Families, activists, ACLU question ICE’s accounting of deaths in detention.

By Grace Vitaglione and Sammy Sussman

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U.S. Immigration and Customs Enforcement, mandated by federal law to publicize and investigate the death of every detainee in its care, has been using a loophole to avoid full accountability.

The Investigative Reporting Workshop found that ICE underreported fatalities by releasing sick inmates to hospitals, where some died shortly afterward. That pattern fits at least three deaths IRW tracked from 2018, when federal law was changed to require the agency to publicly report the deaths of those in custody, to 2020. IRW also found earlier cases of individuals who died after being released.

ICE reported 35 fatalities in 2018-2020, which includes both COVID and non-COVID-related cases.

The families of some of those who died, as well as immigration advocates and the ACLU, said ICE is violating transparency rules established by Congress.

Senior ACLU litigator Eunice Cho said ICE is playing a game of semantics.

“It really pointed to what we believe is an unfortunate pattern of ICE’s release of people from custody on their deathbeds, which allows ICE not to have to take accountability for those deaths,” Cho said.

‘Dying in silence’

Locked inside an immigrant detention facility in Ohio with COVID-19 spreading around him, Oscar López Acosta called his wife to say he was “dying in silence.” He struggled with diabetes and feared contracting the coronavirus would be fatal.

López Acosta had been detained since 2018 for illegal re-entry into the United States. ICE released him from custody on April 24, 2020, but his health was already deteriorating. In an interview with IRW, Lopez Acosta’s wife, Lourdes Maria Mejia Flores, said she believed ICE knew her husband was infected, something confirmed by hospital tests shortly after he came home.

Oscar López Acosta. (Photo courtesy Maria Mejia Flores)

He “didn’t want to eat anything,” Mejia Flores said, adding that he was “throwing up blood.”

His condition worsened, and on the afternoon of May 10, López Acosta died on the couch in his home in Dayton, Ohio. He left behind his wife and children, among them a 9-year-old daughter.

“She asks me for a lot of explanation. Why did they let her father die?” Mejia Flores said.

While heartbroken over the loss, Mejia Flores is angry at federal officials.

“They let him go and once letting him go, there is no responsibility,” she said. “That’s why I would like them to recognize it.”

If ICE acknowledges a death while someone is in the agency’s custody, the agency must conduct an investigation. ICE will conduct an indigent burial if neither the family nor the consulate claim the remains, and will transport the remains for the family if they cannot afford it, which is another reason official recognition is so important to family members.

While IRW reporters were investigating the undercounting of deaths, the ACLU filed a public records request for documents related to ICE releasing hospitalized detainees from custody. Four of the deaths investigated by IRW are the focus of a separate study by the ACLU. The independent watchdog group takes action involving incidents of individuals who were released from custody while in the hospital and died in the hospital soon after.

López Acosta was not one of these cases because of the complicated nature of his death. He died at home, about two weeks after he was released. ICE didn’t publicly report or investigate Lopez Acósta’s death, and wasn’t required to do so. But his wife contends that ICE is responsible.

The agency is required to publicly report the deaths of detainees who die while in ICE custody, according to a 2018 Department of Homeland Security appropriations bill. ICE may not be violating the law, but one congressional staffer said this pattern of releasing detainees on their deathbeds could “violate the spirit” of that law.

“We do want to try to close loopholes,” said the staffer, who requested anonymity because they were not authorized to speak on the record. “People react to incentives and decentives and look to avoid blame, and that can lead to perverse consequences.”

The ACLU filed a lawsuit Oct. 7 alleging that Homeland Security and ICE were wrongfully withholding public records; its initial request for information went unanswered. Cho said that as the coronavirus pandemic continues to kill vulnerable people in places such as immigration detention facilities, it’s important for the ACLU to receive the requested information.

“This is just another example of ICE’s failure to be transparent about the actions they’re taking, especially with the treatment of people in detention,” Cho said.

