pasteurized at temperatures high enough to destroy pathogenic organisms that might be present; however, because of the possibility of contamination or recontamination after opening, thawing, or reconstitution, these products should be primarily used in cooking and baking.
Nondairy cream and whitening or whipping agents may be reconstituted in-house only if immediately stored in sanitized, covered containers not larger than one gallon and cooled to 41° F or lower within four hours of preparation.
The CF shall use thermometers to ensure the attainment and maintenance of proper internal cooking, holding, or refrigeration temperatures of all potentially hazardous foods.
To prevent cross-contamination, separate cutting boards must be used for raw and cooked foods. The cutting boards must be washed, rinsed, and sanitized between each use.

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The FSA may require use of color-coded cutting boards, which reduce the risk of cross-contamination during food preparation.
c. Food Cooling Potentially hazardous food must be cooled from 140° F to 70° F degrees within two hours of cooking, and from 70° F to 41° F degrees or below within four hours. Foods prepared from ingredients at ambient temperature, such as reconstituted foods and canned tuna, must be cooled to 41° F degrees within two hours of cooking.
The food service department can meet time and temperature requirements for cooling by using any or all of the following techniques to expedite cooling: � Placing the food in a shallow pan � Separating food into smaller or thinner portions � Using rapid cooling equipment � Stirring the food in a container placed in an ice-water bath � Using containers that facilitate heat transfer � Adding ice as an ingredient � Using a commercial blast-chiller
During cooling, the food containers shall be arranged in cooling or cold-holding equipment in a way that maximizes heat transfer through the walls of the containers.
Food protected from overhead contamination should be left uncovered during the cooling period. If the risk of overhead contamination exists, the food must be loosely covered to facilitate heat transfer from the surface of the food.
d. Food Thawing. Potentially hazardous food shall be thawed by any or all of the following methods:
1) Under refrigeration that maintains the food at 41° F or below.

2) Submerged in running water:
 � At a water temperature of 70° F or below. � With sufficient water velocity to agitate and float off loose particles in an overflow. � For a period that does not allow thawed portions of ready-to-eat food to rise above 41° F. � For period that does not allow any portion of raw meat to be thawed for more than four hours preceding being cooked.

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� The allowed periods for thawing includes the time that the food is exposed to the running water, the time to prepare food for cooking, and the time it takes under refrigeration to cool the food to 41° F degrees.
3) As part of a cooking process, provided there is continuous (uninterrupted) cooking throughout the process.
e. Food Protection - General Requirements
Food and ice shall be protected from dust, insects and rodents, unclean utensils and work surfaces, unnecessary handling, coughs and sneezes, flooding, drainage, overhead leakage, and other sources of contamination. Protection shall be continuous, whether the food is in storage, in preparation, on display, or in transit.
All food storage units must be equipped with accurate easy-to-read thermometers. New heating and refrigeration equipment purchases should include a zone-type thermometer with temperature graduations. Refrigeration equipment shall be designed and operated to maintain temperature of 41° F or below.
f. Hermetically Sealed Foods
Canned food that has abnormal color, taste, or appearance, or that is contained in cans that show abnormalities, such as bulging at ends, swelling, or leakage, shall not be served. Unsuitable canned food shall be surveyed and destroyed.
g. Potential Hazardous Foods
Potentially hazardous foods are those foods that provide a good medium for bacteria growth. They include any perishable food that consists in whole or part of milk, milk products, eggs, meat, poultry, fish o r shellfish - that is, high protein foods.
Potentially hazardous foods shall be prepared with a minimum of manual contact. Such products shall be prepared from chilled ingredients whenever feasible. The surfaces of equipment, containers, cutting boards, a nd utensils used for preparation and subsequent storage of potentially hazardous food shall be effectively cleaned after each use.
Potentially hazardous food should be prepared as close to serving time as practicable. Potentially hazardous raw frozen food should be cooked from the frozen state whenever practical. Tempering shall be accomplished by refrigeration at 40° F or below; or with potable (safe-to-drink) running water, at 70° F or below. The potable water technique may be used only if the product i s sealed in its original container. At no time shall potentially hazardous food thaw at room temperature.
All precooked, potentially hazardous, refrigerated, or frozen food intended for reheating shall be heated rapidly to a temperature above 165° F.
h. Leftovers
Prepared food items that have not been placed on the serving line may be retained for no more than 24 hours. Leftovers offered for service a second time shall not be

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retained for later use, but shall be discarded immediately after offering. All leftovers shall be labeled to identify the product, preparation date, and time.
6. Religious/Special Diets
a. General Policy ICE/DRO requires all facilities to provide residents requesting a religious diet a reasonable and equitable opportunity to observe their religious dietary practice, within the constraints of budget limitations and the security and orderly running of the facility, through a common fare menu. The resident shall provide a written statement articulating the religious motivation for participation in the common fare program. To participate in the religious diet program, a resident shall initiate an Authorization for Common Fare Participation Form (Attachment A) for consideration by the chaplain.
Residents whose religious beliefs require adherence to particular dietary laws shall be referred to the chaplain. After verifying the religious dietary requirement by reviewing files and/or consulting with local religious representatives, the chaplain shall issue specific written instructions. Special diets shall be kept simple, and as similar to the food served on the main line as possible.
Once a religious diet has been approved, the FSA shall issue, in duplicate, a special-diet identification card.
This diet-identification card shall contain the following:
1) Resident name and A-number
2) The type of religious diet prescribed
3) The expiration date, within 30 days of its issuance
4) The signature of the FSA
The FSA shall contact the appropriate individual or department to obtain a photo of the resident, and attach the photo to the identification card. The FSA shall ensure that the food service department receives one copy of the identification card. The second identification card shall be issued to the resident, who at every meal must present the card to the cook on duty. The second copy of the consultation sheet shall be filed in the resident's file.
When a resident on a religious diet refuses a meal or accepts the regular main-line meal, the cook on duty shall notify the FSA in writing.
b. Common Fare Menu Common fare is intended to accommodate residents whose religious dietary needs cannot be met on the main line. The Common Fare Menu is based on a 14-day cycle, with special menus for the 10 federal holidays. The menus must be certified as exceeding minimum daily nutritional requirements.

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c. Changes to the Standard Common Fare Menu
Modifications of the standard Common Fare Menu may be made at the local level. Seasonal variations, for example, affect the availability of fresh produce in different locations, making menu modifications inevitable.
Therefore, with the facility administrator's concurrence, the FSA may make temporary, nutritionally equal substitutions with fresh seasonal produce that violates no religious dietary laws. The chaplain or local religious representatives shall be consulted if technical questions arise.
d. Hot Entree Availability
To the extent practicable, a hot entree shall be available to accommodate residents' religious dietary needs, for example, kosher and/or halal products. Hot entrees shall be offered daily and may be purchased precooked, heated in their sealed containers, and served hot. Other cooking is not permitted in the Common Fare program.
e. Religious Requirements
With the exception of fresh fruits and vegetables, the facility's kosher food purchases shall be fully prepared ready-to-use, and bearing the symbol of a recognized kosher-certification agency. Any item containing pork or a pork product is prohibited. Only bread and margarine labeled "pareve" or "parve" shall be purchased for the Common Fare Menu for those residents requesting kosher food.
f. Nutritional Requirements
Common Fare Menus meet U.S. recommended daily allowances (RDAs). A resident who chooses the Common Fare Menu shall select only beverages from the regular menu.
g. Instant Food and Beverages
The food service shall provide a hot-water urn for reconstituting instant beverages and foods, for use by residents eating main-line fare.
h. Plates and Utensils
A supply of reusable plates and utensils will be set aside for Common Fare service only. Separate cutting boards, knives, food scoops, food inserts, and other such tools, appliances, and utensils shall be used to prepare Common Fare foods, and shall be identified accordingly. Meat and dairy food items and the service utensils used with each group shall be stored in areas separate from each other. A separate dishpan shall be provided for cleaning these items, if a separate or threecompartment sink is not available.
The chaplain shall escort other clergy to the Common Fare preparation area for frequent, irregular monitoring of compliance with religious dietary requirements.

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i. Application and Removal
The facility administrator, in consultation with the Chaplain, shall be the approving official for a resident's removal from the Common Fare program.
Food service staff shall refer to the daily roster to identify residents in the Common Fare program. Staff shall not use this information to disparage a resident's religion or religious views, or to attempt to dissuade him or her from participating in the program.
� The FSA shall monitor the food selections of all residents participating in the Common Fare program, to ensure the legitimacy of their participation.
� Staff shall train and supervise all residents with Common Fare Menu preparation assignments.
� A resident's temporary adoption of a medically-prescribed diet shall not affect his or her access to Common Fare meals, which the facility hospital provides; however, if a prescribed medical diet conflicts with the Common Fare diet, the medical diet shall take precedence.
� A resident who has been approved for a Common Fare Menu must notify the chaplain in writing if he or she wishes to withdraw from the religious diet.
The chaplain may recommend withdrawal from a religious diet if the resident is documented as being in violation of the terms of the religious diet program to which the resident has agreed in writing. If a resident misses three consecutive Common Fare meals, the chaplain shall ordinarily recommend in writing that the facility administrator remove the resident from the program.
To preserve the integrity and orderly operation of the religious diet program and to prevent fraud, residents who withdraw (or are removed) may not be immediately re­ established into the program.
The process of re-approving a religious diet for a resident who voluntarily withdraws or is removed ordinarily may take up to ten days. Repeated withdrawals (voluntary or otherwise), however, may result in the resident’s being subjected to a waiting period of up to one month. The decision to remove a resident rests with the facility administrator, in consultation with the chaplain and/or local religious representatives, if necessary.
Although the facility administrator has authority to remove and reinstate residents’ participation in the program, ordinarily this authority is delegated to the chaplain. To participate in the Common Fare program, a resident shall initiate an Authorization for Common Fare Participation Form (Attachment A) for consideration by the chaplain (or FSA). If participation is approved, the chaplain or FSA shall forward a copy of the form for inclusion in the resident’s Residential file.
j. Annual Ceremonial Meals
The Chaplain, in consultation with the local religious leaders, if necessary, shall

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develop the ceremonial-meal schedule for the next calendar year, providing it to the facility administrator. This schedule shall include the date, religious group, estimated number of participants, and special foods required. Ceremonial and commemorative meals shall be served in the food service facility, unless otherwise approved by the facility administrator.
The food service department shall be the only source of procurement for food items. To maintain equity in menu design, all meals shall be limited to food items on the facility's master-cycle menu. To facilitate food preparation, consultations between the FSA and local religious representatives concerning appropriate menus shall occur six to eight weeks in advance of the scheduled observance. The religious provider may, through the food service department, procure the ritual-observance food items (in minimal quantities). Such items shall not generally constitute the main entree for the ceremonial meal.
k. Religious Fasts and Seasonal Observances
The Common Fare program shall accommodate residents abstaining from particular foods or fasting for religious purposes at prescribed times of year.
1) Ramadan
During Ramadan, Muslims participating in the fast shall receive the approved meals after sundown, for consumption in the food service department.
During the annual fast, vegetarian or hot fish dishes shall replace meat entrees. Fasters shall receive both lunch and dinner meals after sundown.
Residents not participating in the Common Fare program but electing to observe Ramadan or the December fast shall be served the main line meal after sundown. If the main-line menu does not meet religious requirements, the resident may participate in the Common Fare program during the period in question.
Each facility may provide a bag breakfast or allow residents to go to the food service department for breakfast before dawn. Bag breakfasts should contain nonperishable items, such as ultra-high pasteurized milk, fresh fruit, peanut butter, dry cereal, etc. The menu for the Common Fare program cannot be used for a bag breakfast.
2) Passover
The facility shall have the standard Kosher-for-Passover foods available for Jewish residents during the eight-day holiday. The food service shall be prepared to provide Passover meals to new arrivals.
No-flour meals will also be provided during Passover.
All Jewish residents observing Passover shall be served the same Kosher-forPassover meals, whether or not participating in the Common Fare program.

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3) Lent During the Christian season of Lent, a meatless meal (lunch or dinner) shall be served on the main line on Fridays and on Ash Wednesday.
l. Common Fare Record-keeping and Costs The FSA shall estimate quarterly costs for the Common Fare program, including this figure in the quarterly budget. The FSA shall maintain a record of the actual costs of both food and non-food items.
7. Medical Diets
a. Therapeutic Diets Residents with certain conditions -- chronic or temporary; medical, dental, or psychological -- shall be prescribed special diets as appropriate.
Special (therapeutic) diets shall be authorized by the clinical director (CD) on Form I-819, Resident Special Need(s). The form shall specify the type of therapeutic diets to be prescribed and, if necessary, shall be renewable every 30 days.
Once a medical diet has been prescribed, the medical department shall issue, in duplicate, a special diet identification card.
The special diet identification card shall contain: � Resident name and A-number � Type of diet � Duration (up to 30 days) � CD signature
The CD shall contact the appropriate individual or department to obtain a photo of the resident and attach the photo to the identification card. The CD shall ensure that the food service department receives one copy of the identification card. The second identification card shall be issued to the resident, who must present the card at each meal to the cook on duty.
The cook on duty shall notify the FSA and/or CS in writing any time a resident on a therapeutic diet refuses the special meal or accepts the regular main-line meal. The second copy of the consultation sheet shall be filed in the resident’s file.
b. Snacks or Supplemental Feedings The physician may order snacks or supplemental feedings for such reasons as: � Insulin-dependent diabetes � A need to increase protein or calories for pregnancy, cancer, AIDS, etc. � Prescribed medication that must be taken with food

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8. Specialized Food Service Programs
a. Snack Menus The FSA shall ensure availability of snacks, fruits, juice and milk - particularly for the minor population. These snacks shall be available via self-service within each housing unit. Snack items shall be restocked twice daily. Snack items shall not count against a daily calorie count. It is the responsibility of the FSA to ensure removal of all expired items.
b. Toddler and Infant meals The FSA shall develop and implement a food service program that provides for the minimum nutritional needs of toddlers and infants, ranging in a ge from newborn to four years old. The FSA shall ensure that its menu programs meet recommended government guidelines for well-baby and well-child growth and development. The FSA is also responsible for insuring that infant and toddler bottles and utensils are properly sterilized.
c. Sack Meals
All meals shall be served from established menus in the dining room or housing units. In some circumstances, residents may be provided sack meals. Sack meals shall be provided for: residents being transported from the facility; residents arriving/departing between scheduled meal hours; and residents in transit during scheduled meal hours.
1) Quality Sack meals shall be of the same quality as other meals prepared by the food service.
2) Preparation Members of the food service staff shall prepare sack meals for bus or air service. While resident volunteers assigned to the food service shall not be involved in preparing meals for transportation, they may prepare sack meals for on-site consumption.
A designated member of the bus or plane crew shall pick up from the food service all sack meals prepared to be used during transportation. Before departing, this crewmember shall inspect the sacks for:
� Quality of contents � Proper wrapping � Correct individual counts

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3) Contents For any resident who will be transported by JPATS, the sack lunch must comply with JPATS criteria. Otherwise, the following requirements are applicable:
Each sack shall contain at least two sandwiches per meal, of which at least one shall be meat (non-pork). Commercial bread or rolls may be preferable because they include preservatives. To ensure freshness, facility-made bread may be used only if made on the day of lunch preparation. Sandwiches should be individually wrapped or bagged in a secure fashion, to prevent the food from deteriorating. Meats, cheeses, etc., should be freshly sliced the day of sandwich preparation. Leftover cooked meats shall not be used after 24 hours.
In addition, each sack shall include: � One piece of fresh fruit or properly packaged canned fruit (paper cup with
lid), complete with a plastic spoon. � One ration of a dessert item, for example, cookies, doughnuts, and fruit
bars.
Extremely perishable items, for example, fruit pie, cream pie, other items made with milk, cream, or other dairy ingredients shall be excluded. � Such extras as:
o Properly packaged fresh vegetables, for example, celery sticks, and carrot sticks.
o Commercially packaged "snack foods," for example, peanut butter crackers, cheese crackers, and individual bags of potato chips. These items enhance the overall acceptance of the lunches.
4) Packaging Preferably, the food service shall pack sack meals intended for bus or air service in disposable "snack boxes," are designed for proper placement of contents and to afford maximum protection during handling, packaging and transporting.
If necessary, paper bags may be used.
These lunches shall be stored in a secured, refrigerated area until pickup.

9. Safety and Sanitation
a. General Policy All food service employees are responsible for maintaining a high level of sanitation in the food service department.
Food service staff shall teach resident workers personal cleanliness and hygiene; sanitary methods of preparing, storing, and serving food; and the sanitary

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operation, care and maintenance of equipment, including automatic dishwashers and pot-and-pan washers.
An effective food sanitation program both prevents health problems and creates a positive environment of pride and cooperation, as evidenced in the wearing of uniforms by food service staff and residents, including hats, hair nets, plastic gloves, and any other items that are useful in proper preparation and delivery of food service in a safe and sanitary environment..
Head coverings, gloves, and beard guards are encouraged, but not required, when covered serving trays are distributed by staff.
b. Personal Hygiene of Staff and Residents
1) All food service personnel shall wear clean garments, maintain a high level of personal cleanliness, and practice good hygiene while on duty. They shall wash hands thoroughly with soap or detergent before starting work, and as often as necessary during the shift to remove soil or other contaminants.
2) Staff and residents shall not resume work after visiting the toilet facility without first washing their hands with soap or detergent. The FSA shall post signs to this effect.
3) All staff and residents working in food preparation and service areas shall use effective hair restraints. Personnel with hair that cannot be adequately restrained shall be prohibited from food service operations.
4) Resident food service workers shall be provided with and use clean white uniforms while working in a food preparation area or on the serving line.
5) Approved rubber soled safety shoes shall be provided and used by all food service personnel working in food service.
6) To prevent cross-contamination, staff and residents who prepare or serve food shall not be assigned to clean latrines, garbage cans, sewers, drains, grease traps, or for other duties during the period of food preparation. (For instance, persons just finishing cleaning garbage cans would not go directly to preparing food without bathing and changing clothes.)
7) Only authorized food service personnel shall be used to prepare and serve food.
8) Authorization to work in food service is based on approval from the facility's Health Services Department.
9) Only authorized personnel shall be allowed in the food preparation, storage, or utensil cleaning areas of the food service area.
c. Medical Examination
1) All food service personnel (both staff and resident) shall receive a pre­ employment medical examination. The purpose of this examination is to exclude those who have a communicable disease in any transmissible stage or

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condition. Residents who have been absent from work for any length of time for reasons of communicable illness (including diarrhea) shall be referred to Health Services for a determination as to fitness for duty prior to resuming work.
2) The food service workers' examination shall be conducted in sufficient detail to determine absence of: � Acute or chronic inflammatory condition of the respiratory system � Acute or chronic infectious skin disease � Communicable disease � Acute or chronic intestinal infection
d. Daily Health Checks The CF shall inspect all resident food service workers daily at the start of each work period. Residents who exhibit signs of illness, skin disease, diarrhea (admitted or suspected), or infected cuts or boils shall be removed from the work assignment and immediately referred to Health Services for determination of duty fitness. The residents shall return to work only after the FSA has received written clearance from Health Services staff.
e. Environmental Sanitation and Safety All facilities shall meet the following environmental standards i n food service areas:
1) Clean, well-lit, and orderly work and storage areas.

2) Overhead pipes removed or covered, to eliminate the food-safety hazard posed 
 by leaking or dusty pipes.
3) Routinely cleaned walls, floors, and ceilings in all areas.
4) Ventilation hoods, to prevent grease buildup and wall or ceiling condensation that can drip into food or onto food-contact surfaces. Filters or other greaseextracting equipment shall be readily removable for cleaning and replacement.
5) A minimum 18-inch clearance underneath sprinkler deflectors.
Hazard-free storage areas:

Bags, containers, bundles, etc., stored in tiers; stacked, blocked, interlocked; 
 and limited in height for stability and security against sliding or collapsing.

6) No flammable material; no loose cords, debris, or other obvious accidentcausers (stumbling, tripping, falling, etc.); no pest harborage.
7) Aisles and passageways shall be kept clear and in good repair, with no obstruction that could create a hazard or hamper egress.
8) To prevent cross-contamination, kitchenware and food-contact surfaces should be washed, rinsed, and sanitized after each use, and after any interruption of

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operations during which contamination could occur.
9) A ready supply of hot water (105°120° F).
10)Garbage and other trash shall be collected and removed as often as possible. The garbage/refuse containers shall have sufficient capacity for the volume of garbage, and shall be kept covered, cleaned frequently, and insect- and rodentproof. The facility shall comply with all applicable regulations (local, state, and federal) on refuse-handling and disposal and the Residential Standard on “Environmental Health and Safety.”
11)The premises shall be maintained in a condition that precludes harboring or feeding of insects and rodents. Outside openings shall be protected by tightfitting screens, windows, and doors that are self-closing; controlled air curtains; etc.
f. Equipment Sanitation
Information about the operation, cleaning, and care of equipment shall be obtained from manufacturers or their local distributors. A file of this reference material should be maintained in the food service department, and used in developing training procedures for equipment cleaning. In the purchase and placement of equipment, sanitation shall be a primary consideration.
Equipment shall be installed for ease of cleaning, including the removal of soil, food materials, and other debris that collects between pieces of equipment or between the equipment and walls or floor. Although older facilities may not have the advantage of the latest designs and equipment, they can meet sanitation standards through careful planning, training, and supervising.
The FSA shall develop a schedule for the routine cleaning of equipment.

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g. Equipment and Utensils
1) Information All food service equipment and utensils shall meet the National Sanitation Foundation International (NSF) standards or equivalent standards of other agencies.
2) Materials a) Materials used in the construction or repair of multi-use equipment and utensils shall: � Be nontoxic, corrosion-resistant, nonabsorbent, durable under normal use, smooth, and easily cleanable. � Impart no odors, color, or taste � Retain their original properties under repeated use, creating no risk of food-adulteration as they deteriorate
b) Paint on any surface that could come into contact with food is prohibited.
c) Milk-dispensing tubes shall be cut diagonally about two inches from the cutoff valve. Bulk milk dispensers shall be equipped with thermometers.
h. Design and Fabrication a. All food service equipment and utensils (including non-disposable plastic ware) shall be designed and fabricated for durability under normal use.
Such equipment shall be readily accessible, easy to clean, and resistant to denting, buckling, pitting, chipping, and cracking.
b. Equipment surfaces not intended for contact with food, but located in places exposed to splatters, spills, etc., require frequent cleaning. Therefore, they shall be reasonably smooth, washable, free of unnecessary ridges, ledges, projections, and crevices, and with upkeep that contributes to cleanliness and sanitation.
i. Installation a. Equipment shall be installed in accordance with the manufacturer's instructions and good engineering practices.
b. Installers shall allow enough space between pieces of equipment and between equipment and walls to facilitate routine cleaning. Adjacent pieces may be butted together if the gap between them is sealed.

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j. General Cleaning Procedures
a. Moist cloths for wiping food spills on kitchenware and food-contact surfaces on equipment shall be clean, rinsed frequently in sanitizing solution, and used solely for this purpose. They shall soak in the sanitizing solution between uses.
b. Moist cloths used for non-food-contact surfaces, such as counters, diningtable tops and shelves, shall be cleaned, rinsed, and stored in the same way as the moist cloths used on food-contact surfaces. They shall be used on non-food-contact surfaces only.
c. Detergents and sanitizers must have U.S. Food and Drug Administration approval for food service uses.

k. Manual Cleaning and Sanitizing
a. A sink with at least three labeled compartments is required for manually washing, rinsing, and sanitizing utensils and equipment. Each compartment shall have the capacity to accommodate the items to be cleaned. Each shall be supplied with hot and cold water.
b. Drain boards or easily movable dish tables shall be provided for utensils and equipment before and after cleaning.
c. Equipment and utensils shall be pre-flushed, pre-scraped, and, when necessary, presoaked to remove gross food particles. A fourth sink compartment, with garbage-disposer, is useful for these purposes, and shall be included in plans for facilities being built or renovated.
d. Except for fixed equipment and utensils too large to be cleaned in sink compartments, the following procedures apply:
1) Wash in the first sink compartment, using a hot detergent solution changed frequently to keep it free from soil and grease.
2) Rinse in or under hot water in the second compartment, changing the rinse water frequently. This compartment should be kept empty, and a sprayer used for rinsing, to prevent rinse water from becoming soapy or contaminated.
3) Sanitize in the third compartment using one of the following methods:
i. Immerse for at least 30 seconds in clean water at a constant temperature of 171° F, maintained with a heating device and frequently checked with a thermometer. Use dish baskets to immerse items completely.
ii. Immerse for at least 60 seconds in a sanitizing solution containing at least 50 parts per million (ppm) chlorine and at a temperature of at least 75° F.

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iii. Immerse for at least 60 seconds in a sanitizing solution containing at least 12.5 ppm iodine, with a pH not higher than 5.0, and a temperature of at least 75° F.
iv. Immerse in a sanitizing solution containing an equivalent sanitizing chemical at strengths recommended by the Public Health Service.
v. Periodically check, and adjust as necessary, the chemical concentrations in a sanitizing solution, using a test kit.
vi. Air-dry utensils and equipment after sanitizing.
vii. Steam clean oversized equipment, provided the steam can be confined to the piece of equipment. Alternatively rinse, spray, or swab with a chemical sanitizing solution mixed to at least twice the strength required for immersion sanitizing.
l. Mechanical Cleaning and Sanitizing Spray- or immersion-dishwashers or devices, including automatic dispensers for detergents, wetting agents, and liquid sanitizer, shall be maintained in good repair. Utensils and equipment placed in the machine must be exposed to all cycles.
1) The pressure of the final-rinse water must be between 15 and 25 pounds per square inch (psi) in the water line immediately adjacent to the final-rinse control valve
2) Install machine- or water line-mounted thermometers to check water temperature in each dishwasher tank, including the final-rinse water.
3) Use baffles, curtains, etc., to prevent wash water from entering rinse-water tanks. Time conveyors to ensure adequate exposure during each cycle.
4) Place equipment and utensils on conveyors or in racks, trays, baskets to expose all food-contact surfaces to detergent and wash and clean-rinse waters without obstruction and to facilitate free draining.
5) Maintain the following temperatures for hot-water sanitizing:
a. Single-tank, stationary rack, dual-temperature machine: wash temperature of 150° F; final rinse at 180° F.
b. Single-tank, stationary rack, single-temperature machine: wash and rinse temperature of 165° F.
c. Multi-tank, conveyor machine: wash temperature of 150° F; pumped rinse, 160° F; final rinse at 180° F.
d. Single-tank, pot/pan/utensil washer (stationary or moving rack): wash temperature of 140° F; final rinse at 180° F.

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� When using a chemical spray in a single-tank, stationary rack, glasswasher, maintain a wash temperature of at least 120° F unless otherwise specified by the manufacturer.
� Air-dry all equipment and utensils after sanitizing, by means of drainboards, mobile dish-tables, and/or carts.
m. Equipment and Utensil Storage Eating utensils should be picked up by their bases or handles only. Utensils shall be stored in perforated pans only.
Glasses, tumblers, and cups shall be inverted before storing; other tableware and utensils may be either covered or inverted.
n. Storage of Clothing and Personal Belongings Clothes and other personal belongings, for example, jackets, shoes, etc. shall be stored in designated areas apart from: � Areas for the preparation, storage, and serving of food and � Areas for the washing and storing of utensils.
The FSA shall identify space for storing resident belongings.
o. Lavatories Adequate and conveniently located toilet facilities shall be provided for all food service staff and resident workers.
� Toilet fixtures shall be of sanitary design and readily cleanable. � Toilet rooms and fixtures shall be kept clean and in good repair. � Signs shall be prominently displayed. � Lavatories shall have readily available hot and cold water. � Soap or detergent and paper towels or a hand-drying device providing heated
air shall be available at all times in each lavatory. � Waste receptacles shall be conveniently placed near the hand-washing
facilities.
p. Pest Control Good sanitation practices are essential to an effective pest control program. The FSA is responsible for pest control in the food service department, including contracting the services of an outside exterminator.
Air curtains or comparable devices shall be used on outside doors where food is prepared, stored, or served to protect against insects and other rodents.

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q, Hazardous Materials
Only those toxic and caustic materials required for sanitary maintenance of the food service facility, equipment, and utensils shall be used in the food service department.

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� All food service staff shall know the location and amount of toxic, flammable, or caustic materials that are available, and be aware that their use must be controlled and accounted for daily.
� Residential-type combination locks shall not be used to secure such material.
� All containers of toxic, flammable, or caustic materials shall be prominently and distinctively labeled for easy identification.
� All toxic, flammable, and caustic materials shall be segregated from food products, and stored in a locked and labeled cabinet or room.
� Cleaning and sanitizing compounds shall be stored apart from food products.
� Toxic, flammable, and caustic materials shall not be used in a manner that could contaminate food, equipment, or utensils, or could pose a hazard to personnel or residents working with or consuming food service products.
� A system for intermediate storage of received hazardous substances shall secure the materials from the time of receipt to the time of issue.
The FSA shall obtain and file for reference Material Safety Data Sheets (MSDSs) on all flammable, toxic, and caustic substances used in the facility, in accordance with the requirements of the Residential Standard on “Environmental Health and Safety.”
r. General Safety Guidelines
1) Extension cords shall be UL-listed and UL-labeled and may not be used in tandem.
2) All steam lines within seven feet of the floor or working surface, and with which a worker may come in contact, shall be insulated or covered with a heat- resistant material, or be otherwise guarded from contact. Inaccessible steam lines that are guarded by their location need not be protected from contact.
3) Machines shall be guarded in compliance with OSHA standards:
� Fans within seven feet of the floor or work surface shall have blade-guard openings no larger than two inches.
� Protective eye and face equipment shall be used, as appropriate, to avert risk of injury. Dangerous areas presenting such risks shall be conspicuously marked with eye-hazard warning signs.
� Safety shoes shall be worn in FSA-designated foot-hazard areas.
� Meat saws, slicers, and grinders shall be equipped with anti-restart devices.
� The maintenance manager shall provide ground-fault protection wherever needed in the food service department, and shall document the protection for the FSA.
4) Light fixtures, vent covers, wall-mounted fans, decorative materials, and similar

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equipment and materials attached to walls or ceilings shall be maintained in good repair.
5) Lights in food-production areas, utensil- and equipment-washing areas, and other areas displaying or storing food, equipment, or utensils, shall be equipped with protective shielding.
6) An approved, fixed, fire-suppression system shall be installed in ventilation hoods over all grills, deep fryers, and open flame devices. A qualified contractor shall inspect the system every six months. The fire-suppression system shall be equipped with a locally audible alarm and connected to the control room’s enunciator panel.
Hood systems shall be cleaned after each use to prevent grease accumulation, which constitute fire risks. All deep-fryers and grills shall be equipped with automatic fuel or energy shut-off controls.
s. Mandatory Inspection
The facility shall implement written procedures for administrative, medical, and/or dietary personnel to conduct weekly inspections of all food service areas, including dining, storage, equipment, and food-preparation areas.
All components of the food service department (ranges, ovens, refrigerators, mixers, dishwashers, garbage disposal, etc.) require frequent inspection to ensure their sanitary and operable condition. Staff shall check refrigerator and water temperatures daily, recording the results.
The FSA or CS shall inspect food service areas weekly.
An independent, external source shall conduct annual inspections to ensure that the food service facilities and equipment meet governmental health and safety codes.
Personnel inspecting the food service department shall note any needed corrective actions in a written report to the facility administrator. The facility administrator shall establish the date(s) by which identified problems shall be corrected.
Daily checks of equipment temperatures shall follow this schedule:
� Dishwashers: during every meal period
� Pot- and pan-washers: daily, if water in the third compartment of a threecompartment sink is used for sanitation, and the required minimum temperature is 80° F
� Refrigeration/freezer equipment (walk-in units): site-specific schedule, established by the FSA

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All temperature-check documentation shall be filed and accessible.
The FSA shall develop a cleaning schedule for each food service area, and post it for easy reference. All areas (walls, windows, vent hoods, etc.) and equipment (chairs, tables, fryers, ovens, etc.) shall be grouped by frequency of cleaning, for example, After Every Use, Daily, Weekly, Monthly, Semiannually, or Annually.
10. Food Storage, Receiving, and Inventory
1. General Policy Since control and location for storing and receiving food is site-specific, each FSA shall establish procedures for storing, receiving, and inventorying food.
On the purchase request for potentially dangerous items (knives, mace, yeast, nutmeg, cloves and other items that are considered contraband if found in a resident's possession), the FSA shall mark them "hot,” signaling the need for special handling.
2. Receiving The first step in receiving is matching incoming items with vendor, purchase order, a nd control specifications. Receiving staff shall examine deliveries promptly to determine acceptability both for quantity and quality, consistent with the contract.
If immediate examination is not practical upon delivery because the inspection will involve time-consuming tests, the vendor shall receive a receipt confirming delivery of a particular number or gross weight of containers in good condition (noting any exceptions). Weekly deliveries of fresh produce, meats, and other perishable items shall be inspected for freshness, quality, and general appearance. Staff shall supplement their inspections of perishables with random checks of weight, count, size, etc.
3. Food Receipt and Storage The following procedures apply when receiving or storing food:
1). Inspect the incoming shipment for damage, contamination, and pest infestation. Rats, mice, or insects may be hiding in the middle of a pallet. For example, look for fecal droppings or chewed bits of food at or near food sources.
2). Promptly remove damaged pallets and broken containers of food. Separate damaged food containers from other food, and store separately for disposal. Take special care in handling flour, cereal, nuts, sugar, chocolate, and other products highly susceptible to contamination.
3). Contact the FSA/CS for instructions on the next course of action upon finding that an incoming food shipment is contaminated.
4). Store all products at least six inches from the floor and sufficiently far from walls to facilitate pest-control measures. A painted line may guide pallet placement.

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5). Store food items at least two inches from the walls and at least six inches above the floor. Wooden pallets may be used to store canned goods and other non­ absorbent containers, but not to store dairy products or fresh produce.
6). Store perishables at 35° - 40° F to prevent spoilage and bacterial action; maintain frozen foods at or below zero degrees Fahrenheit.
7). Prevent cross-contamination by storing foods requiring washing or cooking separately from those that do not.
8). For rapid cooling, use shallow pans (depth not exceeding four inches). Cover or otherwise shield refrigerated food from contamination.
9). Do not store food in locker rooms, toilet rooms, dressing rooms, garbage rooms, or mechanical rooms; or under sewer lines, potentially leaking water lines, open stairwells, or other sources of contamination.
4. Inventory Determining inventory levels and properly receiving, storing, and issuing goods are critical to controlling costs and maintaining quality. While the FSA shall base inventory levels on facility needs, each facility shall, at all times, stock a 15-day-minimum food supply.
Procedures for checking the quality and quantity of food and other supplies, and distribution to point of use shall comply with industry-established policies and financial management practices.
Food service inventory represents significant financial resources converted into goods in the form of food, supplies, and equipment. All food service personnel must be aware of the value of the inventory and of his or her responsibility for the security of these goods upon receipt.
The master-cycle menus offer guidance to managers planning inventory levels.
Inventory levels are established, monitored, and periodically adjusted to correct excesses or shortages.
5. Stock Rotation Each facility shall establish a written stock-rotation schedule.
6. Perpetual Inventory The process of recording details of all purchases and food is called keeping a perpetual inventory. Although details may vary, the information recorded always includes the quantity on hand, quantity received, quantity issued, and unit cost for each food and supply item.
Perpetual inventory records are important because they provide the FSA with up-to­ date information on product usage and give direction for further purchases.

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For accurate accounting of all food and supplies, a perpetual inventory record is insufficient. An official inventory of stores on hand must be taken annually.
All food service departments shall complete a physical inventory of the warehouse quarterly.
7. Housekeeping: Storeroom/Refrigerator
a. The Dry Storeroom. Proper care and control of the dry storeroom involves the following. � Keeping it dry and cool (45°-80° F) to prevent swelling of canned goods and general spoilage. � Sealing, or otherwise making impenetrable, all wall, ceiling, and floor openings, to prevent entry of dirt, water, pests, etc. � Vigilant housekeeping, to keep the room clean and free from rodents and vermin. A drain for flushing is desirable. � Securing it under lock and key to prevent pilferage, with the FSA responsible for key distribution.
b. Refrigerators Butter, milk, eggs, and cream shall be separated from foods having strong odors. Eggs shall not be subjected to freezing temperatures.
Refrigeration units shall be kept under lock and key when not in use. Walk-in boxes shall be equipped with safety locks that require no more than 15 pounds of pressure to open easily from the inside. If latches and locks are incorporated in the door's design and operation incorporates, the interior release-mechanism must open the door with the same amount of pressure even when locks or bars are in place.
Whether new or after-market, the inside lever of a hasp-type lock must be able to disengage locking devices and provide egress. The FSA, along with the facility safety manager, shall review the walk-in freezers and refrigerators to ensure they operate properly.
Standard Approved:

______________________________ John P. Torres

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_______________ Date

Director Office of Detention and Removal

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AUTHORIZATION FOR COMMON FARE PARTICIPATION

Name of Resident _______________________________ A-Number________________
I hereby request authorization to participate in the Common Fare Program. I agree to comply with the program requirements. I understand that if I am observed consuming main-line foods or violating other program requirements, I may be temporarily removed from program participation, and shall not be eligible for immediate reinstatement. Repeated program violations may result in removal from the program for up to one year. I further understand that the same conditions for reinstatement may apply if I voluntarily withdraw from the program for any reason. I understand that I must have a recorded religious preference in order to be eligible for the program, and that I must provide a written reason for requesting to participate in the religious diet program.
Religious Preference: ______________________________________________________
Specific reason for wanting to participate in the Common Fare Religious Diet Program:
Signature of Resident ____________________________ A-Number________________
Signature of Chaplain __________________________________ Date ______________

Record Copy – Resident Residential File; Copy - Chaplaincy File; Copy – Resident

 
 ICE/DRO RESIDENTIAL STANDARD

FUNDS AND PERSONAL PROPERTY

I. PURPOSE AND SCOPE. Residents’ personal property, including funds, valuables, and baggage, is safeguarded and controlled, and contraband does not enter a residential facility.
II. EXPECTED OUTCOMES. The expected outcomes of this Standard are: 1. That the security, safety, and good order of each facility will be maintained through an immediate and thorough search of each newly-admitted resident and his or her property. 2. That every resident’s funds, valuables, baggage, and personal property will be inventoried, receipted, stored, and safeguarded. 3. That every resident will be informed about what happens to funds and property that cannot be retained in his or her possession, and the procedures necessary to report missing or damaged property. 4. Where required, residents have regular access to translation services and/or are provided information in a language that they understand. 5. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED. None
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non-government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
American Correctional Association 4th Edition, Standards for Adult Detention Facilities: 4-ALDF-2A-20, 2A-23, 2A-24, 6A-07(M).
V. EXPECTED PRACTICES
1. General:
a. All residential facilities are required to have written policies and procedures to: 1) Account for and safeguard the property of each resident at the time of admission.

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2) Inventory and receipt the monetary funds and other valuables of each resident.
3) Inventory and receipt the baggage and personal property items, other than funds and valuables, which belong to each resident.
4) Conduct audits of the funds, valuables, and other personal property withheld from each resident.
5) Return all funds, valuables, and other personal property belonging to each resident upon their release or transfer.
6) Assist a resident to report missing or damaged property, and investigate the claimed loss.
b. In many facilities, confiscated funds are deposited in the facility commissary (or canteen) in an account owned by the resident. Any facility without a commissary shall provide:
1) A secure cash box for any funds that have been retained from a resident
2) Valuable -property envelopes, which are to list a description of the property and to be sealed immediately after the property is placed inside,
3) A dedicated safe for the cash box and property envelopes, accessible to designated supervisors only.
4) A receipt book to record the amount and type of funds confiscated and/or the type of property being stored.
5) A property storage log to record the date, the time and the name of each person who opens the dedicated safe to place funds in the cash box or withdraw funds from the cash box or to place into or withdraw from the dedicated safe a valuable-property envelope.
c. All facilities, at a minimum shall provide:
1) A secured locker for holding large valuables, accessible to designated supervisor(s) only
2) A baggage and property storage area that is secured when not attended by assigned admissions processing staff
3) A receipt book to record the retention of the resident’s funds, valuables or other property.
Both the dedicated safe and the large-valuables locker should be kept in the shift supervisor’s office, or otherwise secured in an area accessible only by the shift supervisors.
The baggage and property storage area shall be maintained in a clean and orderly manner and inspected as often as necessary to protect resident property.
Regular, frequent and unannounced audits of the property storage log book and the receipt books should be conducted to ensure that the retained funds, valuables, and other property are being properly recorded and accounted for, to avoid misplacement or theft of stored property.

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2. Contraband In accordance with the Residential Standard on “Contraband,” contraband must be surrendered to staff for securing and inventoryi ng. Any personal item can be considered to be contraband when possessed by a resident or visitor within the facility without authorization from the staff. Residents must obtain prior written permission to possess any item, even if the type of item is generally allowable in the facility.
3. Notice to Residents
The resident handbook or equivalent shall notify the residents of facility policies and procedures concerning personal property, including:
a. The certain items that they may retain in their possession.
b. The procedure for requesting a certified copy of any identity document (passport, birth certificate, etc.) placed in their A-files.
c. The rules for storing or mailing property not allowed to be in their possession at the facility.
d. The procedure for claiming their property upon release, transfer, or removal.
e. The procedures for filing a claim for lost or damaged property. Please note that a claim for lost property needs to include documentation (such as the property receipt) that the property was stored or deposited with the facility and that the process for adjudicating a claim requires that the facility retain the receipt books and property storage logs.
f. The procedure for recovering information contained on electronic media such as personal cell phones or computers belonging to the resident.
4. Admission Any unauthorized personal property is contraband, and will be surrendered to staff for securing and inventorying.
Upon admission to a facility the staff shall search and inventory each resident’s property in the presence of the resident, unless instructed otherwise by the Facility Administrator. If the resident being admitted arrives with medication, the medical staff shall determine the nature of, the storage of, and the disposition of all medicine. The admitting staff shall require each resident from whom funds, valuables or other property is being withheld to submit a permanent home address for possible to be used if stored property is discovered at the facility after the resident’s release or transfer from the facility.
5. Limitations on Possession of Funds and Personal Property a. No cash shall remain in the possession of any resident.
b. Each facility will be required to maintain a commissary system to account for any cash on hand for each family unit at the facility.
c. Residents may keep a reasonable amount of personal property in their possession, provided it poses no threat to facility security. Residents shall

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have the opportunity to mail excess property to a third party, or to store the excess property in the facility’s personal property storage area, with the facility administrator’s permission. Any property stored by the facility should be recorded and described in the personal property storage logbook and a duplicate receipt for stored property should be prepared so that the facility and the resident each have documentation describing the stored property. d. Identity documents, such as passports and birth certificates, are to be held in each resident's A-file for safekeeping by ICE until the resident is removed or until the removal proceedings are resolved; however, upon written request, staff shall provide the resident a copy of the requested document, certified to be a true and correct copy. e. For each housing area, the facility administrator shall designate a secured storage area or room for storing residents’ personal property. f. Each resident shall be permitted to keep reasonable quantities of the following personal items in his or her possession, as long as a particular item does not pose a threat to the security or good order of the facility:
1) Small religious items
2) Religious and secular reading material and correspondence
3) Legal documents and papers, including property receipts
4) Photographs measuring 5" x 7" or smaller
5) Prescription glasses
6) Dentures
7) Personal address books or pages
8) Wedding rings
9) Any other items approved by the JFRMU staff
Examples of items residents may not retain in their possession include:
10)Cash
11)Any negotiable instrument
12)Jewelry other than small religious items and wedding rings
13)Other items of value, for example, cameras, radios, stereos
14)Prohibited publications, including, but not limited to, publications depicting, describing or encouraging activities that could lead to physical violence or group disruption (such as material dealing with self-defense or survival, weaponry, armaments, explosives, or incendiary devices); containing sexually explicit material; or describing the production of drugs or alcohol
15)Drugs and medications not prescribed or authorized by facility medical staff. (Residents are only authorized to keep medications authorized by medical staff that are designated as “Keep on Person” by the designated medical provider

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Every housing area shall have lockers or other securable space for storing residents’ authorized personal property. The amount of storage space shall correspond to the number of residents assigned to that housing area.
Space constraints may cause the facility administrator to limit the number of books, newspapers, magazines, etc., allowed per resident.
6. Excess Property
To prevent overcrowding and related storage problems, staff shall encourage residents to send extra suitcases, televisions, electronic devices, and other “soft” (not illegal or dangerous) contraband to a third party of his or her choosing.
a. The facility may make shipping arrangements for a resident requiring such help, and shall assume the cost if the resident cannot afford postage.
b. If a resident does not provide an appropriate mailing address within 30 days, the facility may make reasonable accommodations to store the property; however, ordinarily, the amount stored may not exceed 40 lbs.
c. If a resident does not provide an appropriate mailing address, or is financially able but unwilling to pay the postage, the facility administrator may dispose of the property in accordance with the Residential Standard on “Contraband,” after providing the resident with written notice.
d. When personal property is shipped, staff shall prepare an inventory record of the property that was shipped, the shipment addressee, and maintain a copy of the property inventory and shipping information in the resident's file.
7. Staff Processing of Funds and Valuables Each facility shall have a written standard procedure for inventory and receipt of resident funds, valuables, and other personal property. Residents shall receive a copy of a receipt containing the inventory of their retained property. The funds shall be recorded in a cash log and deposited in the facility commissary or cashbox and dedicated safe, and the property shall be stored in a secured storage area or dedicated safe, accessible by shift supervisors only.
• Foreign currency shall be recorded by type and amount, and a receipt provided to the resident.
• Foreign currency shall not be converted by the facility.
8. Supervisor Processing of Funds and Valuables The supervisory staff member shall:
a. Verify the accuracy of all funds received.
b. Record the amount of cash, and describe each valuable item in the supervisors’ property log.
c. Verify the proper safekeeping or deposits of funds and storage of valuables, and ensure against unauthorized access to the secured locked area.

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9. Staff Processing of Baggage and Personal Property Other Than Funds and Valuables An itemized inventory of all resident baggage and personal property (separate from funds and valuables) shall be completed during admissions processing, using the personal property inventory form. If a resident has no baggage, a facility container shall be provided to store his or her personal property.
These procedures do not apply to identity documents, such as passports and birth certificates, which are held in each resident's A-file.
The personal property inventory form must contain, at a minimum, the following information:
a. Date and time of admission
b. Resident’s complete name and A-number or facility resident number
c. Description, quantity and disposition of articles. Disposition may be indicated as either:
1) “S” for “Safekeeping” (by the facility), or

2) “R” for “Retained” (by the resident).

d. General condition of the property
e. The signa ture, and the printed name of the staff member completing the inventory and the signature and printed name of the resident
After being properly inventoried and inspected for contraband, all baggage and facility containers shall be tagged as follows:
a. A pre-numbered, three-part I-77 or similar inventory form shall be issued for each separate container or item of baggage.
b. Each I-77 shall bear the resident’s full name, A-number or facility resident number, and the date.
c. The resident’s signature must appear on the I-77.
d. The top portion of the I-77 shall be attached to the resident’s property, and the center portion to the resident’s booking card or residential file. A brief description of the property container shall be made on this portion of the I-77, for example, “black suitcase” or “paper bag.”
e. The resident shall be given the bottom portion of the I-77. The back portion of the I-77 shall also contain a brief description of the property container.
All resident luggage and facility containers used for storing resident personal property shall be secured in a tamper-resistant manner (such as by a tamper-proof, numbered tie strap) and shall only be opened in the presence of the resident.
A logbook shall be maintained, listing resident name, A-number or facility resident number, -I77 number, security tie-strap number, property description, date issued, and date returned.
Tagged baggage and other property tagged with an I-77 shall then be stored in the facility baggage storage area.

