Should Members of Congress be Able to Enter Detention Facilities Without Providing Notice Beforehand? (H.R. 3868)

What is H.R. 3868?

(Updated September 3, 2019)

This bill — the Help Oversee, Manage, and Evaluate Safe Treatment and Ensure Access without Delay (HOMESTEAD) Act of 2019 — would require that any member of Congress can enter any detention facility for the purpose of conducting oversight without providing notice of intent beforehand. It would also mandate that a detention facility’s head may not make any temporary modification to the facility in order to change what a member of Congress would observe during their visit so that the facility appears different from its day-to-day condition. Currently, the law requires 48-hour notice in advance of official lawmaker visits to government-run and for-profit detention facilities run by contractors. 

For the purposes of this bill, “detention facility” means any facility used to detain or otherwise house unauthorized migrants which is operated by or for the Dept. of Homeland Security (DHS) or the Dept. of Health and Human Services (DHS) or private contractors for either department. 

Argument in favor

Congressional oversight of immigrant detention centers without advance notice is needed to ensure that they take adequate care of the detainees in their custody. This is especially important given the allegations of poor conditions and inhumane treatment of detainees at these facilities, and that many detainees are in poor health after an arduous journey across the border.

Argument opposed

There are already multiple existing oversight processes for immigrant detention centers through ICE’s Office of Detention Oversight; a private company, Nakamoto Group; and the general public, through a process called “stakeholder procedures.” Plus, current law already gives lawmakers the ability to drop in to visit detention centers for children, who are the most vulnerable population in detention facilities.

Impact

Immigrant detention center detainees; immigrant detention centers; Members of Congress; and Congressional oversight of immigrant detention centers.

Cost of H.R. 3868

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Debbie Wasserman Schultz (D-FL) introduced this bill to prohibit the Trump administration from requiring that members of Congress provide advance notice before entering detention facilities and allow Congresspeople to conduct “robust, unfiltered and unfettered” oversight of immigration detention centers: 

“This Administration has proven it cannot be trusted to protect vulnerable people who have made a desperate journey to our country to escape violence and oppression. Congress must assert its constitutional authority to provide vigorous oversight of these facilities without giving administration officials days to stage-manage who and what visitors can see. If Congress can show up at these detention centers at any time, the Administration will not be able to hide the horrors some of these children endure. Members of Congress must be able to see what daily life is truly like at these facilities, which can only be achieved through unannounced visits.” 

In a separate statement, Rep. Wasserman Schultz expounded upon the need for unannounced visits to exercise Congress’ oversight authority: 

“Advance warning of our visits can lead to a skewed impression of the actual conditions inside these facilities. Congress must be able to exercise its constitutional oversight authority and ensure that all migrants coming here are treated with dignity and humanity.”

The Trump administration says it’s ensuring that workers are doing their best to deal with the ongoing migrant crisis, and President Trump has called for increased funding to help detain migrants. Simultaneously, Trump has called reports about conditions in federal detention centers “fake” and accused the media of fabricating its accounts. In a July 14, 2019 tweet, he tweeted: 

“Friday’s tour showed vividly, to politicians and the media, how well run and clean the children’s detention centers are. Great reviews! Failing @nytimes story was FAKE! The adult single men areas were clean but crowded - also loaded up with a big percentage of criminals......”

After visiting a border patrol station in McAllen, Texas in mid-July 2019, Vice President Mike Pence said he was moved to see “compassionate care for families that have been swept up in this wave of illegal immigration coming to our southern border.” However, during the same visit, a patrol agent told reporters that detained men were given deodorant, but many hadn’t showered for 10 or 20 days because the facility previously didn’t have showers. One reporter, the Washington Post’s White House correspondent Josh Dawsey, wrote in his press pool report: 

“After negotiating with the VP’s office, pool was taken into an outdoor portal at the McAllen Border Station around 5 pm, where almost 400 men were in caged fences with no cots. The stench was horrendous. The cages were so crowded that it would have been impossible for all of the men to lie on the concrete. There were 384 single men in the portal who allegedly crossed the border illegally. There were no mats or pillows — some of the men were sleeping on concrete. When the men saw the press arrive, they began shouting and wanted to tell us they’d been in there 40 days or longer. The men said they were hungry and wanted to brush their teeth. It was sweltering hot. Agents were guarding the cages wearing face masks. Water was available outside the fences, and agents said the men could leave and get water when the press wasn’t there. Most of the men did not speak English and looked dirty.”

This bill has eight Democratic cosponsors. Before introducing this bill, Rep. Wasserman Schultz tried to include language prohibiting blocking members of Congress from entering detention facilities in a federal funds package. 

Of Note: Sen. Wasserman Schultz has been denied entry to the DHS influx facility for unaccompanied children, also referred to as Homestead, twice. On two other occasions, she was allowed entry only after officials and the for-profit contractor at the facility had multiple days’ advance notice. 

Generally, members of Congress have been able to enter the Homestead facility and similar facilities around the U.S., but only after providing about two weeks’ notice. While campaigning in Miami around the first Democratic debates in June 2019, Democratic presidential candidates Sens. Kristen Gillibrand (D-NY), Amy Klobuchar (D-NM), Kamala Harris (D-CA), Elizabeth Warren (D-MA) and Bernie Sanders (I-VT) and Reps. Eric Swalwell (D-CA) and Tulsi Gabbard (D-HI) were all blocked from visiting Homestead.

Congresspeople are already allowed to drop in on detention facilities for unaccompanied migrant children. This requirement was established through legislation that Congress passed in 2018.