IRW repeatedly reached out to ICE with questions about the unreported deaths. The agency failed to provide specific information on any of the cases and declined an interview.

In an emailed statement, an ICE spokesperson said the agency takes the “health, safety and welfare” of detainees seriously, “including those who come into ICE custody with prior medical conditions or who have never before received appropriate medical care.”

“While fatalities in ICE custody occur at a small fraction of the national average for detained populations in federal or state custody, any death that happens in ICE custody is a cause for concern,” the spokesperson wrote.

According to the Bureau of Justice Statistics, the mortality rate for state prisoners in 2018 was 344 deaths per 100,000 prisoners, and the mortality rate for federal prisoners in 2018 was 250 per 100,000. In 2020, CNN reported that 21 people died while in ICE custody, the highest number since 2005.

‘Shady situation’

Margaret Hellerstein, the attorney representing ICE detainee Martin Vargas Arellano, had been fighting for her client’s release for months. Vargas Arellano has lived in the United States for 50 years.

He was arrested in 2019 for petty theft and failing to register as a sex offender, according to the San Fernando Sun. In March 2020, without Hellerstein’s knowledge, ICE filed paperwork to have Vargas Arellano freed and, at the same time, sent him to a nearby hospital. He died of COVID-19 three days later.

Hellerstein told IRW it was difficult to find her client’s last known address: St. Jude’s Hospital in Fullerton, California.

Hospital staff told Hellerstein that Vargas Arellano was no longer there. Hellerstein then called the county coroner, who said Vargas Arellano had died in the hospital 10 days earlier.

Hellerstein said ICE’s decision to release Vargas Arellano was “egregious” and “messed up.”

“The most shady situation would be they didn’t want his death on their books, so they intentionally released him knowing he was about to die,” she said. “It is possible it had nothing to do with that, but even if that’s the case, it was still incredibly inappropriate to keep him in detention as long as they did.”

Juan Cruz’s file is similar to both the López Acosta and Vargas Arellano cases. Like López Acosta, he was not included in the ACLU’S request because the details surrounding his release and death are murky. But the lack of acknowledgement of his death after he contracted COVID-19 while in detention raised questions from his family.

Cruz died of COVID-19 after he was released from ICE detention in a New York Department of Corrections facility. He had called his son two months earlier to report that he felt ill, according to The City.

Cruz had been detained since 2018, awaiting trial on sex abuse charges; he said he was innocent. Cruz was transferred to Bellevue Hospital May 1, 2020. His case is also different because an immigration judge — not ICE — granted his release May 22. He died June 11, 2020, in the hospital.

Neither ICE nor New York City’s Department of Corrections reported Cruz’s death. The corrections department referred The City’s questions to Correctional Health Services.

‘It was flagrant neglect’

This pattern existed before the COVID-19 pandemic. In one case investigated by IRW, a transgender inmate named Johana Medina Leon died of HIV-related complications in 2019 at Del Sol Medical Center in Texas.

Medina Leon came to the United States illegally, seeking political asylum. She had repeatedly requested parole in her six weeks of detention. Detainees can request parole for humanitarian reasons, such as medical grounds.

ICE released Medina Leon the same day she was hospitalized. According to reporting by NBC, an ICE source contends that Medina Leon is an example of a detainee entering detention with an undiagnosed condition. ICE is supposed to screen individuals medically within 12 hours of detaining them.

Allegra Love, an immigration attorney familiar with the case, said Medina Leon knew she was sick, but ICE officials repeatedly denied her proper treatment.

“A woman who has been asking for parole is super sick. What do you do to cover your ass?” Love asked. “Why else would they decide to let her go on parole so suddenly?”

In a similar case, ICE released José Luis Ibarra Bucio two weeks after he was hospitalized at Loma Linda University Medical Center in California. He had collapsed Feb. 8, 2019, while in custody, fell into a coma and died six weeks later after a brain hemorrhage, according to The Los Angeles Times.