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10. Inventory and Audit
Each facility shall have a written procedure for the inventory and audit of residents’ funds, valuables, and personal property.
Where physical custody of or access to resident funds, property envelopes, and large valuables changes with facility shift changes, the on-coming and off-going supervisors shall simultaneously conduct an inventory of these items. The property and valuables logbook shall record the date, time, and the name(s) of the staff conducting the inventory. Any discrepancies shall be immediately reported to the Assistant Facility Administrator for Operations and ICE resident.
11. Release or Transfer Each facility shall have a written procedure for returning funds, valuables, and personal property to a resident being transferred, removed, or released.
12. Lost or Damaged Property a. General
Each facility shall have a written policy and procedure for resident property reported missing or damaged. A lost property report is required.
ICE shall be notified when properly receipted resident property is reported missing or damaged. Supervisory staff shall investigate and, if necessary, take prompt action to prevent further loss. If the property is not recovered or is recovered in a damaged condition, staff shall prepare a report for the facility administrator and ICE/DRO, providing:
1) Name and A-number or facility resident number of the resident claiming ownership
2) Description of the property and, if applicable, the noted damage 3) Date and time the loss or damage was discovered
4) Name(s) of person(s) discovering the loss or damage 5) The circumstances under which the person(s) discovered the loss or
damage and the cause of the loss or damage to the property if determined. 6) Names and statements of the resident and all witnesses
7) Place, date, and time the property was last seen (before reported missing or damaged)
8) The circumstances under which the property was last seen (before reported missing or damaged)
A resident being transferred, released, or removed who has a claim for lost or damaged property shall be allowed to initiate the claim before leaving the facility. A Standard Form 95 (SF95) shall be provided to the resident for making his or her claim. The facility administrator shall send the result of the investigation of the resident’s claim and his or her SF95 to the Office of the Principal Legal Advisor, CALD, at 425 I Street, N.W. Room 6100, Washington, DC 20536 for further adjudication and disposition of the claim.

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b. Documentation of Lost or Damaged Property
In addition to the procedures specified above, ICE/DRO staff must complete Form I-387, Report of Resident Missing Property, for lost property (but not for damaged property). The original copy of this form shall be placed in the residents A-file, with a copy retained by the facility. The facility administrator shall send the result of the investigation of the resident’s claim, a copy of the Form I-137, and the resident’s SF95 to the Office of the Principal Legal Advisor, CALD, at 425 I Street, N.W. Room 6100, Washington, DC 20536 for further adjudication and disposition of the claim.
A copy of the completed forms shall be forwarded to JFRMU for a determination of whether any additional reporting is required.
Additionally, each facility shall incorporate the following requirements in its policies and procedures:
� All procedures for investigating and reporting property loss or damage shall be implemented as specified in this standard.
� Supervisory staff shall conduct the investigation.
� The senior facility contract staff shall forward all resident claims for lost or damaged property to OPLA/CALD promptly.
� The senior contract staff shall immediately notify the designated ICE/DRO staff of all claims.
13. Abandoned Property
All facilities shall report and turn over to ICE/DRO all residents’ abandoned property for management and disposition in accordance with existing ICE/DRO policy.
a. Notification shall be sent by certified mail to the last known address of the resident, advising him or her that the property has been declared abandoned, and that he or she has 30 days to contact ICE/DRO to arrange to claim the property;
b. If the resident does not respond or expresses that he or she does not want to claim the property, the facility administrator shall have the property "vested" into the ownership of the Government;
c. After the property has been vested in the Government, ICE/DRO shall: � Use the property;
� Destroy the property; or
� Sell the property at auction and deposit the proceeds into a general account.

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Contraband shall be handled in accordance with ICE/DRO’ “Control and Disposition of Contraband” standard. Property that is of minimal value, broken, or clearly abandoned shall be discarded. Because property obtained through non-appropriated funds cannot be donated, donations of abandoned property to charitable organizations are prohibited.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

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 ICE/DRO RESIDENTIAL STANDARD
GRIEVANCE SYSTEM

I. PURPOSE AND SCOPE. Residents are provided a procedure by which they may file formal grievances and receive timely responses.
II. EXPECTED OUTCOMES. The expected outcomes of this Standard are as follows:
1. Residents will be informed about the facility’s informal and formal grievance system.
2. Staff and residents will mutually resolve most complaints and grievances orally and informally in their daily interaction.
3. Residents will be able to file formal grievances, and receive written responses, in a timely manner.
4. Residents will be able to file emergency grievances that involve an immediate threat to their safety or welfare.
5. Residents will be able to appeal decisions on grievances to a higher level (Resident Grievance Committee or designated single Grievance Staff) and, if still not satisfied, to the facility administrator.
6. Accurate records will be maintained on grievances filed and their resolution.
7. No resident will be harassed, disciplined, punished, or otherwise retaliated against for filing a complaint or grievance.
8. Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
9. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED. None
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non­ government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment. American Correctional Association Standards for Adult Local Residential Facilities, 4th Edition: 4-ALDF-2A-27, 6A-07, 6B-01.

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V. EXPECTED PRACTICES
1. Written Procedures Required Each facility shall have written policy and procedures for a resident grievance system that:
• Establishes a procedure available to all residents to file a formal grievance • Establishes reasonable time limits for:
o Processing, investigating, and responding to grievances
o Convening a grievance committee to review formal complaints
o Providing written responses to residents who filed formal grievances, including the basis for the decision
• Establishes a special procedure for time-sensitive emergency grievances; and defines an “emergency grievance”
• Ensures each grievance receives supervisory review • Provides at least one level of appeal • Includes guarantees against reprisal. • Ensures information, advice, and directions are provided to detainees in a
language they can understand, or that interpretation/translation services are utilized.
2. Informing Residents About Grievance Procedures The facility shall provide each resident, upon admittance, a copy of the resident handbook or equivalent form of communication, which provides notice of the following in English, Spanish, and other languages most widely spoken among the residents. Interpretation or translation services will be provided to residents who are not proficient in English. This shall contain a grievance section that provides notice of:
• The expectation that many complaints and grievances can and should be handled orally and informally by staff in their daily interaction with residents.
• The opportunity to file a grievance, both informal and formal. • The procedures for filing a grievance and an appeal, including the availability of
assistance in preparing a grievance.
• The procedures for resolving a grievance or appeal, including the right to have the grievance referred to higher levels if the resident is not satisfied that the grievance has been adequately resolved.
• The procedures for contacting the ICE/DRO to appeal a grievance decision of the facility administrator.
• The policy prohibiting staff from harassing, disciplining, punishing, or otherwise retaliating against any resident for filing a grievance
• The opportunity to file a complaint about staff misconduct directly to the Department

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of Homeland Security, Office of the Inspector General by calling (800) 323-8603, or by writing to:
Department of Homeland Security
 245 Murray Drive, S.E., Building 410
 Washington, DC 20538
 Attn: Office of Inspector General

Email to: DHSOIGHOTLINE@DHS.GOV
3. Grievance Procedure
a. Informal/Oral Grievance Staff at every facility shall make every effort to resolve a resident's complaint or grievance at the lowest level possible, in an orderly and timely manner.
Staff who receive a resident’s oral complaint or grievance shall:
1) Attempt to resolve the issue informally if the issue is within his or her scope of responsibility, or
2) Notify the appropriate supervisor of the grievance as soon as practical.
The supervisor may try to resolve the matter or advise the resident to initiate a written grievance.
Informal oral resolution offers the resident the opportunity to resolve his or her cause for complaint before resorting to the more time-consuming written formal procedure.
The facility administrator, or designee, shall establish procedures for residents to orally present the issue of concern informally (as addressed in the Staff-Resident Communication Residential Standard.) Translating assistance shall be provided upon request.
If an oral grievance is resolved, the staff member need not provide the resident written confirmation of the outcome, but shall document the result for the record in the resident’s residential file and in any logs or data systems the facility has to track such actions.
A resident is free to bypass or terminate the informal grievance process, and proceed to the formal grievance stage.
b. Formal/Written Grievance The facility administrator, or designee, shall allow a resident to submit a formal, written grievance to the facility's grievance committee, or a single designated grievance staff. A supply of grievance forms shall be available in each dayroom/common area, along with a locked box where residents may deposit grievances. The facility’s designated grievance officer shall collect the grievances on a daily basis. Residents shall be given the opportunity to obtain preparation assistance from another resident or from facility staff.

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Illiterate, disabled, or non-English speaking residents shall be provided additional assistance, upon request.
The resident may file a formal grievance after the event or unsuccessful conclusion of an informal grievance:
1) The facility administrator or designee shall ensure that procedures accommodate the need for special assistance to residents who are disabled, illiterate, or limited in English in preparing and pursuing a grievance.
2) Staff shall advise the resident that the grievance form may cover a single complaint, or a cluster of closely related issues that fall under a single subject. Each form should clearly state the resident’s issues of concern, otherwise the form shall be returned to the resident for clarification. Staff shall provide the number of forms and envelopes the resident requests.
3) To prepare a grievance, a resident may obtain assistance from another resident in the same housing unit, the housing staff, other facility staff, family members, or legal representatives.
A resident may not submit a grievance on another resident's behalf, except a parent on behalf of his or her child.
4) If the resident claims that the issue is sensitive, or if the resident's safety or well­ being would be jeopardized if others in the facility learn of the grievance, the resident has the right to seal the grievance in an envelope, clearly marked “Sensitive,” and submit it directly to the facility administrator, or designee. The resident must include the reason for circumventing the usual grievance process.
5) Each grievance form shall be delivered without delay by authorized personnel (not residents), and will not be read or reviewed until received by the person designated to receive grievances.
6) The shift supervisor or other staff member designated to receive grievances shall accept the grievance form, signed and dated by the resident, and shall officially meet with the resident to attempt to resolve the issue.
7) If the grievance cannot be resolved to the satisfaction of the resident, the supervisor shall annotate the resident grievance form, and refer the written grievance to the next level of supervision in his or her chain of command, or to the appropriate department head.
8) The next level of supervisor in the chain of command shall act on the grievance within five working days through informal or formal resolution. The responsible department head shall provide the resident a written decision that includes the basis for the decision. If the resident is illiterate or disabled the decision shall be read to him or her in a language that he or she understands, or translation/interpretation shall be provided as needed. If the resident is not English-speaking, the written response should be interpreted in the native language, If the grievance is resolved at the informal level, the staff who resolved the issue shall document the circumstances and resolution in the resident’s residential File.

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9) If the resident does not accept the resolution, he or she may appeal to a Resident Grievance Committee (RGC), or a single designated Grievance Officer (GO) who shall respond within five days.
No one named in the complaint, or involved with earlier resolution attempts or with helping prepare the written grievance, may participate in the appeal process. The DGC or GO may call witnesses, inspect evidence or otherwise gather facts essential to an impartial decision. The resident shall be provided with an opportunity to appear before the committee or officer to present his or her case, answer questions, and respond to conflicting evidence or testimony.
Within five working days of reaching a decision, the DGC or GO shall provide the resident, in writing, the decision and basis of that decision.
4. Emergency Grievances
Each facility shall implement procedures for identifying and processing an emergency grievance that involves an immediate threat to a resident's safety or welfare. Once the receiving staff member who is approached by a resident determines that he or she is, in fact, raising an issue requiring urgent attention, emergency grievance procedures shall apply.
The emergency grievance procedure shall bring the matter to the immediate attention of the facility administrator and ICE/DRO, even if it is later determined that it is not a true emergency (and the grievance is subsequently routed through normal, non-emergency channels). The resident may elect to present his or her emergency grievance to any supervisor or manager of the facility or ICE/DRO. All emergency grievances shall receive immediate attention, and at a minimum shall be reviewed by a facility administrator or assistant facility administrator. Responsibility for these reviews shall not be delegated.
If the matter is resolved by staff at the shift level, the supervisor involved shall prepare a report for the facility administrator or assistant facility administrator describing theproblem and resolution. Emergency grievances not resolved at the shift level shall be sent up the chain of command until the matter is resolved.
If the shift supervisor or contract equivalent determines the matter is not an emergency, standard grievance procedures shall apply.
5. Appeal
If the resident does not accept the DGC or GO’s decision, he or she may appeal it to the facility administrator or ICE/DRO. All facilities shall implement procedures for addressing resident appeals.
After reviewing the finding of the DGC or GO, the facility administrator or ICE/DRO may uphold, modify, or reverse it.
a. The facility administrator, or designee, shall provide the resident a written decision within five days of receiving the appeal.

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b. The decision shall be in writing, and shall contain a discussion of the decision and the facts upon which it is based.
c. If the resident is illiterate or disabled, the decision shall be read to him or her. If the resident is not English-speaking, the written response should be interpreted to the native language
d. The facility administrator, or designee, shall use the normal routing system of the facility to send the written decision to the resident.
This decision is final and cannot be further appealed within the grievance system. A copy of each grievance final decision shall be forwarded to JFRMU.
6. Resident Retaliation Prohibited Staff shall not harass, discipline, punish, or otherwise retaliate against a resident who files a complaint or grievance.
7. Established Pattern of Abuse of the Grievance System If an individual establishes a pattern of filing nuisance complaints or otherwise abusing the grievance system, the facility administrator may identify that person, in writing, as one for whom not all subsequent complaints have to be fully processed. Records must be maintained, however, of grievances thus “rejected.” This authority may not be delegated, even to an acting facility administrator. JFRMU must receive a copy of every nuisance complaint.
8. Record-Keeping and File Maintenance Each facility shall devise a method for documenting resident grievances, at a minimum, with a Resident Grievance Log.
Staff shall assign each grievance a log number, enter it in the space provided on the Resident Grievance Form, and record it in the Resident Grievance Log in chronological order.
a. The log entry number and the resident grievance number must match. b. The log shall include the receipt date, and the date and outcome of the resolution. c. Nuisance or petty grievances, and grievances rejected or denied must on
procedural grounds (for example, filed after the deadline), must also belogged with the appropriate notation and justification (for example, "Petty"). A copy of the grievance disposition shall remain in the resident’s residential file and provided to the resident.

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9. Allegations of Staff Misconduct Staff must forward a copy of all resident grievances containing allegations of staff misconduct to a supervisor or higher-level official in the chain of command, and a copy to ICE/JFRMU. Resident facility staff must comply with all DHS and ICE requirements to report allegations of staff misconduct to a supervisor or higher-level official in his or her chain of command, and/or to ICE/DRO Office of Professional Responsibility, and/or to the DHS Inspector General. This reporting requirement applies without exception to all resident allegations of staff misconduct, whether formally or informally submitted.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

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 ICE/DRO RESIDENTIAL STANDARD
HOUSEKEEPING AND VOLUNTARY WORK PROGRAM

I. PURPOSE AND SCOPE. Residents will be provided with opportunities to work and earn money while confined, subject to the number of work opportunities available and the constraints of safety, security, and good order. This standard also sets forth responsibilities of the residents for personal housekeeping at the facility.
ICE/DRO will afford working residents basic U.S. Occupational Safety and Health Administration (OSHA) protections.
II. EXPECTED OUTCOMES. The expected outcomes of this Standard are as follows:
1. Eligible adult residents will have opportunities to work and earn money while in residence, subject to the number of work opportunities available and the constraints of safety, security, and good order.
2. Residents will be able to volunteer for work assignments, but otherwise not be required to work, except to do personal housekeeping.
3. Essential operations and services will be enhanced by the work accomplished by residents.
4. The negative impact of confinement will be reduced because of improved morale, and fewer incidents requiring corrective action.
5. Resident working conditions will comply with all applicable federal, state, and local work safety laws.
6. There will be no discrimination regarding access to the work program based on race, religion, national origin, gender, sexual orientation, or disability.
7. Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
8. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED: None
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non­ government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with

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unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment. American Correctional Association 4th Edition, Standards for Adult Residential Facilities: 4-ALDF-5C-06, 5C-08, 5C-11(M), 6B-02.
V. EXPECTED PRACTICES
1. Voluntary Work Program No resident under the age of 18 is authorized to perform work, other than general cleaning of their personal housing area under the supervision of his or her parent(s). Residents who are physically and mentally able to work shall be p rovided the opportunity to participate, as appropriate in the facility voluntary work program. ICE residents may be assigned to work outside the facility. When ICE residents are working outside the secure perimeter:
a. A qualified employee, or “work supervisor,” will supervise at all times. b. A work supervisor will never be assigned more than four residents. c. A work supervisor will require residents to be within sight and sound of the
supervisor at all times.
2. Personal Housekeeping Required Work assignments are voluntary; however, all residents are responsible for personal housekeeping, specifically maintaining their living areas as described below. Residents are required to maintain their immediate living areas in a neat and orderly manner, by:
a. Making their beds daily b. Stacking loose papers c. Keeping the floor free of debris, and dividers free of clutter d. Not hanging or draping clothing, pictures, keepsakes, or other objects from beds,
other furniture, or overhead light fixtures.
3. Resident Selection for Work Details The facility administrator shall develop site-specific rules for selecting work detail volunteers. Each adult resident has a primary responsibility to care for and supervise his or her minor child (or children). A resident is eligible to work only when it does not interfere with that primary responsibility. Staffs are responsible for explaining the rules and regulations to workers in a languagethe workers understand.

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No special privileges should be afforded to any worker as a result of work performed.

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4. Discrimination in Hiring Prohibited Residents shall not be denied voluntary work opportunities on the basis of such factors as race, religion, national origin, gender, sexual orientation, or disability.
5. Physically and Mentally Challenged Residents While medical or mental health restrictions may prevent some physically or mentally challenged residents from working, those with less severe disabilities shall have the opportunity to participate in the voluntary work program if appropriate work assignments exist.
a. The selecting official must consider the abilities and precise limitations of a disabled individual before considering that individual for specific work assignments.
b. Expediency or convenience is insufficient justification to reject a resident for a particular work assignment.
c. In disputed cases, the selecting official shall consult medical personnel to ascertain the resident's suitability for a given project.
6. Hours of Work Residents who participate in the volunteer work program are required to work according to a fixed schedule. Residents shall not be required to work in excess of 8 hours per day or 40 hours per week.
7. Number of Details in One Day The facility administrator may restrict the number of work details permitted a resident during one day. A resident shall be required to sign a voluntary work program agreement before every new assignment. Completed agreements shall be filed in the resident’s residential file. (See attached sample agreement).
8. Compensation Residents shall receive monetary gratuity for work completed in accordance with the facility’s standard policy. The compensation is $1.00 per day. Compensation shall be placed into a family unit’s commissary account and shall be paid daily, unless the facility has a system in place that ensures residents receive the pay owed them before being transferred or released. Cash is not to be provided directly to the resident.

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9. Removal of Resident from Work Detail A resident may be removed from a work detail for such reasons that include, but not limited to, the following:
a. Unsatisfactory performance
b. Disruptive behavior, threats to security, etc.
c. Physical inability to perform all functions required by the job, whether because of a lack of strength or a medical condition
d. Unexcused absences from work
e. Prevention of potential injuries to the resident
When a resident is removed from a work detail, the facility administrator shall place written documentation of the circumstances and reasons in the resident’s residential file.
10. Resident Responsibility The facility administrator shall establish procedures for informing resident volunteers about job responsibilities and reporting procedures.
The resident is expected to be ready to report for work at the required time, and may not leave an assignment without permission.
a. The resident shall perform all assigned tasks diligently and conscientiously.
b. The resident may not evade attendance and performance standards in assigned activities, or encourage others to do so.
c. The resident shall exercise care in performing assigned work, using safety equipment and taking other precautions in accordance with the work supervisor’s instructions.
d. In the event of a work-related injury, the resident shall notify the work supervisor, who shall immediately implement injury response procedures.
11. Resident Training and Safety All residential facilities shall comply with all applicable health and safety regulations and standards.
The facility administrator shall ensure that all department heads develop and institute, in conjunction with the facility’s safety/training staff, appropriate training for all resident workers.
a. The voluntary work program shall operate in compliance with: 1) Occupational Safety and Health Administration (OSHA) regulations set forth in 29 CFR Parts 1910, 1926, and 1960 (current indexes attached)
2) National Fire Protection Association 101 Life Safety Code (current index attached)

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3) American Correctional Association Standards for Adult Local Residential Facilities (referenced above)
4) ICE/DRO Environmental Occupational Safety and Health Program Handbook
Each Safety and Health Officer (SHO) is responsible for providing all facilities in his or her jurisdiction with complete and current copies of the documents listed above, including 29 CFR Parts 1910, 1926 and 1960.
The facility administrator shall ensure that the facility operates in compliance with all currently applicable standards.
b. Upon a resident’s assignment to a job or detail, the supervisor shall provide thorough instructions regarding safe work methods and, if relevant, hazardous materials.
1) The supervisor shall demonstrate safety features and practices.
2) Workers shall learn to: recognize hazards in the workplace, report deficiencies to their supervisors, and properly use the protective devices and clothing provided.
3) Since ICE/DRO will not tolerate "lack of knowledge or skill" as being the cause of an accident, a resident shall not undertake any assignment before signing a voluntary work program agreement that includes a confirmation that the resident has received and understands training from the supervisor about the work assignment.
The voluntary work program agreement shall be placed in the resident’s residential file.
c. For a food service assignment, medical staff, working with the U.S. Public Health Service, shall ensure residents are medically screened and certified before undertaking an assignment.
d. The facility shall provide residents with safety equipment that meets OSHA and other required standards associated with the task performed.
e. The facility administrator shall ensure that the facility operates in compliance with all currently applicable laws and standards.
12. Resident Injury and Reporting Procedures The facility administrator shall implement procedures for immediately and appropriately responding to on-the-job injuries, including immediate notification to ICE/DRO.
If a resident is injured while performing his or her work assignment:
a. The work supervisor shall immediately notify the facility medical staff. In the event that the accident occurs in a facility that does not provide 24-hour medical coverage, the supervisor shall contact the on-call medical staff for instructions.

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b. First aid shall be administered, if necessary.
c. Medical staff shall determine what treatment is necessary and where that treatment shall take place.
d. The work supervisor shall complete a resident accident report and submit it to the facility administrator for review and processing, and for filing in the resident’s Afile.

Standard Approved:
______________________________ John P. Torres Director Office of Detention and Removal

_______________ Date

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 ICE/DRO RESIDENTIAL STANDARD
HUNGER STRIKES

I. PURPOSE AND SCOPE. The health and well-being of adult residents is protected by monitoring, counseling, and, when appropriate, treatment of any adult residenton a hunger strike. Nothing in this Residential Standard is intended to limit or override the exercise of sound medical judgment by the medical authority responsible for a resident’s medical care. Each case must be evaluated on its own merits and specific circumstances, and treatment shall be given in accordance with accepted medical practice.

II. EXPECTED OUTCOMES. The expected outcomes of this Residential Standard are as follows:
1. Any resident who does not eat for 72 hours will be referred to the medical department for evaluation and possible treatment.
2. When medically advisable, a resident on a hunger strike will be placed under close supervision for observation and monitoring.
3. The Chief, JFRMU and ICE/DRO Field Office Director will be notified when a resident is on a hunger strike.
4. The resident’s health will be carefully monitored and documented, along with the resident’s intake of food and liquids.
5. A resident on a hunger strike will be counseled and advised of the medical risks, and will be encouraged to end the hunger strike or to accept medical treatment.
6. Medical treatment will be administered against a resident’s will only with the medical, psychiatric, and legal safeguards specified herein.
7. Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
8. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED. None

IV. REFERENCES
The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non­ government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner.

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There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
American Correctional Association 4th Edition, Standards for Adult Detention Facilities: 4 ­ ALDF-2A-52, 4D-15.
V. EXPECTED PRACTICES
1. Staff Training All staff shall be initially and annually trained to recognize the signs of a hunger strike and to follow the procedures for medical assessment referral.
2. Initial Referral Procedures for identifying and referring to medical staff a resident suspected or announced to be on a hunger strike shall include obtaining a medical assessment. This assessment shall be made by qualified medical personnel, and shall include a statement of whether the resident’s action is reasoned and deliberate, or is a manifestation of mental illness. Upon medical recommendation, the resident may be placed in close supervision for observation and monitoring.
When an ICE/DRO resident is on a hunger strike, the facility shall notify ICE/DRO, which shall notify DIHS.
a. Any resident observed to have not eaten for 72 hours shall be immediately referred to the medical department for an evaluation of whether the resident is on a hunger strike, or in need of medical or mental health intervention.
• Any minor observed or known to have missed three consecutive meals or four meals in any two day period shall be referred to the medical unit for examination and evaluation to determine if medical or mental health intervention is required.
b. When medically advisable, medical personnel may place the resident in a singleoccupancy observation room, for the purpose of measuring food and liquid intake and output.
c. The facility administrator shall immediately report the hunger strike to the Chief JFRMU and ICE/DRO Field Office Director, who shall follow standard policy for reporting significant incidents to headquarters.

3. Initial Medical Evaluation and Management
Medical staff shall monitor the health of a resident on a hunger strike. If the resident is engaging in a hunger strike due to a mental condition, appropriate medical action shall be taken.
a. During the initial evaluation of a resident on a hunger strike, medical staff shall:

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1) Measure and record his or her height and weight.

2) Measure and record resident vital signs;.

3) Conduct a urinalysis of the resident.

4) Conduct a psychological or psychiatric evaluation of the resident;.

5) Assess the resident’s general physical condition.

6) If clinically indicated, proceed with radiographs and/or laboratory studies.

b. Medical staff shall take and record weight and vital signs at least once every 24 hours during the hunger strike, and repeat other medical procedures as indicated.
c. The Clinical Director (CD), or equivalent medical authority, may modify or augment standard procedures when medically indicated.
d. Medical staff shall record all examination results in the resident's medical file.
e. All physical and mental examinations, treatments, and other medical procedures require the informed consent of the resident.
• If the resident refuses the initial medical evaluation, medical staff must attempt to secure the resident's signature on a "Refusal of Treatment" form.
• If the resident will not cooperate by signing, staff shall note this on the "Refusal of Treatment" form.
f. If medically indicated, the resident may be transferred to a community hospital or an alternate ICE facility that is appropriately equipped for treatment.
g. After the hunger strike, medical staff shall provide follow-up medical and psychiatric care as long as necessary. Only the medical authority may order a resident's release from hunger strike treatment, and shall document that order in the resident’s medical record.
4. Food and Liquid Intake and Output After consultation with the CD, the facility administrator may require staff to measure and record food and water intake and output, using the following procedure:
a. Record intake and output on the Hunger Strike Monitoring Form (DIHS-839 in DIHS-staffed facilities), until this record-keeping is terminated by the CD.
b. Deliver three meals per day to the resident's room, unless otherwise directed by the medical staff. Regardless of the resident's response to a verbally offered meal, staff shall deliver each meal to the resident.
c. Provide an adequate supply of drinking water, and offer to provide other beverages.
• Remove all food items not authorized by the medical staff from the resident’s room. During the hunger strike, the resident’s purchase of commissary or vending machine food and beverages shall be documented, and this information be provided daily to medical.

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5. Refusal To Accept Treatment Staff shall make reasonable efforts to convince the resident to accept treatment voluntarily. Forced medical treatment shall not be administered at a family residential facility. Residents requiring forced medical treatment shall be transferred to an alternate ICE facility or other facility, as appropriate for intervention. The transfer of a resident who is a part of a family unit shall not adversely affect the housing assignment of that family unit, of and by itself.
a. Staff shall explain to the resident medical risks associated with the refusal of treatment and document their treatment efforts in the resident’s medical record.
b. The CD may recommend involuntary treatment when clinical assessment and available laboratory results indicate the resident’s weakening condition threatens the life or long term health of the resident.
The CD shall notify the JFRMU in writing of the proposed plan for force-feeding the resident, and the requirement to transfer the resident immediately to an alternate ICE facility for treatment.
c. Medical staff shall: • Document all treatment efforts in the resident’s medical record. • Continue clinical and laboratory monitoring as necessary, until the resident’s life or permanent health is out of danger - ordinarily, until adequate oral intake of food and liquid is achieved. • Continue medical, psychiatric, and/or mental health follow-up as necessary.
6. Release from Treatment
The CD may order that a resident be released from hunger strike evaluation and treatment. That order shall be documented in the resident’s medical record.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

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 ICE/DRO RESIDENTIAL STANDARD
KEY AND LOCK CONTROL
 I. PURPOSE AND SCOPE. Keys and locks are properly controlled and maintained, enhancing safety and security at the facility.
II. EXPECTED OUTCOMES. The expected outcomes of this Residential Standard are:
1. All staff will be trained in the proper care and handling of keys and locks. 2. Keys will be controlled and accounted for. 3. Locks and locking devices will be continually inspected, maintained, and inventoried. 4. Firearms will be stored in secure gun lockers before their carriers enter the facility. 5. Where required, residents have regular access to translation services and/or are
provided information in a language that they understand. 6. The standard complies with federal laws and with DHS regulations regardingresidents
with special needs.
III. DIRECTIVES AFFECTED. None
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non­ government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment. American Correctional Association 4th Edition Standards for Adult Local Detention Facilities: 4-ALDF-2D-01, 7B-10.
V. EXPECTED PRACTICES
1. Proper Care and Handling of Keys and Locks All staff shall be trained and held responsible for adhering to proper procedures for the care and handling of keys, including electronic key pads where they are used. Initial training shall be completed before staffs are issued keys, and key control shall be among the topics covered in subsequent annual training.

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a. An employee who inadvertently leaves the facility with a key ring shall return it immediately upon realizing his or her mistake (which constitutes unauthorized possession of U.S. property as well as a breach of procedures).
b. An employee, who loses, misplaces, or otherwise cannot account for a key or key ring shall immediately alert the shift supervisor and promptly submit a written report.
c. Staff shall never allow any resident to handle facility keys.
d. Key rings, including those for gun lockers, shall be securely fastened to a belt with a metal clip or other approved device. Fastening keys to a holsters or belt loop is prohibited.
e. Employees shall not refer to key numbers or other means of identification within earshot of a resident.
f. Employees shall neither throw nor slide keys to one another.
g. Force shall not be used to operate locks.
h. If a key breaks inside a lock, the employee shall maintain visual oversight of the lock until its extraction. If the key breaks inside a padlock, the padlock itself shall be removed and taken to the Control Center. In every instance, the employee shall submit a memorandum on the incident to the facility administrator.
i. It is recommended that every facility use key covers for large security keys, however, it is within the discretion of the facility to determine if key covers will be utilized.
2. Facility Staff (Key-Control Staff) Each facility administrator shall, either, establish the position of Security Officer, or, assign a staff member the collateral security officer duties, as described herein.
a. Major Duties and Responsibilities of the Facility Staff The Security Officer shall have a written position description that includes duties, responsibilities, and chain of command.
The Security Officer:
1) Reports directly to the Assistant Facility Administrator for Operations;
2) Conducts physical security surveys of all buildings and provides the Assistant Facility Administrator for Operations written recommendations regarding deficiencies and needed corrective actions;
3) Plans and practices preventive maintenance/replacement of locks and other security-devices;
4) Identifies technical problems or malfunctions in electronic/automated and manually operated security systems and immediately repairs them or coordinates prompt repairs with the facility maintenance department;

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5) Overhauls, adjusts, and replaces worn parts on locking devices and systems;
6) Maintains, adjusts, and services machines used in the lock-shop;
7) Is capable of operating gas/oxygen-cutting tools and end-saw equipment in an emergency;
8) Conducts routine tests on emergency-exit doors;
9) Checks the keys to all emergency exits every 30 days and all other keys needed in emergencies quarterly, and documents the results.
10) Reviews all major work orders and in-house designs, plans, and specifications with the facility maintenance department for compliance with security requirements.
The facility maintenance supervisor (or equivalent) shall consult with the Assistant Facility Administrator for Operations (or equivalent) and Security Officer before proceeding with new construction and renovation projects involving door hardware.
b. Required Locksmith Training All security staff shall successfully complete an approved locksmith training program.
The Security Officer shall complete formal locksmith training.
Locksmith training should be supplemented with training in Occupational Safety and Health Administration standards and the National Fire Prevention Association’s life safety codes. Manufacturer’s instructions, user manuals, product orientations, and demonstrations can also provide useful guidance.
c, Administrative Responsibilities The Security Officer is responsible for all administrative duties, including recordkeeping, concerning keys, locks, and related security equipment.
The Security Officer:
1). Maintains a recordkeeping system that cross-references keys in the Control Center and lock-shop, alphabetically and numerically, to facilitate quick identification of the key or key ring needed for a particular lock;
2). Maintains accurate inventories of padlocks in use, master keys for cabinets, key blanks, and all keys currently in use;
3). Maintains for the historical record a collection of reference material on locking devices and systems, including devices and systems previously used in the facility.
d. Supervision and Training The Security Staff shall train and direct employees in key control, including electronic key pads where they are used.
The Security Staff is responsible for training an Assistant Security Staff in all duties related to the position. The Security Staff must be proficient in all phases of security and be able to demonstrate proper equipment use to other employees.

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3. Lock Shop Operation
a. Inventories The Security Staff shall maintain inventories of all keys, locks and locking devices in the Lock Shop.
Lock Shop inventories shall include, at a minimum:
• A secure master-key cabinet containing at least one pattern key (never issued), and one or more spare keys; always locked; with all contents itemized on an inventory form.
• All key blanks, identified by model number and manufacturer's name, inventoried in a bound ledger or electronic database.
• All unassigned padlocks.
• An inventory of assigned padlocks, with locations identified alphabetically or numerically.
b. Compromised Keys and Locks The facility administrator or Assistant Facility Administrator for Operations shall establish procedures for handling compromised keys and locks.
Compromised keys shall be cut into pieces until irremediably destroyed. The facility shall document the type of key or lock, the number of keys/locks compromised, and the date, time, and method of destruction.
c. Safe Combinations The Security Staff shall implement procedures for protecting the integrity of all safe combination(s).
The combination for each safe shall be changed at least every 12 months and any time a staff member with access to a combination is assigned to another post. The combination to a safe shall be sealed in an envelope bearing across the flap the date and signature of the person who deposited and sealed the combination inside the envelope. Any person(s) authorized to open the envelope shall be listed, by title, on the front of the envelope. Envelopes containing safe combinations shall be stored in the lock-shop.
d. Keying, Authorized, and Non-Authorized Locks 1) Either deadbolts or deadlocks shall be used in resident-accessible areas.
2) Locks not authorized for use in resident-accessible areas include, but are not limited to: snap-, key-in-knob, thumb-turn, push-button, rim-latch, barrel or slide bolt, and removable-core-type locks (including padlocks). Any such locks in current use shall be phased out and replaced with mortise lock sets and standard cylinders.
3) Grand master-keying systems are not authorized.
4) After removing the facility number and key cuts, the Security Staff shall cut up

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and dispose of worn or discarded keys and locks.
5) Entrance/exit door locks of housing units, work areas, chapels, gyms, and other areas with room capacity of 50 or more people shall meet the standards specified in the Occupational Safety and Environmental Health Manual (Chapter 3) and in the National Fire Protection Association Life Safety Code (#101). Panic-hardware is an acceptable alternative to such locking devices.
6) Individual doors to areas with room capacity of 50 or more people shall have no more than one lock for each door. Padlocks shall not be used on exit doors or intermediate doors along the exit route.
7) Padlocks and/or chains may not be used in a family residential center.
e. Preventive Maintenance The Security Staff shall implement a preventive maintenance program.
The Security Staff shall perform the following preventive maintenance services, among others:
1). Adjust and service vehicle-gates for changing (hot/cold) weather conditions twice a year, in the spring and early fall
2). Adjust and service front-entrance and other gate operations at least once a year.
3). Lubricate all other locks quarterly, per manufacturers’ instructions.
4). Perform maintenance checks on locks and locking systems, taking corrective action as necessary.
5). At least once every five years: steam-clean vehicle-gates; clean locking mechanisms of front-entrance gates, other gates, and other critical locking mechanisms using steam or other means.
The facility maintenance supervisor is responsible for door-hardware installation and maintenance (closures, hinges, pulls, kick plates, etc.), and for providing certain support services (welding, electrical-work) to the Security Staff, as needed.
f. Preventive Maintenance Documentation The Security Staff shall maintain all preventive maintenance records.
The Security Staff’s preventive maintenance files shall include:
1). Date,
2). Location of lock or locking mechanism,
3). Type of maintenance,
4). Rationale for changing key combination(s), and
5). Signature of service provider.

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4. Key Cabinet
a. Location An operational keyboard large enough to accommodate all facility key rings, including keys in use, shall be located in a secure area.
This operational keyboard shall be located in the Control Center.
b. Basic Construction. The key cabinet shall be constructed so that keys are visible only when being issued. Keys may never be seen by residents or visitors.
c. Small, closet-type space in the Control Center may be used instead of a cabinet, as long as:
• Access limitations are the same as for a key cabinet, • All other key/lock standards are met, and • The space is used solely for key control.
 In the key cabinet:

• Keys in vertical rows shall be arranged in alphabetical order, and • Keys in horizontal rows shall be arranged in numerical order. • The label identifying the letter or number of the key ring that belongs on a
particular hook shall be visible even when the key ring is on the hook.
• Any hook without an assigned key ring shall be tagged with a metal chit that indicates "hook not in use."
d. Key Rings The Security Staff shall implement procedures for identifying every key ring and every key on each key ring, and for preventing keys from being removed from key rings, once issued.
All key rings shall be heavy-gauge wire that has been welded or brazed to prevent removal of keys from the ring.
Two metal tags of unequal size shall be attached to each key ring:
1) The larger tag shall identify the key ring with a number/letter corresponding to the hook number/letter.
2) The smaller tag shall identify the number of keys on the key ring.
e. Emergency Keys Emergency keys shall be on hand for every area to or from which entry or exit might be necessary in an emergency.
1. Emergency keys may be kept in a separate key cabinet or in a readily identified area of the regular-issue key cabinet. A separate key cabinet located in the Control Center is recommended for the emergency keys.
2. The emergency-key cabinet shall contain a hook for each key ring. If an

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emergency-key ring is kept outside the main emergency-key cabinet (for example, in a tower), a metal tag providing the key ring's location shall hang on the hook intended for that key ring in the main emergency-key cabinet.
3. The emergency keys shall be cut precisely to manufacturer’s specifications.
4. Emergency keys shall not be rotated In and out of the lock shop.
5. Issue of Key Rings
a. Chit System Facilities shall use a chit system or other standard system for the issuance and accountability of key rings.
The chit shall be labeled with the staff’s first initial and last name. All key rings shall be issued as needed (at the beginning of a shift, etc.) with the exchange of a chit for a key and the chit placed on the hook from which the key was removed.
An employee who reports to work without chits must obtain temporary chits from the Control Staff, which he or she can exchange for keys according to standard procedure.
• The Control Staff shall maintain accountability for the issued chits. • At the end of the shift, the employee shall personally return the temporary chits to
the Control Staff.
At shift rotation, to obtain keys from staff on post, the relief staff must first exchange his or her key chit at the Control Center for the key chit of the employee being relieved. The relief staff shall take his or her key chit to the employee being relieved and exchange the key chit for the appropriate ring of keys. The staff shall immediately count the keys on his or her ring, immediately reporting any discrepancies to the shift supervisor. If the relief staff needs to gain access to any location(s) while heading from the control enter to his or her post, the Control Staff may issue him/her a second set of keys. In this case, the staff shall return the extra set of keys to the Control Staff at the end of the relief shift.
b. Restricted Keys The facility administrator shall establish rules and procedures for authorizing use of restricted keys.
The Control Staff must have authorization from the shift supervisor to issue a restricted key.
1). Pharmacy Pharmacy keys shall be strictly controlled.
Ordinarily, such controls include: � Maintaining pharmacy keys in a Restricted Keys cabinet in the Control Room and issuing them only to authorized pharmacy staff. � Maintaining a second set in the lock shop.

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In the event of an emergency that necessitates entry into the pharmacy by other than authorized pharmacy staff, the highest-ranking supervisor may authorize the withdrawal, document the reasons, and sign the authorization. Such documentation is ordinarily done via a Restricted Key form. A copy shall be sent to the Pharmacist, who shall maintain a file of such emergency authorizations.
2). ICE and EOIR Offices Keys to ICE and EOIR (Executive Office of Immigration Review) shall similarly be restricted and controlled. If a key is authorized for emergency withdrawal, a copy of the Restricted Key form is to be provided to ICE.
b. 24-Hour Issue Keys No key or key ring may be issued on a 24-hour basis without the facility administrator's written authorization.
A key chit identifying the borrower of the key ring shall be placed on the appropriate hook in the key cabinet, along with a metal tag marked "24-hour issue."
Individual 5" x 8" cards shall be used to record the following information about each set of 24-hour-issue keys: the key-ring identifiers (number and title), the number of keys on the ring, the individual key numbers and the door each key unlocks. Each card must bear the signatures of the authorizing facility administrator, Assistant Facility Administrator for Operations, and the employee to whom the keys are issued.
c. Security Keys Key rings used but not issued on a 24-hour basis because the attached security keys shall be kept in a dedicated, glass-front, lockable box in the Control Center. Identical boxes may be kept and used in different departments, provided staffs are authorized to receive 24-hour keys. The key to every such box shall be issued on a 24-hour basis.
The staff member removing keys from the box shall place his or her chit on the hook in place of the key ring, returning the keys and reclaiming the chit at the end of the shift. The individual to whom the keys were issued shall personally return the keys to the box, without exception.
Security keys may not be taken off facility property (except for bus, van and other authorized-vehicle keys). As a rule, security keys shall not be issued on a 24-hour basis.
d. Key Accountability The facility administrator shall establish written policy and implementing procedures to ensure key accountability.
The Control Staff shall conduct a key-ring audit upon reporting for duty, accounting for each key ring in the Control Center logbook and shall immediately report discrepancies in the record to the shift supervisor.
The Control Staff shall also identify broken or bent keys. All keys (regular-issue and emergency) shall be checked and counted daily.

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To ensure accountability, keys shall be issued only on the assigned key rings.
e. Request for Key Change Key-change requests shall be submitted, in writing, to the facility administrator. Upon facility administrator approval, only the Security Staff may add or remove a key from a ring.
f. Split Key Ring The splitting of key rings into separate rings is not authorized.
6. Gun-Locker Keys Staff shall store their weapons in individual lockers before entering the facility. The facility administrator shall develop and implement site-specific procedures for controlling gun-locker access; however, in all facilities, gun lockers:
a. Shall be placed in locations wherestaff can continuously observe them, in person or on a video-monitor, and not in any area that has resident or public access.
b. Shall store the weapons of all on-duty staff, except those whose assignments require them to carry weapons.
c. May not be used for long-term storage. (A staff member may arrange with the facility firearms control staff for storage of a weapon in the armory.)
Chits and logbooks are useful for maintaining accountability for gun-locker keys and gunlocker use.

Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

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 ICE/DRO RESIDENTIAL STANDARD
LAW LIBRARIES AND LEGAL MATERIAL

I. PURPOSE AND SCOPE. Residents will have access to courts, counsel, and legal materials.
II. EXPECTED OUTCOMES. The expected outcomes of this Residential Standard are:
1. Resident rights will be protected.
2. Residents will have access to courts and counsel.
3. Residents will be able to confidentially correspond with attorneys and/or the attorneys’ authorized representatives.
4. Residents will have access to a law library, legal materials, and equipment to facilitate the preparation of documents.
5. Residents who are illiterate, non-English-speaking, or indigent will receive appropriate special assistance.
6. Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
7. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED. None
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non­ government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
American Correctional Association 4th Edition Standards for Adult Local Detention Facilities: 4-ALDF-6A-01, 6A-02, 6A-03, 6A-09, 2A-62.
Residential Standard on “Correspondence and Other Mail,” in regard to correspondence with attorneys and other legal representatives, judges, courts, embassies, and consulates.
Residential Standard on “Telephone Access,” in regard to phone calls to legal representatives or to obtain legal representation.

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Residential Standard on “Visitation,” in regard to visits from attorneys, other legal representatives, and legal assistants. Residential Management (Access times and parental supervision)
V. EXPECTED PRACTICES
1. Law Library Each facility shall provide a law library in a designated, well-lit room that is reasonably isolated from noisy areas and large enough to provide reasonable access to all residents who request it. It shall be furnished with a sufficient number of tables and chairs to facilitate residents’ legal research and writing.
2. Supervision The facility shall develop procedures that effectively prevent residents from damaging, destroying, or removing equipment, materials, or supplies from the law library. Facilities are encouraged to monitor resident use of legal materials to prevent vandalism.
3. Hours of Access Each facility administrator shall devise a flexible schedule that:
a. Permits all residents to use the law library on a regular basis. b. Enables the maximum use possible, without interfering with the orderly operation of
the facility. Generally, law library hours of operation are to be scheduled between 8:00 a.m. and 8:00 p.m. daily. c. Establishes the maximum number of residents permitted to use the law library simultaneously. Each resident shall be permitted to use the law library as needed, but no less than ten hours per week. Staff shall accommodate resident requests for additional law library time to the extent that is consistent with the needs of the residents and orderly operation of the facility, with priority given to requests from a resident with an impending court deadline.
4. Equipment Each facility administrator shall designate an employee to inspect the equipment at least weekly, to ensure that it is in good working order, and to stock sufficient supplies. In order to prepare documents for legal proceedings, the law library shall provide the following for residents’ use:
� Typewriters, with replacement typewriter ribbon and correction tape � Computers and printers � A copier. � Writing implements

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� Writing tablets � Non-toxic correction fluid
5. Maintaining Up-to-Date Legal Materials
a. ICE/DRO Headquarters Coordinator At ICE/DRO Headquarters, JFRMU is designated as the coordinator toassist facilities and Field Offices in maintaining up-to-date law library materials.
b. Updating and Replacing Legal Materials Each facility administrator shall designate an employee to be responsible for updating legal materials, inspecting them weekly, maintaining them in good condition, and replacing them promptly, when needed.
1). Materials for Law Libraries (Attachment A)
 Each law library shall contain the materials listed in Attachment A (except any 
 materials subsequently no longer published).
 JFRMU shall request that the ICE Office of the Principle Legal Advisor (OPLA) review and update the contents of Attachment A at least annually. JFRMU shall add information to libraries on significant statutory and regulatory changes regarding detention and removal of aliens, in a timely manner, and provide copies to all facilities. ICE/DRO shall arrange a subscription to the updating service, if available, for each publication on the list.
2). Sources for Publications
a). List of Publishers (Attachment B) Information regarding updating of materials can be obtained directly from the publishers listed in Attachment B. The ICE Law Librarian can also provide updating information. If anticipated updates are not received or if subscriptions lapse, the facility administrator (or designee) shall seek assistance from JFRMU. When a facility receives replacement supplements or other materials, it shall dispose of the outdated ones. Damaged or stolen materials shall be promptly replaced. In addition to its own inspections, the facility shall encourage residents to report missing or damaged materials. The facility may obtain replacements by contacting JFRMU. If materials from outside organizations need to be replaced, the facility shall contact ICE/DRO to obtain replacements from the submitting organization.

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b). Electronic media i.e. Lexis/Nexus CD-ROM A facility will provide publications listed in Attachment A on CD-ROM if available in that format, or if not, with printed publications. The facility administrator must certify to JFRMU that the facility provides residents sufficient:
� Operable computers and printers � Photocopiers � Supplies for both � Residents shall be provided with the opportunity to save their work
on a disk. Where the Lexis/Nexus CD-ROM is not available or the other conditions for resident access and use are insufficient, the materials listed in Attachment A are required to be available in printed form in the facility law library.
6. Materials from Outside Persons or Organizations Outside persons and organizations may submit published or unpublished legal material for inclusion in a facility’s law library. If the material is in a language other than English, an English translation must be provided.
Published/Unpublished Material If a facility receives such material, the ICE facility administrator shall forward it to JFRMU for review. If materials related to immigration law or procedures are declined, JFRMU shall notify in writing the submitter of the reasons. Unpublished material must have a cover page that:
a. Identifies the submitter and the preparer of the material. b. States clearly that ICE/DRO did not prepare and is not responsible for the contents. c. Provides the date of preparation.