Currently, inspections of ICE jails are conducted by a private company, Nakamoto Group, as well as ICE’s Office of Detention Oversight (ODO), neither of which investigates all of the country’s ICE facilities in any given year. On average, Nakamoto inspects an average of 100 facilities each year and ODO inspected an average of 28 facilities in fiscal years 2015, 2016 and 2017. In addition to these inspections, there’s supposed to be a “continuous” monitoring program, but that also doesn’t occur at every ICE facility. 

In June 2018, the DHS OIG released a report calling ICE detention centers profoundly dangerous places with few safeguards to protect detainees’ rights. The report further detailed how ICE inspections and monitoring of immigrant detention facilities fail on multiple levels.

In addition to Congressional oversight, there is also a little-known policy called “stakeholder procedures,” established in 2011, allowing the public to monitor conditions in ICE detention centers. This “Access Directive” outlines a process by which individuals or groups can tour ICE facilities if they send a request to the overseeing ICE field officer, along with several proposed dates, at least two weeks in advance. However, in March 2017, Community Initiatives for Visiting Immigrants in Confinement (CIVIC), told Rewire News that ICE had rejected six of its requests for access over a two-month period. It, along with the ACLU and over 400 groups and individuals, wrote a letter to ICE in March 2017 urging the agency to ensure public access to and oversight of immigrant detention.

In response to CIVIC’s letter, ICE’s Acting Director, Thomas Homan, said the agency “appreciates the work of CIVIC and other community-based visitation programs” and has a “strong desire” to continue to facilitate their access to immigration detention facilities.

Apprehensions at the Southern border of unauthorized immigrants and asylum-seekers have spiked in the last year, with May 2019 marking the highest monthly total since 2006 at 132,880 apprehensions. Of those detained, the proportion of family units and unaccompanied minors are at all-time highs, burdening a detention system designed for single males who historically made up the vast majority of those apprehended at the Southern border. After it became apparent that DHS accounts funding detention facilities would run out of money before the end of the fiscal year, Congress passed a bipartisan $4.59 billion emergency funding package to provide for additional facilities to prevent overcrowding, provide basic necessities and healthcare to detained migrants, and speed up the processing of immigration cases. President Trump signed it into law on June 30th.

In a July 2019 report, the DHS Inspector General detailed overcrowding and squalid conditions at several detention centers in Texas. The report also stated that children were being held for longer than the 72 hours permitted by U.S. law, and that children had no access to showers or hot meals for days. Additionally, it noted that some adults were being held in standing room only conditions for a week, and that some single adults were held for more than a month in overcrowded cells. 

Allegations of overcrowding, poor conditions, human rights violations, inadequate health services, usage of slave labor and abuse of solitary confinement have been levied against many migrant holding facilities by advocates, detainees, and human rights watchdog groups. In mid-July 2019, the House Oversight Committee held a hearing with the DHS Inspector General, whose office issued a July 2, 2019 report detailing “dangerous overcrowding” at CBP detention facilities.

Reports of adults and children being held for days, weeks or even months in cramped cells without access to soap, toothpaste or places to wash their hands or shower have emerged. Some reports of children sleeping on concrete floors, and of adults having to stand for days due to lack of space have also reported. At an Arizona CBP facility, a 15-year-old girl from Honduras reported that an officer groped her during a patdown in front of other migrants and officers. It’s also been reported that babies are having to drink from unwashed bottles, that there aren’t enough diapers and that babies are being subjected to “extreme cold temperatures” with “lights on 24 hours a day,” according to a pediatrician who has treated migrant children. There have also been outbreaks of flu, lice, chicken pox and scabies in migrant detention facilities.

In the 1980s and 1990s, lawsuits against the government for mistreatment of unaccompanied children, including the case of 15-year-old Jenny Lisette Flores from El Salvador, culminated in the 1997 Flores settlement, which prohibits U.S. immigration and border enforcement agencies from detaining unaccompanied minors for more than 20 days. Additionally, the settlement specified that unaccompanied minors in U.S. agency custody would be provided with 1) access to food and drinking water, 2) medical assistance in the event of emergencies, 3) toilets and sinks, 4) adequate temperature control and ventilation, 5) adequate supervision to protect them from others. It also specified that minors would be separated from unrelated adults whenever possible; and allowed contact with family members who were arrested with them. With the 2008 Trafficking Victims Protection Reauthorization Act’s (TVPRA) passage, Flores took full effect. 

In 2015, a federal judge enhanced Flores by ruling that its requirements apply to both unaccompanied minors and children who are with their parents. In 2018, the Justice Dept. tried to get the same judge to modify the agreement to allow for indefinite detention, but the request was denied. The Trump administration has also argued in court that the Flores agreement doesn’t require CBP to provide basic toiletries, such as toothbrushes and soap, to detained children. In arguments before the Ninth Circuit Court of Appeals in San Francisco, Justice Dept. attorney Sarah Fabian argued that the government is legally allowed to make children sleep on concrete floors in cold and overcrowded cells, and that it isn’t required to provide soap and toothbrushes. The three-judge panel disagreed with the administration’s claim and suggested in their comments that the current treatment of migrant children violates the Flores agreement. U.S. Circuit Judge William asked Fabian: 

“Are you arguing seriously that you do not read the agreement as requiring you to do anything other than what I just described: cold all night long, lights on all night long, sleeping on concrete and you’ve got an aluminum foil blanket? I find it inconceivable that the government would say that that is safe and sanitary.” 

Senior U.S. Circuit Judge A. Wallace Tashima, who was held in a U.S. internment camp for Japanese-Americans during World War II, added: 

“It’s within everybody’s common understanding that if you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, it’s not safe and sanitary. Wouldn’t everybody agree to that? Do you agree to that?”

Media:

• Sponsoring Rep. Debbie Wasserman Schultz (D-FL) Press Release
  
• McClatchy DC
  
• Florida Phoenix