“ICE knew, ‘OK, he’s in a coma, we don’t know if he’s going to come back; let’s release him,’ ” said Lizbeth Abeln, deportation defense director at Inland Coalition for Immigrant Justice, a California-based coalition of groups focused on helping immigrants. “A few days later, he passed away. And then they claimed he was not under their custody, so they didn’t need to report on him.”

IRW found yet another unreported ICE custody-related death in a wrongful death lawsuit filed in the U.S. District Court for New Jersey.

Mariee Camyl Newberry Juárez, 21 months old, spent more than two months in ICE detention with her mother before dying in May 2018. The two were detained for illegal entry into the country while seeking political asylum.

Though IRW found no records of Mariee being released from ICE custody — legal complaints do not state Mariee’s custody status at her time of death — ICE did not report her death. It is possible she was in custody of the federal Office of Refugee Resettlement at the time of her death, but there is a lack of clarity — and transparency — in her case.

A complaint in the wrongful death suit filed by the mother alleged that the child developed a congestive cough that evolved into fever, diarrhea and vomiting while in detention. After ICE transferred the toddler and her mother to New Jersey, Mariee was treated in two hospitals over the next six weeks. She died May 10, 2018.

“This was not merely an error in medical judgment,” the lawsuit contends. “It was flagrant neglect that led to the death of a gravely sick child.”

‘His case … will haunt me for the rest of my life’

Immigration advocates are adamant ICE has had historic problems reporting detainee deaths and providing adequate health care to detainees.

There are examples that support that accusation — even before the pandemic. IRW investigated two unreported deaths that occurred before 2018.

In the first case, Teka Gulema died Jan. 18, 2016, at Riverview Medical Center in Gadsden, Alabama, after being detained at the Etowah County Jail. He had been in the facility since 2012, incarcerated for assault and other charges in Virginia, according to AL.com.

Gulema was paralyzed in 2015 from the neck down because of a “preventable and treatable” infection he developed in ICE custody, according to a complaint by the immigration advocacy group CIVIC (now called Freedom for Immigrants). Gulema had written to Freedom for Immigrants three years before his death to plead for better medical care.

Portrait of Teka Gulema. (Courtesy Adelante Alabama Worker Center)

“We detainees at Etowah County Jail face unreasonable delays and receive very limited medical care,” Gulema wrote. “The facility’s medical care is the worst we have ever seen. The DHS/ICE staff should not wait until other detainees die in Etowah County Jail [because of] poor medical service.”

After nine months in the hospital, ICE released Gulema from custody. He died about two months later while still at Riverview Medical Center.

CIVIC staff wrote in their complaint that they believed Gulema’s death would have remained “invisible and unreported” had outside advocacy groups not protested the circumstances of his release.

“His case is one that will haunt me for the rest of my life,” said Christina Mansfield, co-founder of Freedom for Immigrants. “He basically predicted his own death.”

Like Teka Gulema, the family of Gerardo Cruz-Sanchez contends his death was tied to inadequate medical care. He contracted pneumonia in early 2016 while at the Otay Mesa Detention Center in California, according to his family’s wrongful death suit.

Cruz-Sanchez was taken into custody and incarcerated as a witness to alien-smuggling. He cooperated with the government and was never charged. While in detention, his condition deteriorated quickly, the lawsuit states, as his requests for medical assistance were “ignored” by staff. He died Feb. 29, 2016, just 18 days after he’d been taken into custody.

The family of Gerardo Cruz-Sanchez in their home of Agua Salada, Municipio de Jungapeo, Michoacan. (Family photo)

As in the case involving the death of the toddler, IRW did not find records of Cruz-Sanchez being released from ICE custody and there is little transparency around his case. However, ICE did not report Cruz-Sanchez’s death.

“He would be alive today if the authorities had honored their legal and moral duty to care for their own witness,” according to the lawsuit.

Families who sue ICE for wrongful death still may not receive public recognition from ICE of their family member’s death.