ICE/DRO shall expeditiously make its decision, ordinarily within 45 days. ICE/DRO may object in whole or in part to materials that may pose a threat to the security or good order of the facility, or that misstate immigration law, policies, or procedures. JFRMU shall consult with the OPLA and other appropriate ICE/DRO and facility staff to determine whether to approve the materials.
If approved, JFRMU shall notify the facility administrator and the submitter.
If not approved in all or part, JFRMU shall inform the submitter in writing of the reasons.

7. Requests for Additional Legal Material Residents who require legal material not available in the law library may make a written

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request to the facility law library coordinator, who shall inform the ICE facility administrator of the request as soon as possible.
The ICE facility administrator, with the assistance of the respective ICE Chief Counsel, shall respond to all requests. Requests from residents who are facing imminent deadlines shall receive priority. Requests for copies of court decisions shall normally be available within three business days.
8. Photocopying Legal Documents The facility shall ensure that residents can obtain photocopies of legal material, when such copies are reasonable and necessary for his or her legal proceeding. This may be accomplished by providing residents with access to a copier.
The number of copies of documents to be filed with a particular court, combined with the number required for ICE/DRO records and at least one copy for the resident’s personal use will determine the total number of photocopies required.
Requests for photocopies of legal material may be denied only if:
a. The document might pose a risk to the security and orderly operation of the residential facility;
b. There are other legitimate security reasons;
c. Copying would constitute a violation of any law or regulation; or
d. The request is clearly abusive or excessive.
Facility staff shall inspect documents offered for photocopying to ensure that they comply with these rules; however, staff may not read a document that on its face is clearly related to a resident’s ongoing legal proceeding.
9. Assistance from Other Residents The facility shall permit residents to assist other residents in researching and preparing legal documents upon request, except when such assistance poses a risk. Such assistance is voluntary, and no resident shall be allowed to charge a fee or accept anything of value for assistance.
The facility administrator may not pay compensation to a resident for researching or preparing legal documents.
10.Assistance to Illiterate and Non-English Speaking Residents Unrepresented illiterate or non-English speaking residents who request assistance in their immigration or detention proceedings, and who indicate difficulty in preparing and filing legal materials, must be provided with assistance as outlined below.
a. Helping the resident obtain assistance in using the law library and drafting legal documents from residents with appropriate language and reading-writing abilities.
b. Assisting in contactingpro bono legal-assistance organizations from the ICE/DRO­ provided list.

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If such attempts are unsuccessful in providing the resident sufficient assistance, the facility shall notify JFRMU, ICE/DRO Field Office, and ICE Chief Counsel.
11. Personal Legal Materials
For a resident with a large amount of personal legal material, the facility:
a. May place a portion of it in their personal property storage., The resident is permitted access during designated hours.
b. Shall grant requests for access as soon as feasible, but not later than 24 hours after receipt of a request.
12. Envelopes and Stamps for Indigent Residents The facility shall provide indigent residents with free envelopes and stamps for mail related to a legal matter, including correspondence to a legal representative, a potential legal representative, or any court.
13. Notaries, Certified Mail, and Miscellaneous Needs Associated With Legal Matters The facility shall provide assistance to any unrepresented resident who requests a notary public, certified mail, or similar services to pursue a legal matter, if the resident is unable do so through a family member, friend, or community organization.
If it is unclear whether the requested service is necessary, the respective ICE Chief Counsel should be consulted.
14. Notice to Residents The resident handbook (or equivalent) shall provide residents with the rules and procedures governing access to legal materials, including the following information:
a. That a law library is available for resident use.
b. The scheduled hours of access to the law library.
c. The procedure for requesting additional time in the law library (beyond the 5 ­ hour per week minimum).
d. The procedure for requesting legal reference materials not maintained in the law library.
e. The procedure for notifying a designated employee that library material is missing or damaged.
These policies and procedures shall also be posted in the law library along with a list of the law library’s holdings.

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15.Retaliation Prohibited Staff shall not permit a resident to be subjected to reprisals, retaliation, or penalties because of his or her decision to seek judicial relief on any matter, including, (but not limited to:
a. The legality of his or her confinement; b. The legality of conditions or treatment while under detention; c. Any issue relating to his or her immigration proceedings; or d. Any allegation that the Government is denying rights protected by law.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

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 ICE/DRO RESIDENTIAL STANDARD
LEGAL RIGHTS GROUP PRESENTATIONS

I. PURPOSE AND SCOPE. Residents are to be provided access to information presented by authorized persons and organizations for the purpose of informing them of U.S. immigration law and procedures. Consistent with the safety and orderly operation of each facility, ICE/DRO encourages such presentations, and all facilities shall cooperate fully with authorized persons seeking to make such presentations.
II. EXPECTED OUTCOMES. The expected outcomes of this Residential Standard are as follows:
1. Residents will have access to group presentations on U.S. immigration law and procedures and an overview of available options under the law.
2. Persons and organizations wanting to make group presentations will be provided with information on procedures to follow and required conduct if requesting the opportunity to make a legal rights presentation.
3. Facility safety and good order will be maintained.
4. Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
5. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED. None
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non­ government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
American Correctional Association 4th Edition Standards for Adult Local Detention Facilities: 4-ALDF-6A-04, 6A-06.

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V. EXPECTED PRACTICES
1. Requests to Make Group Presentations on Legal Rights Attorneys or legal representatives interested in offering a group presentation on legal rights under the INA must submit a written request to JFRMU. Generally, requests must be submitted to JFRMU at least 10 business days in advance of the first proposed presentation at a residential facility. JFRMU shall take under consideration allowing a presentation to take place on shorter notice when expeditious handling is warranted due to ongoing agency operations or potential movement of residents from the facility on short notice. The written request must contain the following information:
a. A general description of the intended audience (for example, protection law cases from a group of applicants who speak the same language, removal cases where the respondents speak Spanish, etc.).
b. A syllabus or outline of the presentation. c. An informational poster, as described below. d. The languages in which the presentation will be conducted e. The name, date of birth, Social Security number, profession, and specific function of
each person requesting permission to enter the facility (including interpreters). f. Certification that each person making the presentation is an attorney, legal
representative (including accredited representative), or legal assistant. g. A proposed date (or range of dates) for the presentation. h. A name of a contact person and telephone number.
Request Granted
If the request is granted by JFRMU, the ICE facility administrator shall telephone the listed contact person to arrange a mutually acceptable date and time for the presentation.
Additional or Continuing Presentations
To request JFRMU permission to conduct additional presentations, or for access to a facility on a continuing basis, the requestor may submit a letter to JFRMU that refers to previously-approved materials, notes, any proposed changes in the content or personnel, and proposed dates or continuing period. Any presenter granted recurring access must notify JFRMU in writing in advance of any subsequent proposed changes.

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Request Denied
If the request is denied after consultation with the respective ICE Office of Principal Legal Advisor (OPLA)/Office of the Chief Counsel, the JFRMU shall provide the requestor a written explanation for the denial.
Scheduling Presentations
Presentations must be scheduled during legal visiting hours.
If no attorneys or legal representatives volunteer to provide presentations, then the facility is not required make additional arrangements for their provision.
Additionally, if ICE/DRO does not approve presentations, ICE/DRO is under no obligation to seek a replacement provider.
The Executive Office of Immigration Review (EOIR) was authorized by Congressional appropriations to provide Legal Orientation Programs (LOPs) for residents in residential facilities. Through contracts with non-governmental organizations (NGOs), EOIR has developed LOPs (also known as “Legal Rights Group Presentations”) to provide a comprehensive explanation about immigration court procedures and other basic legal information to groups of detained illegal aliens. The LOPs are comprised of three components:
a. An interactive group orientation
b. An individual orientation
c. A referral/self-help component
EOIR LOPs have been operating in a limited number of ICE/DRO facilities and, based on Congressional funding, will be developed and implemented in other facilities as designated by, and in cooperation with ICE/DRO. Groups seeking funding should be directed to this organization. This program continues to be developed, and is expanding as funds allow.

2. Resident Notification and Attendance
The requestor must provide a one-page poster (no larger than 8.5 by 11 inches) to inform residents of the general nature and contents of the presentation, the intended audience, and the language(s) in which it will be conducted.
The poster should instruct residents to contact the housing staff if they wish to sign-up to attend. For poster text in languages other than English, an English translation must be provided.
JFRMU shall review the poster within three business days of submission to ensure that it meets the above requirements and that display of the posting will not endanger the safety or orderly operation of the facility. JFRMU shall contact the person listed in the request if additional information is required, or if the poster does not meet requirements. JFRMU shall make a good faith effort to work with the requestor to develop mutually acceptable

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materials.
Designated facility staff shall prominently display in housing units the informational posters provided by the presenter at least 48 hours before the scheduled presentation. Each housing unit staff shall make available a sign-up sheet for residents who plan to attend. Each presentation shall be open to all residents including residents who have not signed up in advance. For residents who fail to sign up, the decision to allow attendance shall be limited only by space available.
The facility administrator may limit the number of residents at a single session, based on the number of interested residents or the need to separate groups of residents for safety and security. Therefore, the presenter must be prepared to conduct several presentations and should contact the facility administrator the day before the presentation to determine the number of sessions that will be required.

3. Who May Present
One or more legal assistants may help with a presentation if the supervising attorney/legal representative does the following:
a. Submits a letter that identifies the legal assistant and affirms that the supervisory relationship directly relates to the presentation, and
b. Attends any presentation in which any such assistant participates.
ICE/DRO is not responsible for providing interpreters for presenters; however, the facility shall admit properly identified interpreters to assist the presenters, in accordance with the Residential Standard on “Visitation.”
As a general rule, presentation parties may not exceed four people (including legal assistants and interpreters); however, a facility may waive this rule upon advance receipt of a written request.

4. Entering the Facility
Facility staff shall require each person seeking entry to present an official form of picture identification (such as a driver’s license or state identification card). Attorneys must also present state-issued bar cards or, in states where these are not available, other proof of bar membership. If such documentation is not readily available to attorneys licensed in a particular state, they must indicate where they are licensed as attorneys and how that may be verified.
Group presenters are required to check into the facility as least 30 minutes prior to presentation. After check-in, facility staff shall escort the presenters to the presentation site.

5. Presentation Guidelines
The facility shall select and provide an environment that is conducive to the presentation and is consistent with safety and good order. Once the residents have been assembled, the presenters ordinarily will have one hour for the presentation and a question-and-answer session; however, the facility administrator may extend that time period on a case-by-case

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basis.
The facility shall require presenters to abide by all rules and regulations for visitors to the facility, and presentations must be conducted in a manner consistent with the safe and orderly operation of the facility. Presenters may neither charge any fee nor solicit business during any presentation.
At their discretion, ICE/DRO and/or facility staff may observe and monitor presentations, assisted by interpreters as necessary. ICE/DRO and facility personnel may not interrupt a presentation, except for security purposes or if the allotted time has expired.

6. Written Materials
If approved in advance by ICE/DRO, presenters may distribute brief written materials that inform residents of U.S. immigration law and procedure. The request for approval of a presentation must list any published or unpublished materials proposed for distribution, and the requestor must provide a copy of any unpublished material, with a cover page that:
a. Identifies the submitter and the preparer of the material.
b. Includes the date of preparation.
c. States clearly that ICE/DRO did not prepare, and is not responsible for, the content of the material.
If any material is in a language other than English, an English translation must be provided.
ICE/DRO may object to materials in whole or in part, if they:
d. Pose a threat to the safety or good order of the facility, or
e. Contain misstatements of immigration law or procedure, or ICE/DRO policy.
ICE/DRO will make a good faith effort to work with the requestor to develop mutually acceptable materials.
Distribution of unapproved materials constitutes grounds for discontinuation of presentation privileges.
The volume of materials to be distributed must be kept to a minimum. If the facility administrator determines they are too voluminous for distribution at the presentation, they may be made available to residents in the facility’s law library.
When distributing materials, presenters shall distribute them to residents and ICE/DRO and/or facility staff at the same time.
7. Individual Counseling Following a Group Presentation Following a group presentation, as is consistent with safe and orderly operations, the facility shall permit presenters to meet with small groups of residents to discuss their cases.
ICE/DRO and facility staff may not be present during these meetings. The Residential Standard on “Visitation” standard sets forth the rules and procedures for Visits by Legal

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Representatives and Legal Assistants.
8. Suspension or Termination The facility may discontinue or temporarily suspend group presentations by any or all presenters, if they:
a. Pose an unreasonable security risk; b. Interfere substantially with the facility’s orderly operation;
c. Deviate from approved material, procedures or presenters; or
d. The facility is operating under emergency conditions.
The ICE facility administrator, after consultation with JFRMU and OPLA/OCC, shall notify the affected presenters in writing of the reasons for termination or suspension, with copies to the respective ICE/DRO Field Office Director, and Chief Counsel.
A presenter may appeal a suspension or termination to the Chief, JFRMU in writing. The Chief, JFRMU shall promptly consider the appeal and consult with OPLA and the ICE/DRO facility administrator regarding the concerns that caused the suspension or termination, and a potential means of addressing them so that the discontinued presentations may resume. JFRMU shall inform the presenter in writing of the decision or additional requirements to rectify the situation. 9. Videotaped Presentations
The requestor must submit the videotape, along with a transcript in English and in the language(s) used on the tape, to JFRMU. The videotaped presentation must clearly identify its preparer and must clearly state that ICE/DRO did not prepare and is not responsible for the contents.
ICE/DRO may object to all or part of the videotape, if: a. The material would present a threat to the safety or good order of a facility; b. It contains misstatements of ICE/DRO policy, c. It contains misstatements of immigration procedure or law; or d. Any part is inconsistent with this Residential Standard.
Within 45 days of receipt, the JFRMU shall, in writing, notify the submitter of his or her decision. Once ICE/DRO has accepted a tape, the submitter may modify or revise it at any time by submitting a new tape and transcripts. If ICE/DRO believes that aspects of the presentation have become dated or inaccurate, ICE/DRO may discontinue showing the videotape and promptly send written notice to the submitter.

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Resident Viewing of Approved Electronic Media Presentations Each facility shall play ICE/DRO-approved electronic presentations on legal rights. If it is not technically feasible to play such media, the facility shall contact ICE/DRO for equipment options. The facility shall provide regular opportunities for residents to view the presentation. The facility shall maintain media in good condition. In the event a presentation becomes unavailable or unusable, the facility shall promptly request that ICE/DRO obtain a replacement from the originating person or organization.
10.Material for Nationwide Presentation Written and electronic media intended for nationwide presentation may be sent to the JFRMU. Once approved, the material may be used in any family residential facility.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

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 ICE/DRO RESIDENTIAL STANDARD
MARRIAGE REQUESTS

I. PURPOSE AND SCOPE. Each marriage request from an ICE/DRO resident receives a case-by-case review, based on internal guidelines for approval of such requests.
II. EXPECTED OUTCOMES. The expected outcomes of this Residential Standard are as follows:
1. Each marriage request from an ICE/DRO resident will receive a case-by-case review. 2. Consistency in decisions to approve or deny a marriage request will be achieved by the
application of guidelines. 3. Where required, residents have regular access to translation services and/or are provided
information in a language that they understand. 4. The standard complies with federal laws and with DHS regulations regarding residents
with special needs.
III. DIRECTIVES AFFECTED. None
IV. REFERENCES. The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non­ government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
V. EXPECTED PRACTICES
1. Written Policy and Procedures Required All facilities shall have in place written policy and procedures to enable eligible ICE/DRO residents to marry.
2. Resident Notification The resident handbook (or equivalent) provided each resident upon admittance shall advise residents of the facility’s marriage request procedures.

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3. Resident Request to Marry A resident, or his or her legal representative, may submit the request to marry to the Chief, JFRMU. The request must specifically state:
a. That the resident is legally eligible to be married
b. That he or she is mentally competent, as determined by a qualified medical practitioner
c. That the intended spouse wants to marry the resident, as attested by a written affirmation of intent to marry the resident by the intended spouse, and that affirmation is included as part of the request.

4. Consideration and Approval JFRMU has complete discretion to approve or deny a marriage request. If the request is denied, ICE/DRO shall notify the resident, in writing, of the reasons for the denial.
5. Guidelines
When a resident requests permission to marry: a. The JFRMU shall consider each marriage request on a case-by-case basis. b. A resident’s request for permission to marry will generally be denied if: 1) The resident is not legally eligible to be married; 2) The resident is not mentally competent, as determined by a qualified medical practitioner; 3) The intended spouse has not affirmed, in writing, his or her intent to marry the resident; 4) The marriage would present a threat to the security or orderly operation of the facility; or 5) There are compelling government interests for denying the request. c. Any decision to deny a request and the reason(s) for that decision shall be provided in writing to the resident (and his or her legal representative, if applicable). d. When a request is approved, the resident, legal representative, or other individual(s) acting on his or her behalf must make all the marriage arrangements, including, but not limited to: 1) Blood tests
 2) Obtaining the marriage license
 3) Retaining an official to perform the marriage ceremony

ICE/DRO personnel may not participate in making marriage arrangements. e. The facility administrator shall notify the resident of a time and place for the ceremony.
The marriage may have no effect on regular or scheduled processing or action in a

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resident’s legal case. Specifically, it may neither interrupt, nor stay, any hearing, facility transfer, or removal from the United States.
f. Ordinarily, arrangements made by the resident or persons acting in his or her behalf shall be accommodated, consistent with the security and orderly operation of the facility:
1) The ceremony shall take place inside the facility, and the resident may not leave the facility to make arrangements.
2) All expenses relating to the marriage shall be borne by the resident or person(s) acting on his or her behalf.
3) The ceremony shall be private, with no media publicity, and only essential individuals for the marriage ceremony may attend.
The JFRMU reserves the right of final approval concerning the time, place, and manner of all arrangements.
f. Revocation of Approval The Chief JFRMU may revoke approval of a marriage under the terms identified in Section E of this standard. The affected resident shall be provided with written notification regarding the reason for revocation. There is no appeal of this decision.
g. Documentation in Residential File After the marriage ceremony, the facility administrator shall forward original copies of all documentation to the resident’s A-file and maintain copies in the facility’s Residential File.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

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 ICE/DRO RESIDENTIAL STANDARD
MEDICAL CARE

I. PURPOSE AND SCOPE. Residents have access to health care maintenance services, including those related to mental health, dental care, prevention, health education, and emergency care in a timely and efficient manner.
In many facilities, medical care for ICE/DRO residents is provided by the Public Health Service’s Division of Immigration Health Services (DIHS). The term “DIHS-staffed facility” refers to a residential facility in which medical care is provided by DIHS.
II. EXPECTED OUTCOMES. The expected outcomes of this Standard are as follows:
1. Residents will have access to health care education and maintenance services that are determined by the health care authority to be necessary and appropriate. Services will include prevention, diagnosis, and treatment of medical, dental, and mental health conditions.
2. Newly admitted residents will be informed how to access health services, in a language they can understand.
3. Residents will be able to initiate requests for health services.
4. Residents will have access to the care determined necessary by the health care authority from a resident’s admission to the residential facility until they are discharged from treatment, transferred to another facility, or removed from the United S tates.When indicated, care shall include referral to community-based providers.
5. A transportation system will be available that ensures timely access to health care services, determined necessary by the health care authority, that are only available outside the facility.
6. A resident who requires close, chronic or convalescent medical supervision will be treated in accordance with a plan approved by licensed physician, dentist, or mental health practitioner that includes directions to health care providers a nd other involved personnel.
7. Residents will have access to specified 24-hour emergency medical, dental, and mental health services.
8. Female residents will have access to pregnancy testing and specified pregnancy management services.

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9. All possible steps will be taken to ensure infectious and communicable diseases, including tuberculosis, hepatitis, and HIV/AIDS, are prevented or managed.
10.New direct-care staff will receive tuberculosis tests prior to their job assignment and periodically thereafter, and will be required to obtain the hepatitis B vaccine series.
11.Biohazard waste will be managed and medical and dental equipment decontaminated in accordance with sound medical standards and in compliance with applicable local, state, and federal regulations.
12.Residents with chronic conditions (such as hypertension and diabetes) will receive chronic care and treatment that includes monitoring of medications, laboratory testing, and chronic care clinics. Other residents will be scheduled for routine medical examinations, as determined by the health authority.
13.The facility administrator, or other designated staff, will be notified in writing of any resident whose medical or mental health needs require special consideration in such matters as housing, transfer, or transportation.
14.Residents will have access to emergency and specified routine dental care, provided under direction and supervision of a licensed dentist.
15.Residents will be provided health education and wellness information.
16.Each newly admitted resident (including transfers) will immediately receive a documented medical and mental health screening. Each facility’s health care provider shall conduct a health appraisal and physical examination on each adult resident within 7 days of arrival, and on each minor within 24 hours of arrival.
17.Residents with mental health conditions will be referred, as necessary, for detection, diagnosis, treatment, and stabilization to prevent psychiatric deterioration while confined.
18.Crisis intervention services will be available for residents who experience acute mental health episodes.
19.Restraints for medical or mental health purposes will be authorized only by a qualified medical or mental health provider, in accordance with the requirements specified in this Residential Standard.
20.Residents whose mental health needs exceed the capabilities of the facility will be transferred to facility with the capacity to meet their needs.
21.Prior to placement in a non-residential facility specifically designated for the care of the

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severely mentally ill or developmentally disabled, a resident shall be afforded due process in compliance with applicable federal, state, and local laws.
22.Prescription and nonprescription medicines will be stored, inventoried, dispensed, and administered in accordance with sound standards, and facility needs for safety and security.
23.Health care services will be provided by a designated health authority, and clinical decisions will be the sole province of the responsible clinician.
24.Health care services will be provided by trainedand qualified personnel whose duties are governed by job descriptions and who are properly licensed, certified, credentialed, and/or registered in compliance with applicable state and federal requirements.
25.Residential and health care personnel will be trained, at least annually, to respond to health-related emergency situations within four minutes of notification, and to properly use first aid kits, available in designated areas.
26.Information about each resident’s health status will be treated as confidential. Active health records will be maintained in accordance with accepted standards, separate from other residents’ residential files, and shall be accessible only in accordance with written procedures and applicable laws.
27.The informed consent standards of the facility’s jurisdiction will be observed and adequately documented at the facility.
28.Medical and mental health interviews, examinations, and procedures will be conducted in settings that respect residents’ privacy, and a female resident will be provided with a female observer for health care performed by male health care providers.
29.Health record files on each resident will be well organized, available to all practitioners, and properly maintained and safeguarded.
30.When a resident is transferred to another facility, the transferring facility will ensure appropriate records are transferred in accordance with established ICE policy.
31.Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
32.The standard complies with federal laws and with DHS regulations regarding residents with special needs.

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III. DIRECTIVES AFFECTED. None
IV. REFERENCES American Correctional Association 4 th Edition Standards for Adult Detention Facilities: 4 ­ ALDF-2A-15, 4C-01 through 4C-31, 4C-34 through 4C-41, 4D-01 through 4D-21, 4D-23 
 through 4D-28, 2A-45, 7D-25.
 Residential Standard on “Admission and Release.”
 Residential Standard on “Environmental Health and Safety,” particularly in regard to: � Storing, inventorying, and handling needles and other sharp instruments, � Standard (“universal”) precautions to prevent contact with blood and other body fluids, � Sanitation and cleaning to prevent and control infectious diseases, and � Disposing of hazardous and infectious waste. Residential Standard on “Sexual Abuse and Assault Prevention and Intervention.” Residential Standard on “Suicide Prevention and Intervention.” Residential Standard on “Hunger Strikes.” Residential Standard on “Terminal Illness, Advance Directives, and Death.” United States Public Health Service (USPHS) Division of Immigration Health Services (DIHS) Policies and Procedures Manual.
 National Commission on Correctional Health Care, Standards for Health Services in Jails.
 Flores v. Reno


V. EXPECTED PRACTICES
1. General Every facility shall directly or contractually provide to its resident population:
� Initial medical screening � Cost-effective primary medical and dental care as required by the health authority
to maintain the health of the resident. � Emergency care � Specialized health care, as deemed necessary by the health authority to maintain

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the health of the resident
� Mental heath care
� Hospitalization as needed within the local community
A designated health authority shall have the overall responsibility for health care services pursuant to a written agreement, contract, or job description. The health authority may be a physician, health services administrator, or health agency. When the health authority is other than a physician, final clinical judgment shall rest with a single, designated, responsible physician, referred to in this Residential Standard as the clinical director.
The health authority shall be authorized and responsible for making decisions about the deployment of health resources and the day-to-day operations of the health services program.
All facilities shall employ, at a minimum, a medical staff and support personnel large enough to perform basic exams and treatments for all residents. The essential positions needed to perform the health services mission and provide the required scope of services shall be described in a staffing plan that is reviewed at least annually by the health authority.
Health care personnel shall perform duties for which they are qualified by training, licensure, certification, job descriptions, and/or written standing, or by direct orders by personnel authorized by law to give such orders. The facility administrator, with the cooperation of the health care authority, shall negotiate and keep current arrangements with nearby medical facilities or health care providers to provide required health care not available within the facility, including securing appropriate custodial staffs to transport and remain with residents for the duration of any off-site treatment or hospital admission.
Ordinarily, clinical decisions shall be made by the responsible physician and shall not be countermanded by non-clinicians. If there is disagreement on the type or extent of treatment that is medically necessary, JFRMU shall make the determination, in consultation with the clinical director and in accordance with the policies and procedures of DIHS. The health care program and the medical facilities shall be under the direction of a health services administrator (HSA) and shall be accredited and maintain compliance with the standards of the Joint Commission on the Accreditation of Health Care Organizations (JCAHO).

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2. Communicable Disease and Infection Control
a. General Each facility shall have a written plan (or plans) that address the management of infectious and communicable diseases, including prevention, education, identification, surveillance, immunization (when applicable), treatment, follow-up, isolation (when indicated), and reporting to local, state, and federal agencies.
Plans shall include: � Coordination with public health authorities � Ongoing education for staff and residents � Control, treatment, and prevention strategies � Protection of individual confidentiality
� Media relations � Management of tuberculosis; hepatitis A, B, and C; HIV infection; and avian
influenza
� Reporting communicable diseases to local and/or state health departments in
accordance with local and state regulations
In regard to the avian influenza, reference is made to the March 2006 32-page Avian Influenza Implementation Plan from DRO Director John P. Torres. The plan establishes guidelines and procedures in anticipation of an influenza pandemic in North America.
In the Quarterly Administrative Meetings described later in this Residential Standard, communicable disease and infectious control activities shall be reviewed and discussed.
In accordance with the Residential Standard on “Environmental Health and Safety,” management of biohazard waste and decontamination of medical and dental equipment shall comply with applicable local, state, and federal regulations.

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b. Additional Requirements Regarding Tuberculosis As indicated below in the section on Medical Screening of New Arrivals, screening for tuberculosis is initiated at intake, and in accordance with CDC guidelines.
For all confirmed and suspected active tuberculosis cases, designated medical staff shall report:
� All cases to local and/or state health departments in accordance with local and state regulations, identified by the custodial agency and the resident’s identifying number of that agency. (ICE residents are reported as being in ICE custody and identified by their Alien Numbers.)
� All ICE residents, as well as residents expected to transfer into ICE custody, cases to the DIHS Epidemiology Unit,:
o By phone to (202) 732-0070, -0071, or -0100, or
o By faxing a health department notification form to (202) 732-0095.
Reporting shall include identifying information, Alien Number, case status, available diagnostic results, and treatment status. � Any movement of ICE residents, including hospitalizations, facility transfers, releases, or removals/deportations shall be reported to the local and/or state health department and the DIHS Epidemiology Unit. If any confirmed or suspected active ICE resident is released or removed prior to the completion of treatment, designated medical staff shall facilitate post-custody case management and continuity of therapy by coordinating with the Epidemiology Unit and the local and/or state health department.
Designated medical staff shall collaborate with the local and/or state health department on tuberculosis and other communicable disease contact investigations.
c. Varicella (chickenpox) Designated medical staff shall notify DIHS of any varicella cases among ICE residents, and of any ICE residents exposed to active varicella who do not have a history of prior varicella or varicella immunization.

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d. Employee Health
The medical authority shall:
� Ensure that all new direct care medical staff members are tested for
tuberculosis prior to their job assignments and periodically thereafter.
� Ensure that all new medical staff members have received the hepatitis B
vaccine series.
The facility administrator shall:
• Ensure that all new direct care program staff are tested for tuberculosis prior to
their job assignments and periodically thereafter.
• Ensure that all new direct care program staff have received the hepatitis B
vaccine series. If required staff who are not medical providers, it shall be conducted through an independent health provider service.

3. Notifying Residents About Health Care Services In accordance with the Residential Standard on “Resident Handbook,” the facility shall provide each resident, upon admittance, a copy of the resident handbook or equivalent, in which procedures for access to health care services are explained.
In accordance with the section on Orientation in the Residential Standard on “Admission and Release,” access to health care services shall be included in the orientation curriculum for newly admitted residents.

4. Facilities
a. Examination and Treatment Area Adequate space and equipment shall be furnished in all facilities so that all residents may be provided basic health examinations and treatment in private.
The medical facility shall: � Be located within the primary perimeter, in an area restricted from general resident access. � Have its own perimeter to ensure restricted access.
A waiting area shall be located at the entrance to the medical facility that is under the direct supervision of custodial staffs and not medical staff. A resident toilet and drinking fountain shall be accessible from the waiting area.

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b. Medical Records Medical records shall be kept separate from residents’ residential records, and stored in a securely locked area within the medical unit.
c. Medical Housing If there is a specific area, separate from other housing areas, where residents are admitted for health observation and care under the supervision and direction of health care personnel, the following minimum standards shall be met:
1). Care
� A clearly defined scope of care services available. � A physician on call or available 24 hours per day. � Health care personnel have access to a physician or registered nurse and
are on duty 24 hours per day when patients are present.
� All patients within sight or sound of a staff member. � A care manual that includes nursing care procedures. � A housing record that is a separate and distinct section of the complete
medical record. � Compliance with applicable federal and state statutes and local licensing
requirements.
2). Wash Basins, Bathing Facilities, and Toilets
� Residents have access to operable washbasins with hot and cold running
water at a minimum ratio of one for every 12 occupants, unless state or local building codes specify a different ratio.
� Sufficient bathing facilities are provided to allow residents to bathe daily,
and at least one bathing area is configured and equipped to accommodate residents with physical impairments or who need assistance to bathe. Water is thermostatically controlled to temperatures ranging from 100° F to 120° F degrees.
� Residents have access to toilets and hand-washing facilities 24 hours per
day and are able to use toilet facilities without staff assistance. Unless state or local building or health codes specify otherwise:

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o Toilets are provided at a minimum ratio of one to every 12 residents
in male toilet facilities and one for every 8 in female toilet facilities.
o All housing units with three or more residents have a minimum of two
toilets.

5. Pharmaceutical Management Each facility shall have written policy and procedures for the management of pharmaceuticals that include:
� A formulary of all prescription and nonprescription medicines stocked or routinely procured from outside sources.
� A method for obtaining medicines not on the formulary. � Prescription practices, including requirements that medications are prescribed only
when clinically indicated, and those prescriptions are reviewed before being renewed. � Procurement, receipt, distribution, storage, dispensing, administration, and disposal of medications. � Secure storage and perpetual inventory of all controlled substances (DEA Schedule II-V), syringes, and needles.
All pharmaceuticals shall be stored in a secure area with the following features: � A secure perimeter � Access limited to authorized medical staff (never residents) � Solid walls from floor to ceiling and a solid ceiling � A solid core entrance door with a high security lock (with no other access) � A secure medication storage area

The pharmacy shall also have a locking pass-through window. 
 � Administration and management in accordance with state and federal law. � Supervision by properly licensed personnel. � Administration of medications by personnel properly trained, and under the
supervision of the health services administrator, or equivalent. � Accountability for administering or distributing medications in a timely manner and
according to physician orders.

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6. Nonprescription Medications Generally, all medications expected to be used by residents shall be approved by the medical department. Residents may, as needed, have access to general over the counter medications such as Tylenol, Motrin, or other nonprescription medications. Because children are routinely present in a family residential facility, care must be taken to provide lockable boxes or locations within each housing area to secure nonprescription medications that may be used by residents.
7. Medical Personnel All health care staff shall have valid professional licenses and/or certifications. DIHS shall be consulted to determine the appropriate credentials requirements for health care providers.
Medical personnel credentialing and verification shall comply with the standards established by JCAHO.
8. Medical Screening of New Arrivals
a. Medical Screening Immediately upon their a rrival, all newly admitted residents shall receive initial medical and mental health screening by a health care provider.
Screening shall include observation and interview items related to the resident’s potential suicide risk and possible mental disabilities. For further information, see the Residential Standard on “Suicide Prevention and Intervention.”
If at any time during the screening process there is an indication of, or request for, mental health services, the health authority must be notified within 24 hours to assess whether a full mental health evaluation is indicated. See the section on Mental Health Program below.
To the extent practicable, medical and mental health interviews and examinations shall be conducted in settings that respect residents’ privacy.
If language difficulties prevent the health care staff from sufficiently communicating with the resident complete the intake screening, the staff shall obtain interpreter assistance.
� Such assistance may be provided by another staff or by a professional service, such as a telephone interpreter service.
� Only in emergency situations may a resident be used for interpreter assistance,

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and then only if the interpreter is proficient and reliable, and only with the consent of the resident being screened. � During in-processing and prior to the resident’s placement in a housing unit, the health care provider shall complete the Intake Screening form I-794 (or facility equivalent) and record all findings of the medical screening process.
b. Physical Exam Each facility’s health care provider shall conduct a physical examination on each adult resident within 7 days of arrival, and on each minor within 24 hours of arrival. Medical and mental health interviews, examinations, and procedures shall be conducted in settings that respect residents’ privacy. A ll female residents should be provided with a female escort for medical examinations with male health care providers.
Residents diagnosed with a communicable disease shall be isolated according to local medical procedures.
c. Tuberculosis Screening All new arrivals shall receive TB screening in accordance with guidelines of the Centers for Disease Control (CDC). A chest x-ray is the primary screening method. The PPD (mantoux method) shall be the secondary screening method.
Residents with symptoms suggestive of active TB shall be placed in a negative pressure isolation room and promptly evaluated for TB disease.
 Also see the earlier section on Communicable Diseases and Infection Control, 
 specifically the Additional Requirements Regarding Tuberculosis.

d. Substance Abuse and Dependence All residents shall be evaluated through the initial intake screening for their use of or dependence on mood and mind-altering substances – such alcohol, opiates, hypnotics, sedatives, etc., that were not administered under a doctor’s care. Any resident determined to be abusing or dependent on such substances will not be admitted to a family residential facility.
9. Mental Health Program
a. Mental Health Services Required Each facility shall have an in-house or contractual mental health program, approved by the appropriate medical authority that provides:

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� Intake screening for mental health or illness � Referral, as needed, for detection, diagnosis, and treatment of mental
conditions � Crisis intervention and management of acute mental health episodes � Stabilization of mentally ill residents and prevention of psychiatric
deterioration while confined � Transfer of residents whose mental health needs exceed the capability of
the facility, to a facility with the capacity to meet those needs.
b. Mental Health Provider The term “mental health provider” includes a psychiatrist, psychologist, social worker and other mental health practitioner.
c. Mental Health Screening Newly admitted residents are to receive initial mental health screening by a health care provider as part of the overall medical intake screening. If there is indication of a thought or mood disorder, a referral shall be made to the mental health provider using form DIHS 812-1. Screening is done prior to the resident’s placement in a housing unit.
d. Mental Health Examinations and Appraisal Based on in-processing screening, medical documentation, or subsequent observations by residential staff or medical personnel, the health authority shall immediately refer any resident who has or may have an acute or chronic mental illness or disability to a mental health provider for a mental health examination and appraisal. Such examinations and appraisals shall: � Review available documentation regarding such factors as mental health treatment, psychotropic medications, drug or alcohol treatment, and sexual abuse victimization. � Review available documentation regarding predatory behavior. � Assess for any differential diagnoses, such as pertinent physical conditions, head traumas, or organic brain disorders.

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� Assess the resident’s current mental health status and condition; suicide and violence potential; and drug and alcohol abuse or addiction.
� Recommend an appropriate level of care, for example:
o Remain in general population with appropriate treatment plan.
o Transfer to a facility with the capacity to meet the needs of patients who cannot reside in a general population.
o Short-term community hospitalization until a plan for the placement of the patient and remaining family members can be implemented.
� Recommend and/or implement a treatment plan, including such matters as transfer, housing, voluntary work, and other program participation.

e. Referrals and Treatment Any resident referred for mental health treatment shall receive a comprehensive evaluation by a licensed mental health provider, as soon as possible and no later than 14 days.
The provider shall develop an overall treatment and management plan, which may include transfer to a mental health facility if the resident’s mental illness or developmental disability needs exceed the treatment capability of the facility.
The medical authority shall ensure due process in compliance with applicable federal, state, and local laws prior to a transfer.

f. At Risk Residents
Residents who have been identified as posing a continuing risk to themselves or others shall be removed from a family residential facility and placed in an appropriate facility.

g. Restraints
Restraints for medical or mental health purposes may be authorized only by a qualified medical or mental health provider, after reaching the conclusion that less restrictive measures are not successful. The facility shall have written procedures that specify:
• The conditions under which restraints may be applied � The types of restraints to be used

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� How a resident in restraints is to be monitored
� The length of time restraints are to be applied
� Requirements for documentation, including efforts to use less restrictive
alternatives
� After-incident review
In all facilities, the medical authority or mental health provider shall complete a Post-Restraints Observation Report.
h. Involuntary Administration of Psychotropic Medications
Involuntary administration of psychotropic medications will only occur under the care of a physician at a hospital or alternative medical facility appropriate to the needs of the resident. The medical provider will provide emergency medical treatment to a resident who presents a risk to himself or others. The medical provider will not provide medical treatment to a resident solely for the purposes of restraint, unless a medical professional determines that they present a danger to themselves or to others.
If a resident is likely to present a safely concern to DRO or facility personnel ,the Field Office should work with their Chief Counsel Office and the U.S. Attorney's Office to obtain a court order to authorize involuntary medical treatment to facilitate the removal process.

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i. Telepsychiatry
Telepsychiatry is the use of electronic communication and information technology to provide or support clinical care at a distance. For telepsychiatry consultation, informed consent from the resident is required, just as would be required for a face-to-face encounter with a mental health provider. See the section on Informed Consent and Forced Treatment later in this Residential Standard.
If telepsychiatry services are offered, the facility’s medical authority shall have written procedures that cover such matters as authorization, resident consent, refusal of treatment (including premature termination of an interview), communication arrangements, resident privacy, medical records documentation, and follow-up.

10. Periodic Health Examinations The clinical director or health services administrator (or their equivalents) may determine that residents not covered below in the section on Special Needs and Close Medical Supervision are to be scheduled for periodic routine medical examinations (annually, for example).
11. Dental Treatment An initial dental screening exam should be performed within 14 days of the resident’s arrival. The initial dental screening may be performed by a physician, physician’s assistant, or nurse practitioner - if trained by a licensed dentist.
Residents shall be afforded only authorized dental treatment (in accordance with the DIHS dental benefits package):
� Emergency dental treatment shall be provided for:
o Immediate relief of pain, trauma, and acute oral infection that endangers the health of the resident, and
o Repair of prosthetic appliances when there is adequate documentation supporting the inability of the resident to maintain reasonable caloric intake.
Routine dental treatment may be provided to residents for whom dental treatment is inaccessible for prolonged periods of confinement, including amalgam and composite restorations, prophylaxis, selected root canals, extractions, x-rays, the repair and adjustment of prosthetic appliances, and other procedures required to maintain the

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resident's health. Accessory dental treatment is not provided which includes: fixed prosthodontics (crowns, implants, etc), fabrication of complete and partial dentures, or orthodontic treatment.
12. Sick Call Each facility shall have:
� Regularly scheduled “sick call” times when medical personnel are available to see residents who have requested medical services.
� A procedure that allows residents the opportunity to request health care services (including mental health services) provided by qualified medical staff in a clinical setting.
If the procedure is a written request slip, they shall be provided in English and the most common languages spoken by the resident population of that facility. If necessary, residents, especially those illiterate or non-English speaking, shall be provided assistance to complete a request slip.
Request slips shall be: � Freely available for residents to request health care services on a daily basis � In English and the foreign languages most widely spoken among the residents � Be completed by the resident or a minor’s parent or guardian � Contain the resident's name, A-number (or other facility ID number), gender, age, and reason for requesting a medical appointment � Be dated and signed by the resident or a minor’s parent or guardian.
All facilities must have a procedure in place to ensure that request slips are received by the medical department the same day that the resident submits the request, or no later than the following morning. For an urgent situation, the housing unit staff or other staff (such as a work detail supervisor) shall call the medical department or refer the matter to a staff supervisor.
The designated health care provider shall review the request slips and determine when the resident will be seen.
Sick call shall be held 7 days a week during regular working hours, except federal holidays.
All facilities shall maintain a permanent record of all sick call requests. The health authority in DIHS-staffed facilities shall maintain sick call records within the resident’s file.

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13. 24-Hour Emergency Medical Treatment Each facility shall have a plan for the delivery of 24-hour emergency health care when immediate outside medical attention is required. A plan shall be prepared in consultation with the facility's routine medical provider, to include:
� An on-call provider; � A list, available to all staff, of telephone numbers for local ambulances and hospital
services
14. First Aid and Medical Emergencies In each residential facility, the designated health authority and facility administrator shall determine the contents, number, location(s), use protocols, and monthly inspections procedures of first aid kits. An automatic external defibrillator should be available for use at the facility. Residential staff shall be trained at least annually to respond to health-related emergencies within four minutes of notification. The training shall be provided by a responsible medical authority in cooperation with the facility administrator and shall include:
a. Recognizing of signs of potential health emergencies and the required responses.
b. Administering first aid and cardiopulmonary resuscitation (CPR). c.Obtaining emergency medical assistance through the facility plan and its required
procedures. d. Recognizing signs and symptoms of mental illness, suicide risk, retardation, and
chemical dependency.

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e. The facility’s established plan and procedures for providing emergency medical care including the safe and secure transfer of residents for appropriate hospital or other medical services, such as by ambulance when indicated. The plan must provide for expedited entrance to and exit from the facility.
When an employee is unsure whether emergency care is required, he or she shall immediately notify the on-duty supervisor, and if the supervisor has any doubt about whether emergency care is required, he or she shall immediately contact a health care provider to make the determination.
15. Delivery of Medication Distribution or administration of medication shall be in accordance with specific instructions and procedures established by the health care provider. Written records of al medication given to residents shall be maintained.
Medication may not be delivered or administered by residents.
16. Health Education and Wellness Information
The health authority shall provide residents with education and wellness information on such topics as self medication dangers, personal hygiene and dental care, prevention of communicable diseases, smoking cessation, family planning, self care for chronic conditions, self examination, and the benefits of physical fitness.
17. Special Needs and Close Medical Supervision
The medical care provider for each facility shall notify the ICE facility administrator in writing when a resident has been diagnosed as having a medical or psychiatric condition requiring special attention. Such conditions may include, for example, chronic illness, mental illness, physical disability, pregnancy, special diet, medical isolation, HIV/AIDS, etc.
When a resident has been diagnosed as having a medical or psychiatric condition requiring special attention, the medical care provider shall notify the facility administrator via a Resident Special Need(s) Form I-819 or similar form.
When a resident requires close medical supervision, including chronic and convalescent care, a treatment plan that includes directions to health care and other personnel regarding care and supervision shall be developed and approved by the appropriate physician, dentist, or mental health practitioner.
Female residents shall have access to pregnancy testing. Pregnant females will have

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access to pregnancy management services that include routine prenatal care, counseling and assistance, nutrition, and postpartum follow-up.
Exercise areas will be available to meet exercise and physical therapy requirements of individual’s treatment plans.
18. HIV/AIDS An HIV/AIDS diagnosis may be made only by a licensed physician, based on a medical history, current clinical evaluation of signs and symptoms, and laboratory studies.
a, Clinical Evaluation When current symptoms are suggestive of HIV/AIDS infection, the following shall be implemented:
1). Clinical evaluation shall determine the medical need for isolation. The health authority shall not recommend to ICE/DRO that the resident be separated from the general population, either pending a test result or after a test report, unless clinical evaluation reveals a medical need for isolation.
2). Following a clinical evaluation, if a resident manifests symptoms requiring treatment beyond the facility’s capability, the provider shall recommend resident transfer to a hospital or other appropriate facility for further medical testing, final diagnosis, and acute treatment as needed, consistent with local medical procedures.
3). Any resident with active tuberculosis should also be evaluated for possible HIV/AIDS infection.
4). An HIV positive diagnosis must be reported to government bodies according to state and federal requirements. Reports of AIDS, and not HIV infection, are required by the CDC. State laws differ considerably, and the clinical director is responsible for ensuring that all applicable state requirements are met. b. Exposure Exposure of a resident to potentially infectious body fluids, such as needle sticks or bites, shall be reported as soon as possible to the clinical director.
Staff exposed to potentially i nfectious body fluids should seek medical assistance and report the incident as soon as possible to the clinical director.

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c. Precautions All residents should be assumed to be infectious for blood-borne pathogens, and standard (“universal”) precautions are to be used at all times when caring for all residents. No additional special precautions are required for the care of HIV positive residents.
The Standard Precautions section of the Residential Standard on “Environmental Health and Safety” provides more detailed information.
19.Informed Consent and Forced Treatment As a rule, medical treatment shall not be administered against a resident's will.
� Except in emergency circumstances, the facility health care provider shall obtain signed and dated consent forms from all residents, parents or guardians before administering any special medical procedures not delineated in the general consent form signed upon admission.
� Informed consent standards of the jurisdiction shall be observed, and consent forms shall either be in a language understood by the resident, or interpreter assistance shall be provided and documented on the form.
If the resident refuses to consent to treatment, medical staff shall make reasonable efforts to convince the resident to voluntarily accept treatment.
� Medical staff shall explain the medical risks if treatment is declined and shall document their efforts and the refusal of treatment in the resident’s medical record.
� When recommended by the medical staff, a resident who refuses examination or treatment may be removed from the facility if his or her refusal poses a risk to the general population, staff and visitors.
� Forced medical treatment shall not be conducted at family facilities. (See section on Special Provisions for Care of Children).
� In the event of a hunger strike, see the Residential Standard on “Hunger Strikes.”
The Residential Standard on “Terminal Illness, Advance Directives, and Death” provides details regarding living wills and advance directives, organ donations, and “do­ not-resuscitate” orders.

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20.Special provisions for care of children
Medical Care of Children (infant to 11 years)
Each child upon arrival at the facility will be enrolled in a Well Baby or Well Child Clinic. The physical exam and periodic well-child checks will follow the same format each visit. These exams shall be documented on the DIHS Pediatric Physical Assessment Form. These exams will start with the initial visit, then follow at regular intervals as follows: 2 to 4 weeks of age; 2 months old; 4 months; 6 months; 9 months; 12 months; 15 months; 18 months; 2 years; then annually from 3 to 10 years of age. At 11 years of age, the assessment will be documented on the adult physical exam sheet.
The format for the exams is the same at each age level but will put emphasis on the differences for each age group, and will include the following.
1. Developmental Tasks • Physical • Behavioral • Mental
2. Diet and Nutrition • Adequate • Appropriate for age/development
3. Immunizations • Up to date • Documentation
4. Subjective Data: includes previous medical history, any current medical problems, medications, and allergies
5. Objective Data: a. Vital signs: includes blood pressure, temperature, pulse, respirations, height and weight. In children up to 23 months this will also include head circumference. b. Physical exam, head to toe, to include dental health
6. Assessment: shall include a discussion of findings with the parent or guardian. 7. Plan: includes timing of follow up, medications and laboratory tests (if 

indicated), referral to next level of care (if indicated), and next exam.
 8. Anticipatory guidance: instructions to parents on what to expect in their child’s
development and how to deal with changes in a residential setting. Includes injury prevention, nutrition, educating child.

