Judge: ICE can no longer destroy records that may prove human rights abuses

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One watchdog group called the ruling a win for transparency.

A federal judge ruled on Friday that U.S. Immigration and Customs Enforcement and the National Archives and Records Administration must preserve sexual assault and death files on detained immigrants.

Three watchdog groups — Citizens for Responsibility and Ethics in Washington, the American Historical Association, and the Society for Historians of American Foreign Relations — brought the lawsuit against the federal agencies in March 2020, arguing that the records have "significant research value." Judge Amit P. Mehta ruled in favor of the groups, writing in a 21-page memorandum that the files must be preserved under the Federal Records Act.

The ruling prevents the destruction of documents on the reporting and investigation of sexual abuse or assault allegations between detained immigrants, or between ICE employees, contractors, or volunteers and detained immigrants. The files include police reports, medical exam summaries, "supporting memos and video," any evidentiary materials related to the allegation, and related outcomes, according to the court memo.

Files containing reports on circumstances surrounding the death of detained immigrants also need to be preserved, the judge ruled. Those records include investigative reports, witness statements, immigration and medical records, photographs and audio or video recordings, as well as death certificates and autopsy reports.

Noah Bookbinder, president of the Citizens for Responsibility and Ethics, said in a statement that the ruling was a win for transparency.

"There have been too many abuses documented in our immigration detention system, but the country cannot fix these problems without knowing what has happened," he said.

The issue of the records destruction first came to light in October 2015 when ICE submitted a request to the National Archives and Records Administration to destroy the files.

In July 2017, under the Trump administration, the national archives agency requested public comment on its proposed schedule to dispose of the records, for which it received approximately 25,000 responses.

During that time, 28 members of Congress signed a letter urging the agency to "err on the side of preservation" of the ICE files, saying, "The relatively recent government restructuring of our immigration agencies, the increased centrality of immigration in American public debate, and strong congressional attention to this issue indicate that the treatment of immigrants will be of high historical and research value."

The American Civil Liberties Union also submitted a petition, arguing that the records "offer a critical window into the treatment of immigrants in the United States," and "proof of mistreatment endured by people in detention."

A request for a second round of public comments occurred in June 2019, for which the national records agency received multiple comments expressing concerns on the topic. Some worried there would not be enough sufficient records available for "historical and human rights research" under the proposed disposal schedule.

Professors from Durham University of the United Kingdom said disposing of the records "would have a demonstrable and negative impact upon academic research in this field." The Archivists Round Table of Metropolitan New York also recommended the permanent preservation of the records.

Following the public comments, the National Archives and Records Administration stood its ground and published a proposed schedule "without further changes," indicating the sexual abuse and assault files would be destroyed in 25 years and ICE's Enforcement and Removal death review files would be disposed of in 20 years.

On Friday, the disposals were blocked after Mehta found that the National Archives and Records Administration's schedule was "arbitrary and capricious because it failed to consider an important factor—the research value of the records—and failed to adequately respond to comments pointing out that it had failed to consider that factor."

The watchdog organizations also noted that the national records agency had "previously underestimated the research value of immigration records," citing the records of the Immigration and Naturalization Service's enforcement of the 1882 Chinese Exclusion Act, implemented by former President Chester A. Arthur.

In 2018, the federal archives agency published a guide admitting that "many sought-after records ... no longer exist" from that time period because "[r]ecords now considered priceless by historians, social scientists, and genealogists were thought by some to have little or no future value fifty years ago," according to the court memo, which called it "all the more reason for NARA to carefully consider the future research value of the [ICE] records."

"Today's ruling ensures ICE and NARA will be held accountable for their failure to address significant public comments in their decision to destroy records that would all but erase documentation of harm to detainees," said Bookbinder. "We hope this will usher in a sea change from the last administration’s extreme move toward secrecy and destruction of records."

The groups' lawsuit was not the only one filed against the federal records agency during the Trump administration.

In December 2020, the Citizens for Responsibility and Ethics in Washington; the National Security Archive, a nonprofit research institution associated with the George Washington University; the Society for Historians of American Foreign Relations, and the American Historical Association sued the administration to ensure it could not destroy White House documents and comply with the Presidential Records Act.

Friday's ruling is also victory for immigration advocates and lawyers, who have worked for years to address allegations of abuse and neglect in ICE facilities.

In 2020, a spate of disturbing claims came to light revealing at least 19 women held in an ICE facility in Georgia had been subjected to "aggressive gynecological treatments" at times without their consent, according to the Wall Street Journal, which cited a review of the matter by a panel of outside experts. Several had been "coerced" into having hysterectomies, the outlet wrote.

Board-certified obstetrician-gynecologist Dr. Ted L. Anderson wrote in Senate testimony at the time, "Records of the medical and surgical care these patients underwent were incomplete. It is concerning to think that if these patients were to develop surgical complications or other adverse consequences from their surgical interventions, the incomplete medical record would complicate and delay appropriate care, regardless of the urgency."

According to the ACLU, sexual assault in ICE facilities and other immigration detention centers is a "pernicious" problem as well.

"According to government documents obtained by the American Civil Liberties Union through the Freedom of Information Act, nearly 200 allegations of abuse from detainees in detention facilities across the nation have been fielded by government officials since 2007 alone. And that is likely just the very tip of the iceberg," the group writes on its resource page on the topic.

Separately, an April 2020 report by the ACLU, Human Rights Watch, and National Immigrant Justice Center found that there had been at least 39 deaths in ICE custody since 2017.

"Independent medical expert analyses ... have found subpar care contributed to these deaths," the groups said in a press release at the time. "Twelve of these deaths were by suicide while in detention. Two of the five detention centers our researchers visited had no mental health professional on staff. Detained immigrants told researchers about facilities taking a week to set a broken bone and that necessary medication, such as inhalers for asthma, were often not available."

Eunice Cho, ACLU senior staff attorney, added that the research for the report had been collected prior to the COVID-19 crisis, and that things had likely become worse since then.

"In a global pandemic, these conditions — overcrowding, lack of access to medical care, staff who don't speak Spanish, etc. — become even more deadly," she said. "This is not the kind of country we want to be."

Published with permission of The American Independent Foundation.