The ACLU’s Cho said that many individuals in ICE custody never are provided legal representation. Some detainees may not have family in the United States.

“The only way that a lot of us know about these particular cases is because advocates or family members have tried to find some recourse for their loved one’s death,” Cho said. “But how many cases are there where somebody didn’t have a lawyer or a family member in the United States able to bring attention to these cases?”

A lack of transparency within ICE makes finding these cases and raising awareness about issues in the agency even harder. The ACLU public-records request noted that a September 2020 report from the House Committee on Oversight and Reform found ICE staff have falsified observation records “to cover up problems with medical care.”

‘Perverse financial incentives’

Lawyers and advocates allege that understaffing and lack of medical care provided by some private companies in ICE-contracted facilities contribute to accountability problems. That has led to the “perverse financial incentives” private companies have in maintaining ICE facilities, said Jessica Vosburgh, founder and legal director of Adelante Alabama Worker Center, a nonprofit that works to improve conditions for low-income and immigrant workers.

“They want to cut costs, so they skimp on medical care and personnel,” she said about the private companies.. “The additional wrinkle with private companies is they have a corporate presence where they can lobby for their interests.”

GEO Group and CoreCivic are two of the largest private companies that own, manage or invest in public prisons that have contracts with ICE, according to contract spending data from the Treasury Department. Both lawsuits involving the toddler as well as Cruz-Sanchez name CoreCivic as a defendant.

Ryan Gustin, director of public affairs at CoreCivic, wrote in an emailed statement to IRW that CoreCivic did not provide medical services to Cruz-Sanchez or the child because medical care is the responsibility of the ICE Health Services Corps.

The Health Services Corps is in charge of administering medical services at ICE detention facilities, but the agency has had issues with oversight of detainee medical care as outlined in a Government Accountability report.

“CoreCivic does not make any determination on transfers or releases of detainees,” Gustin said. “Those decisions are handled by our government partner, Immigration and Customs Enforcement and/or the court system.”

Andrew Free, an attorney who has tracked more than 200 detainee deaths and settled multiple ICE detainee wrongful death suits, said he had talked with staff in private prison companies who say they are told to avoid declaring someone dead while in custody. He said that one former guard in California was told by superiors to “pump this dead guy until the EMT gets here, because nobody dies here.”

IRW also contacted GEO Group and CoreCivic for comment on the allegation that some contracted employees are told to avoid declaring deaths at company facilities.

The GEO Group said in an emailed statement that the company followed Performance-Based National Detention Standards first established under the Obama administration and that its facilities are highly rated by “third-party accreditation entities,” such as the American Correctional Association.

“We strongly reject these baseless allegations. Every day, our employees are on the frontlines providing high-quality services to those entrusted in our care and treating them with dignity and respect,” according to the GEO Group statement.

Core Civic’s Gustin also wrote that CoreCivic was not trying to avoid declaring deaths in the facility.

But Cho said unreported detainee deaths raise questions about the nature of America’s immigration detention system.

“I​​s it really necessary for us to be detaining people under these types of conditions where ICE is practicing these deeply dangerous and unaccountable behaviors in the name of holding people while they’re awaiting their immigration adjudication hearings, which are civil in nature?” Cho asked. “The question is: Why are we doing this? Who is profiting and who is losing their lives as a result?”

It has been more than a year since Mejia Flores’ husband died. She told IRW that she still hasn’t received any acknowledgment from ICE.

“I would like [ICE] to recognize us, his family, “ she said. “Imagine all of the suffering, everything that we have been through. And they don’t give him any recognition. No response. Nothing.”

This article was translated from English to Spanish by Sandra García-Díaz, a former journalist and editor born in Costa Rica, who has translated books, research, analyses and operational manuals for the United Nations. García-Díaz previously was a spokesperson for a Jesuit NGO in Nicaragua and later was a Regional Information Officer for the United Nations High Commissioner for Refugees in its offices in Mexico and Venezuela.