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9. Child and parent education regarding dental hygiene, use of any medications, follow-up, and sick call procedures

. 
 Medical Care of Adolescents (12 to 18 years) In addition to the above exam process, the adolescent exam shall include a special emphasis on preventive services in order to reduce serious morbidity and premature mortality. The five categories included in preventive services screening and counseling will include:
1. Screening for risk factors for injury, chronic illness, and need for immunizations Counseling about the following to reduce health risks: • Cardiovascular diseases • Smoking cessation • Obesity/Nutrition • Hypertension • Hyperlipidemia
2. Counseling regarding health risk behaviors: • Alcohol and drug use • Sexually Transmitted Diseases (age-appropriate)
3. Immunizations against HPV and Meningococcal meningitis 4. General health guidance and recommendation for frequency of health visits 5. Dental health.
Anticipatory Guidance for parents of adolescents will include but not be exclusive to: • Appropriate parental decisions • Adapting parental practices to meet changing needs of the child and the family • Health guidance throughout child-rearing spectrum
21. Medical Records a. Health Record File The health authority shall maintain a complete health record file on each resident that is: � Organized uniformly in accordance with recognized medical records standards.

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� Available to all practitioners and used for all health care documentation. � Properly maintained and safeguarded in a securely locked area within the
medical unit.
b. Confidentiality and Release of Medical Records All medical providers shall protect the privacy of resident’s medical information to the extent possible, while permitting the exchange of health information required to fulfill program responsibilities and to provide for the well-being of residents. These protections apply not only to records maintained on paper, but also to electronic records.
In general, information about resident’s health status is confidential, and the active medical record shall be maintained separately from other residential records and be accessible in accordance with sound medical practice and applicable laws.
The health authority shall, however, provide the facility administrator and designated staff information that is necessary:
� To preserve the health and safety of the resident, other residents, staff, or any other person.
� For such administrative and residential decisions as housing, voluntary work assignments, security, and transport.
� For such management purposes as audits and inspections.
When information is covered by the Health Information Privacy Act (HIPA), specific legal restrictions govern the release of medical information or records.
Copies of health records may be released by the facility health care provider directly to a resident or any person designated by the resident, upon receipt by the facility health care provider of a written authorization from the resident. Form I-813 may be used for this purpose.
In absence of an I-813 Form, a written request may serve as authorization for the release of health information, as long as it includes the following (and meets any other requirements of the facility health care provider):
� Address of the facility to release the information � Name of the individual or institution to receive the information � Resident's full name, A-number (or other facility identification number), date of
birth, and nationality

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� Purpose or need for the release � Nature of the information to be released with inclusive dates of treatment � Resident's signature and date
Following the release of health information, the written authorization shall be retained in the health record.
Facilities are required to notify JFRMU each time a resident’s medical records are released.
Residents who indicate they wish to obtain copies of their medical records shall be provided with the appropriate form. The facility staff shall provide the resident with basic assistance in making the written request (if needed), and assist in transmitting the request to the facility health care provider.
If facility staff receives a request for a resident's medical records: � The request shall be forwarded to the facility health care provider, or � The requester (if other than the resident) shall be advised to redirect the request and be provided with the appropriate name and address.
c. Inactive Health Record Files Inactive health record files shall be retained as permanent records in compliance with DIHS established procedures.
22.. Transfer and Release of Residents ICE/DRO shall make appropriate notifications to the facility and medical staff when residents are to be transferred or released.
Medical/Psychiatric Alert. Medical staff shall notify the facility administrator in writing when they determine that a resident’s medical or psychiatric condition requires:
� Clearance by the medical staff prior to release or transfer, or � Medical escort during removal or transfer. Notification of Transfers, Releases, and Removals. The facility health care provider shall be given advance notice prior to the release, transfer, or removal of a resident, so that medical staff may determine and provide for any medical needs associated with the transfer or release. Transfer of Health Records. In advance of a resident’s transfer, the resident's

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medical records or copies shall be mailed to the receiving facility’s medical department in a sealed envelope or other container, labeled with the resident's name and A-number and marked "MEDICAL CONFIDENTIAL." The medical records are to arrive at the receiving facility in advance of the resident’s arrival. Immunization records of a minor shall be provided to the parent or guardian upon release. Other requirements for the transfer of records are contained in the Residential Standard on “Transfers of Residents.”
23. Terminal Illness, Fatal Injury, or Death of a Resident Procedures to be followed in the event of a resident’s terminal illness, fatal injury, or death are in the Residential Standard on “Terminal Illness, Advance Directives, and Death.” That Residential Standard also addresses resident organ donations.
24. Medical Experimentation Residents may not participate in medical, pharmaceutical or cosmetic experiments or research.
25. Administration of the Medical Department Quarterly Administrative Meetings The facility administrator and health services administrator shall meet at least quarterly and include other facility and medical staff as appropriate. The meeting agenda shall include, at a minimum:
a. An account of the effectiveness of the facility health care program b. Discussions of health environment factors that may need improvement c. Review and discussion of communicable disease and infectious control activities d. Changes effected since the previous meetings e. Any necessary recommended corrective actions
Minutes of each meeting shall be recorded and kept on file.
Health Care Internal Review and Quality Assurance The health authority shall implement a system of internal review and quality assurance. Elements of the system shall include:

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� Participating in a multidisciplinary quality improvement committee. � Collecting and analyzing data combined with planning, intervening, and
reassessing. � Evaluating defined data. � On-site monitoring of health service outcomes on a regular basis through:
a. Chart reviews by the responsible p hysician or his or her designee, including investigation of complaints and quality of health records. b. Review of prescribing practices and administration of medication practices. c. Systematic investigation of complaints and grievances. d. Monitoring of corrective action plans. e. Reviewing all deaths, suicide attempts, and illness outbreaks. f. Developing and implementing corrective action plans to address and resolve identified problems and concerns. g. Re-evaluating problems or concerns to determine whether the corrective measures have achieved and sustained the desired results. h. Incorporating findings of internal review activities into the organization’s educational and training activities. i. Maintaining appropriate records of internal review activities. j. Issuing a quarterly report to the health services administrator and facility administrator of the findings of internal review activities. k. Ensuring records of internal review activities comply with legal requirements on confidentiality of records. Peer Review The health authority shall implement an external peer review program for physicians, mental health professionals, and dentists, with reviews conducted at least every two years.
26. Examinations by Independent Medical Service Providers and Experts On occasion, medical and/or mental health examinations by a practitioner or expert not associated with ICE/DRO or the facility may provide a resident with information useful in administrative proceedings before the Executive Office for Immigration Review and

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ICE/DRO.
If a resident seeks an independent medical or mental health examination, the resident or his or her legal representative shall submit to the JFRMU a written request that details the reasons for such an examination. The Chief JFRMU shall approve the examination, as long as it would not present an unreasonable security risk. If a request is denied, the JFRMU shall advise the requester in writing of the rationale.
Neither ICE/DRO nor the facility may assume any costs of the examination, which shall be at the resident's expense. The facility shall provide a location for the examination but no medical equipment or supplies, and the examination must be arranged and conducted in a manner consistent with security and good order.
Should the independent examination result in treatment recommendations that would involve increased costs or services not covered by DIHS policy, the facility’s medical authority shall consult with DIHS.
Standard Approved:

______________________________ John P. Torres Director Office of Detention and Removal

_______________ Date

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 ICE/DRO RESIDENTIAL STANDARD
NEWS MEDIA INTERVIEWS AND TOURS

I. PURPOSE AND SCOPE. This Residential Standard ensures that the public and the media are informed of events within the facility’s areas of responsibility through interviews and tours. It applies to all Residential Facilities housing ICE/DRO detainees: Some terms used in this document may be defined in the separate Definitions Standard.
II. EXPECTED OUTCOMES 1. The public and the media will be informed of operations and events within the facility’s areas of responsibility. 2. The privacy of detainees and staff will be protected, including the right of a detainee to not be photographed or recorded. 3. Where required, residents have regular access to translation services and/or are provided information in a language that they understand. 4. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED. NONE
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non-government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
American Correctional Association Standards for Adult Local Residential Facilities, 4th Edition: 4-ADLF-7D-21, 7F-01.
V. EXPECTED PRACTICES
A. News Media Interviews of Detainees 1. General ICE/DRO supports the provision of public access to non-classified and nonconfidential information about its operations in the interest of informing the public.
ICE/DRO also has a responsibility to protect the privacy and other rights of detainees, including the right of a detainee to not be photographed or recorded.

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By regulating interviews in the Residential setting, the facility administrator ensures the secure, orderly and safe operation of the facility. Interviews by reporters, other news media representatives, academics and parties not included in other visitation categories in the Residential Standard on Visitation shall be permitted access to facilities only by special arrangement and with prior approval of the respective ICE/DRO Chief, Juvenile and Family Residential Management Unit (JFRMU).
2. Media Representatives
“Media representatives” refers to persons whose principle employment is to gather, document or report news for:
• A newspaper that circulates among the general public and publishes news of a general interest such as political, religious, commercial, or social affairs. A key criterion is whether the paper qualifies to publish legal notices in the community in which it is located.
� A news magazine with a national circulation sold to the general public by newsstands and mail subscription.
� A national or international news service.
� A radio or television news program of a station licensed by the Federal Communications Commission.
3. Residential Facility Visits and Tours
Media representatives may make advance appointments to tour facilities that house ICE/DRO detainees to prepare reports about those facilities.
� To tour a Residential Facility, media representatives shall contact the ICE/DRO facility administrator. The Chief of Operations/Security is responsible for implementing the necessary security procedures. The facility administrator shall coordinate approval through the Chief, JFRMU coordinator of public affairs.
The Chief, JFRMU, may suspend visits for an appropriate period during and after an emergency, or when there are indications of possible unrest or disturbance in the facility.
News media organizations shall abide by the policies and procedures of the facility being visited or toured.
Media representatives must obtain advance permission from the Warden/facility administrator and Chief, JFRMU, before taking photographs in or of an SPC.
The facility administrator shall advise both media representatives and residents that use of any resident's name, identifiable photo, or recorded voice requires his or her prior permission. Media representatives shall obtain a signed release from the resident before photographing or recording his or her voice. The original of the form is to be filed in the detainee’s A-file with a copy in the facility’s Resident File. When the resident is an accompanied minor, the media shall also obtain a signed release by the minor’s parent or legal guardian before photographing or recording his or her voice.

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Residents have the right not to be photographed (still, movie, or video), and not to have their voice recorded by the media. If it will threaten or disrupt the safety and/or security of either the facility, its staff or its immigration residents, the Chief, JFRMU, may limit or prohibit the presence of video, film, or audio equipment or related personnel. For example, the Chief, JFRMU may limit the equipment to hand-held cameras or recorders.
4. Personal Interviews
A media representative planning to conduct a personal interview at a facility shall submit a written request to the Chief, JFRMU, preferably 48 hours and no less than 24 hours prior to the time slot requested. The Chief, JFRMU, may waive the 24-hour rule if convinced of the need for urgency.
Through facility sta ff, the Chief, JFRMU, shall inform the resident of the interview request. The resident must then indicate his or her willingness to be interviewed by signing a consent form before the Chief, JFRMU, considers the interview request. The original written consent is to be filed in the resident’s A-file with a copy in the facility’s Resident File.
Attachment A provides a sample News Interview Authorization form that may be used. The original of the form is to be filed in the resident’s A-file with a copy in the facility’s Resident File.
When the alien is the center of a controversy or of a special interest or high profile case, the Chief, JFRMU shall consult with the Headquarters Assistant Director for DRO, Management and Operations, before deciding whether to allow the interview.
Otherwise, the Chief, JFRMU, shall normally approve/disapprove of the request, in writing, within 48 hours of the written request. Possible reasons for disapproval may include, but are not limited to:
• The news media representative or news organization he/she represents does not agree to the conditions established by this policy or previously failed to abide by them.
• The resident is physically or mentally unable to participate, as indicated by the statement of a medical officer. A mental health specialist may verify mental incapacity, substantiating the reason for disapproval.
• The Field Office Director finds it probable that the proposed interview would endanger the health or safety of the interviewer, cause serious unrest within the facility, or disturb the orderly and secure operation of the facility.
• The resident is involved in a pending investigation/court action and the court with jurisdiction over the matter has issued a gag rule or the Chief, JFRMU, after consultation with OPLA, believes the proposed interview could affect the outcome of the court case.
Interviews shall take place during normal business hours in a location determined by the facility administrator. The facility administrator shall provide a location conducive to the interviewing activity, consistent with security and good order.

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The Chief, JFRMU, may limit the number of interviews with a particular detainee to a reasonable number per month. Further, if interviews are imposing a serious strain on staff or facility resources, the Chief, JFRMU, may restrict the time allotted to interviews.
ICE/DRO reserves the right to monitor and/or supervise, but not participate in, resident interviews.
A media representative interested in touring the facility and photographing or recording any other residents in conjunction with an individual interview must follow all applicable requirements and procedures and indicate this interest at the time of his/her request for an interview.
5. Press Pools
A press pool may be established when the Chief, JFRMU and facility administrator determine that the volume of interview requests warrants such action.
The facility administrator shall notify all media representatives with pending or requested interviews, tours, or visits that, effective immediately and until further notice, all media representatives must comply with the press pool guidelines established by the Chief, JFRMU.
All material generated from such a press pool must be made available to all news media, without right of first publication or broadcast.
The press pool shall comprise one member each from the following groups:
• The national and international news services;
• The television and radio networks and outlets;
• The newsmagazines and newspapers; and
• All local media serving the locality where the facility is located.
Each group shall choose the member who will represent it in the press pool. The Chief, JFRMU shall, upon request, provide the media information about a resident, provided it is a matter of public record and not protected by privacy laws, Department of Homeland Security policy, or ICE/DRO policy. Security and safety concerns for staff and resident(s) require that specific removal-related data remain confidential.
6. Special Conditions for Media Representatives
To be approved to interview a resident or visit, or tour an ICE facility, the media representative must certify that he or she is familiar with, and accepts the rules and regulations governing media conduct. He or she must then comply with those rules and regulations.
Media representatives shall collect information only from the primary source and shall neither solicit nor use personal information from one resident about another who is unwilling to be interviewed.
Media representatives may discuss objections, suggestions, exceptions, and general issues concerning the applicability of any rule, regulation, or order with

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the facility administrator. A media request may not delay or otherwise interfere with the admission inprocessing or departure of any resident. Consequently, the routine processing of ICE residents shall take precedence over media interviews.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal Operations

_______________ Date

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 ICE/DRO RESIDENTIAL STANDARD
PERSONAL HYGIENE

I. PURPOSE AND SCOPE. Each resident is able to maintain acceptable personal hygiene practices through the provision of adequate bathing facilities, and the issuance and exchange of clothing, bedding, linens, towels, and personal hygiene items.
II. EXPECTED OUTCOMES. The expected outcomes of this Residential Standard are:
1. Each facility will maintain an inventory of clothing, bedding, linens, towels and personal hygiene items that is sufficient to meet the needs of residents.
2. Each resident will have suitable clean bedding, linens, blankets, and towels.
3. Each resident will have sufficient clean clothing that is properly fitted, durable, presentable, and climatically suitable.
4. Residents will be held accountable for clothing, bedding, linens, and towels assigned to them.
5. Residents, including those with disabilities, will be able to maintain acceptable personal hygiene practices.
6. Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
7. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED. None
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non­ government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
American Correctional Association 4th Edition, Standards for Adult Detention Facilities: 4 ­ ALDF-4B-01 through 4B-09, 6A-08, 6B-05 through 6B-08.

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V. EXPECTED PRACTICES
1. Supply of Clothing, Bedding, Linens, Towels, and Personal Hygiene Items Residents will be provided the opportunity to maintain a combination of personal and facility clothing, not to exceed ten sets at any one time. Arriving residents who do not have serviceable clothing shall be provided a minimum of six sets of clothing. Additionally, children will also be provided with up to three sets of pajamas upon parent’s request. Issued clothing shall not resemble institutional-style clothing. Each residential facility shall have a written policy and procedure for the regular issuance and exchange of clothing, bedding, linens, towels, and personal hygiene items, to include diapers. Each facility shall have available, at all times, more clothing, bedding, linen and towels than needed to supply the maximum funded resident capacity. This excess will allow for the immediate replacement of items that are lost, destroyed, or worn out. To be prepared for unforeseen circumstances, it is good practice for a residential facility to maintain an excess clothing inventory that is at least 200 percent of the maximum funded resident capacity.
2. Issuance of Clothing All new residents shall be issued clean, temperature-appropriate, presentable clothing during in-take. Additional clothing shall be issued as necessary for changing weather conditions, or as seasonally appropriate. Facilities will issue only new and unused undergarments.
3. Special Uniforms and Protective Equipment Each adult resident assigned to a special work area shall be clothed in accordance with the requirements of the job, including any appropriate protective clothing and equipment. Residents employed as food service workers shall be issued white uniforms.
4. Personal Hygiene Items Staff shall provide residents with personal hygiene items appropriate for their gender, and shall replenish supplies as needed. Each resident shall receive, at a minimum, the following:
� One bar of bath soap, or equivalent � One comb � One tube of toothpaste � One toothbrush � One bottle of shampoo, or equivalent � One container of skin lotion

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� Any other item designated as necessary by JFRMU The facility administrator may modify this list, for example, to accommodate use of bulk 
 liquid-soap and shampoo dispensers.
 Feminine hygiene products shall be accessible as needed. 
 Issuance of unbreakable brushes with soft, synthetic bristles to replace combs is permitted.


5. Bathing and Toilet Facilities
Residents shall be provided:
a. An adequate number of toilets 24 hours per day that can be used without staff assistance. (Minimum 1 toilet to 8 residents ratio)
b. An adequate number of washbasins with temperature controlled hot and cold running water 24 hours per day. (Minimum 1 basin to 8 residents ratio)
c. Operable showers that are thermostatically controlled to temperatures between 100° and 120° Fahrenheit, to ensure safety and promote hygiene. (Minimum 1 shower to 6 residents ratio)
d. Adequate facilities for bathing infants and toddlers.
Measurement and documentation of water temperature in housing units is considered good practice.
Residents with disabilities are provided the facilities and support needed for self-care and personal hygiene in a reasonably private environment, allowing the individual to maintain personal dignity. When necessary, assistance to disabled residents who cannot perform basic life functions shall be provided by individuals who are trained and qualified to understand problems and challenges faced by persons with physical and/or mental impairments. Such training may be provided by the health authority, and may involve the expertise of relevant community organizations and government agencies. Discrimination on the basis of disability is prohibited.

6. Hair Care
Residents are allowed freedom in personal grooming, unless a valid safety, security, or medical interest requires an exception that is justified and documented.
Residents shall be provided hair care services in a manner and environment that promotes sanitation and safety, in accordance with the requirements for barber operations in the Residential Standard on “Environmental Health and Safety.”

7. Issuance of Bedding, Linen and Towels All residents shall be issued clean bedding, linens, and a towel, and shall be accountable for those items.
The standard issued items are: � Bedding - one mattress, one blanket, and one pillow. Additional blankets shall be

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issued upon request, or based on weather conditions. � Linens - two sheets and one pillowcase. � Towel - one towel.
8. Exchange Requirements Residents shall be provided with clean clothing, linen, and towels on a regular basis, according to the following schedule:
� Daily exchange of socks and undergarments � Daily exchange of outer garments � At least weekly exchange of sheets, towels, and pillowcases More frequent exchanges of outer garments may be appropriate, especially in hot and humid climates. Residents are not permitted to wash clothing, bedding, linens, tennis shoes, or other items in the living units, unless proper washing and drying equipment is available, and the facility has written policy and procedures for its use. Any washing and drying policies and procedures shall be posted in the washing area, and shall be included in the resident handbook.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

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 ICE/DRO RESIDENTIAL STANDARD
POST ORDERS

I. PURPOSE AND SCOPE. Each staff assigned to a standing post knows the procedures, duties, and responsibilities of that post, enhancing security and good order.
II. EXPECTED OUTCOMES. The expected outcomes of this Standard are as follows: 1. Each staff member will have current written Post Orders that specifically apply to the assigned post, with step-by-step procedures in sufficient detail to guide a staff member assigned to that post for the first time. 2. Assigned staff will acknowledge that they read and understood the Post Orders by signing and dating records. 3. Post Orders will be formally reviewed annually and updated as needed. 4. Where required, residents have regular access to translation services and/or are provided information in a language that they understand. 5. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED. None
IV. REFERENCES American Correctional Association 4th Edition Standards for Adult Local Detention Facilities. 4-ALDF-2A-04.
V. EXPECTED PRACTICES
1. Post Orders Required The facility administrator shall ensure that:
a. There are written Post Orders for each standing post, b. Copies of Post Orders are available to all employees, c. Written facility policy and procedures:
1) Provide official time for staff to read the applicable Post Orders when assigned to a post, and

2) Ensure that staff read those applicable Post Orders.
 d. As needed, Post Orders for non-permanent assignments (details, temporary
housing units, emergencies, etc.) are developed, in advance or as soon as possible after the need arises.

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2. Reading and Understanding of Post Orders
Staff and supervisors shall use the Post Orders to familiarize themselves with the duties for which they are responsible and to stay abreast of changes that occur in the operation and duties of that post. Even if a staff employee has worked a post in the past, he or she should not assume the Post Orders have not changed.
Supervisors shall ensure that staff members understand the Post Orders, regardless of whether the assignment is temporary, permanent, or due to an emergency.
Each time a staff member receives a different post assignment, he or she shall be required to read, sign, and date those Post Orders to indicate he or she has read and understands them.

3. Preparation of Post Orders The Assistant Facility Administrator for Operations shall supervise the preparation of all Post Orders, which shall:
a. Be based on ICE/DRO Residential standards, ICE/DRO policies, and facility practices, and
b. Specifically state the duty hours for each post. The facility administrator (or designee) shall:
a. Approve, sign, and date each Post Order on the last page of each section, b. Initial and date all other pages, and c. Initial and date any subsequent page changes.

4. Format of Post Orders
The Post Orders for each post shall be issued in a six-part classification folder (stock number #7530-00-990-8884) and be organized as follows.

Section 1:

Specific Post Orders, listing activities chronologically, with responsibilities clearly defined;

Section 2:

Special instructions, if any, relating to the specific post;

Section 3:

General Post Orders applicable to all posts;

Section 4:

Memoranda changing or updating the Post Orders;

Section 5:

ICE/DRO Residential standards and policies and facility practices relevant to the post;

Section 6:

Review and Signature Form, with the staff’s name printed, signed and dated.

5. Housing Unit Post Orders
In addition to the above requirements for all Post Orders, housing unit Post Orders in facilities shall follow the event schedule format, for example, "0515- Lights on" and shall

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direct the assigned staff to maintain a unit log of pertinent information regarding resident activity.
The shift supervisor shall visit each housing area and initial the log on each shift.
6. Maintenance of Post Orders Post Orders shall be kept current at all times and formally reviewed at least annually and updated as needed. Staff who become aware that any part of a folder of Post Orders is out of date or in need of repair or replacement shall notify the shift supervisor.
In Facilities:
a. Post Orders and logbooks are confidential and must be kept secure (under lock and key) at all times and never left in an area accessible to residents.
b. The Assistant Facility Administrator for Operations shall determine whether Post Orders need updating during the period between annual reviews. When a page is difficult to read, it shall be removed and replaced by a clean copy.
c. Two weeks before the annual review, security supervisory staff shall solicit written suggestions for changes or additions to Post Orders from ICE/DRO staff, contract staff and other affected staff.
The security supervisor or equivalent shall review and comment on all suggested changes prior to submitting them to the Assistant Facility Administrator for Operations for review and possible inclusion in Post Orders. All submissions shall be retained in a historical file for two years.
The Assistant Facility Administrator for Operations shall forward the updated Post Orders to the facility administrator for approval.
d. Emergency changes may be made by memorandum andimmediately placed in the Post Orders with notification to the union as soon as possible. During each review the Post Orders must be revised to incorporate or delete emergency changes, at which time any emergency memoranda are to be removed.
e. A Post Orders master file shall be maintained in the office of the Assistant Facility Administrator for Operations and made available to all staff. Copies of the applicable Post Orders may be retained at the post only if secure from resident access.
f. The Assistant Facility Administrator for Operations shall ensure that all Post Orders are transcribed on a computer and that all back-up devices are properly accounted for and maintained in a secure location.
Standard Approved:

______________________________

Post Order

3

_______________

John P. Torres Director Office of Detention and Removal

Date

Post Order

4

 
 ICE/DRO RESIDENTIAL STANDARD
RECREATION


I. PURPOSE AND SCOPE. Each resident has access to recreational and exercise programs and activities, within the constraints of safety, security, and good order.

II. EXPECTED OUTCOMES. The expected outcomes of this Residential Standard are as follows:
1. Residents will have daily opportunities to participate in leisure-time activities outside their housing areas.
2. Residents will have access to exercise opportunities and equipment.
3. Each citizen volunteer who provides or participates in facility recreational programs will complete an appropriate, documented orientation program and sign an acknowledgement of his or her understanding of the applicable rules and procedures as an agreement to comply with them.
4. Each recreational program will provide for specialized needs of adults and children in a residential environment.
5. Structured physical activities are provided for children when not in school, such as organized sports, physical activities such as d ance, intellectually stimulating activities, arts and crafts, and music.
6. Facilities provide recreational opportunities that are age appropriate for children, including for children with disabilities.
7. Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
8. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED. None

IV. REFERENCES
The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non­ government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
American Correctional Association 4th Edition Standards for Adult Local Detention

Recreation

1

Facilities: 4-5C-01, 5C-02, 5C-03, 5C-04, 2A-66, 5A-01, 6B-04, 7B-03, 7C-02, 7F-05.
V. EXPECTED PRACTICES
1. Indoor and Outdoor Recreation
a. Every facility will provide indoor and outdoor recreation, the size of which shall include consideration of state requirements for similar facilities. Additionally, e ach outdoor exercise area must provide ample outdoor green space for use by children and adults. This space should include shaded areas with seating, commercial–grade, age-appropriate play areas, a soccer-style field, and other athletic activity areas at the discretion of the facility administrator.
b. Each indoor exercise area must provide a minimum of 2500 square feet of unencumbered space that provides access to age-appropriate play and physical education areas. Space considerations should include each facility allowing open access during daylight hours of operation. Indoor areas must provide at least 18­ foot ceilings.
c. Indoor and outdoor areas shall provide adjacent access to male and female restroom facilities.
2. Access to Structured Activities Residents shall be provided with access to structured activities and programs. In particular, these programs and activities should be structured towards growth, development, and healthy living.
Facilities must provide daily indoor and outdoor recreational and other activities appropriate to the needs, interests, and abilities of families and children, so that every adult and child is able to participate.
3. Recreation Schedule Every resident shall have daily access to indoor and/or outdoor recreation from 8:00 a.m. to dusk.
4. Physical Education Instructor All facilities shall have an individual responsible for the development and oversight of the recreation program.
a. Every facility shall employ a full-time physical education instructor with special training in implementing and overseeing a recreation program.
b. The Physical Education Instructor shall be responsible for development and oversight of the recreational program.
c. The Physical Education Instructor shall assess the recreation needs and interests of the residents.

Recreation

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5. General Requirements
a. All facilities shall provide recreational opportunities for residents with disabilities.
b. Recreation areas shall offer a variety of equipment.
c. With the facility administrator’s approval, recreational activities may include limited-contact sports, such as soccer, basketball, volleyball, and table games; and may include intramural competitions among units.
d. Dayrooms shall offer board games, television, and other sedentary recreation activities. Residential staff shall supervise dayroom activities, distributing games and other recreation materials daily.
e. All residents participating in recreation shall have access to drinking water and toilet facilities.
f. Residential or recreation staff shall search recreation areas before and after their use to detect altered or damaged equipment. They shall also issue all portable equipment items, and check each item for damage and its general condition, upon its return.
g. Recreation areas shall be under continuous supervision by staff equipped with radios or other communication devices, to ensure the safety of the residents.
h. Residents may engage in independent recreation activities, such as board games and small-group activities.
i. The facility administrator shall establish facility policy concerning television viewing in dayrooms. All television viewing schedules shall be subject to the facility administrator’s approval.
6. Volunteer Program Involvement A volunteer group may provide a special recreational or educational program consistent with availability of residential personnel to supervise the participating residents, with sufficient advance notification to the facility administrator.
The Residential Standard on “Visitation” details requirements that must be met for a volunteer to be approved to visit with and/or provide recreation activities for residents, including advance notice, identification, a background check, an orientation to the facility, and a written agreement to comply with applicable rules and procedures.
Standard Approved:

______________________________

_______________

Recreation

3

John P. Torres Director Office of Detention and Removal

Date

Recreation

4

 
 ICE/DRO RESIDENTIAL STANDARD
RELIGIOUS PRACTICES
I. PURPOSE AND SCOPE. Residents of different religious beliefs are provided reasonable and equitable opportunities to participate in the practices of their respective faiths, constrained only by concerns about safety, security, the orderly operation of the facility.
II. EXPECTED OUTCOMES. The expected outcomes of this Residential Standard are as follows:
1. Residents will have opportunities to participate in practices of their religious faith that are deemed essential by the faith’s judicatory, limited only by a documented threat to the safety of persons involved in an activity or to the order of the facility.
2. All religions represented in a resident population will have equal status without discrimination based on race, religion, national origin, gender, sexual orientation, or disability.
3. Each facility’s religious program will be planned, administered, and coordinated in an organized and orderly manner.
4. Adequate space, equipment and staff (including security and clerical) will be provided for conducting and administering religious programs.
5. Residents of faiths not directly represented by chaplaincy staff will be assisted in contacting external representatives.
6. Each facility’s religious program will be augmented and enhanced by community clergy, contractors, volunteers and groups that provide individual and group religious services and counseling.
7. Special diets will be provided for residents whose religious beliefs require the adherence to religious dietary laws.
8. Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
9. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED. None

Religious Practices

1

IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non­ government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
American Correctional Association 4th Edition, Standards for Adult Detention Facilities: 4 ­ ALDF-5C-17, 5C-18, 5C-19, 5C-20, 5C-21, 5C-22, 5C-23, 5C-24, 2A-66, 4A-10, 6B-02, 6B-05, 7B-03, 7F-04.
V. EXPECTED PRACTICES
1. Religious Opportunities and Limitations Residents shall have opportunities to engage in practices of their religious faith that are deemed essential by the faith’s judicatory, consistent with safety, security, and the orderly operation of the facility. Attendance at religious activities is voluntary.
Religious activities shall be open to the entire resident population, without discrimination based on race, religion, national origin, gender, sexual orientation, or disability. When necessary for the security or good order of the facility, however, the facility administrator may discontinue a religious activity or practice or limit participation to a reasonable number of residents, or to members of a particular religious group.
The facility chaplain should endeavor to provide opportunities for religious practice in major languages spoken by the residents. Accommodations will be provided to resident s who are deaf or hard of hearing to provide them with access to the service should they wish to participate.
Ordinarily, when the nature of the activity or practice (fasts, ceremonial meals. headwear requirements, work proscriptions, etc.) indicates a need for such limitation, only those residents whose files reflect the pertinent religious preference will be included.
2. Religious Preferences Each resident may designate any or no religious preference during intake. Staff, contractors, and volunteers may not disparage the religious beliefs of a resident, nor coerce, harass, or attempt to proselytize a resident to change religious affiliation.

Religious Practices

2

A resident may request to change his or her religious preference at any time by notifying the chaplain or other designated individual, in writing, and the change shall be effected in a timely fashion.
In the interest of maintaining the security and orderly running of the facility and to prevent abuse or disrespect by residents of religious practice or observance, the chaplain shall monitor patterns of changes in declarations of religious preference.
In determining whether to allow a resident to participate in specific religious activities, staff may refer to the initial religious preference information and any subsequent changes in the resident’s religious designation. Residents showing "No Preference" may be restricted from participation in those activities deemed appropriate only for those who have expressed a preference for that particular religion.
3. Chaplains or Other Religious Coordinators The facility administrator shall make every attempt to recruit and hire a full-time chaplain. The chaplain shall manage and coordinate religious activities for residents. The facility chaplain shall plan, direct, and supervise all aspects of the religious program, including approval and training of clergy and lay volunteers from faiths represented in the resident population. The facility administrator shall provide non-resident clerical staff support for confidential materials.
A chaplain shall have the minimum qualifications of clinical pastoral education or equivalent specialized training, and the endorsement of the appropriate religious certifying body.
The chaplain, regardless of his or her specific religious affiliation, shall ensure equal status and protection for all religions.
The chaplain or other religious coordinator shall have physical access to all areas of the facility to minister to residents and staff.
He or she shall be available to provide pastoral care and counseling to residents who request it, through group programs and individual services. Residents who belong to a religious faith different from that of the chaplain may, if they prefer, have access to pastoral care and counseling from external clergy and religious service providers
The term "individual services" includes counseling services provided to individual residents and/or members of their families in personal crisis and family emergency situations.
When efforts to recruit a chaplain are unsuccessful, the facility administrator shall designate a staff member to oversee this program.
4. Schedules and Facilities All facilities shall designate space for religious activities.

Religious Practices

3

This designated space must be sufficient to accommodate the needs of all religious groups in the resident population fairly and equitably. The general area shall include office space for the chaplain, storage space for items used in religious programs, and proximity to lavatory facilities for staff and volunteers.
Religious service areas shall be maintained in a neutral fashion suitable for use by various faith groups.
The chaplain shall schedule and direct the facility's religious activities, and current program schedules shall be posted on all unit and resident bulletin boards.
When scheduling approved religious activities, chaplains must consider both the availability of staff supervision and the need to allot time and space equitably among different groups.
The Chaplain shall ensure the religious needs of minors are considered when determining what religious programming shall be made available for residents and their minor children.
5. Contractors and Volunteers
All facilities shall have procedures so that clergy, contractors, volunteers, and community groups may provide individual and group assembly religious services, and counseling that augments and enhances the religious program. When recruiting citizen volunteers, the chaplain and other staff shall be cognizant of the need for representation from all cultural and socio-economic parts of the community. Each facility shall provide security, including staff escorts, to allow such individuals and groups facility access for religious programs and activities.
The Residential Standard on “Visitation” details requirements that must be met for a volunteer to be approved to visit with or to provide religious activities for residents, including advance notice, identification, background check, orientation to the facility, and a written agreement to comply with applicable rules and procedures.
The chaplain may contract with representatives of faith groups in the community to provide specific religious services that he or she cannot personally deliver, and may secure the assistance and services of volunteers.
Religious groups and individuals may be compensated for assisting volunteer clergy or spiritual advisors with religious services and programs, and for providing religious publications and religiously symbolic items without charge to the residents.
"Representatives of faith groups" includes both clergy and spiritual advisors. All contractual representatives of resident faith groups shall be afforded equal status and treatment to assist residents in observing their religious beliefs, unless the security and good order of the facility warrant otherwise.
The facility administrator or designee (ordinarily the chaplain) may require a recognized representative of a faith group to verify the religious credentials of contractors or volunteers

Religious Practices

4

before approving their entry into the facility.
Residents who are members of faiths not represented by clergy may conduct their own services, provided they do not interfere with facility operations.
6. Pastoral Visits If requested by a resident, the chaplain or designee shall facilitate arrangements for pastoral visits by a clergyperson or representative of the resident’s faith.
The chaplain may request documentation of the person's religious credentials, as well as a criminal background check.
Pastoral visits ordinarily take place in the visiting room during regular visiting hours; however, if either party requests more privacy, accommodation may be made in the legal visitation area.
7. Introduction of New and Unfamiliar Religious Components If a resident requests the introduction of a new or unfamiliar religious practice, the chaplain may ask the resident to provide additional information. No resident shall be prohibited from exercising their faith of choice, provided it meets the remaining requirements provided for in this standard, and does not jeopardize the safety and welfare of staff and residents.
Residents may make a request for the introduction of a new component to the religious services program (schedule, meeting time and space, religious items and attire) to the chaplain. The chaplain shall ask the resident to provide additional information to aid in the decision of whether to include the practice. Ordinarily, the practice will require up to 30 business days for completion.
The chaplain shall research the request and make recommendations to the facility administrator, who shall add his or her own recommendations and forward them to JFRMU for approval. Such decisions are subject to the facility's availability of staff for supervision. JFRMU shall forward the final decision to the facility administrator and the chaplain shall communicate the decision to the resident.
There shall be no administrative appeal relief from any final decision rendered by JFRMU.
8. Religious Holy Days Each facility shall have written policy and procedures to facilitate resident observance of important holy days, consistent with maintaining safety, security, and orderly operations; and the chaplain shall work with residents to accommodate proper observances.
The facility administrator shall endeavor to facilitate the observance of important religious holy days that involve special fasts, dietary regulations, worship, or work proscription. To verify the religious significance of the requested observance, the facility administrator may

Religious Practices

5

direct the chaplain to consult with community representatives of the resident’s faith group or other appropriate sources.
9. Religious Property Each facility administrator shall allow residents access to personal religious property, as consistent with safety, security, and good order.
If necessary, the religious significance of such items shall be verified by the chaplain prior to facility administrator approval.
Resident religious property includes, but is not limited to, rosaries and prayer beads, oils, prayer rugs, phylacteries, medicine pouches, and religious medallions. Such items are part of a resident's personal property and are subject to normal considerations.
As consistent with safety considerations of the facility, the facility administrator:
• Shall ordinarily allow a resident to wear or use personal religious items during religious services, ceremonies, and meetings in the chapel.
• May, upon request of a resident, allow a resident to wear or use certain religious items throughout the facility.
The facility administrator may direct the chaplain to obtain information and advice from representatives of the resident's faith group or other appropriate sources about the religious significance of the items.
Items of religious wearing apparel include, but are not limited to the following:
• Prayer shawls and robes • Kurda or ribbon shirts • Medals and pendants • Beads • Various types of headwear. Religious headwear, notably kufis, yarmulkes, turbans, crowns, and headbands, as well as scarves and head wraps for orthodox Muslim and Jewish women are permitted in all areas of the facility, subject to the normal considerations of safety, including inspection by staff.
A resident who wishes to have religious books, magazines, or periodicals must comply with the facility's general rules for ordering, purchasing, retaining, and accumulating personal property. Religious literature is permitted in accordance with the procedures governing incoming publications. Distribution to residents of religious literature purchased by or donated to the ICE/DRO is contingent on approval from the chaplain.
10.Dietary Requirements When a resident’s religion requires special food services daily or during certain holy days

Religious Practices

6

or fasting periods, restricted diets, etc., staff shall make all reasonable efforts to accommodate those requirements (for example, modifying menus to exclude certain foods or food combinations, providing meals at unusual hours, etc.). A resident who wants to participate in the religious diet (“Common Fare”) program may initiate the Authorization for Common Fare Participation Form that is attached to the Residential Standard on “Food Service.” That Residential Standard also details how a resident may be removed from a special religious diet when he or she has failed to observe those dietary restrictions. When there is a question about whether a requested diet is nutritious or healthy, the chaplain shall consult with the medical department.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

Religious Practices

7

Questionnaire Regarding New or Unfamiliar Religious Practices Residents requesting the introduction of a new component to a facility’s religious services program (such as schedule, meeting time and space, religious items, and attire) shall provide to the chaplain a comprehensive response to each of the following questions, for consideration at the facility and the JFRMU. The process of necessary review may require up to 120 days for completion. The committee recommendation shall be forwarded to the facility administrator and copied to JFRMU. Committee recommendations shall be communicated to the resident by the chaplain.
• What is the official name of the faith group?
• Who is the head of the faith group in the United States?
• What is the address and telephone number of the faith group headquarters in the United States?
• What are the basic teachings of the faith group? Please provide titles or attach p articular reference material that would be useful for researching this group.
• Does the faith group have ministers or teachers?
• Are ministers or teachers available to visit members of the faith group residing in family residential facilities?
• Are there religious holidays to be observed by members? If so, when are the holidays, and what religious practices are necessary for the observance?
• Are there any necessary religious items, and what is the religious significance of each item?
• Are there time and space requirements for the group?
• Are you aware of related faith groups or other groups with similar practices?
• Is the religion open to all residents?

 
 ICE/DRO RESIDENTIAL STANDARD
RESIDENT CENSUS

I. PURPOSE AND SCOPE. Each facility has an ongoing, effective system of resident census to verify presence within the facility at specified times, thereby protecting the residential community from harm and enhancing facility security, safety, and good order.
II. EXPECTED OUTCOME.
1. The expected outcome of this Standard is that security, safety, and orderly facility operations will be maintained through an ongoing, effective system of resident census.
2. Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
3. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED. None
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non­ government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment. American Correctional Association 4th Edition Standards for Adult Local Detention Facilities: 4-ALDF-2A-16, 2A-17.
V. EXPECTED PRACTICES
1. Resident census Resident census is conducted at specific times of the day and night in a predetermined manner. A formal resident census should be conducted three times a day, with a shift supervisor verifying census accuracy. During the formal census, residents shall report to pre-designated areas at specified times and check in with staff as required. The census shall not resemble a standing head count such as those used in correctional operations except as permitted within this standard.

Population Census

1

Census procedures must be strictly followed. If the accuracy of a census is in doubt, the staff shall do a census and any other double-checking necessary. Staff performing the census shall never rely on a roll call.
a. Staffs shall encourage resident cooperation; however, they shall not allow residents to perform the census, nor participate in the preparation or documentation of the census process.
b. As each area reports its census, the control staff shall so indicate in the control log. If any area/unit reports an incorrect census, all residents will be required to be returned to their housing unit for a formal census.
c. A formal census requires face-to-photo verification. When the face-to-photo census has been completed, the control staff shall report that census to the shift supervisor responsible for accepting and clearing the census.
d. In the event that a resident is unaccounted for after the face-to-photo verification, the supervisor on duty shall institute the escape policy.
e. The census shall not be conducted during sleeping hours and staff shall not shine lights or otherwise disturb residents unless an exigent circumstance exists.
2. Face-to-Photo Verification Face-to-photo verification shall be conducted as necessary.
Face-to-photo verification procedures are the same as the formal census procedures, except each resident shall be matched with the photo on his or her I-385 card or other facility photo-identification card.
3. Master Census
The facility Control Center shall maintain a master census.
The facility control staff maintains the master census record. He or she must be provided with up-to-the-minute information regarding resident admissions, releases, housing changes, hospital admissions, and any other changes that could affect resident accountability.
4. Out-Counts
The control staff shall maintain an out-count record of the number and destination of all residents who temporarily leave the facility.
This record must contain an accurate and up-to-date listing of every temporary departure and return of a resident
5. Emergency Counts An emergency count shall be conducted when there is reason to believe a resident is missing, or after a major incident has occurred.

Population Census

2

An emergency count is a formal census taken in addition to and at a different time from the regularly scheduled Resident reporting. When a resident is unaccounted for, or a major incident has ended, a census shall be taken to determine that no residents or staff are missing. All residents shall be returned to their housing units during emergency counts. An emergency count is conducted in the same manner as a formal census.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

Population Census

3

 
 ICE/DRO RESIDENTIAL STANDARD
STAFF-RESIDENT COMMUNICATION

I. PURPOSE AND SCOPE. Informal direct and written contact among staff and residents, as well as informal supervisory observation of living and working conditions, is encouraged thereby enhancing security, safety, and orderly facility operations. Also required is the posting of Hotline informational posters from the Department of Homeland Security Office of the Inspector General.
II. EXPECTED OUTCOMES. The expected outcomes of this Standard are: 1. Residents will have daily opportunities for informal contact with facility managerial and supervisory staff and with ICE/DRO Field Office staff. 2. Facility managerial and supervisory staff and ICE/DRO Field Office staff will frequently and directly observe facility operations and living and working conditions. 3. Residents will be able to submit written questions, requests, and concerns to ICE/DRO staff and receive timely responses. 4. Residents will be informed about how to directly contact the Department of Homeland Security Office of the Inspector General. 5. Resident telephone serviceability will be monitored and documented by ICE staff and any problems immediately reported. 6. Where required, residents have regular access to translation services and/or are provided information in a language that they understand. 7. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED None
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non-government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
American Correctional Association 4th Edition, Standards for Adult Detention Facilities: 4-ALDF-2A-05, 2A-06, 2A-12, 5A-03.

Staff-Resident Communication

1

V. EXPECTED PRACTICES
1. Staff and Resident Contact ICE/DRO residents must have opportunities to have frequent informal access to and interaction with key facility staff members, as well as key ICE/DRO staff. As detailed below, Field Office Directors shall assign Deportation Staff, Immigration Enforcement Agents (IEAs), and Supervisory Immigration Enforcement Agents (SIEAs) to visit Residential facilities.
Often residents in ICE/DRO custody are unaware of, or do not comprehend, the immigration removal process, and staff should explain the general process without providing specific legal advice on individual cases.
Instructions for staff –resident communication shall be posted in each housing area and identified in the resident handbook.
a. Unannounced Contacts With Residents Each facility shall have policy and procedures to ensure and document that the ICE/DRO department heads conduct frequent unannounced, unscheduled visits to the facility's living and activity areas to informally observe living and working conditions and encourage informal communication among staff and residents. Such unannounced visits shall include but not be limited to:
• Housing Units;
• Food Service preferably during the lunch meal; • Recreation Area;
• Infirmary rooms. These unannounced visits shall be conducted at least weekly.
Each facility shall develop a method to document the unannounced visits, and ICE/DRO staff shall document their visits to Facilities.
b. Staff Observation of Residents Staff shall observe, on a daily basis, all residents for negative indicators, such as injuries, signs of illness, depression, excessive bruising, and changes in overall demeanor.
Staff shall document and report such changes to the medical/mental health unit for follow-up.
c. Scheduled Contact with Residents Facility or ICE/DRO staff shall conduct scheduled visits to address residents’ personal concerns and monitor living conditions. Visiting staff shall be knowledgeable with the ICE/DRO Residential Standards and report any violations to ICE management.

Staff-Resident Communication

2

The facility administrator or ICE management shall develop written schedules of weekly visits and ensure they are posted in resident living and other appropriate areas. Each facility shall have specific procedures for documenting each visit.

d. Written Resident Requests to Staff
Residents may submit written questions, requests, or concerns to ICE/DRO staff, using the attached resident request form, a local Facility form, or a sheet of paper.
Such informal written requests are not intended as a substitute for the more formal process specified in the Residential Standard on “Resident Grievance Procedure”; however, informal written requests may be used to resolve informal grievances, as described in that Standard.
To prepare a written request, a resident may obtain assistance from another resident, the housing staff, or other facility staff and may, if he or she chooses, seal the request in an envelope that is clearly addressed with name, title, and/or office to which the request is to be forwarded.
Each facility administrator shall:
• Ensure that adequate supplies of resident request forms and writing implements are available.
• Have written procedures to promptly route and deliver resident requests to the appropriate ICE/DRO officials by authorized personnel (not residents) without reading, altering, or delaying.
• Ensure that the standard operating procedures accommodate residents with special assistance needs because they are disabled, illiterate, or limited in their use of English.
d. Response Times
The staff member receiving a written request shall normally respond in person or in writing as soon as possible and practicable, no longer than within 72 hours of receipt.
e. Record keeping and File Maintenance
All requests shall be recorded in a logbook (or electronic logbook) specifically designed for that purpose. At a minimum, the log shall record:
• Date of receipt;
• Resident’s name;
• Resident’s A-number;
• Resident’s nationality;

Name of the staff member who logged the request; 

• Date the request, with staff response and action, was returned to the resident; and

Staff-Resident Communication

3

• Any other pertinent site-specific information.
In Facilities, the date the request was forwarded to ICE/DRO and the date it was returned shall also be recorded.
A copy of each completed Resident Request shall be filed in the resident’s Residential file and be retained there for at least three years.
f. Resident Handbook
Each facility’s handbook shall advise residents of the procedures to submit written questions, requests, or concerns to ICE/DRO staff, as well as the availability of assistance to prepare such requests.
2. Monitoring Resident Telephone Services ICE/DRO shall ensure that all phones for resident use are tested at least weekly. To verify the serviceability of all telephones in resident housing units, ICE/DRO staff shall:
� Make random calls to pre-programmed numbers for attorney and consulate services,
� Interview a sampling of residents regarding telephone services, and
� Review written resident complaints regarding telephone services.
Staff shall report any telephone serviceability problem within 24 hours to the appropriate ICE point of contact.
Staff shall document each serviceability test on a form that has been provided by DRO, and each field office shall maintain those forms, organized by month, for three years. The Residential Standards Compliance Unit shall conduct random audits of field office compliance.
3. OIG Hotline Informational Posters
The Department of Homeland Security Office of the Inspector General (OIG) periodically revises a “DHS OIG Hotline” poster to be posted in facilities that house ICE/DRO residents.
a. The Chief of the Detention Standards Compliance Unit in the Detention Management Division is designated as the contact point for coordination with OIG and is responsible for distribution of Hotline posters to Field Office Directors.
b. Field Office Directors shall distribute sufficient numbers of the posters to facilities that house ICE/DRO residents. It is recommended that each Field Office maintain a master copy from which additional copies can be duplicated when needed.
c. Facility administrator shall ensure that posters are posted in every housing unit and in appropriate common areas (recreation areas, dining areas, processing areas, etc.).
In each Facility and ICE staging area, the facility administrator shall ensure that posters are mounted in appropriate common areas (recreation areas, dining areas, processing areas, etc.).

