ICE will investigate deaths, but advocates question impact of new policy

By Sammy Sussman

Share this story

Martin Vargas Arellano contracted COVID-19 while in the Adelanto Immigration and Customs Enforcement processing center. Vargas Arellano had been in immigration detention since 2019. Though a judge had ordered Vargas Arellano’s release at the beginning of the pandemic, citing his pre-existing health conditions, U.S. Immigrations and Customs Enforcement refused to release him after his housing fell through.

Vargas Arellano recovered from his initial COVID-19 symptoms. Then he developed other health complications. He suffered a stroke and was transferred by ICE to a local hospital in Southern California.

Around the time of his transfer, ICE filed paperwork to release Vargas Arellano from custody. He died in the hospital three days later, technically a free man.

ICE did not report or investigate Vargas Arellano’s death. Under the existing law, ICE was only obligated to investigate deaths that occurred while a detainee was in custody. A November 2021 Investigative Reporting Workshop story found that ICE did not report several deaths after releasing detainees who were terminally ill.

A highly publicized ACLU public records request filed last summer sought records related to detainees who die after release from custody. The request specifically cited four former detainees — Martin Vargas Arellano, Jose Ibarra Bucio, Johana Medina Leon, and Teka Gulema — who died after release.

Several months after the ACLU filed its request, and a few weeks before IRW’s story was published, acting ICE Director Tae D. Johnson modified ICE’s death reporting policies to require the investigation of “post-release” deaths occurring “within 30 days of release” when “review is requested by the ICE Director.”

ICE has not reported any detainee deaths since the new policy took effect last fall. By comparison, five people died in custody in 2021 and 18 died in 2020. IRW called six medical examiners and coroners in counties with the most populous detention facilities in four states to check for unreported fatalities related to ICE detention. We confirmed that they have learned of no fatalities of individuals in or recently released from ICE custody since October 2021.

Though ICE’s new policy has not yet been used to investigate a death, immigration advocates worry that it will only apply to deaths that generate significant public interest. Eunice Cho, a senior ACLU litigator who filed the records request, noted that the directive requires the ICE director to initiate a post-release death investigation.

“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?” Cho said. “I haven’t heard whether the ICE director has asked for any new investigations under this provision. This is why it’s so important for there to be full accountability and transparency around ICE’s practices.”

ICE did not respond to multiple requests for comment about the timing and reasons for changing the detainee death reporting policy.

Andrew Free, the founder of the #DetentionKills Transparency Initiative and an attorney who has pursued multiple wrongful death suits against ICE, said the effects of the policy remain unknown.

“Is it a good thing that no one has died this year? Of course,” Free said. “But it means we can’t prove what this directive does.”

ICE’s detainee population has fallen from 50,165 in 2019 to 23,390 as of June 19, 2022. Free believes that fewer detainees will always lead to fewer deaths. He said that ICE has not significantly changed its policies.

“ICE’s post-death reviews ignored the agency’s failure to get a handle on pre-existing medical or mental health conditions that grew more pronounced or proved fatal,” Free said. “The new policy does nothing to correct this important gap.”

ICE’s new policy also modified the agency’s post-death investigative process to eliminate the “root cause analysis” provision. Without this step, Free said that ICE will continue to treat each death as an anomaly, avoiding structural accountability.

“In a number of cases where people died in ICE custody, the agency’s leadership ignored years of warnings about the facility where the death occurred,” Free said. “Nothing in the new policy requires the agency to assess ICE management’s performance during the period before a person dies in custody.”