Important Stuff to Know About: Building the Ice Gulag: Part 3, Detentions

A Steady State Firepit Publication | by James Petrila

This is is the third in the series of four articles that examines the way in which the Immigration and Customs Enforcement Department (ICE) under Trump has created a vertically integrated structure that relies on a massive multi-year appropriation from Congress, its newly recruited paramilitary detention force, Roberts Court Shadow Docket decisions, and the ability to operate without fear of serious legal consequences to apprehend, detain, and remove thousands of undocumented individuals currently residing in the United States

How ICE’s creative legal opinions have eliminated detainees’ right to post a bond while challenging their detention, resulting in open-ended detention and the flood of habeas cases that are testing the patience of District Court judges, as the Government ignores court orders on a regular basis.

As ICE uses creative legal interpretations to increase the circle of those eligible for apprehension, ICE lawyers, together with DOJ, have taken steps to ensure that, once ensnared in the Gulag, the only way out is through deportation or rendition to a third country. Critical to the vertically integrated effort is a vast expansion of capability through purchases of warehouses throughout the country. This planned expansion is occurring even as current detention facilities come under criticism for wretched living conditions, lack of space and health care for detainees, particularly children, prisoner abuse by contractors, and a complete lack of oversight, even as numbers of detainees skyrocketed. The Supreme Court recently allowed ICE’s primary detention contractor to be sued for forced labor at one of its facilities in Colorado, where it has forced detainees to work for as little as one dollar per hour.

A primary reason for overcrowded facilities and the need to convert warehouses into holding pens is that ICE has overturned decades of practice and now refuses to allow temporary release of detainees on bond. Undocumented individuals no longer have the opportunity to demonstrate their right to remain (e.g., as an asylum or refugee seeker). ICE Director Lyons’ determination that bond hearings are no longer available for any undocumented person detained by ICE relies on a 1996 amendment to the Immigration and Naturalization Act (INA) to conclude that the Government is compelled to detain anyone apprehended until they are removed from the country. Not surprisingly, this interpretation of the statute was affirmed in September by the Department of Justice-controlled Board of Immigration Appeals (BIA), which has been purged of all Biden-era appointees and packed with loyalists who rule for the Government in nearly every case. In fact, the BIA announced in February that it would no longer hear appeals as a means of speeding up mass deportations.

ICE’s decision to proceed with aggressive efforts to purchase warehouses across the country is a critical piece of the puzzle. Aggressive apprehension of anyone found to be undocumented, coupled with a determination to hold them until removed, only works if there is an archipelago of camps in which to stash them until they can be removed. Aggressive apprehension is the first step; denial of bond hearings is the second step; and the requirement for thousands of spaces in warehouses logically follows.

The decision to deny bond hearings to all detainees has been challenged in courts across the country. Recently, a federal judge in California, in a class action suit called Maldonado Bautista v. DHS, issued a nationwide injunction intended to force ICE to resume bond hearings. This decision will be appealed by the Government, and most certainly will end up at the Supreme Court. Because of the consequences of this issue, how the Roberts Court decides the issue will be of generational significance. The nationwide injunction does not apply to detainees in Texas, Mississippi, and Louisiana, which are part of the Fifth Circuit. In a similar case challenging ICE’s denial of bond hearings, a divided Fifth Circuit panel concluded that the 1996 amendment to the INA prohibited the release of any and all undocumented individuals and thus required the Government to detain every such individual that comes into custody until removed from the country.

It remains to be seen whether ICE will ignore the class action order and continue its hasty efforts to remove as many individuals as possible before the courts can catch up. Since habeas is now the only possible remedy for an apprehended individual to challenge his detention and removal, thousands are flooding federal District Courts across the country. Minneapolis has become ground zero for habeas cases, and for ICE ignoring hundreds of court orders regarding individual detainees. The chaos in Minnesota has received national attention, though similar situations exist elsewhere. Constant violation of court orders by DHS officials calls into question whether the United States Government continues to believe that the law applies to it.

The ICE playbook also calls for the rapid movement of detainees out of their home state in the hope that the detainee can be moved before a lawyer can file a habeas claim. By removing the individuals from the jurisdiction in which they are apprehended, often in direct defiance of court orders not to remove detainees, habeas claims may then only be filed in the new Gulag location. Rapid movement through the system also makes it difficult for family members, many of them US citizens, to know where their loved ones are, let alone communicate with them or work to provide legal assistance.

ICE’s aggressive efforts to purchase and convert warehouses into human holding tanks generally take place under the radar to the extent possible. Once communities are aware that as many as ten thousand undocumented individuals might show up in warehouses near their communities, the pushback has been significant. As ICE’s credibility sinks under the disinformation and outright lies that have led to numerous criminal cases being dropped, it is understandable that local communities want nothing to do with converted warehouses that will overwhelm local infrastructure and question ICE’s assurances that it will address such issues as water, power, and sewage, as well as staffing for populations that are bigger than the communities in which they are located.

Reports of deplorable conditions from existing facilities, such as Alligator Alley in the Everglades and the Dilley Immigration Processing Center in San Antonio, where guards have confiscated drawings by children, are all too common. Communities understandably lack enthusiasm for facilities that have been linked to detainee deaths, inadequate medical care, and inhumane treatment, to include depriving detained children of crayons, paper, and pencils. Such are the predictable consequences of opaque facilities that are devoid of oversight and where there are no consequences for detainee mistreatment.

Next: Emptying the Gulag - Removal

James Petrila spent over thirty years as a lawyer in the Intelligence Community, working at the National Security Agency and, for most of his career, at the Central Intelligence Agency. He has taught courses on counterterrorism law and legal issues at the CIA at the George Washington University School of Law. He is currently a senior advisor to the Institute for the Study of States of Exception and is a member of The Steady State.

Founded in 2016, The Steady State is a nonprofit 501(c)(4) organization of more than 400 former senior national security professionals. Our membership includes former officials from the CIA, FBI, Department of State, Department of Defense, and Department of Homeland Security. Drawing on deep expertise across national security disciplines, including intelligence, diplomacy, military affairs, and law, we advocate for constitutional democracy, the rule of law, and the preservation of America’s national security institutions.