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d. During staff-resident communication visits, ICE/DRO staff shall verify the presence of posters at designated locations and shall ensure that any missing posters are replaced as soon as possible.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

Staff-Resident Communication

5

Model Protocol
Residential Staff Facility Contact Visits
A. Purpose and Scope. This protocol is intended as a model that may be adopted or adapted by Field Office Directors for residential staff facility liaison visits and staff-resident communication. While the Residential Standard on Staff-Resident Communication broadly addresses informal direct and written contact among facility and ICE/DRO staff and residents, as well as informal supervisory observation of living and working conditions, this Model Protocol more narrowly addresses facility liaison visits by deportation staffs.
In particular, this protocol presents a model for documenting liaison visits.
B. Objectives
1. Residents will have opportunities for informal contact with deportation staffs. 2. Deportation staffs will directly observe facility operations and resident living
and working conditions. 3. Residents will be deterred from activities that threaten the safety of other
residents. 4. ICE/DRO will have clear and consistent documentation of staff-resident
contacts and of professional staff observations about facility safety and security. 5. ICE/DRO will continually verify the accuracy of DETS in regard to the number of residents at the facility.
C. Observation and Communication. The deportation staff shall: 1. Verify that the number of residents in the facility agrees with the number shown in DETS. (Expecting to find the 10 aliens listed in DETS but encountering 50 sets the stage for inaccurate and untimely case processing.) 2. Enter all units in which residents are housed and document observations of the general living conditions: a. General population housing units, b. Medical units (infirmaries, hospitals). 3. Verify that basic living conditions meet standards and that fixtures are in good working order (lights, plumbing fixtures, etc.). 4. Speak informally with residents, in addition to any “scheduled contacts” (as required by the Staff-Resident Communication Residential Standard). 5. Look for any physical signs of resident abuse (such as facial bruises).

6. Look for any signs of resident intimidation, suc h as hoarding of clothing, bedding, towels, personal hygiene items, or other personal items by some residents while others go without.
7. Speak with housing staff and gather information about any residents who are dominating other residents.
8. Inquire about any other staff concerns. 9. Document visits in the unit housing logs.
 10.Review resident grievances to determine if they are answered in accordance 

with time frames required by the Grievance System Residential Standard, as well as whether there is any discernible pattern to those grievances.
D. Immediate Reporting to Higher Authorities. The deportation staff shall:
1. Immediately report any immediate concern about safety, security, or operations to a higher authority (or authorities) as is appropriate to remedy the circumstances (Assistant Facility Administrator for Operations, OIC, facility administrator, field office director, etc.).
2. Document those circumstances and the resolution in the liaison visit report.
E. Documentation. The deportation staff shall: 1. Document each visit, in the following Deportation Staff Facility Liaison Visit format. 2. Scan and e-mail the forms to the Field Office Director or Assistant Field Staff Director on the last Friday of each month. 3. Highlight in the e-mail itself any particularly notable problems encountered and the status of solutions to those problems.

Deportation Staff Facility Liaison Visit

Facility: Conducted By: Arrival Time: Departure Time: Total Facility Count ICE Count: ICE Residents in Infirmary General Sanitation: Staff: Medical Staff: Housing Units Visited:

Pine Ridge Correctional Institution J. Banks and A. Torres 08:45 am 11:30 am 1030 176 0 Good Very helpful and reported no concerns. Reported no problems. B Dorm
C Cell House (segregation)

1. Verification of DETS Count

One resident was not in DETS, but has now been added:

THORNBERG, Raphael

A78 754 122

2. Scheduled Interviews The following were processed for fingerprints, photos, and or document service:

VEGA-Amaro, Carlos

A98 256 788

VELASQUEZ, David

A82 223 086

3. Informal Contacts/Unscheduled Interviews
I spoke with several residents in B dorm, who voiced no special complaints. The unit was orderly, and staff voiced no particular concerns. I observed that some resident clothing was hanging from beds and window frames, and the unit staff instructed those residents to remove those articles and properly store them.

A66 324 346

AGUILERA, Angel Miguel Guatemala

Claims to have lost his property and cash receipts during. I spoke with the Associate Warden, who said copies of the receipts would be provided to him that afternoon. He also wants a job, and I explained how he should apply through facility channels.

A74 112 840

CORTEZ, Alvaro

Columbia

Claims to be a prior deport who just wants his IJ order reinstated so he can go back home. Actually a B&B case, whose file is in travel.

4. Grievances A review of nine grievances filed for the last 90 days (four by one residents) indicates they were answered within time limits, and that, in four instances, relief was granted the resident.
Two resident grievances are pending – both relating to lost property from a unit shakedown last week.
5. General Observations and Comments The facility was very clean and well staffed. I observed about 20 residents playing soccer on the recreation field. The staff was cooperative, and no other issues were raised by any resident. Since the Warden was on vacation, I met with the Associate Warden who was acting.

 
 ICE/DRO RESIDENTIAL STANDARD
RESIDENTIAL FILES

PURPOSE AND SCOPE. A Residential File is maintained for each resident and includes a ll significant information about that person, thereby contributing to the safe and efficient operation of the facility. The Residential File is separate from the Alien File (or A-File), which is the legal file maintained by ICE/DRO for each resident.
EXPECTED OUTCOMES. The expected outcomes of this Standard are as follows: 1. Residential Files will be grouped by family andmaintained on each resident admitted to a Residential facility.
2. Each Residential File will include all documents, forms, and other information specified herein
3. The security of each Residential File and its contents will be maintained.
4. Staff will have access to Residential Files, as needed for official purposes.
5. Release of information from the Residential File will be accomplished in accordance with applicable federal and state regulations.
6. Electronic record-keeping systems and data will be protected from unauthorized access.
7. Inactive, closed Residential Files will be properly archived.
8. Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
9. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
DIRECTIVES AFFECTED. None
REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non­ government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
American Correctional Association 4th Edition Standards for Adult DetentionFacilities: 4­ ALDF-7D-19, 7D-20, 7D-21. 7D-22.

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EXPECTED PRACTICES
1. Creation of a Residential File When a resident is admitted to a facility, staff shall create a Residential File for each resident as part of admissions processing.
For every new arriving family unit, the facility shall assign a family number, as well as an individual indicator, for each family member. Family files shall be grouped for filing purposes.
2. Required Contents of File
a. The Residential File shall contain either originals or copies of forms and other documents generated during the admissions process. If necessary, the Residential File may include copies of material contained in the resident’s A-File.
The file shall, at a minimum, contain the following forms and documents, or facility equivalent: � Resident Intake Form; � I-385, Alien Booking Record; one or more original photograph(s) attached; � Housing Work Sheet; � Personal Property Inventory Sheet; � Housing Identification Card; � G-589, Property Receipt; and � I-77, Baggage Check(s).
 The file shall also contain the following original documents, if used in the facility:
 � Acknowledgment form, documenting receipt of handbook, orientation, locker
key, etc.; � Work assignment sheet; � Identifying marks form; � The original resident summary form. b. Additions to File
During the course of the resident’s stay at the facility, staff shall add documents related to resident activities, for example: � Special requests; � Any G-589s and/or I-77s closed-out during the resident’s stay; � Corrective action forms; � Grievances, complaints, and the disposition(s) of same;

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� Records of Counseling; � Commissary records; � Other approved documents, e.g., staff reports about the resident’s behavior,
attitude, etc.
c. Location of Files � Active Residential Files shall be maintained in a secure area using lockable
cabinets in the admissions processing area, unless the facility administrator designates otherwise. Cabinets shall remain locked when not in use. � The Assistant Facility Administrator for Operations (or equivalent) shall determine the key distribution for file cabinets that lock. � Archived files shall be placed in storage boxes with the dates covered clearly marked (from [mm/dd/yyyy] to [mm/dd/yyyy]). The facility administrator shall designate restricted access storage space.
d. Access to File
1) Residential file contents are subject to Privacy Act regulations. I. Where applicable, signed consent shall be obtained from the resident for release of his/her information and the original signed form shall be kept in the resident’s Residential File.
2) Only staff with a documented need may have access to the Residential File.
3) Staff shall accommodate requests for a resident’s Residential File from other departments that have a documented need for the material.
Each borrowed file must be returned by the end of the administrative workday.
The facility shall designate a staff member within the processing area who is responsible for issuing and retrieving resident files and ensuring proper documentation is completed.
At a minimum, a logbook entry recording the file’s removal from the cabinet shall include the following:
� The resident’s name and A-File number; � Date and time Resident File removed; � Reason for removal; � Signature of person removing the file, including title and department; � Date and time returned; and � Signature of person returning the file.
e. Archiving Files
Each Residential File remains active during the resident’s stay at a facility andwill be

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closed and archived upon the resident’s transfer, release, or removal. Facilities shall retain inactive Residential files and shall, when requested, make them available to ICE/DRO personnel.
1). Upon the resident’s release from the facility, staff shall add final documents to the file before closing and archiving it. Before the file is closed, the following documents will be inserted in the Residential File:
� Residential file copies of completed release documents, � The original closed-out receipts for property and valuables, and � The original I-385 and other documentation.
2). The staff closing the Residential File shall make a notation (on the Acknowledgement form, if applicable) that the file is complete and ready for archiving.
3). The closed Residential File shall not be transferred with the resident to another facility; however, staff may forward copies of file documents at the request of supervisory personnel at the receiving facility/office. When forwarding such documents, staff shall update the archived file, noting the document request, and the name and title of the requester.
4). Hard copies of archived files may be purged after three years, and the material preferably burned, but at least shredded. However, prior to destruction of the documents, they shall be electronically archived, stored and provided to ICE/DRO.
5). ICE/DRO, JFRMU shall be contacted prior to the destruction of any archive files.
f. Assistant Facility Administrator for Operations Electronic Files
Electronic record-keeping systems and data shall be protected from unauthorized access. Electronic data on individual residents is subject to Privacy Act regulations.
Unless release of information is required by statute or regulation, a resident must sign a release-of-information consent form prior to the release of any information, and a copy of the form shall be maintained in the resident’s Residential File.
g. Field Office Responsibilities JFRMU and Field Offices shall maintain files as needed to carry out their responsibilities and shall maintain them in accordance with standing governmental regulations referencing maintenance of archived records and files for auditing purposes.
Generally, there are two types of files: � A-Files
Some Residential Standards and other ICE/DRO policies require copies of

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4

certain documents on individual residents be sent to Field Offices, especially where approval of the Field Office Director (or designee) is required. Some such material may duplicate material maintained in the facility Residential Files, but there is no intention to create a full duplicate file. For such purposes, where records are most easily retrieved by the resident’s name, Field Office staff shall maintain those records in the A -file. � Process Files
For some purposes, records contain information about more than one resident, and they are most easily retrieved by subject.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

Residential Files

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 ICE/DRO RESIDENTIAL STANDARD
SEARCHES OF RESIDENTS

I. PURPOSE AND SCOPE. Contraband is detected, controlled, and/or properly disposed of, protecting residents and staff and enhancing facility good order and security.
II. EXPECTED OUTCOMES. The expected outcomes of this Standard are as follows:
1. Residents will live and work in a safe and orderly environment.
2. Contraband will be controlled.
3. Searches of residents, housing and work areas will be conducted without unnecessary force and in ways that, insofar as is practical, preserve the dignity of residents.
4. When body searches are conducted, the least intrusive practicable search method will be employed, as determined by the type of contraband and the method of suspected introduction or concealment.
5. A pat-down search will be conducted only when there is reasonable belief or suspicion that contraband may be concealed on the person, or a good opportunity for concealment has occurred, and, if required, when properly authorized by a supervisor.
6. Contraband that may be evidence of a criminal law violation will be preserved, inventoried, controlled, and stored so as to maintain and document the chain of custody.
7. Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
8. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED None .
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non-government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.

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1

American Correctional Association Standards for Adult Local Detention Facilities, 4th Edition: 4-ALDF-2C-01, 2C-02, 2C-03, 2C-04, 2C-05, 2C-06, 2A-20, 6C-19. October 15, 2007, Memorandum from DRO Director John Torres, “Change Notice: Admission and Release- National Detention Standard Strip Search Policy.”
V. EXPECTED PRACTICES
1. Written Policy and Procedures Required All facilities shall have written policy and procedures for:
a. Employment of the least intrusive method of search practicable, as determined by the type of contraband and the method of suspected introduction or concealment;
b. Conduct of body searches, including frisks (“pat-downs”), visual searches (“strip searches”), body cavity searches, and x-rays;
c. Avoidance of unnecessary force and efforts to preserve the dignity of residents during searches, to the extent practicable;
d. Avoidance of unnecessary disorder during a search of housing or work areas; such searches shall not be conducted on a routine basis;
e. Handling of contraband; f. Preservation of evidence.
2. Staff Training Staff shall receive initial and annual training on effective search techniques.
3. Search of Resident Housing and Work Areas The purpose for searching resident housing and work areas is to ensure a safe living environment for families. Periodically, staff may search a resident's housing and work area as well as personal items contained within those areas, without notice to, or approval from the resident. However, search of a resident’s personal items should include notification to the resident and require their presence unless exigent circumstances exist. The facility is required to notify ICE weekly of all physical plant searches conducted. ICE shall immediately be notified of any instance in which hard contraband is found. Each facility shall establish procedures to ensure all housing units and work areas are searched at least daily, however, search times shall be at irregular intervals to prevent staging of contraband. Inspections are primarily designed to:
a. Detect contraband; b. Prevent escapes;
c. Maintain sanitary standards, and ; d. Eliminate fire and safety hazards.
Staff shall maintain written documentation of each area search. The Assistant

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Facility Administrator for Operations shall maintain the inspectors’ documentation.
4. Searches of Residents Staff shall document all searches, authorizations, and the reasons for the searches in any logs used to record searches and in the resident's residential file.
a. Pat Search During admission to a facility, or at any time thereafter, pat-downs shall not be conducted on any resident unless reasonable and articulable suspicion can be documented. No child resident fourteen years old or younger may be the subject of a pat-down search without the explicit authorization of the facility administrator or the assistant facility administrator.
A pat-down is an inspection of a resident, using the hands. The inspector uses his or her sense of touch when patting or running the hands over the clothed resident’s body. It is considered the least intrusive of the body searches and should only be conducted by a staff member of the same gender.
A pat-down does not require the resident to remove clothing, although the inspection includes a search of the resident's clothing and personal effects.
A hand-held and/or stationary metal detector shall be available and will be used in lieu of a pat-down.
b. Strip/Visual Search
Description: A strip search, also referred to as a visual search may not be authorized or conducted without the explicit consent of the ICE facility administrator. A strip search shall only be conducted by two ICE staff members of the same gender as the resident and only under circumstances where it can be shown that a life or public safety issue is clearly established. A strip search may never be conducted on a child under age fourteen without the authorization of the Field Office Director and JFRMU. In any instance where a parent must be searched, the search shall not be performed in the presence of any child. In any instance where a child must be searched, the parent must be present.
A strip search is a visual inspection of all body surfaces and body cavities. The inspector shall not touch any skin surface of the resident. However, the inspector may request that the resident move parts of the body to permit visual inspection. It is considered more intrusive than a pat-down and shall be made in a manner designed to ensure as much privacy to the resident as practicable.
A strip search requires the removal or rearrangement of some or all of the resident’s clothing to examine the clothing or to permit the inspection of exterior skin surfaces of the body, including breasts and exterior anal and genital areas, inside of the nose, ears, and mouth. If items are discovered that protrude from a body cavity, the removal of those items are governed by the procedures applicable to body cavity searches, addressed below.

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c. Body Cavity Searches In every instance where it is established that a foreign object is located within a body cavity, only a qualified medical authority shall be authorized to locate and remove the object. Only the Chief JFRMU in conjunction with the Field Office Director can authorize this type of search.
5. PRESERVATION OF EVIDENCE Contraband that may be evidence of a criminal law violation shall be preserved, inventoried, controlled, and stored so as to maintain and document the chain of custody, and shall be reported to the appropriate law enforcement authority for action and possible seizure and prosecution.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

Searches of Residents

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 ICE/DRO RESIDENTIAL STANDARD
SEXUAL ABUSE AND ASSAULT PREVENTION AND INTERVENTION
I. PURPOSE AND SCOPE. This Residential Standard requires that facilities that house ICE/DRO residents/residents in residential facilities affirmatively act to prevent sexual abuse and assaults on residents, provide prompt and effective intervention and treatment for victims of sexual abuse and assault, and control, discipline, and prosecute the perpetrators of sexual abuse and assault. It applies to the all residential facilities housing DRO residents:
II. EXPECTED OUTCOMES. The expected outcomes of this Residential Standard are: 1. Sexual abuse and assault of residents will be prevented. 2. Residents will be informed about the facility’s sexual abuse or assault prevention and intervention program. 3. Residents will be screened to identify those likely to be sexual aggressors or sexual victims and will be housed to prevent sexual abuse or assault. 4. All allegations of sexual abuse or assault will be promptly and effectively reported and investigated. 5. If sexual abuse or assault of any resident occurs, the medical, psychological, safety, and social needs of the victim will be promptly and effectively met. 6. Where possible and feasible, a victim of sexual assault will be referred under appropriate security provisions to a specialized community facility for treatment and gathering of evidence. 7. Assailants will be controlled, disciplined, and/or prosecuted. 8. Sexual conduct between staff and residents, volunteers, or contract personnel and residents, regardless of consensual status, will be prohibited and subject to administrative, disciplinary, and criminal sanctions. 9. All case records associated with claims of sexual abuse, including incident reports, investigative reports, offender information, case disposition, medical and counseling evaluation findings, and recommendations for post-release treatment and/or counseling will be retained in accordance with an established schedule. 10. Each facility will separately track incidents of sexual abuse and assault. 11. Where required, residents have regular access to translation services and/or are provided information in a language that they understand. 12. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED This is a new Detention Standard.
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from

Sexual Abuse and Assault . . .

1

various subject matter experts, review and comment from various government and non-government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
4-ALDF-4D-22, 4D-22-1, 4D-22-2, 4D-22-3, 4D-22-4. 4D-22-5, 4D-22-6, 4D-22-7, 4D-22-8, 2A-29.
Prison Rape Elimination Act of 2003 (PREA)
V. EXPECTED PRACTICES
A. Background The Prison Rape Elimination Act of 2003 (PREA) sets a “zero tolerance” standard regarding rape and sexual assault in “any confinement facility of a Federal, state, or local government, whether administered by such government or by a private organization.”
Research indicates that a small percentage of individuals express aggression and seek to dominate others through violent sexual behavior. Forceful and pressured sexual interactions are among the most serious threats to resident safety and institutional order. Victims may suffer physical and psychological harm, and could be infected with a life-threatening disease.
Not only does ICE/DRO expect all facilities to affirmatively act to prevent sexual abuse and assaults on ICE/DRO residents, but it also takes very seriously all allegations of sexual misconduct and assault against any ICE/DRO resident in any facility. Every allegation is reviewed and, where warranted, referred for criminal prosecution, with a “zero-tolerance” standard.
B. Written Policy and Procedures Required Each facility administrator shall have written policy and procedures for a Sexual Abuse and Assault Prevention and Intervention Program that includes, at a minimum:
1. Prevention, 2. Prompt and effective intervention to address the safety and treatment needs
of resident victims if an assault occurs, and 3. Investigation, discipline, and prosecution of assailants. A continuum of crisis intervention, counseling, investigation, and prosecution of sexual abuse or assault victims has become a specialty in itself, and each facility administrator should always consider the expertise and services available in the local community.
Appendix B offers sample protocols as guidelines for staff in the development of written policies and procedures. Some procedures may not be applicable or feasible for implementation at a particular facility; however to the extent possible, they should be incorporated as part of a successful program.

Sexual Abuse and Assault . . .

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The facility administrator of each facility shall ensure that, within 90 days of the effective date of this Detention Standard, written policy and procedures are in place and that the facility is in full compliance with its requirements and guidelines.
Each facility policy and procedures shall reflect the unique characteristics of each facility, based on such factors as:
� The risk and likelihood of sexual abuse or assault, given the facility’s mission, resident population, and security level;
� Staffing resources and the availability of specialized community-based services, such as rape crisis/trauma units in local medical centers, clinics, and hospitals.
The facility administrator shall submit the local policy and procedures document to the Chief, Juvenile and Family Residential Management Unit (JFRMU) for review and approval. JFRMU shall ensure that each residential facility:
� Specifies procedures for offering immediate protection to any resident who alleges that he or she has been sexually assaulted;
� Specifies local response procedures (including referral procedures to appropriate law enforcement agencies) to be followed when a sexual assault occurs;
� Establishes procedures to involve outside agencies in sexual abuse or assault prevention and intervention programs, if such resources are available;
� Designates specific staff (psychologist, deputy facility administrator, appropriate medical staff, etc.) to be responsible for staff training activities;
� Specifies how the safety needs of a victim will be protected over time;
� Specifies the senior manager responsible for insuring that staff are appropriately trained and respond in a coordinated fashion when a resident reports an incident of sexual abuse or assault;
� Designated a specific staff member to be responsible for resident education regarding issues pertaining to sexual assault; and
� Specifies how medical staff will be trained or certified in procedures for examining and treating victims of sexual assault in institutions where medical staff will be assigned these activities.
C. Program Coordinator The facility administrator shall designate a Sexual Abuse and Assault Prevention and Intervention Program Coordinator to:
� Assist in the development of the program and the written policies and procedures and with keeping them up to date.
� Assist with the development of initial and ongoing training protocols.
� Serve as a liaison with other agencies.
� Coordinate the gathering of statistics and/or reports on incidents of sexual abuse or assault, as detailed below in the section on Tracking Incidents of

Sexual Abuse and Assault . . .

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Sexual Abuse and Assault.
D. Definitions. For the purposes of this Residential Standard, the following definitions apply:
1. Resident-on-resident sexual abuse or assault One or more residents engaging in a sexual act with another resident or the use of threats, intimidation, inappropriate touching, or other actions and or communications by one or more residents aimed at coercing and or pressuring another resident to engage in a sexual act. Sexual acts or contacts between residents, even when no objections are raised, are prohibited acts.
2. Staff-on-resident sexual abuse or assault Engaging in, or attempting to engage in a sexual act with any resident or the intentional touching of an resident’s genitalia, anus, groin, breast, inner thigh, or buttocks with the intent to abuse, humiliate, harass, degrade, arouse, or gratify the sexual desire of any person. Sexual acts or contacts between a resident and a staff member, even when no objections are raised, are always illegal.
E. Sexual Conduct Between Residents and Staff, Volunteers, or Contract Personnel Prohibited Sexual conduct between staff and residents, volunteers, or contract personnel, regardless of consensual status, is prohibited and subject to administrative and criminal disciplinary sanctions.
F. Staff Training Training on the facility’s Sexual Abuse and Assault Prevention and Intervention Program shall be included in initial training for new employees, volunteers, and contract personnel and be included in annual refresher training thereafter.
Training shall include:
� Understanding that sexual abuse or assault is never an acceptable consequence of detention;
� Recognizing housing or other situations where sexual abuse or assault may occur;
� Recognizing the physical, behavioral, and emotional signs of sexual abuse or assault and ways to prevent such occurrences;
� Knowing how to report knowledge or suspicion of sexual abuse or assault and make intervention referrals in the facility’s program.
� Appendix A lists resources available from the National Institute of Corrections that may be useful in developing a training program and/or for direct use in training, including a copy of the PREA, two videos, a facilitator’s guide, reference material, and a PowerPoint presentation.
G. Resident Notification and Orientation The facility administrator shall ensure that the orientation program required by the Residential Standard on Admission and Release and the resident handbook

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required by the Residential Standard on Resident Handbook notifies and informs residents about the facility’s Sexual Abuse and Assault Prevention and Intervention Program and includes (at a minimum): Prevention/intervention;
� Self-protection;
� Reporting sexual abuse or assault; and
� Treatment and counseling.
Each facility’s Sexual Abuse and Assault Prevention and Intervention Program shall provide residents who are victims of sexual abuse or assault an option to report the incident or situation to a designated staff member other than an immediate point-of­ contact line officer (for example, the program coordinator or a mental health specialist).
ICE has provided a Sexual Assault Awareness notice (4/17/2006) to be posted on all housing unit bulletin boards (Attachment 1), as well as a Sexual Assault Awareness Information brochure (4/17/2006).
H. Prevention All staff and residents are responsible for being alert to signs of potential situations in which sexual assaults might occur and making reports and intervention referrals.
In accordance with the Residential Standards on Admission and Release and Classification System:
� Residents shall be screened upon arrival at the facility for potential vulnerabilities or tendencies of acting out with sexually aggressive behavior.
� Each new arrival shall be kept separated from the general population until he or she is classified and may be housed accordingly.
� Residents with a history of sexually assaultive behavior shall not be eligible for placement in a family residential center and shall be refused admission and immediately transferred to a secure facility. Residents identified as “high risk” of sexually assaultive behavior shall not be eligible for placement in a family residential center and shall be refused admission and immediately transferred to a secure facility.
� Residents at risk for sexual victimization shall be identified, monitored, and counseled. Residents identified as “high risk” for sexual victimization shall be assessed by a mental health or other qualified professional.
I. Prompt and Effective Intervention Staff sensitivity toward residents who are victims of sexual abuse or assault is critical.
Staff shall take seriously all statements from residents that they have been victims of sexual assaults and respond supportively and non-judgmentally. Any resident who alleges that he or she has been sexually assaulted shall be offered immediate protection from the assailant and referred for a medical examination and/or a clinical assessment of the potential for suicide or other symptoms.

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J. Notifications and Referrals Designated staff shall provide services to victims and shall conduct investigations of sexual abuse or assault incidents. Information concerning the identity of a resident victim reporting a sexual assault, and the facts of the report itself, shall be limited to those who have a need to know in order to make decisions concerning the resident­ victim’s welfare and for law enforcement/investigative purposes.
The timely reporting of all incidents and allegations is of paramount importance.
1. Alleged Resident Perpetrator When a resident(s) is alleged to be the perpetrator, it is the facility administrator’s responsibility to ensure that the incident is promptly referred to the appropriate law enforcement agency having jurisdiction and reported to ICE through the SEN (Significant Event Notice) system.
2. Alleged Staff Perpetrator When an employee, contractor, or volunteer is alleged to be the perpetrator of resident sexual abuse or assault, the following shall immediately be notified:
� The facility administrator,
� The highest ranking on-site ICE/DRO representative (who may be the OIC),
� The Chief, JFRMU
� The respective Field Office Director.

The Chief, JFRMU shall notify:

� The Office of the Principle Legal Advisor
� The area Field Office Director
� The Assistant Director[s] for Management and Operations
� The Deputy Assistant Director, Detention Management Division,
� The ICE Office of Professional Responsibility (OPR). OPR will refer the matter to the DHS Office of the Inspector General (OIG).
� The Joint Intake Center
The facility administrator or Chief, JFRMU shall also refer the matter to the FBI (or other appropriate law enforcement agency).
K. Investigation and Prosecution If a resident alleges sexual assault, a sensitive and coordinated response is necessary.
Appropriate staff shall preserve the crime scene and collect information/evidence in coordination with the referral agency and consistent with evidence gathering/processing procedures.
Collection and preservation of physical evidence is paramount to any potential prosecution of an alleged assailant. For this reason, the victim of a sexual assault shall be transported to the nearest hospital for examination and collection of physical

Sexual Abuse and Assault . . .

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evidence. The Division of Immigration Health Services is not trained to perform forensic collection and should not be used to examine and collect evidence. The results of the physical examination and all collected physical evidence are to be provided to the Chief, JFRMU. Appropriate infectious disease testing, as determined by the health services provider, may be necessary. Part of the investigative process may also include an examination of and collection of physical evidence from the suspected assailant(s).
L. Transfer of Residents to Hospitals or Other Institutions When possible and feasible, victims of sexual assault should be referred under appropriate security provisions to a community facility for treatment and gathering of evidence. If these procedures are performed in-house, the following guidelines apply:
� A history is taken by health care professionals who conduct an examination to document the extent of physical injury and to determine if referral to another medical facility is indicated. With the victim’s consent, the examination includes collection of evidence from, the victim, using a kit approved by the appropriate authority.
� Provision is made for testing for sexually transmitted diseases (for example, HIV, gonorrhea, hepatitis, and other diseases and counseling, as appropriate.
� Prophylactic treatment and follow-up for sexually transmitted diseases are offered to all victims, as appropriate.
� Following the physical examination, there is availability of an evaluation by a mental health professional to assess the need for crisis intervention counseling and long-term follow-up.
A report is made to the facility or program administrator or designee to assure separation of the victim from his or her assailant.
M. Tracking Incidents of Sexual Abuse and Assaults All case records associated with claims of sexual abuse, including incident reports, investigative reports, offender information, case disposition, medical and counseling evaluation findings, and recommendations for post-release treatment and/or counseling are maintained in appropriate files in accordance with other Residential Standards and applicable policies and retained in accordance with established schedules.
Monitoring and evaluation are essential to assess both sexual assault levels and agency effectiveness in reducing sexually abusive behavior. Accordingly, the facility administrator must maintain two types of files.
� General files include:
o The victim(s) and assailant(s) of a sexual assault,
o Crime characteristics, and
o Formal and or informal action taken.
� Investigative files include:

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o All reports,
o Medical forms,
o Supporting memos and videotapes, and
o Any other evidentiary materials pertaining to the allegation.
The facility administrator shall maintain these files chronologically in a secure location. Each facility administrator shall maintain a listing of the names of sexual assault victims and assailants along with the dates and locations of all sexual assault incidents occurring within the institution on his or her computerized incident reporting system.
In Residential Centers, the facility administrator shall give resident assault assailant(s) and victim(s) involved in a ICE/DRO sexual assault incident a specific designator as required in the official reporting system (SIR, SEN, Other).
Access to this designation shall be limited to those staff that are involved on the treatment of the victim or the investigation of the incident. The authorized designation will allow administrative, treatment, and facility administrator staff to track the resident across the system who have been involved in sexual assault either as a victim or as an assailant. Based on the designated reporting data, the ICE/DRO program office shall report annually the number of sexual assaults occurring within secure detention facilities utilized by ICE/DRO. Data will be provided through the SEN system.

Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

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Appendix A
 Resources Available from the National Institute of Corrections

The National Institution of Corrections (NIC): � Offers training and technical assistance and provides a national clearinghouse for information on the Prison Rape Elimination Act of 2003 (PREA), and � Is required by the PRLE to produce an annual report to Congress.
“PREA Tool Kit 1,” available from NIC, contains: � A copy of the video, Facing Prison Rape, and the accompanying Facilitator’s Guide. � A copy of the full 3-hour videoconference “How PREA Affects You.” � A copy of the Prison Rape Elimination Act of 2003. � A bibliography of reference material. � A PowerPoint presentation containing am overview and introduction to the PREA.

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APPENDIX A

Appendix B

Sample Sexual Abuse Prevention and Intervention Protocols

These protocols serve as guidelines for staff in the development of written policies and procedures for a Sexual Abuse and Assault Prevention and Intervention Program. Some procedures may not be applicable or feasible for implementation at a particular facility; however to the extent possible, they should be incorporated as part of a successful program.
I. VICTIM IDENTIFICATION (all staff)
A. Primarily, staff learn that a sexual abuse or assault has occurred during confinement because:
� Staff discover an assault in progress.
� A victim reports an assault to a staff member.
� Another resident reports abuse or an assault, or a resident is the subject of resident rumors.
� Medical evidence indicates the probability of a abuse or an assault.
While some victims will be clearly identified, many, even most, may not come forward directly with information. Some victims may be identified through unexplained injuries, changes in physical behavior due to injuries, or abrupt personality changes such as withdrawal or suicidal behavior.
B. The following guidelines may help staff in responding appropriately to a suspected victim:
� If it is suspected that the resident was sexually assaulted, the resident should be advised of the importance of getting help to deal with the assault, that he or she may be evaluated medically for sexually transmitted diseases and other injuries, and that trained personnel are available to assist.
� Staff should review the background of a suspected victim, and the circumstances surrounding the incident, without jeopardizing the resident's safety, identity, and privacy.
� If staff discover an assault in progress, the suspected victim should be removed from the immediate area for care and for interviewing by appropriate staff.
� If a suspected victim is fearful of being labeled an informer, he or she should be advised that the identity of the assailant(s) is not needed to receive assistance.
� The staff member who first identifies that an assault may have occurred should refer the matter to the security shift supervisor or investigative supervisor.

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APPENDIX B

II. PROCEDURES FOR STAFF INTERVENTION AND INVESTIGATION
The following procedures may apply for reported or known victims of sexual assault. If the resident was threatened with sexual assault or was assaulted on an earlier occasion, some steps may not be necessary.
A. Early Intervention Techniques (all staff)
� It is important that all contact with a sexual assault victim be sensitive, supportive, and non-judgmental.
� It is not necessary to make a judgment about whether or not a sexual assault occurred.
� Remove resident victim(s) from the immediate area;
� Alert medical staff immediately and escort the victim for a medical evaluation as soon as possible. If necessary, medical staff should refer the victim to a local emergency facility.
� Appropriate staff should coordinate other services to do follow-up (housing, suicide assessment, etc.).
� To facilitate evidence collection, it is important that the victim not shower, wash, drink, eat, defecate or change any clothing until examined.
� A brief statement about the assault should be obtained from the resident. The victim may be in shock, and unable to give much detail. It is important to be understanding and responsive. Opportunities to secure more details will occur later.
� Following medical evaluation/treatment, the victim may need to be reassigned to protective custody or to another secure area of the facility. Ensure no alleged assailant is located in the area.
B. Collect Evidence from Victim - (security and investigative staff)
� Be sure to use HIV infection (“universal”) precautions and procedures. Contact medical staff to determine how to preserve medical indications of sexual assault. In the crime scene area, look for the presence of semen that can be used as evidence. For example, blankets and sheets should be collected.
� Use standard evidence collection procedures (photographs, etc.).
C. Collect Evidence from Assailant - (security and health services staff)
� Identify the assailant if possible and isolate the assailant, whenever possible, pending further investigation.
� Use standard investigative and evidence-gathering procedures.
� Report the incident to the appropriate law enforcement agency.
� If institution medical staff attempt to examine the alleged assailant, findings should be documented both photographically and in writing. A written summary of all medical evidence and findings should be completed and maintained in the resident's medical record. Copies should also be provided to supervisory security staff and appropriate law enforcement officials.

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APPENDIX B

III. MEDICAL ASSESSMENT OF VICTIM - (health services staff)
� If trained medical staff are available in the institution, render treatment locally whenever feasible.
� If the alleged victim is examined in the institution to determine the extent of injuries, all findings should be documented both photographically and in writing in the resident’s medical record, with a copy to supervisory security staff and appropriate law enforcement official.
� If deemed necessary by the examining physician, follow established procedures for use of outside medical consultants or for an escorted trip to an outside medical facility.
� Notify staff at the community medical facility and alert them to the resident's condition.
� When necessary, conduct STD and HIV testing.
� Refer the resident for crisis counseling as appropriate.
IV. MEDICAL TRANSFERS FOR EXAMINATION AND TREATMENT - (security and health services staff)
� If determined appropriate by the institution physician and if approved by the facility administrator or designee, the resident may be examined by medical personnel from the community. A contractual arrangement may be developed with a rape crisis center or other available community medical service to enhance institution medical services. The contract should provide for clinical examination, for assessing physical injuries and for the collection of any physical evidence of sexual assault. It should also allow for contract medical personnel to come into the institution and for the escorting of residents to the contract facility (crisis care center, medical clinic, hospital, etc.).
� Escorting staff should treat the victim in a supportive and non-judgmental way.
� Information about the assault is confidential, and should be given only to those directly involved in the investigation and/or treatment of the victim.
V. MENTAL HEALTH SERVICES - (mental health staff)
� Mental health staff should be notified immediately after the initial report of an allegation of sexual abuse or assault of a resident.
� Any alleged victim should be seen within 24 hours following such notification, by a mental health clinician to provide crisis intervention and to assess any immediate and subsequent treatment needs.
� The findings of the initial crisis/evaluation session should be summarized in writing within one week of the initial session and placed in the appropriate treatment record, with a copy provided to the hospital administrator or clinical director and other staff responsible for oversight of sexual abuse or assault prevention and intervention procedures.

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APPENDIX B

� Additional psychological or psychiatric treatment, as well as continued assessment of mental health status and treatment needs, should be provided as needed, with the victim's full consent and collaboration. Decisions regarding the need for continued treatment and/or assessment should be made by qualified clinicians according to established professional standards, and should be made with an awareness that a victim of sexual abuse or assault commonly experiences both immediate and delayed psychiatric and/or emotional symptoms.
� If a victim chooses to continue to pursue treatment, the clinician will either provide appropriate treatment or facilitate referral to an appropriate treatment option including individual therapy, group therapy, further psychological assessment, assignment to a mental health case load and/or facility, referral to a psychiatrist, and/or other treatment options. Pending referral, mental health services should continue unabated. If a victim chooses to decline further treatment services, he or she should be asked to sign a statement to that effect.
� All treatment and evaluation sessions should be properly documented and placed in the appropriate treatment record to ensure continuity of care.
� Should a victim be released from custody during the course of treatment, the victim should be advised of community mental health resources in his/her area.
VI. MONITORING AND FOLLOW-UP
� Classification and security staff should place the resident in appropriate housing and assess the risk of keeping the victim at the same facility where the incident occurred.
� Housing, medical and mental health staff should monitor the physical and mental health of the victim and coordinate the continuation of necessary services.
� Medical staff should dispense medication; provide routine examinations and STD and HIV follow-up.
� Mental health staff should conduct post-crisis counseling and arrange for psychiatric care if necessary.

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APPENDIX B

SEXUAL ASSAULT AWARENESS: This document is required to be posted in each Housing Unit Bulletin Board at all Residential Centers that house ICE residents.
While detained by the Department of Homeland Security, Immigration and Customs Enforcement, Office of Detention and Removal, you have a right to be safe and free from sexual harassment and sexual assault. Report all attempted assaults and assaults to your housing unit officer, a supervisor, the Officer In Charge, or directly to the Office of the Inspector General at 1 (800) 323-8603
Definitions: Resident-on-Resident Sexual Abuse/Assault: One or more residents engaging in, or attempting to engage in a sexual act with another resident or the use of threats, intimidation, inappropriate touching or other actions and/or communications by one or more residents aimed at coercing and/or pressuring another resident to engage in a sexual act. Staff-on-Resident Sexual Abuse/Assault: Staff member engaging in, or attempting to engage in a sexual act with any resident or the intentional touching of a resident’s genitalia, anus, groin, breast, inter thigh, or buttocks with the intent to abuse, humiliate, harass, degrade, arouse, or gratify the sexual desires of any person. Sexual abuse/assault of residents by staff or other residents is an inappropriate use of power and is prohibited by ICE policy and the law. Staff Sexual Misconduct is: Sexual behavior between a staff member and resident which can include, but is not limited to indecent, profane or abusive language or gestures and inappropriate visual surveillance of residents.
Prohibited Acts:
 A resident who engages in inappropriate sexual behavior with or directs it at others, can be charged with the
 following Prohibited Acts under the Resident Disciplinary Policy.

• Sexual Assault; • Making a Sexual Proposal; • Using Abusive or Obscene Language; • Engaging in a Sex Act; • Indecent Exposure
Detention as a Safe Environment:
 While you are detained, no one has the right to pressure you to engage in sexual acts or engage in unwanted sexual
 behavior regardless of your age, size, race, or ethnicity. Regardless of your sexual orientation, you have the right to
 be safe from unwanted sexual advances and acts.

Confidentiality:
 Information concerning the identity of a resident victim reporting a sexual assault, and the facts of the report itself,
 shall be limited to those who have the need to know in order to make decisions concerning the resident-victim’s
 welfare and for law enforcement/investigative purposes.

Avoiding Sexual Assault:
 Here are some things you can do to protect yourself against sexual assault:

• Carry yourself in a confident manner. Many offenders choose victims who look like they won’t fight back or who they think are emotionally weak.
• Do not accept gifts or favors from others. Most gifts or favors come with strings attached to them. • Do not accept an offer from another resident to be your protector. • Find a staff member with whom you feel comfortable discussing your fears and concerns. Report concerns! • Do not use drugs or alcohol; these can weaken your ability to stay alert and make good judgments. • Avoid talking about sex. Other residents may believe you have in interest in a sexual relationship. • Be clear, direct and firm. Don’t be afraid to say NO or STOP IT NOW. • Stay in well-lit areas of the Facility. • Choose your associates wisely. Look for people who are involved in positive activities like educational
programs, work opportunities, counseling groups, or religious services. Get involved in these activities yourself.

• Trust your instincts. Be aware of situations that make you feel uncomfortable. If it doesn’t feel right or safe, leave the situation. If you fear for your safety, report your concerns to staff.
REPORT all Assaults: If you become a victim of a sexual assault, you should report it immediately to any staff person you trust, to include housing officers, deportation officers, chaplains, medical staff or supervisors. Staff members keep the reported information confidential and only discuss it with the appropriate officials on a need to know basis. If you are not comfortable reporting the assault to staff, you have other options:
• Write a letter reporting the sexual misconduct to the Officer in Charge, Assistant Field Office Director, or Field Office Director. To ensure confidentiality, use special mail procedures.
• File an Emergency Resident Grievance - If you decide your complaint is too sensitive to file with the Officer in Charge, you can file your Grievance directly with the Field Director. You can get the forms from your housing unit officer, deportation staff or a facility supervisor.
• Write to the Office of Inspector General (OIG), which investigates allegations of staff misconduct. o The address is: Office of Inspector General, P.O. Box 27606, Washington, D.C. 20530
• Call at no expense to you the Office of Inspector General (OIG). The phone number is posted in your housing unit.
Individuals who sexually abuse or assault residents can only be disciplined or prosecuted if the abuse is reported.
Next Steps After Reporting a Sexual Assault You will be offered immediate protection from the assailant and you will be referred for medical examination and clinical assessment. You do not have to name the resident(s) or staff member who assaulted you to receive assistance, but specific information may make it easier for staff to help you. You will continue to receive protection from the assailant, whether or not you have identified your attacker or agree to testify against them. It is important that you don’t shower, wash, drink, change clothing or use the bathroom until evidence can be collected.
The Medical Exam Medical staff will examine you for injuries, which may or may not be readily apparent to you and will gather physical evidence of assault. Bring the clothes and underwear that you had on at the time of the assault to the medical exam with you. You will be checked for the presence of physical evidence, which supports your allegation. With your consent, a medical professional will perform a pelvic and/or rectal examination to obtain samples of or document the existence of physical evidence such as hair, body fluids, tears or abrasions, which remain after the assault. This physical evidence is critical in corroborating the sexual assault occurred and in identifying the assailant; trained personnel will conduct the exam privately and professionally.
Understanding the Investigative Process: Once the misconduct is reported, the appropriate law enforcement agency will conduct an investigation. The purpose of the investigation is to determine the nature and extent of the misconduct. You may be asked to give a statement during the investigation. If criminal charges are filed, you may be asked to testify during the criminal proceedings. Any resident who alleges that he or she has been sexually assaulted shall be offered immediate protection and will be referred for a medical examination.
The Emotional Consequences of Sexual Assaults: It is common for victims of sexual assault to have feelings of embarrassment, anger, guilt, panic, depression, and fear even several months or years after the attack. Other common reactions include loss of appetite, nausea or stomachaches, headaches, loss of memory and/or trouble concentrating and changes in sleep patterns. Emotional support is available from the facility’s mental health and medical staff, and from the chaplains. Also, many residents who are at high risk to sexually assault others have often been sexually abused themselves. Mental health services are available to them also so that they can control their actions and heal from their own abuse. Sexual assaults can happen to anyone: any gender, age, race, ethnic group, socioeconomic status, sexual orientation, or disability. Sexual assault is not about sex; it is about POWER and CONTROL. All reports are taken seriously. Your safety and the safety of others is the most important concern. For everyone’s safety, incidents, threats, or assaults must be reported.
Report all attempted assaults and assaults to your housing unit officer, a supervisor, the Officer In Charge, or directly to the Office of the Inspector General

THIS SECTION LEFT BLANK
 FOR INSERTION OF SEXUAL ASSAULT AWARENESS INFORMATION

BROCHURE
 DATED 4/17/2006
 AS ATTACHMENT 2


 
 ICE/DRO DETENTION STANDARD
STAFF HIRING AND TRAINING

I. PURPOSE AND SCOPE. Staff responsible for the care of residents must be appropriately qualified, experienced, screened, and trained, to ensure that the organizational structure promotes best practices and facilitates the optimum delivery of services. In addition to the training requirements outlined in this standard, specific residential standards may include additional training requirements. .
II. EXPECTED OUTCOMES. The expected outcomes of this Residential Standard are:
1. Care providers have an internal policies and procedures manual that is specific to the operations, goals, and objectives of each of their programs
2. Clear lines of authority and responsibility are reflected in the providers’ organizational chart.
3. Key positions are approved by ICE prior to hiring and job placement.
4. Staff are properly qualified and have received appropriate security clearances prior to beginning to work in any family residential facility.
5. Each new employee, contractor, or volunteer will be provided an appropriate orientation to the facility and the Residential Standards before beginning to work in any family residential facility.
6. Staff, contractor, and volunteer training will be provided by staff who are qualified to conduct such training.
7. Staff who have minimal resident contact (such as clerical and other support staff) will receive initial and annual training commensurate with their position.
8. Professional, support, and health care staff and contractors who have regular or daily contact with detainees will receive initial and annual training commensurate with their position.
9. Security staff will receive initial and annual training commensurate with their position.
10. Facility management and supervisory staff will receive initial and annual training commensurate with their position.
11. Personnel assigned to emergency response units or teams will receive initial and annual training commensurate with their position.
12. Personnel authorized to use firearms will receive appropriate training before being assigned to a post involving their use and will demonstrate competency in firearms use at least annually.
13. Personnel authorized to use chemical agents will receive thorough training in their

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use and in the treatment of individuals exposed to a chemical agent.
14. Security staff will be trained in self-defense and the authorized use of force to control all ages of residents.
15. Employees will be encouraged to continue their education and professional development through such incentives as salary enhancement, reimbursement of costs, and administrative leave.
16. Initial orientation, initial training, and annual training programs will include information on drug-free workplace requirements and procedures.
17. Initial orientation, initial training, and annual training programs will include information on the facility’s written code of ethics.
18. New staff, contractors, and volunteers will acknowledge in writing that they have reviewed facility work rules, ethics, regulations, conditions of employment, and related documents, and a copy of the signed acknowledgement will be maintained in each person’s personnel file.
III. DIRECTIVES AFFECTED None. This is a new Standard.
IV. REFERENCES ICE/DRO Detention Standard on Visitation, particularly in regard to facility orientation for volunteers in the section entitled “Visits from Representatives of Community Service Organizations”.
Pennsylvania Code Section 3800
Texas Welfare Code
V. EXPECTED PRACTICES – HIRING AND STAFFING A. Organizational Structure
The care provider’s internal policies and procedures manual shall include a clear description of the organizational structure. There shall be clear lines of authority and responsibility reflected in the providers’ organizational chart. The program director shall be responsible for the entire program and its outcomes. There shall be adequate staff available to adhere to the organizational structure and to deliver all services required in the ICE/DRO contract award. There shall also be adequate levels of relief staff available to cover illnesses, holidays, emergencies, and influxes (in cases where the care provider has developed an influx plan at the request of the ICE/DRO).
B. Staffing Requirements
Key Positions
Key personnel are: the Program Director, Assistant Program Director (if applicable), Clinicians/Lead Clinician, and Lead Case Manager. Prior to the hire of any key

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personnel, a care provider must submit to the Juvenile and Family Residential Management Unit (JFRMU) Project Manager (PM) a request for the review and approval of the job description, resume, cover letter, application, and any other applicable documents.
1. Program Director
The Program Director shall be responsible and accountable for the entire program and its outcomes, and shall be the primary liaison with the JFRMU. The Program Director shall coordinate both programmatic and financial elements of the services provided to residents in their care. The Program Director shall be responsible for creating an internal manual for each programmatic function, based on state licensing requirements as applicable, JFRMU policies and procedures, the Statement of Work, and the agency’s internal policies and procedures. The Program Director shall also be responsible for all reporting requirements of the Statement of Work (i.e., programmatic and financial reports), and shall bring any issues or concerns to the designated Project Manager.
The Program Director shall possess the administrator’s license for the care provider’s facility, if applicable. The Program Director shall have at least a Master’s Degree in social work (MSW) or an equivalent degree in education, psychology, sociology or other relevant behavioral science; or a Bachelor’s Degree in one of the aforementioned sciences, plus five years of experience as the director of a licensed child care program, residential youth program, or similar program for children and adolescents; or plus five years of progressive project management experience on projects demonstrating advanced levels of financial and managerial responsibilities.
2. Assistant Program Director (optional)
Care providers that employ a more than 75 emplyees and have more than 80 adult and minor residents may have an Assistant Program Director. The Assistant Program Director provides support to the Program Director and is a secondary liaison with the JFRMU. Not all care providers are required to have an Assistant Program Director.
The Assistant Program Director shall have at least a Bachelor’s degree in a relevant behavioral or social sciences field, plus five years of progressive employment experience within a social services or child care agency, or plus three years of progressive project management experience on projects demonstrating advanced levels of financial and managerial responsibilities.

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Lead Case Manager
The Lead Case Manager shall be responsible for coordinating case management services and for training and supervising other case managers. The Lead Case Manager’s tasks shall include coordination and oversight of each accompanied child’s assessment, individual service plan, and discharge. The Lead Case Manager shall also ensure that all the services provided to each child are properly documented in the child’s case file.
The Lead Case Manager shall have a Master's Degree in the behavioral sciences, human services, or social services fields; and at least three years of progressive employment experience in the aforementioned fields that demonstrates supervisory and case management experience; or a minimum of a bachelor's degree plus five years of progressive employment experience in the aforementioned fields that demonstrates supervisory and case management experience. Child welfare experience and professional licensure are strongly encouraged.
3. Clinician
Clinicians shall conduct mental health assessments for all residents in care, as well as provide ongoing individual and crisis intervention. The clinicians shall be permanent staff members, unless prior authorization is received by smaller programs from the designated PM to obtain such services through community-based providers. When there are more than three clinicians on staff, a Lead Clinician shall be designated, with the added responsibility of coordinating clinical services and training and supervising staff clinicians.
The ratio of residents to clinicians shall not be greater than 25:1. In certain instances, it may be necessary for a care provider to adjust this ratio based on the needs of the specific program. In this type of situation, the ratio may be set higher or lower by the PM, who will provide the care provider with a rationale for the adjustment.
Clinicians shall have a Master's Degree in social work (MSW) and two years of postgraduate direct service delivery experience; a Master's Degree in psychology, sociology, or other relevant behavioral science in which clinical experience is a program requirement; or a Bachelor's Degree in one of the aforementioned sciences plus five years of progressive employment experience in this area. It is strongly encouraged that clinicians be licensed or licensed-eligible.
4. Lead Clinician
The Lead Clinician shall have a Master's Degree in social work (MSW) and five years of postgraduate direct service delivery experience; or a Master's degree in psychology, counseling, or other relevant behavioral science in which clinical training and experience is a program requirement. Licensure and supervisory experience are required.

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Other Positions

5. Case Manager
This position does not require approval from the ICE prior to hiring, but the Program Director must ensure that the following qualifications are met: a Bachelor's Degree in the behavioral sciences, human services, or social services fields; or a minimum of a high school diploma plus three to five years of progressive employment experience in the aforementioned fields. (Years of advanced education in aforementioned fields can be substituted for years of employment experience). Child welfare or case management experience is strongly encouraged.
The ratio of residents to case management staff shall be no greater than 30:1. In certain instances, it may be necessary for a care provider to adjust this ratio based on the needs of the specific program. In this situation, the ratio may be set higher or lower by the PM, and the PM will provide a rationale for the adjustment.
6. Recreation Specialist
This position does not require approval from the ICE prior to hiring, but the Program Director must ensure that the following qualifications are met: a Bachelor's Degree in the physical education, or a minimum of a high school diploma plus five years of progressive employment experience in the aforementioned fields. (Years of advanced education in aforementioned fields can be substituted for years of employment experience). Child welfare or case management experience is strongly encouraged.
7. Family / Youth Care Specialist / Worker
This position does not require approval from ICE prior to hiring, but the Program Director must ensure that the following qualifications are met: a high school diploma or equivalent degree, and a minimum of one year employment experience in the child welfare field working with children or adolescents in a social service setting.
8. Teacher
This position does not require approval from DRO prior to hiring, but the Program Director must ensure that the following qualifications are met: a fouryear college degree; and additional training to meet the special needs of school-aged children as outlined in staff training requirements. Certification by the state’s department of education or other appropriate accrediting body is encouraged. Any requests for exceptions from these qualifications shall be submitted in writing to the designated PO for approval prior to hiring.

C. General Staffing Conditions Care providers shall ensure that the following conditions are met: 1. All staff positions shall possess a current job description that directly relates

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to the achievement of the care provider’s performance goals.
2. Care providers conduct regular staff meetings that involve all staff and are the forum for updates and discussion of programmatic matters.
3. Staff who are making and implementing decisions regarding residential care meet frequently, at a minimum weekly, to discuss service plans, progress, and other issues concerning residents.
4. Employee educational or experience levels are commensurate with the responsibilities and expertise required for the position.
5. Recruitment plans are developed to target potential staff members who are culturally sensitive and who speak the language of the residents.
6. Staff training is provided in accordance with ICE, DRO, and JFRMU policies and procedures, as well as any applicable state licensing requirements.
7. Staff are provided with adequate levels of individual leave, sick leave, and compensation time.
8. All staff and volunteers provide the following documentation, maintained in their personnel files and updated as required:
a. Child Protective Services (CPS) or similar background investigations. Results of medical examinations (as specified by state licensing requirements), including updated documentation of immunizations and test results for tuberculosis
b. Criminal and other background checks: local police, state, and FBI. Must meet all state licensing requirements.
c. Professional references
d. Educational records
e. Driver’s record, if expected to transport residents
f. Copies of professional licenses, if applicable
g. Resume and employment application.
9. Care providers make every effort to recruit and retain a majority of directservice staff who are bilingual in English and Spanish, and all staff shall be culturally sensitive.
10. Staff in key areas, such as child care, education, and counseling, who are not bi-lingual have access to an interpreter or interpreter services. Only in exceptional circumstances, such as the arrival of a resident with an uncommon native language, will this resource not be immediately available. Care providers maintain a list of resources in the community covering the main languages of residents in its care and access the needed interpreter within eight hours of admission. The interpreter selected is never another child, resident, relative, or potential sponsor. If an interpreter is not available, care providers use telephonic language lines. Interpreters are advised that what they hear and interpret is strictly confidential, as well as advised regarding potential conflicts of interest.

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D. Handling Staff Incidents
Staff and volunteers shall adhere to their State policy prohibiting child abuse and neglect. Signed Statements of Agreement shall outline actions that constitute child abuse and neglect and shall be located in personnel files. Policies shall include prohibiting corporal punishment. If the policies are violated, care providers shall follow the procedures indicated by state licensing standards and submit a copy of the documentation to the designated Project Manager.
All significant incidents involving allegations of physical abuse or neglect, or instances in which other staff or the institution itself may be in violation (see the definition in the “Program Management: Emergency and Incident Reporting” section) shall be reported to the local Child Protective Services agency for an independent investigation. The PM shall also be notified immediately. Results of the investigation shall be immediately forwarded to the PM. This is a corollary requirement to any state reporting laws applicable to child abuse and neglect.
Local law enforcement authorities shall be called if the adult resident or the parent or guardian of a minor resident involved wishes to press criminal charges. At this point, local authorities will be requested to conduct an investigation. The staff member(s) accused of the incident shall be not have contact with any resident until a final determination has been made. Care providers shall consult with the PM for additional guidance on this issue.
VI. EXPECTED PRACTICES - TRAINING
A. Overview of Training The facility administrator shall ensure that the facility conducts appropriate orientation, initial training, and annual training for all staff, contractors, and volunteers.
The amount and content of training shall be consistent with the duties and function of each individual and the degree of direct supervision that individual will receive.
The facility administrator shall assign at least one qualified individual, with specialized training for the position, to coordinate and oversee the staff development and training program. At a minimum, full-time training personnel shall complete a training-for-trainers course.
The training coordinator shall develop and document a facility training plan that is reviewed and approved annually by the facility administrator. The facility administrator shall ensure that:
� Training is conducted by trainers certified in the subject matter. This is particularly important in life-safety subject areas such as firearms, chemical agents, self-defense, force and restraints, emergency response, first aid, CPR, etc.
� Each trainee is required to pass a written and/or practical examination to ensure the subject matter has been mastered. This is particularly important in life-safety subject areas such as firearms, chemical agents, self-defense, force and restraints, emergency response, first aid, CPR,

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etc., and in areas of ethical conduct.
� The formal training received by each trainee is fully documented in permanent training records.
� Formal certificates of completion are issued, as is appropriate.

B. Staff Training and Development Introductory training for all staff having any contact with residents, whether minimal or daily, shall occur prior to the employee providing direct care to Families and Accompanied Children (AC). Documentation of this training shall be maintained in personnel files and will be subject to monitoring and review from the Juvenile and Family Residential Management Unit. In addition to state licensing requirements for training, the training for new staff shall include areas relevant to the care of Families with a special emphasis on AC. Training shall be pre-service and ongoing during employment. Areas of training shall include the following topics:
1. JFRMU National Residential Standards
2. Prohibition against providing legal advice or legal counsel
3. Cultural competence, including awareness of and sensitivity to different cultural backgrounds
4. Behavior management approaches, including conflict resolution, problem solving, negotiation, applying choices, and rewards and consequences (e.g., as in a structured level or point/token economy system)
5. Non-violent restraint techniques that have been approved by the JFRMU
6. Occupational Safety and Health Administration (OSHA) or equivalent course for residential care providers that covers blood-borne pathogens, airborne pathogens, and employee safety
7. Child development theory
8. Common health and mental health diagnoses of AC in program
9. Confidentiality

10. Child trafficking and smuggling

11. Child abuse reporting requirements


C. Initial Orientation/Training In addition, each new employee, contractor, and volunteer shall be provided an orientation prior to assuming duties. While tailored specifically for staff, contractors, and volunteers, the orientation programs shall ordinarily include, at a minimum:
1. Working conditions
2. Cultural diversity for understanding staff and detainees
3. Code of ethics
4. Personnel policy manual

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8

5. Employees' rights and responsibilities 6. Drug-free Workplace 7. Health-related emergencies 8. Suicide prevention and intervention 9. Hunger strikes
 10. Keys and Locks
 11. Tour of the facility
 12. Facility goals and objectives
 13. Facility organization
 14. Staff rules and regulations
 15. Sexual harassment/sexual misconduct awareness
 16. Personnel policies
 17. Program overview


D. Initial and Annual Training Each new employee, contractor, and volunteer shall be provided training prior to assuming duties. While tailored specifically for staff, contractors, and volunteers, the training programs shall ordinarily include, at a minimum:
1. Clerical/support employees who have minimal resident contact. a. Working conditions b. Cultural diversity for understanding staff and detainees c. Code of ethics d. Personnel policy manual e. Employees' rights and responsibilities f. Overview of the criminal justice system g. Tour of the facility h. Facility goals and objectives i. Facility organization j. Staff rules and regulations k. Sexual harassment/sexual misconduct awareness l. Personnel policies m. Program overview

2. Professional and support employees, including contractors, who have regular or daily detainee contact.
At a minimum, this training covers the following areas:

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9

a. Security procedures and regulations b. Code of Ethics c. Health-related emergencies d. Drug-free workplace e. Supervision of detainees f. Signs of suicide risk and hunger strike g. Suicide precautions h. Report writing i. Detainee rules and regulations j. Key control k. Rights and responsibilities of detainees l. Safety procedures m. Emergency plan and procedures n. Interpersonal relations o. Social/cultural lifestyles of the resident population p. Cultural diversity for understanding staff and residents q. Communication skills r. Cardiopulmonary resuscitation (CPR)/First aid s. Counseling techniques t. Sexual harassment/sexual misconduct awareness.
3. Full-time health care employees. In addition to the training areas above, the health-care employee orientation program includes instruction in the following: a. The purpose, goals, policies and procedures for the facility and parent agency security and contraband regulations b. Key control; appropriate conduct with detainees c. Responsibilities and rights of employees d. Standard precautions e. Occupational exposure f. Personal protective equipment g. Bio-hazardous waste disposal h. Overview of the resident operations.
4. Family/Youth Care Specialist and Case Management personnel At a minimum, this training covers the following areas:

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10

a. Security procedures and regulations b. Supervision of residents c. Searches of residents, housing units, and work areas d. Signs of suicide risk e. Code of Ethics f. Health-related emergencies g. Drug-free workplace h. Suicide precautions i. Self-defense techniques j. Use-of-force regulations and tactics k. Report writing l. Resident rules and regulations m. Key control n. Rights and responsibilities of residents o. Safety procedures p. Emergency plans and procedures q. Interpersonal relations r. Social/cultural lifestyles of the resident population s. Cultural diversity for residents and staff t. Communication skills u. Cardiopulmonary resuscitation (CPR)/first aid v. Counseling techniques w. Sexual abuse/assault awareness
5. Situation Response Teams (SRTs) Specialized training before undertaking their assignments.
6. Facility management and supervisory staff
Management and Supervisory training 7. Personnel authorized to use firearms
Firearms training covering use, safety, and care of firearms and constraints on their use before being assigned to a post involving their possible use. All personnel authorized to use firearms must demonstrate competency in their use at least annually. ICE/DRO personnel must demonstrate firearms competency quarterly.

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8. Personnel authorized to use chemical agents The use of chemical agents by contract staff is prohibited in a family residential center.
E. Initial and Annual Training for All Staff While various Residential Standards require specialized training for some staff, the following is an overview of general training requirements for all staff, initially and annually.
F. Continued Education and Professional Development Employees should be encouraged to continue their education and professional development through incentives such as salary enhancement, reimbursement of costs, and administrative leave.
H. Internal Monitoring and Evaluation Care providers shall measure program performance through an internal monitoring system that considers baselines, objectives, and performance goals. These monitoring and evaluation plans shall be submitted to the designated PM with the submission of any request for continued funding beyond an initial grant period.

Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal Operations

_______________ Date

Staff Training and Hiring

12

 
 ICE/DRO RESIDENTIAL STANDARD
SUICIDE PREVENTION AND INTERVENTION

I. PURPOSE AND SCOPE. Residential Staff are trained to prevent suicide by recognizing potential risk signs and situations, and to intervene with appropriate sensitivity, supervision, referral, and treatment.
II. EXPECTED OUTCOMES. The expected outcomes of this Residential Standard are as follows:
1. All staff with responsibility for resident supervision will be trained, at least annually, to identify warning signs and symptoms of impending suicidal behavior; demographic, cultural, and precipitating factors of suicidal behavior; how to respond to suicidal and depressed residents; communication between residential staff and health care personnel; referral procedures; housing observation and suicide-watch level procedures; and follow-up monitoring of residents who have attempted suicide.
2. Staff will act to prevent suicides with appropriate sensitivity, supervision, and referrals.
3. Any identified clinically suicidal resident will receive preventative supervision, treatment, and follow-up.
III. DIRECTIVES AFFECTED. None
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non-government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
American Correctional Association 4th Edition, Standards for Adult Detention Facilities: 4-ALDF-4C-32, 4C-33, 2A-52.
V. EXPECTED PRACTICES
1. Suicide Prevention and Intervention Program Required Each facility shall have a written suicide prevention and intervention program approved and signed by the health authority and facility administrator, and reviewed annually.
At a minimum, the program shall include procedures to address:

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1

a. Intake screening b. Identifying and supervising a suicide-prone resident c. Staff training d. Management of suicidal incidents, suicide watch, and deaths e. Review of critical incidents by administrative, security, and health services staff f. Guidelines for returning a previously suicidal resident to the general population,
following written authorization by the clinical director
2. Training All staff with responsibility for resident supervision shall be trained, during orientation and at least annually, on:
a. Identification of the warning signs and symptoms of impending suicidal behavior b. Demographic, cultural, and precipitating factors of suicidal behavior c. Interaction with suicidal and depressed residents d. Communication between residential staff and health care personnel e. Referral procedures f. Housing observation and suicide-watch level procedures g. Follow-up monitoring of residents who have attempted suicide
3. Identification and Intervention Suicide potential shall be an element of the initial health screening of a new resident, conducted by the health care provider. Any residents identified as being at-risk for suicide shall be promptly referred to medical staff for evaluation. Upon change of custody, the staff with custody shall inform the staff assuming custody of the resident’s indications of suicide risk. All staff working with residents shall keep current on the proper course of intervention and referral for a resident who demonstrates signs of suicide risk. This screening shall be documented on DIHS-794, In-Processing Health Screening Form, and forwarded to the medical unit. Medical staff shall immediately follow up with residents identified as at-risk. All staff working with residents shall be trained to recognize and watch for such signs of residents. Facilities shall document their screening on a form equivalent to DIHS-794.
4. Housing and Hospitalization The facility administrator may allow a potentially suicidal resident who presents no imminent danger to life or property (as determined by medical staff), to remain in the general population, but only under close observation, and only upon the written recommendation of the clinical director (CD), or equivalent medical authority. Staff shall monitor such residents at intervals ordered by, and in the manner ordered by, the

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2

CD. Precautions must be taken with any personal possessions that could aid in a suicide attempt. If danger to life or property appears imminent, the medical staff has the authority to isolate and transfer the resident from the general population to the nearest hospital. Medical staff must create written documentation of the incident. Medical staff will generate a Treatment Authorization Request TAR for this hospital admission.
Observation of imminently suicidal residents by medical or residential staff shall be oneto-one until the resident is transferred or released by the medical authority. Medical staff shall document the status of the resident in observation at the facility every two hours.
The Health Services Administrator HSA or CD shall report to the ICE facility administrator and JFRMU any resident clinically diagnosed as suicidal or requiring observation for suicide risk.
A resident formerly under a suicide watch may be returned to general population only if it can be reasonably presented that the resident does not pose a danger to himself or herself, or others, and upon written authorization from the CD.

Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

Suicide Prevention and Intervention

3

 
 ICE/DRO RESIDENTIAL STANDARD
TELEPHONE ACCESS

I. PURPOSE AND SCOPE. Residents may, through the reasonable and equitable access to telephone services, maintain ties with their families and others in the community.
II. EXPECTED OUTCOMES. The expected outcomes of this Standard are as follows: 1. Residents will have reasonable and equitable access to reasonably-priced
 telephone services.
 2. Residents with hearing or speech disabilities will be provided reasonable
 accommodations.
 3. Where required, residents have regular access to translation services and/or are provided information in a language that they understand. 4. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED. None
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non-government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment. American Correctional Association 4th Edition, Standards for Adult Detention Facilities: 4-ALDF-2A-65, 2A-66, 5B-11, 5B-12, 6a-02, 6A-09. ICE/DRO Residential Standard on “Staff-Detention Communication,” in regard to monitoring and documenting telephone serviceability.
V. EXPECTED PRACTICES
1. Telephones and Telephone Services a. Number To ensure sufficient access, each facility shall provide at least one telephone for every 16 residents.

Telephone Access

1

b. Costs
Generally, residents or the persons they call are responsible for the costs of telephone calls; however, there are exceptions as required below.
Each facility shall ensure that residents have access to telephone services at a cost that mirrors community standards. Contracts for such services shall comply with all applicable state and federal regulations, and shall be based on rates and surcharges commensurate with those charged to the general public. Any deviations shall reflect actual costs associated with the provision of services in a residential setting. Contracts shall also provide the broadest range of calling options that are determined by the facility administrator to be consistent with the requirements of sound residential facility management.
c. Special Services
Accommodations shall be made for residents with hearing or speech disabilities, or residents who wish to communicate with such persons. Such accommodations may include, for example, telephones with volume controls, TDD (Telecommunications Device for the Deaf) or comparable equipment. These services shall be provided to ensure these residents are provided effective access.
d. Maintenance
Each facility shall maintain resident telephones in proper working order. Designated facility staff shall inspect the telephones daily, promptly report out-of-order telephones to the repair service, and ensure that required repairs are completed quickly.

2. Monitoring of Resident Telephone Calls Each facility shall have a written policy on the monitoring of resident telephone calls. If telephone calls are monitored, the facility shall:
• Notify residents in the resident handbook or equivalent, provided upon admission.
• At each monitored telephone, place a notice that states:
o That resident calls are subject to monitoring.
o The procedure for obtaining an unmonitored call to a court or legal representative, or for the purposes of obtaining legal representation.
Absent a court order, a resident’s call to a court or a legal representative or for the purposes of obtaining legal representation may not be aurally monitored.

3. Resident Notification
Each facility shall provide telephone access rules in writing to each resident upon admission, and also shall post these rules where residents can easily see them.

4. Resident Access
Each facility administrator shall establish and oversee rules and procedures that provide residents reasonable and equitable access to telephones during established

Telephone Access

2

facility “waking hours” (which exclude the hours between lights-out and morning resumption of scheduled activities).
Ordinarily, a facility may restrict the number and duration of general telephone calls only for the following reasons:
a. Availability. When required by resident telephone use demands, rules and procedures may include, but are not limited to, reasonable limitations on the duration and the number of calls per resident, the use of predetermined time-blocks, and advance sign-up.
b. Emergencies. Escapes, escape attempts, disturbances, fires, power outages, etc. Telephone privileges may be suspended entirely during an emergency, but only with the authorization of the facility administrator or designee, and only for the briefest period necessary under the circumstances.
5. Direct or Free Calls In addition to the requirements above, each facility shall permit residents to make direct or free calls to the offices and individuals listed below. Current telephone numbers for the following will be posted in all housing areas and/or by public access telephones. A facility may place reasonable restrictions on the hours, frequency and duration of such direct and/or free calls, but may not otherwise limit a resident’s attempting to obtain legal representation.
• The local immigration court and the Board of Immigration Appeals
• Federal and state courts where the resident is in, or may become involved in, a legal proceeding
• Consular officials
• Office of the Inspector General of the U.S. Department of Homeland Security at: (800) 323-8603
• The United Nations High Commissioner for Refugees
• Legal representatives, to obtain legal representation, or for consultation, when a resident is subject to Expedited Removal. Any facility restrictions on other direct or free calls must not unduly limit a resident’s attempt to obtain legal representation.
• A government office, to obtain documents relevant to his or her immigration case
• Immediate family or others, for residents in personal or family emergencies, or who otherwise demonstrate a compelling need (to be interpreted liberally)
a. Request Forms Where access to free telephone calls is limited by technology, residents may complete request forms to make direct or free calls. Facility staff shall assist them as needed, especially illiterate or non-English speaking residents. All requests for assistance shall be reviewed and responded to within one calendar day. All denials shall be documented and a copy forwarded to the resident and ICE/JFRMU for

Telephone Access

3

review.
b. Time Requirements Staff shall allow residents to make such calls as soon as possible after the requests, factoring in the urgency stated by the resident. Access shall always be granted within 24 hours of the request, but ordinarily, within 8 facility-established “waking hours.”
Staff must document and report to ICE/DRO any incident of delay beyond eight “waking hours.”
c. Indigent Residents A facility may not require indigent residents to pay for the types of calls listed above if they are local calls, nor for non-local calls if there is a compelling need. Each facility shall enable all residents to make calls to the ICE/DRO-provided list of free legal service providers and consulates at no charge to the resident or the receiving party.
6. Legal Calls
a. Restrictions A facility may neither restrict the number of calls a resident places to his or her legal representatives, nor limit the duration of such calls, by rule or automatic cut-off, unless necessary for security purposes or to maintain orderly and fair access to telephones. If time limits are necessary for such calls, they shall be no less than 20 minutes, and the resident shall be allowed to continue the call at the first available opportunity, if desired.
Any facility restrictions on other direct or free calls must not unreasonably limit a resident’s attempt to obtain legal representation.
b. Privacy For resident telephone calls regarding legal matters, each facility shall ensure privacy by providing a reasonable number of telephones on which residents can make such calls without being overheard by staff or other residents. Absent a court order, staff may not monitor those calls.
The facility shall inform residents to contact staff if they have difficulty making a confidential call relating to a legal proceeding. If so notified, the staff shall take measures to ensure that the call can be made confidentially.
Privacy may be provided in a number of ways, including:
• Telephones with privacy panels (side partitions) that extend at least 18 inches to prevent conversations from being overheard;
• Telephones placed where conversations may not be readily overheard by others, or;
• Office telephones on which residents may be permitted to make such calls.

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4

Telephones shall not be placed near television sets or in any area where it can be reasonably expected that excessive noise may interfere with the caller ability to communicate privately.
7. Inter-facility Telephone Calls Upon a resident’s request, facility staff shall make special arrangements to permit the resident to speak by telephone with an immediate family member detained in another facility. Immediate family members include spouses, common-law spouses, parents, stepparents, foster parents, brothers, sisters, and biological or adopted children. Reasonable limitations may be placed on the frequency and duration of such calls. Facility staff shall liberally grant such requests when they involve discussion of legal matters, and shall afford the resident privacy to the extent practical.
8. Incoming Calls Facility staff shall take and deliver emergency telephone messages to residents as promptly as possible.
When a call concerns an emergency, facility staff shall:
• Record the caller’s name and telephone number. • Deliver the message to the resident as soon as possible. • Permit the resident to return the call as soon as reasonably possible, within the
constraints of security and safety.
• If the resident is indigent, enable him or her to make a free return call.

Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

Telephone Access

5

 
 ICE/DRO RESIDENTIAL STANDARD
TERMINAL ILLNESS, ADVANCE DIRECTIVES, AND DEATH
I. PURPOSE AND SCOPE. Health care services of the facility address terminal illness, fatal injury, and advance directives, and provide specific guidance in the event of a resident’s death.
II. EXPECTED OUTCOMES. The expected outcomes of this Standard are as follows:
1. Health care services will provided residents information and assistance on issues that address terminal illness, fatal injury, and advance directives.
2. Each resident who has a terminal illness or potentially fatal injury will receive appropriate medical care.
3. In the event of a resident’s death, specified ICE/DRO officials and the resident’s immediate family will be immediately notified.
4. In the event of a resident’s death, required notifications will be made to ICE/DRO and to authorities outside of ICE/DRO (such as the coroner), and required procedures will be followed regarding such matters as autopsies, death certificates, burials, and the deceased’s property.
5. The medical records of residents addressed herein will be complete.
6. Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
7. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED. None
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non-government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
American Correctional Association 4th Edition Standards for Adult Local Detention Facilities: 4-ADLF-4C-19, 4D-23, 4D-26.

Terminal Illness, Advance Directives . . .

1

V. EXPECTED PRACTICES
1. Terminal Illness When a resident's medical condition becomes life-threatening, the facility's Clinical Director (CD), Health Services Administrator (HSA), or equivalent shall:
• Notify the facility administrator of the resident's condition by phone or in person, and document the resident's condition in a memorandum to the facility administrator, briefly describing the illness and prognosis.
• Arrange the transfer of the resident to an appropriate off-site medical facility. • Notify family members, if known. The facility administrator, or designee, shall immediately notify ICE/DRO. The JFRMU in consultation with the Field Office Director shall review and determine custody disposition of remaining family members when terminal illness is involved.
2. Living Wills and Advance Directives Facilities shall use an Advance Directive form, or its equivalent, of the state in which the facility is located. Guidelines for implementing Living Wills and Advance Directives will include instructions for residents who wish to:
• Have a Living Will other than the generic form the DIHS provides, or • Appoint another individual to make advance decisions for him or her. When a resident requests a Living Will other than the generic DIHS form, the opportunity to have an attorney prepare the documents (at the resident’s expense), shall be facilitated. When the medical professional responsible for the resident's care determines that the terms and conditions of the resident's advance directive should be implemented, he or she shall contact the CD/HSA and the respective ICE/DRO Chief Counsel. ICE/DRO may seek judicial or administrative review of a resident's Advance Directive.
3. Do-Not-Resuscitate Orders (DNR) Each facility holding ICE/DRO residents shall establish written policy and procedures governing DNR orders, in accordance with the laws of the state in which the facility is located.
4. Organ Donation by Residents If a resident wants to donate an organ:
a. The organ recipient must be a member of the donor's immediate family. b. All costs associated with the organ donation (hospitalization, fees, etc.) shall
incur no Government expense. c. The resident shall sign a statement that documents his or her:

Terminal Illness, Advance Directives . . .

2

• Decision to donate the organ to the specified family member.
• Understanding and acceptance of the risks associated with the operation, and a statement that the decision has been made of his or her own free will.
• Understanding that the Government shall not be held responsible for any medical complications or financial responsibilities.
5. Death of a Resident in ICE/DRO Custody Each facility shall immediately notify JFRMU and the Field Office Director (FOD) of a resident’s death.
In the event of a resident’s death, the following protocols will be followed:
a. Residential Facilities JFRMU and the Field Office shall follow established procedures to notify ICE/DRO officials, next-of-kin, and consulate officials of a resident's death.
b. During Transit in a Land Vehicle The transporting staffs shall notify the originating or receiving Field Office as soon as possible, including the resident's name and A-number; and the date, time, place, and apparent cause of death.
The closest ICE/DRO Field Office shall arrange for the local coroner and the Federal Bureau of Investigation (FBI) to meet the vehicle. If death was caused by violence or was associated with other unusual or suspicious circumstances, ICE/DRO shall also contact the local law enforcement authority in order that local law enforcement can coordinate action, including rendezvous point with the FBI.
The interagency rendezvous point, the location at which the coroner shall remove the body from the vehicle, must be in the state where the death occurred. The transporting staff shall obtain a coroner's receipt in exchange for the body.
c. During Transit via Commercial Flight The escorting staff shall notify the FOD of the resident's in-flight death. If the aircraft makes a landing on foreign soil following the death, the staff shall contact the nearest U.S. consulate or embassy for immediate assistance before contacting the FOD.
d. During Transit via JPATS Established JPATS protocols shall be followed.
e. Vital Information The FOD shall assemble the following information concerning the deceased resident:
� Name
� Alien registration number (A-number)
� Date of birth

Terminal Illness, Advance Directives . . .

3

� Date, time, and location of death � Apparent cause of death � Investigative steps being taken, if necessary � Name and address of next-of-kin in the United States � Notifications made � Brief medical history related to death � Status of autopsy request, if necessary f. Notification of ICE/DRO Officials
1). Immediate Notifications
a). Headquarters The FOD (or designee), or Chief, JFRMU, shall immediately telephone the DRO Assistant Director for Operations. During non-business hours, the Assistant Director may be reached via the ICE/DRO Joint Intake Center (JIC). In all instances, follow up via a Significant Event Notification (SEN) e-mail is required.
b). Medical Reports Within 48 hours, the FOD shall send all available medical reports to the DIHS Director (or designee).
2). Notification of Family Each FOD shall have written procedures that provide for:
• Communicating news of a resident’s serious illness or death to the resident's next-of-kin and other immediate family.
• Coordinating religious rituals, if requested.
a). Immediate Telephonic Notification The facility chaplain shall telephone the person named as the next-of-kin in the United States, to communicate the circumstances surrounding the death. If the next-of-kin cannot be located, the FOD shall notify the appropriate consulate.
b). Letter of Condolences As soon as practical, the FOD shall send a condolence letter to the next-of­ kin, including:
� If the death was by natural causes, a brief account of the medical details.

Terminal Illness, Advance Directives . . .

4

� If the death was accidental, with no suspicion of foul play, a brief description of the accident and cause of death.
� If the death occurred under suspicious circumstances or by foul play, a clinical statement of the cause of death, with the proviso that the matter is under investigation and for that reason, details of the cause of death may not yet be provided.
g. Notification of Consulate Officials The FOD (or designee) shall notify, by telephone, the respective consulate, with an official follow-up letter that explains the circumstances of the death.
6. Disposition of Property If next-of-kin cannot be identified or located in the United States or abroad (through the consulate) after a reasonable period of investigation, ICE/DRO shall dispose of the property of the deceased in accordance with the Abandoned Property section of the Residential Standard on “Funds and Personal Property.”
Facilities shall turn over the property to ICE/DRO for processing and disposition.
7. Disposition of Remains Within seven calendar days of the date of notification (in writing or in person), the family shall have the opportunity to claim the remains. If the family chooses to claim the body, the family shall assume responsibility for making the necessary arrangements and paying all associated costs (transportation of body, burial, etc.).
If the family wants to claim the remains, but cannot afford the transportation costs, ICE/DRO may assist the family by transporting the remains to a location in the United States. As a rule, the family is responsible for researching and complying with airline rules and federal regulations on transporting the body; however, ICE/DRO shall coordinate the logistical details involved in returning the remains.
If family members cannot be located or decline to claim the remains, orally or in writing, ICE/DRO shall notify the consulate in writing. The consulate shall have seven calendar days after the written notification to claim the remains. The consulate shall be responsible for making the necessary arrangements and paying all costs incurred (transporting the body, burial, etc.).
If neither the family nor the consulate claims the remains, ICE/DRO shall schedule an indigent’s burial, consistent with local procedures. If the resident’s record indicates U.S. military service, however, ICE/DRO shall first contact the Department of Veterans Affairs to determine if the deceased is eligibility for burial benefits.
The chaplain may advise the facility administrator and others involved about religious considerations that could influence the decision about the disposition of remains.
Under no circumstances shall ICE/DRO authorize cremation or donation of the remains for medical research.

Terminal Illness, Advance Directives . . .

5

8. Case Closure Procedures for closing the case of a deceased resident include the following:
• Sending the resident’s fingerprint card to the FBI, stamped “Deceased,” and identifying the place of death.
• Placing the resident’s death certificate or medical examiner’s report (original or certified copy) in the subject's A-file.
• Placing a copy of the gravesite title in the A- file (indigent burial only).
• Closing any electronic files on the resident

9. Death Certificate The facility administrator shall specify policy and procedures identifying the staff member responsible for proper distribution of the death certificate, including:
• Sending the original to the person who claimed the body, with a certified copy in the A-file on the deceased, or
• If the deceased received an indigent’s burial, placing the original death certificate in the A-file.

10. Autopsies Each facility shall have written policy and procedures to implement the provisions detailed below in this section.
• The facility chaplain should also be involved in the formulation of the facility’s procedures.
• Since state laws vary greatly, including when to contact the coroner, the respective Chief Counsel shall be contacted when legal questions arise.
• A copy of the written procedures shall be forwarded to the Chief Counsel. The written procedures shall address, at a minimum:
• Contacting the local coroner, in accordance with state law and guidelines
• Scheduling the autopsy
• Identifying the person who will perform the autopsy
• Obtaining the official death certificate
• Transporting the body to the coroner’s office
a. Who May Order an Autopsy The FBI, local coroner, or DIHS may order an autopsy and related scientific or medical tests to be performed in a homicide, suicide, fatal accident, or an unexplained death.
DIHS may order an autopsy or post-mortem operation for other cases, with the written consent of a person authorized under state law to give such consent (for example, the coroner or next-of-kin). With such consent, DIHS may also authorize

Terminal Illness, Advance Directives . . .

6

a tissue transfer authorized in advance by the deceased.
b. Making Arrangements for an Autopsy Medical staff (DIHS) shall arrange for the approved autopsy to be performed.
• Time is a critical factor in arranging for an autopsy, as this ordinarily must be performed within 48 hours of the death.
• While a decision on an autopsy is pending, no action should be taken that will affect the validity of the autopsy results.
• Local law may also require an autopsy when death occurs and the deceased was otherwise unattended by a physician.
c. Religious Considerations It is critical that the FOD or designee verify the resident's religious preference prior to final authorizations for autopsies or embalming.
• Religions such as Judaism and Islam forbid embalming.
• There are other religious-specific requirements involving autopsies and embalming.

Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

Terminal Illness, Advance Directives . . .

7

 
 ICE/DRO RESIDENTIAL STANDARD
TOOL CONTROL

I. PURPOSE AND SCOPE. Control of tools, culinary utensils, and medical and dental instruments, equipment, and supplies is maintained, protecting residents, staff, contractors, and volunteers from harm and contributing to orderly facility operations.
II. EXPECTED OUTCOME. The expected outcome of this Standard is as follows: 1. Tools, culinary utensils, and medical and dental instruments, equipment, and supplies (particularly syringes, needles, and other sharps) will be continually controlled and accounted for.
2. Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
3. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED. None
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non-government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment. American Correctional Association 4thd Edition Standards for Adult Local Detention Facilities: 4-ALDF-2D-02, 2D-03.
V. EXPECTED PRACTICES
A. Overview In a Residential environment, all staff must be alert for any situation where tools, culinary utensils, and medical and dental instruments, equipment, and supplies (particularly syringes, needles, and other sharps) are in the possession of, or available to, residents, other than those authorized to have them (such as on work details).

Tool Control

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Control, care, and accountability for tools: • Impedes their use in escape attempts, as weapons, and in other ways that can be hazardous to individual safety or the good order of the facility; • Improves the appearance of shop and construction areas; • Helps ensures tools are in good repair when needed; • Reduces the costs of tool maintenance and inventory; and • Teaches resident workers principles of tool accountability and responsibility.
B. Written Policy and Procedures Required Each facility administrator shall develop and implement a written tool control system that establishes:
1. A staff position to be responsible for: • Developing and implementing tool control procedures, and • Establishing an inspection system to ensure accountability; The facility administrator shall delegate these responsibilities to the Assistant Facility Administrator for Operations and shall also assign, in writing, the collateral duties of Tool Control Staff to a staff member of the facility maintenance department.
2. A tool classification system; 3. Procedures for marking tools so they are readily identifiable; 4. Procedures for storing tools; 5. Procedures and schedules for the daily inventory of tools; 6. Procedures for issuing tools to staff and resident workers; 7. Procedures for documenting issuance of tools to staff and resident workers; 8. Procedures governing lost tools; 9. Procedures for surveying and destroying excess, broken, or worn-out tools; and 10. Procedures for inspecting and inventorying tools and equipment brought into the facility temporarily (repair and maintenance workers, sports teams. etc.)
C. Tool Classification The facility shall develop and implement a tool classification system. Tools are assigned one of two categories:
• Restricted (Class “R”) -- Dangerous/hazardous tools • Non-Restricted -- Non-hazardous tools

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Class “R” tools include:

• Tools too dangerous for residents to handle without constant staff supervision

• Tools to which resident access is prohibited

• Tools that could facilitate an escape/escape attempt

• Tools useful in making weapons, that could double as weapons, or that are capable of causing serious bodily harm

• Power hand tools, with or without cords

• Other tools that are generally hazardous to facility security or personal safety

Examples of restricted tools include:

• Metal cutting blades

• Mixing chambers

• Bolt cutters

• Ramset gun and ammunition (stored in armory only)

• Diamond-tipped tools

• Core drills

• Drills

• Circular saws

• Kitchen knives

The facility administrator shall establish a policy document on facility tool use and storage that includes separate, comprehensive, alphabetical lists of restricted tools and non-restricted tools.

• The lists shall indicate which of the listed tools are available on-site; describe them by type; and specify tool sizes.

• The lists shall be kept current by formatting them as attachments to the policy document, maintained and updated on a personal computer.

• The lists shall be updated and distributed at least quarterly.

Tools included in tool sets and tools sized sequentially in standard increments may appear as a single listing. For example:


Drill bits, metal/wood

1/32" – 7/8"


Drill bits, metal/wood

7/16" - 7/8"


Wrench, comb. box/open end 1/4" - 7/16"


Wrench, comb. box/open end 7/16" - 7/8"


When a single set listing would not be sufficiently clear, however, each tool must be listed separately. For example, if a facility had:

A single "wrench, combination box/open end, 1 7/8 inches" but not the

Tool Control

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smaller or larger sizes; or Several wrenches in different sizes, but the size differences are not standard.
D. Daily Removal and Storage of Class “R” Tools Staff shall remove restricted tools from work areas at the end of each workday for safekeeping in a secure tool room, the armory, or the Control Center.
E. Acetylene Staff shall:
• Restrict the supply of acetylene entering the facility to the amount needed in a single day, and
• At the end of each workday, store the used and unused acetylene tanks outside the secured perimeter in accordance with applicable codes, standards, and regulations (Occupational Safety and Health Administration's industrial safety regulations, etc.)
F. Departmental Responsibilities At a minimum, the following departments shall maintain tool inventories:
1. Facility Maintenance Department 2. Medical Department 3. Food Service Department 4. Electronics Shop 5. Recreation Department 6. Armory
G. Assistant Facility Administrator for Operations Tool Identification The facility administrator shall establish written procedures for marking tools, making them readily identifiable.
H. Storage in Work Areas The facility administrator shall establish written procedures for a tool-storage system that ensures accountability. Commonly used, mounted tools shall be stored so that a tool's disappearance would not escape attention.
I. Receipt of Tools 1. If the warehouse is located outside the secure perimeter, the warehouse shall receive all tool deliveries.

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If the warehouse is located within the secure perimeter, the facility administrator shall develop site-specific procedures, for example, storing the tools at the rear sallyport until picked up and receipted by the Tool Control Staff. The Tool Control Staff shall immediately place certain tools (for example, band saw blades, files, and all restricted tools) in secure storage.
2. The new tools shall be issued only after the Tool Control Staff has marked and inventoried them. Inventories that include any portable power tools shall provide brand name, model, and size, description, and AMIS number.
J. Tool Inventories
The facility administrator shall schedule, and establish procedures for, the quarterly inventorying of all tools.
1. Inventory Files. The Assistant Facility Administrator for Operations shall maintain a separate file folder for each shop or area in which tools are stored.
2. Tools Used by Contractors. Staff shall prepare an inventory of all tools and equipment used by contractors working inside the facility, upon the contractor’s admission and departure. The Assistant Facility Administrator for Operations shall establish control procedures, particularly for restricted tools. The Assistant Facility Administrator for Operations, facility maintenance supervisor, and construction foreman shall maintain copies of all such inventories and control procedures.
3. Tools Purchased from Surplus Property. Tools purchased or acquired from surplus property shall be stored in the designated, secure storage area. The responsible employee shall maintain a perpetual inventory of unmarked or excess tools returned to secure storage for issue or reissue. The Tool Control Staff has sole authority to draw tools from this source. Any such tools kept in the Tool Control Staff's storage area shall be registered in a perpetual inventory.
4. Control and Inventory of Certain Items Not Classified as Tools. Other items that require strict property management controls, like weapons, chemical agents, restraints, other use-of-force and disturbance control equipment, binoculars; communication equipment, and similar items shall be inventoried (with serial numbers), maintained, issued, and disposed of in accordance with the procedures established herein for tools.
K. Issuing Tools Each facility shall have procedures in place for
� The issuance of tools to staff and residents;
� Security issues of restricted and unrestricted tools;
� Control of ladders, extension cords, and ropes.

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L. Lost Tools The facility administrator shall develop and implement procedures governing lost tools, including:
• Verbal and written notification to supervisory officials
• Handling residents with prior access to the tool(s) in question
• Documentation and review
1. When a restricted or non-restricted tool is missing or lost, staff shall notify the Assistant Facility Administrator for Operations in writing.
2. When the tool is a restricted (Class “R”) tool, staff shall inform the shift supervisor orally immediately upon discovering the loss. Any resident(s) who may have had access to the tool shall be held at the work location pending completion of a thorough search.
3. When a medical department tool or equipment item is missing or lost, staff shall immediately inform the HSA, who shall make the immediate verbal notification to the Assistant Facility Administrator for Operations or shift supervisor and written notification to the facility administrator.
4. The shift supervisor's office shall maintain a lost-tool file, monitor the individual reports for accuracy, ascertain any unusual patterns or occurrences of loss in one or more shops, document search efforts, and send written notification to the Assistant Facility Administrator for Operation
5. 5. On the day a tool is recovered, staff shall complete and send copies of the Lost or Missing Tool Report to the Assistant Facility Administrator for Operations and shift supervisor.
6. The facility administrator shall implement quarterly evaluations of lost/missing tool files, reviewing the thoroughness of investigations and efforts to recover tools. Documentation of the quarterly evaluations shall be maintained on the right side of the tool inventory folder for the shop or area concerned.
M. Disposition of Excess Tools All broken or worn-out tools shall be surveyed and destroyed in accordance with the written procedures established by the facility administrator.
N. Assistant Facility Administrator for Operations Private/Contract Repair and Maintenance Workers All visitors, including repair and maintenance workers who are not ICE/DRO or facility employees, etc., shall submit to an inspection and inventory of all tools, tool boxes, and equipment that could be used as weapons before entering and leaving the facility. At a minimum a basic criminal background and immigration check will be conducted by ICE staff on all non-facility repair or maintenance personnel before entry into the facility.
Staff shall accompany non-employee workers in the facility to ensure that security and safety precautions and procedures are followed at all times, including removing tools at

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the end of each shift. The contractor will maintain a copy of their tool inventory with them at all times while in the facility. Before a resident, employee, or contractor may enter a housing unit, the housing staff shall inventory tools and similar items to be carried into that unit and then, before departure from the unit, verify their removal in a second inventory. The housing staff shall immediately report discrepancies to the shift supervisor.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

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 ICE/DRO RESIDENTIAL STANDARD
TRANSFER OF RESIDENTS

I. PURPOSE AND SCOPE. Transfers of residents from one facility to another are responsibly managed in regard to notifications, resident records, safety and security and protection of resident funds and personal property.
II. EXPECTED OUTCOMES. The expected outcomes of this Standard are:
1. Decisions to transfer residents will be made by authorized officials on the basis of complete and accurate case information.
2. The legal representative-of-record will be properly notified that a resident is being transferred, in accordance with sound security practices.
3. The resident will be properly notified, orally and in writing, when he or she is being transferred to another facility, in accordance with sound security practices.
4. Transportation and receiving facility staff will have accurate and complete records on each transferred resident.
5. Transfer of residents will be accomplished safely and securely, particularly those with special health care concerns.
6. Transferred residents funds, valuables, and other personal property will be safeguarded.
7. Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
8. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED. None
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non-government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
American Correctional Association 4th Edition, Standards for Adult Detention Facilities: 4-ALDF-2A-23, 1B-06, 4C-05, 4C-40, 4D-27, 6A-07, 7D-19, 7D-20.
Flores v. Reno

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1

V. EXPECTED PRACTICES
1. Types of Transfers ICE/DRO transfers residents from one facility to another for a variety of reasons. The transfer of a resident may never be based solely on residents’ reporting of wrongdoing or alleging misconduct by or against staff members.
In deciding whether to transfer a resident, ICE/DRO will consider whether the resident is represented before the immigration court. In such cases, ICE/DRO shall consider alternatives to transfer, especially when the attorney is located within reasonable driving distance of the Residential facility and where immigration court proceedings are ongoing.
a. Medical. The Division of Immigration Health Services (DIHS) may recommend that a resident in need of specialized or long-term medical care be transferred to a facility that can meet those needs. The DIHS Medical Director or designee must approve transfers for medical reasons in advance. Medical transfers shall be coordinated through the local ICE/DRO office of jurisdiction using established procedures.
b. Change of Venue. A resident may be transferred from one jurisdiction to another to accommodate a change in venue by the Executive Office of Immigration Review.
Security. A resident may be transferred to a higher-level facility, ordinarily because of circumstances that cannot adequately be controlled. Such security reasons might include, for example:
� When the resident becomes a threat to the security of the facility;
� When the resident is violent or has caused a major disturbance or is threatening to cause one; or
� When a resident’s behavior or other circumstances are a threat to the safety of staff or other residents.
� When a resident no longer meets the minimum qualifications for placement in a residential family center
c. Other Needs of ICE/DRO or a Particular Resident. Residents may be transferred to another facility for various reasons, such as to eliminate overcrowding or to meet a particular resident’s special needs.
2. Notification Procedure
ICE/DRO shall make all necessary notifications when a resident is transferred.
When residents are being transported by Justice Prisoner Alien Transportation System (JPATS), ICE/DRO shall adhere to JPATS protocols.
a. Attorney When a resident is represented by legal counsel, and a form G-28 has been properly executed and filed, the resident’s Deportation Staff shall:

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2

� Notify the representative of record that the resident is being transferred and include the reason for the transfer and the name, location, and telephone number of the new facility.
� Document the notification:
o In the resident’s A file, if available, or work file, and
o The “comments” screen in DACS.
For security purposes, the attorney shall not be notified of the transfer until the resident is en route to the new Residential location, and the notification shall not include specific travel details (day of travel, mode of travel, etc.). In all cases notification will be made within 24 hours of the transfer.
When there are special security concerns, the Deportation Staff may delay the notification, but only for the period of time justified by those concerns.
b. Family It is the responsibility of the attorney of record or the resident to notify any family members.
c. Resident The resident shall not be informed of the transfer until immediately prior to leaving the facility, at which time he or she shall be notified that he or she is being moved to a new facility within the United States and not being deported. Reasonable efforts should be made to advise the resident in a language the resident understands.
For security purposes, specific plans and time schedules shall never be discussed with the resident.
Following notification, the resident shall normally not be permitted to make or receive any telephone calls or have contact with any resident in the general population until the resident reaches the destination facility.
At the time of the transfer, ICE/DRO shall provide the resident, in writing, the name, address and telephone number of the facility to which he or she is being transferred, using the attached Resident Transfer Notification form. Staff shall place a copy of the form in the resident’s Residential File. The resident shall also be advised that it is his or her responsibility to notify family members, if so desired.
d. Unaccompanied Juveniles and Accompanied Juveniles Since special notification procedures may apply if the resident is under 18 years old, the Deportation Staff shall coordinate proposed transfers with the juvenile coordinator for the respective ICE/DRO Field Office.
Generally, minors who are part of a family unit shall be transported with at least one parent. Any exception must be noted and approved by ICE prior to performing any transport of an accompanied minor.

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3. Request for Bed/Designation Field Offices that routinely transfer cases between each other shall:
� Establish a means of communication so that “receiving” Field Offices provide “sending” Field Offices daily information regarding available bed space.
� Provide the names and contact numbers of staff responsible for handling transfers.
While Field Offices are encouraged to communicate directly regarding available housing space, the headquarters Detention Management Division is available to assist a Field Office that has unsuccessfully attempted to locate space.
Field Offices seeking bed space in other Field Office jurisdictions should phone the request (or e-mail with a follow-up phone call) with sufficient details of the case to the designated Field Office contact.
Once an office has preliminarily agreed to accept a case from another office, the following procedures apply:
a. Requesting Office Sends (via Fax) Form I-216 to the Receiving Field Office The requesting office shall ensure all Form I-216 boxes are completed.
� Complete information must be provided on criminal or aggravated felon status, including any medical/mental problems, security risks, etc.
� If there are medical/mental problems or medications, either the JPATS Form USM-553 or an I-794 (In-Processing Health Screening Form) must accompany the I-216 as an attachment.
� Security concerns must be outlined in detail on a separate page and be attached to the I-216.
� If there is any question about whether a resident is a juvenile, a copy of the age verification documentation must be attached.
No other forms are acceptable for recording the persons and property transferred.
If a facility in the receiving jurisdiction requires that its medical unit review medical histories prior to acceptance, a method of providing that information to the facility must be arranged between the two Field Offices.
b. Receiving Office Confirms Acceptance of the Case The receiving Field Office shall review the I-216 to insure each case is consistent with what was previously discussed and e-mailed. If there are any issues that were not previously relayed to the receiving Field Office, the receiving Field Office shall notify the sending Field Office that it may decline the transfer unless those issues are resolved.
Once the receiving Field Office has finally accepted the transfer, the sending Field Office shall provide via telephone or e-mail a mutually agreeable estimated time of arrival.

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The sending Field Office may not substitute any resident on the I-216 without prior approval of the receiving Field Office.
4. Preparation and Transfer of Records Sending facility staff shall complete the attached Resident Transfer Checklist to insure all procedures are completed.
� The sending facility staff shall place a copy of the Checklist in the resident’s A file or work folder.
� The records must accompany the resident to the receiving facility. � If any procedure cannot be completed prior to transfer, the resident may be
transferred only if the authorized receiving Field Office official has expressly waived that procedure, and the sending facility staff shall note any such waivers on the checklist.
a. Alien File Prior to transfer, the A file shall be obtained and put in good order:
� Any needed file consolidations shall be done. � Any necessary file jacket repairs shall be done. � All documents and forms shall be attached on the proper side of the A file. If the sending Field Office is unable to obtain the A file, that resident may not be transferred unless the receiving Field Office, before the transfer takes place, accepts a proper work folder that includes, at a minimum:
� Certified copies of convictions, � Printouts of the Central Index System (CIS), Deportable Alien Control
System (DACS), and the FBI’s National Crime Information Center (NCIC) database,
� Copies of the EOIR's record of proceedings, and � New photographs and fingerprints.
 If applicable, copies of the following should also be included:

� Non-Immigrant Information System (NIIS), � Computer Linked Application Information Management System
(CLAIMS),
� National Automated Immigration Lookout System (NAILS), � Reengineered Naturalization Application Casework System (RNACS), � Refugee Asylum Processing System (RAPS), and � Any other documents requested by the receiving Field Office which can
be reasonably obtained.

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The A file or proper work folder shall include copies of the following, properly executed, documents, and fastened to the top right side of the file:
� I-216 (appropriate copies of I-77 and G-589 attached) � USM-553 or local transfer summary form � Original or photocopy of I-203/203A � Checklist for Resident Transfer (an attachment to this Residential Standard) � Age verification documents (if applicable) � A 3.5" disk with all previous Post Order Custody Reviews (POCRs) and travel
document requests in a property envelope fastened to the file.
� Classification Sheet Ordinarily, the A file or proper work folder must accompany the transfer.
� Under certain circumstances the receiving Field Office may request that the A file or work folder be mailed by overnight express to a particular location.
� If requested, the sending Field Office shall mail it no later than the business day following the transfer.
Any significant delays in the arrival time of the residents or their files should be communicated to the receiving Field Office as soon as possible.
b. Charging Documents/Record of Proceeding Before the transfer, all charging documents shall be issued and signed by the individual with signatory authority for the sending Field Office.
If applicable, prior to transfer, all charging documents shall be served on the resident, including, but not limited to:
� Notice to Appear (I-862), � Warrant of Arrest (I-200), � Warrant of Removal (I-205), � Notification of Custody Decision (I-286), and � Notice of Rights (I-826). Originals and/or copies shall be included, indicating proper service, in the A file or work folder.
Copies shall be provided the resident, who should be encouraged to keep them on his or her person, unless this would present a security problem.
c. Fingerprint Cards The sending Field Office shall take three (plus R-84) sets of fingerprints (Note: Fingerprints are to be taken in accordance with ICE policy):
� The cards shall be signed by both the alien and the official taking the prints. � The cards shall be completely filled out except for the address block
requesting a disposition from the FBI.

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� The completed cards shall be left in the A file for the receiving Field Office to fill in the response address block and submit to the FBI and Biometrics Support Center (when appropriate), unless the resident is a Room-andBoard case.
� For a Room-and-Board case, the sending Field Office may submit the prints to the FBI and Biometrics Support Center.
� One fingerprint card should remain in the A file at all times.
d. Photographs The sending Field Office shall take four (1 sheet of 4) new, standard booking-size photographs and include any photos not needed for the transfer in the file.
e. Medical Procedures and Information Required for Transfer
1). Notification of Transfers, Releases, and Removals The facility health care provider shall be notified sufficiently in advance of the transfer that medical staff may determine and provide for any associated medical needs. In particular, the facility health care provider shall ensure that no resident is transferred without a sufficient supply of medication to facilitate the transfer process. Residents shall have available a minimum of three days medication on any transfer between facilities.
2). Transfer of Health Records When a resident is transferred within the Detention Immigration Health Service (DIHS) system:
� A Transfer Summary and the resident’s official health records shall accompany the resident.
� The official health records shall be placed in a sealed envelope or other container labeled with the resident's name and A-number and marked "MEDICAL CONFIDENTIAL."
� Non-medical staff is not permitted to read the official health record. When a resident is transferred to a Residential facility, only the Transfer Summary shall accompany the resident.
3). Transfer Summary
(a). Preparation The sending facility's medical staff shall prepare a Transfer Summary that must accompany the transferee. Either the USM 553 Form or a facilityspecific form may be used, provided it shows:
� TB clearance, including PPD and Chest x-ray results, with the test dates;

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� Current mental and physical health status, including all significant health issues;
� Current medications, with specific instructions for medications that must be administered en route; and
� The name and contact information of the transferring medical official.
(b). Use During Transport Transportation staff may not transport a resident without the required Transfer Summary, which is essential for resident safety while in transit. The transferring staff shall review the information for completeness and to ensure he or she has the supplies required to provide any in-transit care that is indicated.
Medical information is on a need-to-know basis. � Staff who review the transfer summary shall protect the privacy of the resident's medical information to the greatest extent possible. � Medical information may not be shared with other residents or even with other staff unless it is needed to fulfill transportation responsibilities safely.
The section on Confidentiality and Release of Medical Records in the Residential Standard on Medical Care provides additional detail. The transferring staff is responsible for delivering the Transfer Summary materials to medical personnel at the receiving facility.
4). Medical/Psychiatric Alert Medical staff shall notify the facility administrator when they determine that a resident’s medical or psychiatric condition requires:
(a). Clearance by the medical staff prior to transfer, or (b). Medical escort during transfer.
5). Medications Prior to transfer, medical personnel shall provide the transporting staff instructions and, if applicable, medication(s) for the resident’s care in transit. Medications shall:
(a). Be placed in a property envelope with the resident's name and A number on it,
(b). Accompany the transfer, and (c). If unused, be turned over to a staff at the receiving Field Office.

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f. Other Transfer Paperwork A properly executed I-203/I-203A, G-391 and I-216 shall accompany the transfer.
The I-203 shall:
1) Include the resident's Residential category,
2) Indicate if the resident has a history of violence at the family facility, is an escape risk or has special medical problems that may require attention during the transfer.
3) Be annotated if the resident is on prescription medication.
4) Indicate the time of arrival as estimated by the sending Field Office.
The receiving Field Office may request that copies of the I-203/I-203A be faxed directly from the sending Field Office to the receiving facility.
g. G-391, “Official Detail” A resident may not be removed from any facility, including Field Office Residential areas, without a Form G-391 that authorizes the movement.
1) The G-391 must be properly signed and shall clearly indicate the name of the resident(s), the place or places to be escorted, the purpose of the trip and other information necessary to efficiently carry out the detail.
2) Facilities may use a local form as long as the form provides the required information.
The Supervisory Immigration Enforcement Agent (SIEA) or Detention Operations Supervisor (DOS) shall check records and ascertain if the alien has a criminal history, is dangerous, or has an escape record or medical condition. Any information of an adverse nature shall be clearly indicated on the G-391, and the escorting staff shall be warned to institute the necessary precautions.
Before beginning the detail, the escort and transportation staff shall read their instructions and clearly understand the purpose for which the resident is being removed from the facility. The staff shall also discuss emergency and alternate plans with the SIEA and/or DOS beforehand.
All completed G-391s shall be filed in order by month and the forms for the previous month shall be readily available for review. All G-391s shall be retained for at least three years.
h. Room-and-Board Cases Unless the receiving and sending Field Offices agree to reduced or modify documentation requirements for a Room-and-Board Case accepted for short-term staging only, a complete work folder shall accompany or be sent in advance, including:
1) Items listed above under Alien File, attached to the right side of the folder.
2) 4 new photographs,
3) 3 fingerprints cards (plus R-84)

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4) Entire record of proceeding with all pertinent case documentation.
5) Interviews by the receiving Field Office under the Post Order Custody Review (POCR) process on a computer disk attached to the file.
5. Property
a. Funds and Small Valuables Before transfer the sending facility shall return all funds and small valuables to the resident and close out all forms G-589 (or local facility funds and valuables receipts) in accordance with the Residential Standard on Funds and Personal Property.
During transport, residents shall ordinarily have the following items in his or her possession; however, items that might present a security risk or are particularly bulky may be transported separately in the vehicle’s storage area.
� Cash � All legal material � Small valuables such as jewelry � Address books, phone lists, correspondence � Dentures, prescription glasses � Small religious items � Photos � Similar small personal property items. The receiving facility shall create a new G-589 (or local facility funds and valuables receipt) during admissions in-processing in accordance with the Residential Standard on Funds and Personal Property.
b. Large Valuables, Excess Luggage, and Other Bulky Items Resident access to large items of personal property during transport is prohibited; however, ordinarily, all items stored at the sending facility shall accompany the transferee to the receiving facility.
If the property accompanies the resident, in accordance with the Residential Standard on Funds and Personal Property:
1) The sending facility shall close out all forms G-589 (or local FACILITY property receipt forms), and
2) The receiving facility shall create a new G-589 and I-77 (or local FACILITY property receipt forms) during admissions in-processing.
If the facility does not accept excess, oversized, or bulky belongings (including, but not limited to, suitcases, cartons, televisions, etc.), the sending facility shall:
3) Arrange to store the property elsewhere, or
4) Process the excess property in accordance with the Residential Standard on Funds and Personal Property. Under those procedures, the facility

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may send excess property to an address of the resident’s choosing; however, the resident may not be asked for that address information until he or she has been notified of the impending transfer. The sending facility shall make shipping arrangements and, if the resident cannot afford postage, pay for shipping.
a) If the resident refuses to provide an appropriate mailing address, or is financially able but unwilling to pay for shipping, the facility administrator may dispose of the property, after providing the resident written notice, in accordance with the Residential Standard on Contraband.
b) If the resident’s cannot provide an appropriate address because one does not exist:
(1). The transferee shall keep the property receipts for the stored items, and
(2). The facility shall store the property and notify the receiving facility, in writing, that it requires notice before the resident’s release or transfer to ensure the resident receives the stored property.
6. Miscellaneous
a. Resident Phone Calls Upon arrival at the final transfer destination, an indigent resident shall be permitted a minimum of one domestic phone call at the Government’s expense, ordinarily using a PCS Emergency Card or government phone line. Where a PCS Emergency card is not available, the Field Office shall make arrangements for such phone calls.
Non-indigent residents may make phone calls at their own expense in accordance with the Residential Standard on Telephone Access.
b. DACS The sending Field Office shall:
� Ensure that all screens in DACS are completely updated and accurate, and
� Immediately make the appropriate database transfers (DACS/DETS/CIS).
Once the resident reaches his or her destination, the receiving Field Office “accepts” the transfer.
c. Food Service During Transfer Food shall be provided in accordance with the Residential Standard on Transportation (By Land). The sending Field Office or facility is responsible for the preparation and delivery of proper meals prior to departure.
7. Accountability for Documentation When Resident Is Transported To ensure that the facility that is to receive a resident also receives the files and other documentation required herein, the Residential Standard on Transportation (By Land) prohibits the transportation of a resident without that documentation.

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a. Transportation staff may not accept a resident without the required documents. b. The receiving facility may refuse to accept a resident without the required
documents. c. The receiving facility must report any exceptions to the Field Office and the
Deputy Assistant Director, Detention Management Division.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

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DEPARTMENT OF HOMELAND SECURITY U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT

RESIDENT TRANSFER NOTIFICATION
 RESIDENT NAME ________________________________________A# ______________
 NATIONALITY ___________________________________________________________

TRANSFER DESTINATION
 NAME OF NEW FACILITY __________________________________________________
 ADDRESS _______________________________________________________________
 ________________________________________________________________________ ________________________________________________________________________ TELEPHONE NUMBER _________________________________________
I hereby acknowledge that I have received the transfer destination information. I have also been notified that it is my responsibility to notify family members, if I so desire.
RESIDENT SIGNATURE ______________________ A#_________ DATE ____________ STAFF SIGNATURE ___________________________________ DATE ____________

Transfer of Residents

Transfer Notification

DRAFT

CHECKLIST FOR RESIDENT TRANSFER


___________________________________________________________ ____________

Name

A-Number

Resident transferred from _____________ to _____________ on

__________________

Office 3-Letter Codes

Date

_______ Resident’s attorney notified _______ Resident’s Transfer Notification form completed _______ I-216 faxed to receiving district _______ USM-553 or local transfer summary attached _______ Age verification documentation attached _______ POCR / Security risk attachment

1 A File

1 Work Folder

The following items have been attached to the right side of the file: _______ I-216 _______ I-77 _______ G-589 _______ USM-553 or local transfer summary form _______ Photocopy of I-203/I203A _______ Property form _______ Age verification document _______ I-259 and/or manifest _______ POCR / Travel document request computer disk envelope _______ Fingerprints and photographs _______ All charging documents have been served on the alien and copies provided to them _______ Name and telephone number of the point of contact for conviction records

Name and telephone number of court clerk’s office point of contact for conviction records
_______ All DACS screen are accurate and complete _______ Case transferred in DACS/DETS _______ If the transfer is taking place during a mealtime, food service arrangements have been made _______ File accompanying transfer _______ File will be federal expressed to receiving district within one business day _______ If the resident is on medication, medications will accompany transfer

The above-named staff from the receiving district waived parts of this transfer document as circled above.

Printed name and signature of staff responsible for compliance with requirements for Transfer of Residents.

 
 ICE/DRO RESIDENTIAL STANDARD
TRANSPORTATION (BY LAND)

PURPOSE AND SCOPE. Vehicles are properly equipped, maintained, and operated and residents are transported in a secure, safe and humane manner, under the supervision of trained and experienced staff, preventing harm to the public.
I. EXPECTED OUTCOMES. The expected outcomes of this Standard are as follows: 1. The general public, residents, and staff will be protected from harm when residents are transported. 2. Vehicles used for transporting residents will be properly equipped, maintained, and operated. 3. Residents will be transported in a safe and humane manner, under the supervision of trained and experienced staff. 4. Where required, residents have regular access to translation services and/or are provided information in a language that they understand. 5. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
II. DIRECTIVES AFFECTED. None
III. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non-government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a nonsecure custodial environment. American Correctional Association 4th Edition Standards for Adult Local Detention Facilities: 4­ ALDF-1B-01, 1B-03, 1B-04, 1B-05, 1B-06.
ICD/DRO Residential Standard on Transfer of Residents. Memorandum dated 7/14/2006 on “Escape Reporting” from the ICE/DRO Director, which specifies requirements for the reporting, tracking, and investigating of the escape of an ICE/DRO resident.
ICE Residential Standard for “Use of Physical Force”

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IV. EXPECTED PRACTICES
A. Written Policy and Procedures Required The facility administrator shall develop and implement written policy, procedures, and guidelines for the transportation of residents, addressing at a minimum the following subjects:
1. General policy and procedures governing safety, security, operations, communications, equipment;
2. Vehicle inspections and repair; 3. Vehicle occupancy; 4. Arrangement of seating of residents in transportation vehicles; 5. State and Federal requirements that relate to the transport of children in vehicles,

including car seats, etc.
 6. Procedures in the event of:
� Vehicle failure, � Traffic accident, � Severe weather or natural disaster, � An emergency situation, as specified later in this document, � Transport of females or children, � Transport of residents whose physical or mental conditions preclude prolonged travel.
B. Vehicle Maintenance All vehicles used for transporting ICE/DRO residents shall be comply with annual safety inspections in accordance with applicable statutes. Vehicles may not be used for transportation if any safety repairs are needed.
C. Transportation Planning and Scheduling The Facility Administrator (FA) has overall responsibility for all aspects of vehicle operations. The FA is responsible for establishing schedules for and monitoring vehicular maintenance, making logistical arrangements to transport residents, supervising and instructing personnel, and protecting resident security. Before departure, the facility shall revise plans as necessary, based on weather and road conditions and any other last-minute security considerations. The Residential Standard on Transfer of Residents specifies requirements for communication between a sending facility and a receiving facility.

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D. Transporting Staff Responsibilities
1. Training Required All facility staff assigned to bus transportation duties must have a valid current Commercial Driver's License (CDL) issued by the state. Bus-driver trainees may operate the vehicle during any segment of a run when residents are not on board, but only under the direct and constant supervision of a certified bus instructor licensed by the state in which they are driving.
2. Forms and Files For each vehicle operator and others assigned to a bus, supervisors shall maintain at the official duty station a file containing:
� Certificate of Completion from the ICE/DRO Bus Training Program,
� Copy of the most current physical examination, used to obtain the commercial driver’s license (CDL); and
� Copy of the CDL.
Every motor vehicle operator shall complete forms SF-47, G-392, and G-294 for his or her official personnel folder (OPF) and is responsible for renewing those documents and providing copies for the OPF.
3. Operating the Vehicle The driver shall operate the vehicle in accordance with the CDL manual or the highest prevailing standard and must maintain complete control of the vehicle at all times, obeying all posted traffic signs (including speed limits) and exercising extreme caution, reduced speed, and common sense when negotiating a steep grade or driving in inclement weather or hazardous road conditions.
Driving under the influence of drugs or alcohol is prohibited. In addition to any other random testing as part of a drug-free workplace program, all staff assigned to transportation are subject to U.S. Department of Transportation (DOT) drug- and alcohol-testing
The transporting staff shall comply with all State and Federal motor vehicle regulations (including DOT, Interstate Commerce Commission, and Environmental Protection Agency), in addition to the following:
1. Wearing a seat belt when the vehicle is moving;
2. Holding a valid CDL from the state where employed;
3. Inspecting the vehicle, using a checklist and noting any defect that could render the vehicle unsafe or inoperable;
4. Transporting residents in a safe and humane manner;
5. Verifying individual identities and checking documentation when transferring or receiving residents;
6. Driving defensively, taking care to protect the vehicle and occupants; obeying traffic laws; and immediately reporting damage or accidents;

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7. Re-inspecting the vehicle after each trip and completing a vehicle inspection report, including an odometer reading;
8. 8. Returning the vehicle keys to the control staff or supervisor, according to facility procedures;
9. Recording authorized expenses (such as fuel, emergency services, oil) on form G­ 205, "Government-owned Vehicle Record," specifying the exact amount and the date; keeping all receipts and turning them in along with the G-205 at the end of each month;
10. Safeguarding credit cards assigned to the vehicle.
4. Driving Hours and Number of Operators Each staff employee must recognize the limitations imposed by his or her own driving skills, personal distractions, environmental conditions, and modify his or her driving accordingly. All crew members must strictly adhere to the following rules/restrictions – if a crew member is disqualified from participating in a residential transport by any or all of these rules, he or she has the responsibility to inform a transportation supervisor. The transportation supervisor must also ensure that each crew member is not disqualified from participating in the transport of residents.
1. Possession of current valid CDL by the bus operator(s);
2. Crew member must be off-duty for the 8 hours immediately preceding any trip or trip segment;
3. Crews members are restricted for transport duties to 10 hours, maximum, driving time (time on the road) per trip segment; 8 off-duty hours between segments;
4. Crew members are limited to 50 hours, maximum, driving time per work week; 70 hours, maximum, in any 8-day period;
An emergency or unforeseen and/or adverse driving conditions require , crew members to extent authorized travel time reach a safe and secure stopping area.
When vehicles without residents travel in tandem, a single staff shall be assigned to each. Unaccompanied staffs may also drive empty vehicles for certain purposes, for example, maintenance trips
5. Vehicle Security Staff shall secure the vehicle before leaving it unattended, including removing the keys from the ignition immediately upon parking the vehicle.
Staff shall avoid parking in a location where the vehicle would attract undue attention or be vulnerable to vandalism or sabotage. If a parking area with adequate security cannot be located, staff shall contact the local law enforcement agency for advice or permission to use one of its parking places.

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E. Staff Uniform and Equipment All staff transporting ICE/DRO residents shall wear their prescribed uniforms unless other attire is authorized by the facility administrator.
Every transporting staff shall be issued, and advised to wear, a protective vest while participating in the transportation program.
Equipment recommended for each trip includes, among other things, the following:
� Flashlights
� Extra handcuffs
� Flexicuffs and cutter;
� Other authorized intermediate force (“non-lethal,” “non-deadly”) weapons.
F. Pre-Departure Vehicle and Security Check Prior to trip departure, all staff assigned to transport residents must be present to ensure a complete and thorough inspection and search and shall:
1. Inspect the vehicle for mechanical and electrical problems.
2. Test the emergency exits and the key for every lock located in or on the vehicle. A complete set of these keys shall travel with the vehicle at all times, in a secure place known to every transporting staff.
3. Search for hidden weapons and other contraband , including the driver's compartment and glove compartment, the resident seating area, and the cargo compartment.
4. Take any necessary special precautionary measures for a resident identified as a special-handling case (security, medical, or psychological problems, etc.) while the search is in progress.
5. Search the staging area prior to loading residents to ensure the area is clear of any weapons or contraband.
6. Thoroughly search each resident as he or she is about to board the vehicle.
G. Required Documents
1. “Official Detail” No resident may be removed from any facility, unless authorized in writing by ICE. Written authorization must include the name of the resident(s), the place or places to be escorted, the purpose of the trip and other information necessary to efficiently carry out the detail.
Before beginning the detail, the escorting and transportation staff shall read their instructions and clearly understand the purpose for which the resident is being taken from the facility. The staff shall also discuss emergency and alternate plans with the supervisor.

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All completed transportation authorizations shall be filed in order (monthly), with the previous months readily available for review. Travel authorization shall be retained for a minimum of three years.
H. Departure Scheduling and Security The vehicle crew shall schedule driving times to ensure arrival of residents at the designated meeting area on schedule.
Before transferring residents from one facility to another, a designated staff shall provide the receiving office with the following information:
1. The estimated time of departure and arrival (ETD/ETA);
2. The number of residents in each of the following categories: new arrivals (remaining at the facility); drop-offs; juveniles/family units; and overnighters;
3. The total number of residents;
4. Any special-handling cases, detailing medications, restraints, etc.;
5. Actual or estimated delays in departure, and revised ETA(s), if applicable.
I. Transfer of Funds, Valuables, and Personal Property Facility staff shall inspect and inventory the personal property of residents transferring from one facility to another in accordance with the Residential Standards on Admission and Release and Funds and Personal Property,.
In addition, at the originating facility:
1. Staff shall ask each resident whether he or she has in his or her possession all funds, valuables, and other personal property listed on the I-216. � If a resident answers “yes,” he or she may board the vehicle. � If a resident claims missing funds, valuables or personal property, the resident shall remain at the facility until completion of the required paperwork (SF-95 and I­ 387 or comparable forms). Photocopies of the completed forms are sufficient documentation for the transfer to proceed.
2. Staff shall include on each I-216, in the "checked baggage" section, the I-77 numbers, to be verified by receiving facility staff.
3. The lead driver shall check the manifest against the number of packages by resident name and A- number before signing the I-216 or placing the baggage on the bus.

In addition to the requirements of the Residential Standard on Funds and Personal Property:
1. Staff shall completing a separate I-77 for each piece of baggage and record the resident’s name on the top, middle, and bottom portions; � Attach the string on the top of the I-77 to the corresponding piece of baggage, and secure the resident’s signature on the back of the I-77.
� Attach the middle section to the copy of the I-385 that will accompany the resident to the final destination.

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� The bottom portion is the resident’s receipt.
2. Transporting staff shall record their initials, office designator, and ID number in the lower left corner of the bottom portion of the I-77.
3. Staff involved in the transfer shall identify residents with baggage by the I-77 attached to the I-385.
J. Loading a Vehicle
1. Security and Occupancy Staff shall be posted whenever residents enter or exit a vehicle.
The number of residents transported may not exceed the occupancy level established by the manufacturer's rated maximum capacity.
The escorting staff/assistant driver shall instruct the residents about rules of conduct during the trip.
All residents, particularly children and residents with special needs shall be safely transported in accordance with state vehicular laws, i.e, car seats, etc.
The main driver is responsible for managing the residents' move from the staging area into the vehicle. The number of available staff shall determine whether they move at one time or in groups.
2. Items Residents May Keep in Their Possession Ordinarily, residents in transport may keep the following in their possession: jewelry, cash, eyeglasses, prescription medicines, and receipts for property and money (G-589, I-77); however, if the transporting staff determine that any of these items would compromise staff or resident safety, it shall be removed from the resident’s possession and placed in an appropriate storage area.
In some instances, the vehicle crew shall safeguard and dispense prescription medicines, noting the resident’s name, A-number, and date and time(s) dispensed, and by whom. These notes shall be attached to the resident’s medical record or A-file. In any instance where a vehicle crew may be required to dispense medication; documentation showing those staff are properly trained must be on file.
3. Count, Identification, and Seating To confirm the identities of the residents they are transporting, the vehicle crew shall:
1. Summon the resident, by surname, to the vehicle. If a family group is being transported, all member of the family shall be identified, and parents or legal guardians shall answer for their child(ren) if child(ren) are under the age of 14.
2. Ask resident to state his or her complete name.
3. Compare name and face with the Booking Card (I-385) and attached photo and the Record of Persons and Property Transferred (I-216). If necessary, refer to the I- 385 for additional biographical information.

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4. Seat each resident in accordance with written procedures from the facility administrator, with particular attention to residents with physical or mental health conditions, children, or who may need to be afforded closer observation for their own safety.
5. Conduct a visual count once all passengers are seated on board, and every time the vehicle makes a scheduled or unscheduled stop, before resuming the trip.
6. Ensure children are seated using proper restraints established by state law. Where required infant carriers, child safety seats, or booster seats will be used.
K. Responsibilities En Route
1. Point of Contact The next receiving office on the vehicle route serves as the contact point and is responsible for monitoring the vehicle's schedule.
Upon making contact with an arriving vehicle, the receiving staff shall certify that they are taking custody of the specified residents by signing the accompanying Form I-216.
Each office shall develop and post written guidelines for locating an overdue vehicle. If the vehicle does not arrive within range of the ETA, the contact point shall set the tracing procedures in motion.
2. Safety and Security For safety purposes, all personnel shall remain seated while the vehicle is in motion.
The vehicle crew shall keep doors locked when residents are on board, and the assistant driver is responsible for resident oversight during transport. Staff must maintain a clear view of the entire vehicle compartment and remain alert for behavior that could jeopardize safety and security.
Residents shall not have access to any personal baggage or packages while in transit (except as specified in Items Residents May Keep in Their Possession earlier in this document).
A complete set of keys for every lock located in or on the vehicle shall travel with the vehicle at all times, in a secure place known to every transporting staff, and the crew shall keep bolt cutters in the forward compartment with the outer equipment for use in an emergency.
An armed staff may not enter the secure area of the vehicle. If he or she must enter that area, the staff shall first leave the weapon(s) with another staff for safekeeping or, if the vehicle is equipped with weapons lockers, in a locker.
3. Stops During stops, which the vehicle crew shall keep to a minimum, residents shall not leave the vehicle until the transporting staff have secured the area. When the residents disembark, the staff shall keep them under constant observation to prevent external contact(s) and/or contraband smuggling. At least one staff shall remain in the vehicle when one or more residents are present.

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L. Meals The vehicle crew shall provide meals and snacks during any transfer of families. Staff shall consider when the residents last ate before serving meals and snacks, paying particular attention to the needs of infants and children.
The requirements specified in the Residential Standard on Food Service apply equally to food served in transit and food served in Residential facilities. Meals must satisfy the nutritional requirements of the sending facility. Special dietary needs should be identified to the food service department before departure, so suitable meals can be arranged.
In the interest of safety, residents shall have no access to eating utensils (disposable or not) while in transit.
Transporting staff shall observe safe-handling procedures at all times. Their responsibilities begin with the meals awaiting pickup from the food service department, which the vehicle crew must inspect (wrapping, portions, quality, quantity, thermos transport containers, etc.) Before accepting the meals, the vehicle crew shall raise and resolve questions, concerns, or discrepancies with the food service representative.
In transit, the crew shall store and serve food at the required temperatures, maintain personal hygiene, and meet all sanitation requirements. The crew shall maintain a constant supply of drinking water (and ice) in the water container(s), along with paper cups. Some disposable garbage receptacles (plastic bags) shall reside in the driver's compartment, with the remainder stored in the equipment box located in the forward baggage compartment.
The food service administrator shall monitor the condition and routine cleansing/sterilizing of drinking-water containers, basins, latrines, etc. in vehicles to ensure compliance with the Residential Standard on Food Service.
In an emergency, the transporting staff may purchase meals from a commercial source, obtaining receipts for later reimbursement.
M. Vehicle Communication Every vehicle shall be equipped with a functioning two-way radio. Every crew shall carry at least one portable, so the staff can maintain contact if one or more has to leave the vehicle. The vehicle’s communications system shall include a cellular phone that can counteract certain problems associated with radio transmittals, such as dead zones, different frequencies, etc.
N. Vehicle Sanitation
Vehicles must be kept clean and sanitary at all times. The facility administrator shall
establish the procedures and schedule for sanitizing facility vehicles. Vehicle crew responsibilities include, but are not limited to, the following:
� Dumping septic tank contents at the locations specified.
� Maintaining an adequate supply of water and chemicals in the toilet at all times, which
involves monitoring the inventory of chemical supplies stored in the forward baggage compartment.

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O. Staff Conduct Recognizing the effect of personal appearance, speech, conduct, and demeanor in communicating the appropriate sense of authority, every staff shall dress, speak, and act with the utmost professionalism.
Staff assigned to vehicle operations shall have contact with personnel from various Field and Sector offices, other government agencies, and with the general public. In all such, the staff shall conduct themselves in a manner that reflects positively on ICE/DRO.
The vehicle crew falls under the authority of the facility administrator and FOD with jurisdiction at each facility en route, whether an intermediate stop or final destination. This authority remains in effect until the vehicle’s departure, and applies only to the current trip. If problems arise, the lead driver must contact the facility and nearest ICE office.Staff shall comply with all rules and procedures governing use of government vehicles. They shall not transport any personal items other than those needed to carry out their assigned duties during the trip. Alcoholic beverages and illegal drugs are strictly prohibited.
Using ICE/DRO guidelines and common sense, staff shall handle the crises that occasionally arise. While treating all persons with courtesy and respect, they shall not sacrifice or compromise security to do so.
There shall be no smoking in any vehicle used or expected to be used in the transportation of families.
P. Firearms Storage Every facility administrator shall ensure that the on-site supply of gun lockers can accommodate the non-resident vehicle crews during stops at the facility.
Q. Vehicle Equipment All transport vehicles shall have emergency equipment and supplies commensurate with their size and capacity.:
R. Use of Restraints Generally, restraints shall not be used during the transport of family units. In any event where a determination is made by staff and concurred with by a supervisor, restraints may be applied as follows:
In accordance with the Residential Standard on Use of Physical Force and Restraints, staff shall use authorized techniques and common sense when applying restraints. To ensure safe and humane treatment, the staff shall check the fit of restraining devices immediately after application, at every relay point, and any time the resident complains. Properly fitting restraints do not restrict breathing or blood circulation.
The staff shall double-lock the restraining device(s), and secure each handcuff cover to the waist chain at a point inaccessible to the residents. Under no circumstances shall staff attach a restraining device to an immovable object, including, but not limited to, security bars, seats, steering wheel, or any other part of a vehicle. Staff carrying firearms shall exercise caution if close contact with a resident becomes necessary.

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As a rule, transporting staff shall not handcuff women or children. If an exception arises, the staff shall document the incident, recording the facts and the reasoning behind the decision.
S. Emergency Situations The facility administrator shall establish written procedures for transportation staff to follow in an en-route emergency. The written procedures shall cover the following scenarios.
If an emergency occurs within a reasonable distance of an ICE/DRO office, the staff shall make every effort to reach that office before taking extraordinary measures. However, if moving seems ill-advised or impossible, they shall contact the office, stating location and the nature of the problem so the office can provide/secure assistance as quickly as possible.
If the situation is life-threatening, the vehicle crew cannot afford to wait for help from an ICE/DRO office; but shall take immediate action.
1. Attack If attacked, the vehicle crew should request assistance from the nearest law enforcement agency, continuing to drive until the vehicle is incapacitated. The transportation staff shall do everything possible to protect the safety of everyone in the vehicle.
2. Escape If a resident escapes, the transportation staff shall not jeopardize the security and accountability of the remaining residents by chasing the escapee. Instead, they shall notify the nearest ICE/DRO office, providing the escapee’s name, A-number, height, weight, type of clothing and direction of flight (if known). The office shall directly relay this information to local law enforcement agencies.
The vehicle crew shall wait for assistance, under no circumstances using the vehicle to pursue the escapee. While waiting, the staff shall prepare a written report of the escape and/or attempted escape, fully documented.
3. Hostages If a hostage situation occurs on board the vehicle, one transporting staff shall secure the vehicle perimeter, while the other notifies the closest ICE/DRO office of the situation. The staff shall make every effort to determine who is/are involved and whether armed, relaying the information to the ICE/DRO office and the local law enforcement agencies. Under no circumstances shall a transporting staff bargain with or take orders from the hostage­ taker(s), regardless of the status or rank of the hostage(s).
The vehicle crew shall hold all residents on board until help arrives, assuming the hostage­ taker(s) allow non-participants to disembark. Regardless of demands, the staff shall not allow any hostage-taker(s) off the bus, with or without the hostages.
Transportation staff shall take no action to remedy a hostage situation, especially one that would involve the use of force. The staff shall follow instructions from the jurisdictional ICE/DRO office, which should include cooperating with other agencies.
A hostage situation shall effectively end a transportation assignment because of the need to interview witnesses, examine the crime scene, etc. The transportation staff shall receive instructions on how and where to proceed once the hostage situation is resolved.
The vehicle crew's incident report shall note participants, witnesses, action taken, etc.

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4. Illness If a resident becomes ill while in transit, but the illness is not serious, the transporting staff shall take appropriate action and alert the receiving office so it can prepare to handle the situation.
If the illness requires immediate medical treatment, (for example, heart attack), staff shall request assistance from the nearest emergency services and local law enforcement agencies. The staff shall initiate life-saving procedures as appropriate, proceeding if security permits. The closest ICE/DRO office shall prepare procurement paperwork and make arrangements for hospitalization, security, etc.
5. Death If a resident dies while in transit, transporting staff shall notify the originating or receiving office as soon as possible, and follow the procedures specified in the Residential Standard on Terminal Illness, Advance Directives, and Death.
The closest ICE/DRO office shall coordinate with other agencies, including the coroner, required to be on the scene when the body is removed from the vehicle. This must take place in the State where death occurred. The Residential Standard on Terminal Illness, Advance Directives, and Death specifies the procedures with which the staff must comply.
6. Fire In case of fire in or on the vehicle, the driver shall immediately stop the vehicle. The crew shall fight the fire with the on-board equipment. If necessary, the staff shall request assistance from the local fire department and law enforcement agency. If the fire forces the occupants’ evacuation of the vehicle, the crew is responsible for maintaining accountability while removing the residents in orderly fashion.
7. Riots If a riot, fight, or any disturbance occurs on the vehicle, the assistant driver shall order the residents to cease and the driver shall attempt to move the vehicle to the side of the road. If necessary, the crew shall request assistance from the local law enforcement agency. Efforts should be made to determine the instigators, number of residents involved, names and Anumbers.
When sufficient assistance is available, the transporting staff shall attempt to regain control, using only as much force as necessary. Staff may not enter the passenger area bearing arms.
8. Traffic Accident The facility administrator shall establish written procedures for vehicle crews involved in traffic accidents.
9. Vehicle Failure The facility administrator shall develop written procedures for transportation staff to follow when the vehicle develops mechanical problems en route.
10. Natural Disasters The facility administrator shall develop written procedures for transportation staff to follow in severe weather or a natural disaster.

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11. Transporting Females and Children The facility administrator shall develop written procedures for vehicle crews transporting women and/or children. Children may not be transported by bus if the trip would exceed six hours. Otherwise, transportation by auto or van is required, with frequent breaks. When transporting children, State laws regarding car seats shall be followed. Adult females may be transported by bus for up to ten hours. Otherwise, transportation by auto or van is required, with frequent breaks. Staff shall search a resident of the opposite sex only in extreme circumstances, in the absence of a same-sex staff. When transporting residents of the opposite gender, it is good practice for staff to call in their time of departure and odometer reading and then do so again upon arrival, to account for their time.
12. Transporting Resident with Special Needs Facility administrator shall develop written procedures for transporting residents with special needs.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

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 ICE/DRO RESIDENTIAL STANDARD
USE OF PHYSICAL FORCE AND RESTRAINTS

I. PURPOSE AND SCOPE. After all reasonable efforts to otherwise resolve a situation have failed, staff is authorized to use the minimum physical force necessary for the protection from harm against self, residents, or others; for prevention of escape or serious property damage; or to maintain the security and orderly operation of the facility.
Staff may use only the degree of force that is necessary to gain control of residents and may use physical restraints to gain control of an apparently dangerous resident, under specified conditions.
This Residential Standard does not specifically address the use of restraints for medical or mental health purposes, which may be authorized only by a qualified medical or mental health provider, after reaching the conclusion that less restrictive measures are not successful, as detailed in the Residential Standard on Medical Care.

II. EXPECTED OUTCOMES. The expected outcomes of this Standard are as follows:
1. The use of physical force will be restricted to instances of justifiable self-defense, protection of others, protection of property, and prevention of escapes. In these situations, force will be used only as a last resort.
2. Physical force or restraint devices used as punishment will be prohibited.
3. Restraints will not be applied without prior supervisory approval if approval is required.
4. All weapons and related equipment will be stored securely in designated areas to which residents have no access.
5. A written record of routine and emergency distribution of security equipment will be maintained.
6. A written report will be provided to the facility administrator or designee no later than the end of a tour of duty when force was used on any resident, or any resident remains in restraints at the end of that shift.
III. DIRECTIVES AFFECTED None

IV. REFERENCES
The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non-government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and

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respectful manner. There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
American Correctional Association Standards for Adult Local Detention Facilities, 4th Edition: 4-ALDF-2B-01, 2B-02, 2B-03, 2B-04, 2B-05, 2B-06, 2B-07, 2B-08, 2C-01, 2C­ 02, 2C-06, 7B-15, 7B-16.
ICE Interim Use of Force Policy (7/7/2004).
National Enforcement Standard, “Use of Intermediate Force”
V. EXPECTED PRACTICES
1. Overview
• Use of force in Residential facilities is never used as punishment, is minimized by staff attempts to first gain a resident’s cooperation, is executed only through approved techniques and devices, and involves only the degree necessary and to reasonably gain control of a resident.
• Various levels of force may be necessary and reasonable, depending on the totality of the circumstances.
• Generally, use of force is either immediate or calculated, the latter being feasible in most cases and most likely to minimize harm to residents or staff.
• Use of force may involve physical control and placement of a resident in alternate housing and/or the application of various types and degrees of restraint devices.
• Follow-up (medical attention, for example), documentation (including video taping for calculated use of force), reporting, and After-Action Review are required.
2. Principles Governing the Use of Force and Application of Restraints
a. Under no circumstances shall staff use force to punish a resident.
b. Staff shall attempt to gain a resident's willing cooperation before using force.
c. Staff shall use only that amount of force necessary and reasonable to gain control of a resident.
d. Staff may immediately use restraints if warranted to prevent a resident from harming self or others or from causing serious property damage.
e. Facility administrator approval is required for continued use of restraints, if necessary.
f. Staff may apply additional restraints to a resident who continues to resist after staff achieve physical control. If a restrained resident refuses to move or cannot move because of the restraints, staff may lift and carry the resident to the appropriate destination; however, staff may not use the restraints to lift or carry the resident.

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g. Staff may not remove restraints until the resident has regained self-control.
h. Staff may not use restraint equipment or devices (for example, handcuffs):
• On a resident's neck or face, or in any manner that restricts blood circulation or obstructs the resident's airways (mouth, nose, neck, esophagus);
• To cause physical pain or extreme discomfort. While some discomfort may be unavoidable, even restraints are applied properly, examples of prohibited applications include, improperly applied restraints, unnecessarily tight restraints, “hog-tying,” and fetal restraints (cuffed in front with connecting restraint drawn-up to create the fetal position).
• On a resident child age 14 or under without authorization from a supervisor;
• Restraints shall never be used on a child age 12 or under. Passive restraint techniques should be used to prevent a minor from injuring him/herself or others.
• Check and record the resident's condition at least every 15 minutes to ensure that the restraints are not hampering circulation and to monitor the general welfare of the resident.
• Qualified health personnel ordinarily visit the detainee at least once every two hours until restraints are removed.
• The shift supervisor shall review a resident every hour. If the restraints have had a calming effect, they may be removed and, if appropriate, replaced by a less restrictive device.
• The decision to release the detainee or apply lesser restraints shall shift supervisor shall not be delegated below the shift supervisor’s level. The shift supervisor may seek advice from mental or physical health professionals about when to remove the restraints.
• The facility shall immediately notify JFRMU when restraints are required for a resident in a residential facility.
i. Staffs are required to ensure compliance with Crisis Intervention and Defensive Tactics training and the proper application of those techniques. This training is required as basic training before entry on duty and must be provided as a refresher training course annually. Staff shall be trained in these techniques prior to being placed in an on-duty status and shall be recertified annually. Staff shall maintain a one to one watch and monitor all residents placed in restraints until the resident is transferred or the restraints are removed.
j. Hard restraints (for example, steel handcuffs and leg irons) shall be used only after soft restraints prove (or have previously proven) ineffective with a particular resident.

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k. Licensed medical personnel may prescribe and administer medication. Medication shall not be used to subdue an uncooperative resident for staff convenience.
l. Staff shall fully document all instances involving physical use of force.
3. Use of Force Continuum The use of force continuum is a five-level model used to illustrate the levels of force staff may need to gain control of a resident, from least to maximum use of force, as follows:
• Mere staff presence without action. • Verbal interventions and commands • Soft techniques. Established and accepted techniques from which there is
minimal chance of injury. • Hard techniques. Established and accepted techniques where there is greater
possibility of injury. While staffs are trained and required to use only a level of force that is necessary and reasonable to gain control of a resident, staffs may have to escalate or de-escalate through the use of force continuum.
4. Training General Training Through ongoing (at least annual) training, all Residential facility staff must be made aware of their responsibilities to control situations involving aggressive residents. At a minimum, training shall include:
a) The requirements of this Residential Standard; b) The use of force continuum; c) Communication techniques; d) Cultural diversity; e) Dealing with the mentally ill; f) Confrontation-avoidance techniques; g) Approved methods of self-defense; h) Universal precautions i) Application of restraints j) Reporting procedures.
5. Prohibited Intermediate Force Acts and Techniques The following acts and techniques are specifically prohibited:

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a. Choke holds, carotid control holds, and other neck restraints;
b. Using a baton to apply choke or “come-along” holds to the neck area;
c. Intentional baton strikes to the head, face, groin, solar plexus, neck, kidneys, or spinal column;
d. Striking a resident for failing to obey an order;
e. Striking a resident when grasping or pushing him/her would likely achieve the desired result;
f. Using force against a resident offering no resistance.
g. Restraining residents to fixed objects.
6. Use of Force in Special Circumstances Occasionally, after the failure or impracticability of confrontation-avoidance, staff must make a judgment call as to whether to use force. In such cases, for example, involving a child, a pregnant resident, or an aggressive resident with open cuts, sores, or lesions, staff shall, when time and circumstances permit, seek medical advice before deciding the situation is grave enough to warrant the use of physical force.
a. Pregnant Residents Medical staff shall advise as to precautions required to protect the fetus and pregnant resident, including the manner in which the pregnant resident will be restrained, the advisability of a medical professional's presence when restraints are applied, and the medical necessity of restraining the resident in the facility hospital or a local medical facility.
b. Residents with Wounds or Cuts All staff shall wear protective gear when restraining aggressive residents with open cuts or wounds. If force is necessary, this gear may include a full-body shield.
Aggressive residents who are violent or exhibit the potential for violence shall be placed in restraints and be removed and kept separate from the general population. Restraints shall remain in place as long as the resident poses a physical threat.
7. Intermediate Force Weapons In this Residential Standard “Intermediate Force Weapons” refers to weapons often termed “nondeadly force weapons,” “non-lethal weapons,” or “less-than-lethal weapons.”
a. Storage Intermediate force weapons shall remain stored and out of site of residents during normal operations. Intermediate force weapons and related equipment are permitted only in designated areas:
• Where access is limited to authorized personnel, and
• To which residents have no access.

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b. Recordkeeping and Maintenance Each facility shall maintain a written record of routine and emergency distribution of security equipment and shall specifically designate, and incorporate in one or more post orders, responsibility for staff to inventory related security equipment at least monthly to determine their condition and expiration dates.
c. Use The facility administrator may authorize the use of intermediate force weapons, if a resident:
• Is armed and/or barricaded; or
• Cannot be approached without danger to self or others; and
• A delay in controlling the situation would seriously endanger the resident or others, or would result in a major disturbance or serious property damage. Serious property damage for the purposes of this standard involves any instance where such damage interrupts the flow of services to residents or adversely affects the daily operations of the facility.
In the use of force continuum, the collapsible steel baton authorized below is an “impact weapon” that is considered:
• A “soft” technique when used during “come alongs” or to apply gradual pressure for compliance, or
• A “hard” technique when used for striking.
As with any use of force, staff using an impact weapon shall choose the appropriate level as required by the totality of circumstances, and its use must be discontinued when adequate control of a resident has been achieved.
d. Authorized Intermediate Force Devices. The following devices are authorized within family residential centers only with the authorization of the ICE facility administrator (for official use only):
• Collapsible steel baton;
• 36” straight, or riot, baton
e. Unauthorized Force Devices. The following devices are not authorized:
• Saps, blackjacks, and sap gloves;
• Mace, CN, tear gas, or other chemical agents,
• Homemade devices or tools; and
• Any other device or tool not issued or approved by the National Firearms and Tactical Training Unit

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8. Immediate Use of Force An "immediate-use-of-force" situation is created when a resident's behavior constitutes a serious and immediate threat to self, staff, another resident, property, or the security and orderly operation of the facility. In that situation, staff may respond without a supervisor's direction or presence.
Upon gaining control of the resident, staff shall seek the assistance of qualified health personnel to immediately:
1. Determine if the resident requires continuing care and, if so, make the necessary arrangements. Continuing care may involve such measures as admission to the facility hospital, restraining a pregnant resident in a way that does not include face-down, four/five-point restraints, etc.
2. Examine the resident and immediately treat any injuries. The medical services provided shall be documented.
3. Examine any involved staff member who reports an injury and, if necessary, provide initial emergency care.
The shift supervisor shall provide a written report to the facility administrator or designee no later than the end of a tour of duty when force was used on any resident, or where any resident remains in restraints at the end of that shift.
9. Calculated Use of Force and/or Application of Restraints If a resident is in an isolated location (for example, a locked room or area) where there is no immediate threat to the resident or others, staff shall take the time to assess the possibility of resolving the situation without resorting to force.
A calculated use of force shall be authorized in advance by the facility administrator (or designee).
Calculated use of force is feasible and preferred in most cases and is appropriate when the resident is in a room or other area with a securable door. Even if the resident is verbalizing threats or brandishing a weapon, calculated force is often appropriate provided staff see no immediate danger that the resident could cause harm. Calculated use of force affords staff time to strategize and resolve situations in the least confrontational manner possible.
a. Confrontation Avoidance Before authorizing the calculated use of force, ICE, the ranking Residential official, a designated health professional, and others as appropriate shall assess the situation. Taking into account the resident's history and the circumstances of the immediate situation, they shall devise a plan which will include the appropriateness of using force and the level of force to be used.

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The conferring staff may consider, in their assessment, the resident's medical/mental history; recent incident reports involving the resident, if any, and emotional shocks or traumas that may be contributing to the resident’s state of mind (for example, a pending criminal prosecution or sentencing, divorce, illness, death, etc.).
Interviewing staff familiar with the resident might yield insight into the resident's current agitation or even pinpoint the immediate cause. Such interviews may also help identify those who have established rapport with the resident, or whose personalities suggest they might be able to reason with the resident.
b. Documentation and Video-taping
While ICE/DRO requires that all use-of-force incidents be documented and forwarded to ICE/DRO for review, for calculated use of force, it is required that the entire incident be videotaped. The videotape and accompanying documentation shall be included in the investigation package for the After-Action Review described below.
Written documentation shall include a "Use of Force" form (sample attached) and memorandum reporting staff actions, reactions, and responses during the confrontation-avoidance process.
Calculated use of force incidents shall be videotaped in the following order:
1) Introduction by Team Leader, stating facility name, location, time, date, etc.; describing the incident that led to the calculated use of force; and naming the video-camera operator and other staff present.
2) Faces of all team members briefly appear (helmets removed; heads uncovered), one at a time, identified by name and title.
3) Team Leader offering resident last chance to cooperate before team action, outlining use-of-force procedures, engaging in confrontation- avoidance, and issuing use-of-force order.
4) Entire tape of Use-of-Force Team operation, unedited, until resident is in restraints.
5) Close-ups of resident's body during medical exam, focusing on the presence/absence of injuries; staff injuries, if any, described but not shown.
6) Debriefing, including full discussion/analysis/assessment of incident.
c. Use-of-Force Team Technique
When a resident must be forcibly moved and/or restrained during a calculated use of force, staff shall use the Use-of-Force Team technique to prevent or diminish injury to staff and residents and exposure to communicable disease. The technique usually involves five or more trained staff members clothed in protective gear, including helmet with face shield, jumpsuit, stab-resistant vest, gloves, and forearm protectors. Team members enter the resident's area together, with coordinated responsibility for achieving immediate control of the resident.

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1) Staff shall be trained in the Use-of-Force Team technique in sufficient numbers for teams to be quickly convened on all shifts in different locations throughout the facility. To use staff resources most effectively, the facility administrator shall provide Use-of-Force Team technique training for all staff members who could potentially be used in a calculated use-of-force.
2) The Use-of-Force Team technique training shall include the technique and its application, confrontation-avoidance, professionalism, and debriefing.
3) Training shall also address the use of protective clothing and handling of spilled body fluids and blood:
� Use-of-Force Team members and others participating in a calculated use of force shall wear protective gear, with appropriate precautions when entering a cell or area where blood or other body fluids are likely to be present.
� An individual with a skin disease or skin injury shall not participate in a calculated use-of-force action.
4). The shift supervisor or another supervisor on duty:
• Must be on the scene prior to any calculated use of force to direct the operation and continuously monitor staff compliance with policy and procedure;
• Shall not participate except to prevent impending staff injury;
• Shall seek the guidance of qualified health personnel (based on a review of the resident's medical record) to identify physical or mental problems, and, whenever feasible, arrange for a health services professional to be present to observe and immediately treat any injuries;
• Shall exclude from the Use-of-Force Team any staff member involved in the incident precipitating the need for force;
• May expand the Use-of-Force Team to include staff with specific skills.
5). When restraints are necessary, the team shall choose ambulatory or progressive models.
6). The supervisor shall provide a written report to the facility administrator or designee, no later than the end of a tour of duty, when force was used on any resident, or any resident remains in restraints at the end of that shift.
10. Evidence Protection and Sanitation
The supervisor shall inspect areas of blood or other body-fluid spillage after a use-of­ force incident, and unless he or she determines that the spillage must be preserved as evidence, staff or properly trained residents’ shall immediately sanitize those areas, based on medical department guidance on appropriate cleaning solutions and their use. The Residential Standard on Environmental Health and Safety also provides detailed guidance for cleaning areas with blood and other body fluid spills.

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Standard sanitation procedures shall be followed in areas with blood or other body-fluid spillage. Wearing protective gloves, staff and/or residents shall immediately apply disinfectant to and sanitize such surfaces as walls and floors, furniture, etc. Articles of clothing and use-of-force equipment contaminated with body fluids shall likewise be disinfected or destroyed, as needed and appropriate.
11. Maintaining Video Recording Equipment and Videotapes If videotaping equipment is kept in a designated area, staff shall store and maintain it under the same conditions as Class “A” tools. If a designated area lacks appropriate secure space, the equipment must be kept in a secure location elsewhere in the facility.
Since video recording equipment must often be quickly available, each facility administrator shall designate, and incorporate in one or more post orders, responsibility for:
• Maintaining cameras and other video equipment;
• Regularly scheduled and documented testing to ensure all parts, including batteries, are in working order; and
• Keeping back-up supplies on hand (batteries, tapes, lens-cleaners, etc.). Each videotape shall be catalogued and preserved no less than 5 years after its last documented use. In the event of litigation, the facility shall retain the tape until its destruction is authorized by ICE.
The tapes may be catalogued electronically or on 3" x 5" index cards, provided the data can be searched by date and resident name. A log shall document videotape usage.
Use-of-force tapes shall be available for supervisory, Field Office and Headquarters incident reviews and may also be used for training.
Release of use-of-force videotapes to the news media may occur only if authorized by Headquarters, in accordance with ICE/DRO procedures and rules of accountability.
12. Approved Restraint Equipment Deviations from the following list of restraint equipment are prohibited:
• Handcuffs: Stainless steel, 10 oz.;
• Leg Irons: Stainless steel, meet National Institute of Justice standard;
• Martin chain
• Waist or Belly Chain: Case-hardened chains with a minimum breaking strength of approximately 800 pounds;
• Handcuff Cover: Highly effective cases for the security of handcuffs used on high security residents;
• Soft Restraints: Nylon/leather type with soft arm and leg cuffs containing soft belts with key locks;
• Plastic Cuffs: Disposable;

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• Any other ICE/DRO-approved restraint device.
13. Ambulatory and Progressive Restraints
Whenever possible, staff shall apply ambulatory restraints, which are soft and hard equipment that provides freedom of movement sufficient for eating, drinking, and other basic needs without staff assistance or intervention; If ambulatory restraints are insufficient to protect and control a resident, staff may apply progressive restraints, which are more secure or restrictive. The facility administrator shall decide on the appropriate restraint method.
Once a resident has been placed on ambulatory restraints, the medical staff is required to conduct a physical check of the resident once every two hours to assess health status. Facility staff is required to conduct a physical check of the resident once every two hours to assess if the restraints have had a calming effect. If the positive behavioral change has been achieved, a decision to remove the resident or place them in less restrictive restraints shall be made by the facility administrator in consultation with ICE/DRO. If a calming effect has not been achieved, the shift supervisor shall document the reason for continuance of the ambulatory restraints.
The supervisor shall provide a written report to the facility administrator, no later than the end of the tour of duty, when any resident remains in restraints at the end that shift.
14. Four/five-point Restraints
Four/five-point restraints shall not be used in a family residential center
15. Documentation of Use of Force and Application of Restraints Staff shall prepare detailed documentation of all incidents involving the use of force. Staff shall likewise document the use of restraints on a resident who becomes violent or displays signs of imminent violence. A copy of the report shall be placed in the resident's Residential file.
a. Report of Incident
 All facilities shall have an ICE/DRO-approved form to document all uses of force.

Staff shall prepare a "Use of Force" form (sample attached) for each incident involving use of intermediate force weapons, application of progressive restraints (regardless of level of resident cooperation), etc. The report identifies the resident(s), staff, and others involved, and describes the incident. If intermediate force weapons are used, for example, collapsible steel baton or 36-inch straight (riot) baton, the location of strikes must be reported on the Use of Force form. Each staff member shall complete a memorandum for the record, to be attached to the original Use of Force form. The report, accompanied by the medical report(s) must be submitted to the facility administrator by the end of the shift during which the incident occurred.
Within two working days, copies of the report shall be placed in the resident's A-File and sent to ICE/DRO.

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b. Videotapes of Use-of-Force Incidents Staff shall immediately obtain and record with a video camera any use-of-force incident, unless such a delay in bringing the situation under control would constitute a serious hazard to the resident, staff, or others, or would result in a major disturbance or serious property damage.
The facility administrator shall review the videotape within four working days of the incident and shall immediately send ICE/DRO a copy. When an immediate threat to the safety of the resident, other persons, or property, makes a delayed response impracticable, staff shall activate a video camera and start recording the incident as quickly as possible. After regaining control of the situation, staff shall follow the procedures applicable to calculated use-of-force incidents.
c. Recordkeeping All facilities shall have a designated individual to maintain all uses of force documentation.
16. After-Action Review of Use of Force and Application of Restraints
a. Written Procedures Required All facilities shall have ICE/DRO-approved written procedures for After-Action Review of use-of-force incidents (immediate or calculated) and applications of restraints. The primary purpose of an After-Action Review is to assess the reasonableness of the actions taken and whether the force used was proportional to the apparent threat.
b. Composition of an After-Action Review Team The facility administrator, the assistant facility administrator, ICE and the Health Services Administrator shall conduct the After-Action Review. This four-member After-Action Review Team shall convene on the workday after the incident. The After-Action Review Team shall gather relevant information, determine whether policy was followed, and complete an After-Action Report to record the nature of their review and findings. The After-Action Report is due within two working days of the resident’s removal from restraints.
c. Review of Video Tape The After-Action Review Team shall also review the videotape for compliance with all provisions of this standard, specifically including, among other things:
Strict compliance with the Use-of-Force Team Technique, professionalism of shift supervisor, every team member wearing prescribed protective gear, and action taken by the team.
Absence of towels, tape, surgical masks, hosiery, and other unauthorized items, equipment or devices;
Team members applying only as much force as was reasonably necessary to subdue the resident. This includes responding appropriately to a subdued or cooperative resident, for example, one who discontinues his/her violent behavior,

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Shift supervisor clearly in charge of team and situation. This includes intervening at first sign of one or more team members applying more force than necessary
Resident receiving and rejecting opportunity to submit to restraints voluntarily before team enters the cell/area. If he or she submits, team action should not be necessary;
Team members applying restraints exert no more pressure than necessary to the resident's thorax (chest and back), throat, head and extremities;
Amount of time needed to restrain the resident. If team requires more than five minutes, for example, with a resident who is not resisting, this could indicate training problems/ inadequacies;
Protective gear worn by team members inside cell/area, until end of operation;
Continuous photographic coverage from the time the camera starts recording until the incident is over. The review team shall investigate any breaks or sequences apparently missing from the videotape;
A medical professional promptly examining the resident, with the findings reported on tape;
Team member(s) addressing remarks that are derogatory, demeaning, taunting, or otherwise inappropriate or inflammatory, to any resident or person(s) outside the room or area.
The after action report shall include orienting all members of the team as to what occurred, determining whether a pattern of behavior of the resident or pattern of response in the staff could be identified, identifying alternatives for the resident, and negotiating with the resident as to future conduct.
A determination regarding transfer or return of the resident to housing shall be made and a recommendation forwarded to facility administrator and ICE.
If the incident review reveals a violation of ICE/DRO policy or procedures, the After-Action Review Team shall determine whether the situation called for improvised action and, if so, whether the action taken was reasonable and appropriate.
The After-Action Review Team shall complete and submit its After-Action Review Report to the facility administrator within two working days of the resident’s release from restraints. The facility administrator shall review and sign the report, acknowledging its finding that the use of force was appropriate or inappropriate. The facility administrator shall agree or disagree with the review team’s recommendations. When the facility administrator does not concur, he or she shall list any reasons for non-concurrence and shall make a determination as to cause and remedies,

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d. Report of Findings to ICE/DRO Within two working days of the After-Action Review Team's determination, the facility administrator shall report the finding of appropriate or inappropriate use of force the outcome of the After-Action Review, and whether in the Facility Administrator’s opinion the use of force was appropriate or inappropriate. The report shall be made via memorandum, to ICE/DRO with appropriate attachments..
e. Further Investigation The review team shall make recommendations as to whether the incident requires further investigation and whether the incident should be referred to the Office of Professional Responsibility, the Department of Homeland Security Office of the Inspector General, or the Federal Bureau of Investigation.
Standard Approved:

______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

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 ICE/DRO RESIDENTIAL STANDARD
VISITATION

I. PURPOSE AND SCOPE. Residents will be able to maintain ties through visitation with their families, the community, legal representatives, and consular officials, within the constraints of safety and good order. Conjugal visits for ICE/DRO residents are prohibited.
II. EXPECTED OUTCOMES. The expected outcomes of this Residential Standard are as follows:
1. Residents will be able to receive contact visits from their families, associates, legal representatives, consular officials, and others in the community.
2. Residents will be advised of visiting privileges and procedures as part of the facility’s admission and orientation program in a language he or she can understand.
3. Information about visiting policies and procedures will be readily available to the public.
4. The number of visitors a resident may receive and the length of visits will be limited only by reasonable constraints of space, scheduling, staff availability, safety, security, and good order. The minimum duration for a visit shall be 60 minutes.
5. Visitors will be required to adequately identify themselves and register in order to be admitted into a facility; and safety, security, and good order will be maintained.
6. A background check will be conducted on all new volunteers prior to their being approved to provide services to residents.
7. Each new volunteer will complete an appropriate, documented orientation program, and sign an acknowledgement of his or her understanding of the applicable rules and procedures and an agreement to comply with them.
8. Where required, residents have regular access to translation services and/or are provided information in a language that they understand.
9. The standard complies with federal laws and with DHS regulations regarding residents with special needs.
III. DIRECTIVES AFFECTED. None
IV. REFERENCES The First Edition National Residential Standards were written using a variety of methodologies including previous and current practices, review and comment from various subject matter experts, review and comment from various government and non­ government organizations, and a review of current state codes in Pennsylvania and Texas. Each standard is written in a manner that affords each resident admission and continuous housing to a family residential facility in a dignified and respectful manner.

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There are no specific codes, certifications, or accreditations that deal specifically with unique management requirements of families awaiting the outcome of their immigration proceeding in a non-secure custodial environment.
American Correctional Association 4th Edition Standards for Adult Local Detention Facilities: 4 -ALDF: 5B-01, 5B-02, 5B-03, 5B-04, 2A-21, 2A-27, 2A-61, 6A-02, 6A-06,7B­ 03, 7C-02, 7F-05, 7F-06.
V. EXPECTED PRACTICES
1. Overview
Facilities that house ICE/DRO residents provide visiting facilities and procedures for residents to maintain communication with persons in the community. Safety, security, and good order are always primary considerations in a residential facility. Visitors must be properly identified and attired, and are subject to search upon entering the facility and at any other time while in the facility. Except as otherwise permitted herein, visitors may not give anything directly to a resident, although it may be permissible to leave certain items and funds for a resident. All visits in residential facilities shall be contact visits.
Any violation of the visitation rules may result in corrective action against the resident. Introduction of contraband or other criminal violations may lead to criminal prosecution of a visitor and/or resident. Violations may also be grounds for visitor’s to be permanently barred from eligibility to visit residents.
As detailed later in this Residential Standard, the category of visitation requested will determine conditions of visitation, including visitors permitted, hours of visitation, the approval process, and the location in the facility for the visit. Visits are categorized as one of the following:
a. Social Visitation. Family, relatives, friends and associates. Children may be subject to special restrictions. (Paragraph 9)
b. Legal Visitation. Attorneys, other legal representatives, and legal assistants. (Paragraph 10)
c. Consultation Visitation. For residents subject to Expedited Removal. (Paragraph 11)
d. Consular Visitation. Similar to legal visitation but with consular officials who have U.S. Department of State identification. (Paragraph 12)
e. Non-Governmental Organization Visitation and Tours. (Paragraph 13)
f. Community Service Organization Visitation. Representatives of civic, religious, cultural groups, etc. (Paragraph 14)
g. Other Special Visitation. (Paragraph 15)
2. General Each facility shall establish written visiting procedures, including a schedule and hours of visitation.

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All visits shall be contact visits within a residential center. A facility administrator may temporarily restrict visiting when necessary to ensure the safety and good order of the facility.
3. Notification of Visiting Rules and Hours Each facility shall:
a. Provide written notification of visitation rules and hours in the resident handbook (or equivalent) given each resident upon admission.
b. Post the rules and hours in common areas and each housing unit, where they can easily be seen by residents.
c. Make the schedule and procedures available to the public, both in written form and telephonically. A live voice or recording shall provide telephone callers the rules and hours for all categories of visitation.
d. Post visiting rules and hours in the visitor waiting area.
4. Visitor Logs
 Each facility shall maintain a log of all general visitors, and a separate log of legal visitors, 
 as described below. 
 Facility staff shall record the following information in the general visitor’s log:

a. The name and alien registration number (A-number) of the resident visited b. The visitor’s name and address c. The visitor’s immigration status d. The visitor’s relationship to the resident e. The date and time in and time out See 10 n for the procedures for the legal visitor’s log.
5. Incoming Property and Funds for Residents Brought by Visitors In accordance with the Residential Standard on “Funds and Personal Property,” each facility shall have written procedures regarding incoming property and money for residents. The facility administrator may allow a visitor to leave cash or a money order with a designated staff member for deposit in a resident's account, and shall provide the visitor with a receipt for money and property left at the facility. Under no circumstances may visitors give property or money directly to a resident. The shift supervisor must approve all items that visitors bring for residents. The visiting room staff may not accept articles or gifts of any kind for a resident, unless the facility administrator and/or shift supervisor has approved them. Residents may receive only minimal amounts of personal property, including:
a. Small religious items

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b. Religious and secular reading material (soft cover)
c. Legal documents and papers
d. Pictures (10 maximum), measuring 5" x 7" or smaller
e. Prescription glasses
f. Dentures
g. Personal address book or pages
h. Correspondence
i. Wedding rings
j. Other items approved by the facility administrator
6. Consequences of Violation of Visitation and Contraband Rules Any violation of the visitation rules may result in corrective action against the resident, which may include the loss of visitation privileges. Visiting privileges can be revoked only through the formal resident review process; however, the facility administrator has the authority to restrict or suspend a resident’s ordinary visiting privileges temporarily when there is reasonable suspicion that the resident has acted in a way that threatens the safety, security, or good order of the facility. Ordinarily, the restriction or suspension should be limited to the time required to investigate and initiate the corrective action.
A visitor’s failure to abide by visiting rules may result in immediate cancellation or termination of a visit and/or suspension of future visitation privileges.
Introduction of contraband or other criminal violations may lead to criminal prosecution of a 
 visitor and/or resident.

7. Dress Codes for Visitors
 The facility shall establish and maintain a dress code for visitors over the age of five (5)
 years. A written copy shall be available to the public upon request.
 The minimum dress code is as follows.

a. Female Visitors 1) Shorts shall cover customarily covered areas of the anatomy, including the buttocks and crotch area, both when standing and sitting. Shorts no higher than mid-thigh comply. “Short shorts,” jogging shorts, cut-offs, and other obviously inappropriate short garments are prohibited.
2) Skirts and dresses shall extend no higher than mid-thigh when the wearer is seated.
3) Slits in skirts and dresses shall rise no higher than mid-thigh when the wearer is seated.
4) Sheer (see-through) clothing is prohibited.
5) The top of shirts and dresses (excluding straps) shall be no lower than the

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underarm in the front and back. Bare midriffs and strapless tops, tube tops, and swimsuits are prohibited.
6) Shoes shall be worn at all times.
7) Gang “colors” and other gang displays are prohibited.
b. Male Visitors 1) Shorts shall cover customarily covered areas of the anatomy, including the buttocks and crotch area, both when standing and sitting. Shorts no higher than mid-thigh comply. “Short shorts,” jogging shorts, cut-offs, and other obviously inappropriate short garments are prohibited.
2) Shirts shall be worn at all times. Muscle shirts, bare midriff shirts and sleeveless shirts are prohibited.
3) Shoes shall be worn at all times.
4) Gang “colors” and other gang displays are prohibited.
8. Visiting Room Conditions The facility’s visiting areas shall be appropriately furnished and arranged, and as comfortable and pleasant as practicable. Also, as practicable, space should be provided outside of the immediate visiting areas for the secure storage of visitors’ coats, handbags, and other personal items.
The facility administrator shall provide adequate supervision of all visiting areas, and the visiting area staff shall ensure that all visits are conducted in a quiet, orderly, and dignified manner.
9. Visits by Family and Friends
a. Hours and Time Limits Each facility shall establish a daily visiting schedule based on the resident population and the demand for visits. Visits shall be permitted daily during set hours. The facility may authorize special visits for family visitors unable to visit during regular hours. Where staff resources permit, the facility may establish evening visiting hours.
To accommodate the volume of visitors within the limits of space and staff resources, and to ensure safety, the facility administrator may restrict visits. The facility’s written rules shall specify time limits for visits -- 60 minutes minimum, under normal conditions. ICE/DRO encourages more generous limits when possible, especially for family members traveling significant distances. In unforeseen circumstances, such as the number of visitors exceeding visiting room capacity, the facility administrator may modify visiting periods.

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b. Persons Allowed to Visit:
Family, relatives, friends and associates unless they would pose a threat to the security and good order of the institution
c. Visitor Identification and Search
Staff shall verify each visitor's identity before admitting him or her to the facility. No adult visitor may be admitted without verified photo identification, such as a driver's license or other photo identification card. Staff shall contact the supervisor on duty when a visitor’s identity is in question. At the supervisor's discretion, a minor (under the age of 18) without positive identification may be admitted if the accompanying adult visitor vouches for his or her identity. Children must remain under the direct supervision of an adult visitor, so not to disturb other visitors; and excessively disruptive conduct by children may result in termination of the visit.
The ICE facility administrator may establish a procedure for limited random criminal background and warrant checks, for the purpose of ensuring facility safety and security.
Staff shall escort visitors to the visiting room only after completing identification and inspection, as provided in the facility's written procedures. All visitors are subject to a personal search, which may include a pat (“pat-down”) search as well as a visual inspection of purses, briefcases, packages, and other containers. No person who refuses to be searched may be permitted to visit.
In each facility, written procedures shall provide for the prevention, cancellation, or termination of any visit that appears to pose a threat to safety, security, or good order. Staff who believe a situation poses such a threat shall alert the shift supervisor or equivalent, who may prevent, cancel, or terminate the visit.
Inspecting staff may ask the visitor to open a container for visual inspection of its contents. If warranted, staff may ask the visitor to remove the contents and place them on a table; however, the staff may not place his or her hands inside the container. Facilities shall provide and promote visitors' use of lockers or a secure area provided for safekeeping of personal belongings during visits.
Only a staff member with the rank of supervisor or above may deny or cancel a visit. In these cases, the staff member shall document his or her action in a memorandum sent through official channels to the facility administrator. The visiting room staff, with concurrence from the shift supervisor, may terminate visits involving inappropriate behavior.
Facilities shall not require approved visitor lists from ICE/DRO residents.
d. Contact Visits
Written procedures shall detail the limits and conditions of contact visits in facilities permitting them. Ordinarily, within the bounds of propriety, handshaking, embracing, and kissing are permitted during the visit; however, staff may limit physical contact to minimize opportunities for contraband introduction and otherwise maintain the orderly operation of the visiting area. Liberal application of this standard is encouraged,

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For further information see the Residential Standard on “Searches of Residents.”
10.Visits by Legal Representatives and Legal Assistants
a. General In visits referred to as "legal visitation," each resident may meet privately with current or prospective legal representatives and their legal assistants.
b. Hours Each facility shall permit legal visitation seven days a week, including holidays, for a minimum of eight hours per day on regular business days, and a minimum of four hours per day on weekends and holidays.
The facility shall provide notification of the rules and hours for legal visitation, as specified above, and prominently post this information in the waiting areas and visiting areas for general and legal visitors, in the recreation area and in the housing units.
On regular business days, legal visitations may proceed through a scheduled meal period, and the resident shall receive a meal tray after the visit.
c. Persons Allowed to Visit Subject to the restrictions stated below, individuals in the following categories may visit residents to discuss legal matters:
1). Attorneys and Other Legal Representatives An attorney is any person who is a member in good standing of the bar of the highest court of any state, possession, territory, commonwealth, or the District of Columbia, and is not under an order of any court suspending, enjoining, restraining, disbarring, or otherwise restricting him or her in the practice of law.
A legal representative is an attorney or other person representing another in a matter of law, including law students, law graduates not yet admitted to the bar, “reputable individuals” (8 CFR 292.1), accredited representatives, accredited officials, and attorneys from other countries. See 8 CFR 292.1 for more detailed definitions of these terms.
2). Legal Assistants Upon presentation of a letter of authorization from the legal representative under whose supervision he or she is working, an unaccompanied legal assistant may meet with a resident during legal visitation hours. The letter shall state that the named legal assistant is working on behalf of the supervising legal representative for purposes of meeting with the ICE/DRO resident(s).
3). Interpreters The facility shall permit interpreters to accompany legal representatives and legal assistants on legal visits, subject to Visitor Identification and Search procedures detailed above.

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4). Messengers
The facility shall permit messengers who are not legal representatives or legal assistants to deliver documents to and from the facility, but not to visit residents.
d. Identification of Legal Representatives and Assistants
Prior to each visit, all legal representatives and assistants shall be required to provide identification.
State bar cards are the preferred forms of identification, and attorneys who are members of state bars that do not provide bar cards are required to present other documentation that verifies bar membership. If such documentation is not readily available to attorneys licensed in a particular state, the person shall be required to indicate where he or she is licensed as an attorney and how that fact may be verified.
Legal representative and legal assistants may not be asked to state the legal subject matter of the meeting.
Legal representatives and assistants are subject to a search at any time of his or her person and belongings for the purpose of ascertaining the presence of contraband.
e. Identification of Resident To Be Visited
The facility may not require legal representatives and assistants to submit a resident's A-number as a condition of visiting, and shall make a good-faith effort to locate a resident if provided with any other information about the resident.
f. Call-Ahead Inquiries
Each facility shall establish a written procedure to allow legal representatives and assistants to telephone the facility in advance of a visit, to determine whether a particular individual is detained there. The request must be made to the on-site ICE/DRO staff or, where there is no resident staff, to the ICE/DRO office with jurisdiction over the facility.
If the person seeking the information states that he or she already represents the resident, ICE/DRO staff shall confirm that the caller’s name corresponds with the name on a Form G-28, Notice of Appearance, on file. To protect confidentiality, if a Form G­ 28 is not yet on file, ICE/DRO staff must be satisfied that the person making the inquiry is, in fact, a legal representative or legal assistant who is considering representing the subject resident in legal proceedings.
When unfamiliar with the person making the inquiry, ICE/DRO staff should request documentary evidence, such as a letter of request on identifying letterhead, and shall accept such evidence by fax. Alternatively, at the request of the caller, staff shall seek the consent of the resident for the disclosure of residential information. In either case, ICE/DRO staff shall respond to the caller as soon as possible, but in no case more than 24 hours after the call was made.
Notwithstanding the general policy set forth in the previous paragraph, the IC E/DRO retains the discretion to withhold this telephonic information on a case-by-case basis if it has clear and compelling facts to support the belief that disclosure would endanger national security, facility security, or the resident. In such circumstances, ICE/DRO staff

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may request further information to allay the security concerns raised and may seek the resident's consent to the disclosure.
g. Pre-Representation Meetings During the regular hours for legal visitation, the facility shall permit residents to meet with prospective legal representatives or legal assistants. The facility shall document such “pre-representation meetings” in the logbook for legal visitation.
At the "pre-representation" stage no attorney-client relationship exists. Therefore, to meet with a resident, legal service providers need not complete a Form G-28 to state that they are legal representatives of the resident).
h. Form G-28 Required for Attorney-Client Meetings Attorneys representing residents on legal matters unrelated to immigration are not required to complete a Form G-28.
Once an attorney-client relationship has been established, the legal representative shall complete and submit a Form G-28, which shall be available in the legal visitation reception area. Staff shall collect completed forms and forward them to ICE/DRO.
Each completed Form G-28 becomes a permanent part of the resident's A -file, and it remains valid until ICE/DRO receives written notice of the relationship's termination from the resident or the legal representative. Staff shall place such notices in the A -file on top of the Form G-28.
i. Private Meeting Room Visits between legal representatives or assistants and a resident are confidential, and shall not be subject to auditory supervision. Private consultation rooms shall be available for such meetings.
Staff shall not be present in the confidential area during the meeting unless the legal representative or assistant requests the presence of staff; however, staff may observe such meetings visually through a window or camera to the extent necessary to maintain security, as long as staff cannot overhear the conversation.
When a situation arises where private conference rooms are in use and the attorney wishes to meet in a regular or alternate visiting room, the request should be accommodated to the extent practicable. Such meetings should be afforded the greatest degree of privacy possible under the circumstances.
Due to the presence of children and the requirement to provide for attorney-client visitation, visitation areas shall be constructed in a manner that allows for parents to view the activities of their minor children within the visitation area. When necessary each facility is required to provide a means where a parent can talk privately out of the hearing range of the children.
j. Materials Provided to Residents by Legal Representatives The facility's written legal visitation procedures must provide for the exchange of documents between a resident and the legal representative or assistant.
Documents or other written material provided to a resident during a visit with a legal

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representative shall be inspected but not read. Residents are entitled to retain legal material received for their personal use. Quantities of blank forms or self-help legal material in excess of those required for personal use may be held for the resident with his or her stored property. The resident shall be permitted access to these documents, through the established avenues of communication.
k. Resident Search Each facility shall have written procedures to govern resident searches. Each resident shall receive a copy of these search procedures in the resident handbook (or equivalent) given to each resident upon admission.
l. Group Legal Meetings Upon the request of a legal representative or assistant, the facility administrator may permit a confidential meeting (with no staff present) involving the requester and two or more residents. This may be for various purposes: pre-representational, representational, removal-related, etc. The facility should grant such requests to the greatest extent practicable; that is, if it has the physical capacity and the meeting would not unduly interfere with security and good order. Each facility administrator shall limit resident attendance according to the practical concerns of the facility, or the security concerns associated with the meeting in question.
See also the Residential Standard on “Legal Rights Group Presentations.”

m. Pro Bono List and Resident Sign-Up

ICE/DRO shall provide each facility the official list of local pro bono legal organizations, 
 which is updated quarterly by the local DOJ Executive Office for Immigration Review. 
 The facility shall promptly and prominently post the current list in resident housing units and other appropriate areas.
Any legal organization or individual on the current list may write the facility administrator to request the posting and/or general circulation of a sign-up sheet. The facility administrator shall then notify residents of the sign-up sheet's availability and, according to established procedures, ensure coordination with the pro bono organization.
n. Legal Visitation Log Staff shall maintain a separate log to record all legal visitors, including those denied access to the resident. The log shall include the reason(s) for denying access.
Log entries shall include: the date; time of arrival; visitor's name; visitor's address; supervising attorney's name (if applicable); resident's name and A -number; purpose of visit (e.g., pre-representation, representational, Expedited Removal consultation); time visit began; time visit ended. Staff shall also record any important comments about the visit.
o. Availability of Legal Visitation Policy The facility's written legal visitation policy shall be available upon request and posted in

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all common areas and housing units. The site-specific policy shall detail the visitation hours, procedures and standards, including, but not limited to: telephone inquiries; dress code; legal assistants working under the supervision of an attorney; prerepresentational meetings; Form G-28 requirements; identification and search of legal representatives; identification and search of visitors; materials provided to residents by legal representatives; confidential group legal meetings; and resident sign-up.
11.Consultation Visits for Residents Subject to Expedited Removal
a. General
Residents subject to Expedited Removal who have been referred to Asylum Officers are entitled by statute and regulation to consult with persons of the resident's choosing, both prior to the interview, and while the Asylum Staff's decision is under review. Such consultation visitation is for the purpose of discussing immigration matters, not for social visits.
• The consultation visitation period begins before any interview with Asylum staff, and continues while the Asylum staff's determination undergoes review by the Supervisory Asylum Staff or Immigration Judge.
• The consultation visitation period ends when a Notice to Appear is issued and the resident is placed in removal proceedings before an immigration judge; however, the resident retains legal and other visitation privileges, in accordance with this Residential Standard.
• Consultation visitation may neither incur Government expense nor unduly delay the removal process.
b. Method of Consultation Because expedited removal procedures occur within short time frames, each facility shall develop procedures that liberally allow an opportunity for consultation visitation, in order to ensure compliance with statutory and regulatory requirements and to prevent delay in the Expedited Removal process. Given the time constraints, consultation by mail will generally not prove viable.
The facility shall facilitate consultation visitation by telephone and face-to–face, and staff shall be sensitive to individual circumstances when resolving consultation-related issues.
Consultation visitation shall be allowed during legal visitation hours and during general visitation hours; however, confidentiality shall be ensured only during legal visitation hours. If necessary to meet demand, the facility administrator shall increase the facility’s consultation visiting hours.
c. Persons Allowed To Visit for Consultation Purposes
Residents subject to Expedited Removal may consult whomever they choose, in person or by phone, at any time, during the first 48 hours following notification of Expedited Removal. Consultants might include, but are not limited to, attorneys and other legal representatives, prospective legal representatives, legal assistants,

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members of non-governmental organizations (NGOs), friends, and family members.
Consultation visitors are subject to the same identification and security screening procedures as general visitors. If documented security concerns preclude an in-person visit with an individual, the facility administrator shall arrange for consultation by telephone. If security reasons also preclude consultation by telephone, the facility administrator shall consult the respective Chief Counsel.
d. Privacy Consultation visits, in person or by telephone, receive the same privacy as communications between legal representatives and residents.
e. Admittance for Asylum Staff Interview Residents subject to Expedited Removal may bring and consult advisors during the Asylum staff interview. The presence of persons to consult is also allowed during the immigration judge's review of a negative credible fear determination, at the judge's discretion.
f. Log
 Staff shall record consultation visits in the legal visitation log.

The purpose of the visit shall be noted as "ER consultation."

The facility shall create a separate record of the visit that is placed in the resident's A ­ file, or place a copy of the visitation log page in the resident's A-file.
g. Form G-28 for Consultation Visits Visitors are not required to file a Form G-28 to participate in a consultation visit or provide consultation during an Asylum staff interview or immigration judge’s review of a negative credible fear determination. This applies even if the visitor is an attorney or legal representative.
h. Other Considerations for Consultation Visits For other considerations in regard to consultation visits, the above procedures for "Visits by Legal Representatives and Legal Assistants" apply. Specifically, see policies for Group Legal Meetings, Call-Ahead Inquiries, Searches, Identification of Resident to be Visited, Materials Provided to Residents by Legal Representatives,Pro Bono List and Resident Sign-Up, and Availability of Legal Visitation Policy.
12.Consular Protection1 According to international agreements, residents must be advised of their right to consular access, and the ICE/DRO must facilitate this access. Therefore, it is ICE/DRO policy and practice that all detained individuals shall be provided with notice of their right to contact their consular representatives and to receive visits from their consulate’s staff during intake

1 For additional guidance, ICE officers should consult ICE Office of Investigations Directive 73001.1 “Consular Notification of Detained or Arrested Foreign Nationals.”

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orientation and in the resident handbook.
The facility administrator shall ensure that all residents are notified of and afforded the right to contact and receive visits from their consular staffs. The same hours, privacy, and conditions that govern legal visitation guide consular visitation. Consular visits may be permitted at additional times with the facility administrator's prior authorization.
To visit, consular staffs must present U.S. Department of State identification.
13.Non-Government Organization Visitation with Residents and Tours of Facilities All requests by NGOs and other organizations to send representatives to visit residents must be submitted in writing to JFRMU. The written request must state the exact reason for the visit and issues to be discussed.
All efforts shall be made to accommodate NGO requests for facility tours in a timely manner. All tours shall be limited to a reasonable number of participants, who must submit in a timely manner the personal information needed for their background checks. Tours shall be scheduled at the convenience of the residential facility, so as not to disrupt normal operations and to be in compliance with facility security requirements.
Written requests from domestic or international organizations associated with residential issues shall be submitted to JFRMU.
14.Visits from Representatives of Community Service Organizations The facility administrator, in consultation with ICE/DRO, may approve visits to one or more residents by individuals or groups representing community service organizations, including civic, religious, cultural, therapeutic, and other groups. Volunteers may provide a special religious, educational, therapeutic, or recreational activity.
The facility administrator’s approval shall take into account such factors as:
a. Safety and security considerations
b. Availability of personnel to supervise the activity
c. Sufficient advance notification to the facility administrator
Residents’ immediate family and other relatives, friends, and associates, as detailed above under Persons Allowed to Visit, may not serve as volunteers.
To assist the facility administrator's decision, facility staff (such as chaplains and recreation specialists) shall verify the organization's bona fide interests and qualifications for this type of service.
Groups must:
a. Provide the facility with advance notification of the names, dates of birth, and Social Security numbers of the group members who will be visiting.
All volunteers, regardless of title or position, are subject to a minimal background check that includes, but is not limited to, a criminal history check, verification of identity, occupation, and credentials for the type of activity involved.

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b. Provide identification for the individual members of the group upon arrival at the facility.
c. Comply with visitation rules.
Each approved volunteer shall receive an appropriate orientation to the facility and acknowledge his or her understanding of rules and procedures by signing an agreement to comply, particularly in regard to permissible behavior and relationships with residents. The orientation and signed agreement shall:
• Specify lines of authority, responsibility, and accountability for volunteers. • Prohibit volunteers from:
� Using their official positions to secure privileges for themselves or others
� Engaging in activities that constitute a conflict of interest � Accepting any gift from or engaging in personal business
transactions with a resident or a resident’s immediate family
All volunteers shall be held accountable for compliance with the rules and procedures.
d. Read and sign a waiver of liability from each group member that releases ICE/DRO of all responsibility in case of injury during the visit, before being admitted to any secure portion of the facility or location where residents are present.
15. Other Special Visits
a. Law Enforcement Officials' Visits Facility visitation procedures shall cover law enforcement officials requesting interviews with residents and requires notification to the Field Office Director, Chief Counsel, and JFRMU.
b. Visitation by Former Residents or Aliens in Proceedings Former ICE/DRO-residents, individuals with criminal records, and individuals in deportation proceedings shall not be automatically excluded from visiting. Individuals in any of these categories must so notify the facility administrator before registering for visitation privileges. To determine visitation privileges, the ICE facility administrator shall weigh the nature and extent of an individual's criminal record and/or prior conduct against the benefits of visitation.
c. Visiting Rules Regarding Animals Each facility shall establish and disseminate a policy and implementing procedures governing under what circumstances, if any, animals may accompany human visitors onto or into facility property.
Standard Approved:

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______________________________
John P. Torres Director Office of Detention and Removal

_______________ Date

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 DHS Plan To Improve Immigration Detention And Close Hutto Facility A Good First Step
August 6, 2009
(Updated 8/11/2009)
Enforceable Standards And Community-Based Alternatives To Detention Still Needed, Says ACLU
FOR IMMEDIATE RELEASE CONTACT: (212) 549-2666; media@aclu.org
NEW YORK ± Department of Homeland Security (DHS) officials today announced intentions to improve the nation's immigration detention system, including ending family detention at the T. Don Hutto family detention center in Taylor, TX.
The government's announcement, however, failed to address a number of critical holes in the current system, including a lack of enforceable basic conditions standards, due process to ensure people are not unnecessarily detained, especially for prolonged periods of time, and alternatives to detention.
"Ending family detention at Hutto is extremely welcome and long overdue, and the American Civil Liberties Union looks forward to working with DHS to revamp the broken immigration detention system," said Joanne Lin, Legislative Counsel with the ACLU. "However, in order to effectuate meaningful reform of the immigration detention system, DHS must issue legally binding and enforceable detention standards, which DHS has refused to do for years, and must provide basic due process to ensure that individuals ± including U.S. citizens ± DUHQRWEHLQJLQDSSURSULDWHO\ORFNHGXSRIWHQIRUSURORQJHGSHULRGVRIWLPH
The ACLU has called for the overhaul of the massive immigration detention system, which has produced over 90 detainee deaths since 2003. DHS locks up in prisons and jails about 32,000 civil immigration detainees each day who are pursuing their immigration cases in the courts. Across the country, treatment of immigration detainees has been poor and inhumane, with many being denied critical medical care. Since DHS has not acted, Congress must now pass the "Safe Treatment, Avoiding Needless Deaths, and Abuse Reduction in the Detention System Act," which would aim to prevent deaths of immigration detainees by requiring DHS to issue detention regulations that are legally binding and enforceable.
According to today's announcement, plans are in the works to consolidate many detainees in facilities with conditions that reflect their status as noncriminals, establish more centralized authority over the system and create more direct oversight of detention centers.
The government will also stop sending families to Hutto, a former state prison that was the focus of ACLU lawsuits filed in 2007 on behalf of 26 immigrant children and which charged that the children were being illegally imprisoned in inhumane conditions while their parents awaited immigration decisions.
A settlement agreement which required Immigration and Customs Enforcement (ICE) to make a number of significant improvements to the conditions inside the facility and subjected ICE to external oversight is set to expire on August 29. ACLU attorneys are in discussions with government lawyers to extend the agreement until the last family has been released from Hutto, which is expected to be no later than the end of the year.
"No young child should ever be forced to spend time in an adult prison," said Vanita Gupta, staff attorney with the ACLU Racial Justice Program. "We commend the government for closing Hutto as an important first step toward ensuring the implementation of more humane detention policies. The problems that have plagued Hutto demonstrate the necessity of meaningful reform."
Attorneys involved in the Hutto litigation include Gupta of the ACLU's Racial Justice Program; Judy Rabinovitz of the ACLU's Immigrants' Rights Project; Lisa Graybill of the ACLU Foundation of Texas; Sean Gorman for Dewey & LeBoeuf LLP; and Barbara Hines of the University of Texas School of Law Immigration Clinic.
Additional information about the ACLU's litigation challenging the conditions and illegal imprisonment of children at Hutto is available online at: www.aclu.org/hutto
Published on American Civil Liberties Union (http://www.aclu.org) Source URL: http://www.aclu.org/immigrants-rights/dhs-plan-improve-immigration-detention-and-close-hutto-facility-good-first-step

http://www.aclu.org/print/immigrants-rights/dhs-plan-improve-immigration-detention-and-close-hutto-facility-good-first-step

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