Immigration advocates sue for ICE records

This is the second story in a series about Immigration and Customs Enforcement in Western New York. View part one here.

BATAVIA, N.Y. (WIVB) -- Organizations that serve and advocate for migrant families have waited almost two years for federal data they believe will shed light on the treatment of detainees at the Batavia detention center.

U.S. Immigration and Customs Enforcement's refusal to release documents or respond to the Freedom of Information Act (FOIA) request within the legally mandated timeline led to a federal FOIA lawsuit filed by Justice for Migrant Families, Prisoners' Legal Services of New York and Robert F. Kennedy Human Rights.

The Batavia detention center for years has faced scrutiny about "unsafe release practices that have led to serious injury and even death," retaliation against detainees, its use of solitary confinement, and inadequate medical and mental health care," according to their lawsuit.

The three groups said the records they want to pry away from the ICE will provide "the public with the information necessary to engage in the democratic process and public debate surrounding ICE detention in New York State and beyond."

ICE, on the other hand, points to facility inspections by various private and government agencies that show "we routinely smash it out of the park," said Thomas Brophy, ICE's Buffalo Field Office Director of Enforcement Removal Operations, who oversees the Batavia facility.

"That's a point of pride here for the staff," Brophy said.

Publicly available inspection reports show the facility sometimes gets ratings of "superior" for its compliance with detention standards. Others are less rosy, rating it "acceptable," for repeatedly misusing restraints on detainees, among other issues.

"We would really like for ICE to comply with federal law and release the documents we requested in 2022," said Jennifer Connor, executive director of Buffalo-based Justice for Migrant Families.

The groups' complaint is among numerous lawsuits filed nationwide against ICE over a span of 20 years, making it the most litigated agency within the Department of Homeland Security, according to data from FOIAproject.org.

"We filed a lawsuit, and saying they were dragging their heels is like not even able to capture it," Connor said. 

While Brophy said he couldn't address the lawsuit, in general, he said detention is not punitive, and detainees can file complaints through the grievance process.

"I want people to understand that we're not draconian in how people are treated here," Brophy said.

Opposing views on Batavia conditions

The detention facility in Batavia was built in 1998 and has capacity for up to 650 detainees.

The facility is self-sufficient with food service, commissary, pharmacy, medical staff, a library and sections for worship and recreation.

ICE contracts with a private company to staff security officers at the sprawling facility about 40 minutes east of Buffalo. 

A key function of the Enforcement and Removal Operation officers under Brophy's supervision is to deport high-risk non-citizens who threaten public safety and national security. The work includes deporting non-citizens who committed crimes before entering the United States.

ICE officials told News 4 Investigates, after a tour of the Batavia facility, that they adhere to more than 200 standards, with "routine inspections by nine different entities."

Yet, detainees have participated in numerous hunger strikes over the years to protest treatment and conditions in Batavia.

Most recently, about 40 detainees in June staged a hunger strike after ICE ended a program to provide detainees with free phone calls to family members, and locking up some detainees for approximately 18 hours per day. They also protested conditions in the facility.

Several nonprofit organizations, such as NYCLU and Prisoners’ Legal Services of New York, accused ICE of violating civil rights, and retaliating with threats and use of force. This resulted in a civil rights complaint on behalf of those detainees.

"For Batavia, that as we have talked with people and known people who were there often for years, that there's a consistent pattern of reports of abuse, neglect and mistreatment over time," Connor said. "Like, you can't just cite their standards to sort of counteract the people's actual experiences there."

Brophy said ICE doesn't retaliate against detainees engaged in hunger strikes or those who file complaints.

"We have never," he said. "When a person declares a hunger strike, there are certain medical protocols that the medical department at the facility employs, and part of that is taking that individual in a room or a cell or whatever so they could be medically observed."

Brophy said the facility's employees "take the responsibility of the care and custody of our detained population to heart," and that detainees can file grievances if they believe they've been violated.

"But we take great strides in the care and custody of those who we have here," Brophy said. "Under our roof, there's a lot of accommodations we provide for them: services, programs, medical, dietary."

Some inspection reports of the Batavia facility support Brophy's assertion that they meet national standards. The ones reviewed by News 4 Investigates show ICE always passed and that most, sometimes all, of the detainees interviewed had reported they were content and not mistreated.

But not all of them are home runs.

Inspection reports

The Nakamoto Group's August 2022 inspection gave the facility a rating of "Meets Standards" for compliance with some national detention standards.

Inspectors said all 32 detainees they interviewed "felt safe at the facility and had not been threatened or mistreated by staff or other detainees" and were "content with their living conditions, their safety and treatment, the cleanliness of the facility, the food, medical care, and responsiveness from facility and ICE/ERO staff."

ICE wouldn't clarify how detainees are selected for interviews, or how final decisions are made on grievances they filed, which ICE rarely substantiated, according to its Facility Significant Incident Summary from that same year.

A 2018 medical expert report by the Department of Homeland Security's Office of Civil Rights and Civil Liberties concluded that "overall health care" appears to be in compliance with national detention standards.

In some cases, the report deemed ICE's adherence to standards "best in class achievement," and deemed all 12 allegations made by detainees "unsubstantiated."

"There were no areas of performance that could come close to potentially rising to the level of an unsafe environment of detention," the report stated.

Inspectors did raise concerns about mental health care, though.

The report found the facility had inadequate mental health staffing.

In addition, at least a half-dozen detainees with serious mental health issues were by default placed in isolation, and their "distress either did not come to the mental health staffs' attention or was minimized by mental health staff," the report stated. "Regardless of the reasons why they were 'falling through the cracks,' their distress was being exacerbated, increasing their risk of suicidal behavior."

Publicly available inspections by ICE's Office of Detention Oversight (ODO) for the past four years have rated the facility's adherence to national standards as "acceptable" to "superior."

The small percentage of detainees interviewed rarely alleged discrimination, mistreatment or abuse.

A deficiency repeatedly cited since at least 2020 was that guards misused restraints, such as handcuffs, on detainees in disciplinary housing units.

ICE detention standards allow for restraints as a precaution against escape during a transfer, for medical reasons or to prevent injury to others. But guards in the Batavia facility routinely used restraints on detainees in those units when they were taken out of and returned to their unit. Batavia officials told inspectors that they saw the use of restraints for these detainees as an acceptable deviation from the standards.

The Batavia facility changed its policy in 2024 to use restraints only if the detainee posed a safety risk.

As for the allegations that ICE locks detainees in solitary confinement for 18 hours a day, Brophy said those in the facility are provided documentation that spells out the rules of conduct.

"So, if somebody were to commit an offense, whether it be a fight, an assault, possession of contraband, or something like that, there is a panel of the staff that determines whether or not there should be some type of corrective action taken," Brophy said. "And sometimes those people do, because maybe the violent nature of the offense within the facility, whatever it may be, [get] placed in the special housing unit."

A report by Harvard Immigration and Refugee Clinical Program, Harvard Law School, and others, concluded that ICE data revealed "persistent and prolonged use of solitary confinement and demonstrated significant inadequacies of current oversight and accountability mechanisms" for detention centers nationwide.

One example cited in the report was that a detainee was held in solitary confinement for 652 days at the Batavia detention center.

The report also cited concerns with medical and mental health care at detention centers, including the one in Batavia.

Members of the three organizations suing ICE for access to records argued in their lawsuit that these problems continue in Batavia.

"Indeed, in recent years Batavia has generated public interest and concern for the egregious conditions of confinement, including, but not limited to, medical neglect, failure to provide COVID-19 vaccines, and personal protective equipment (“PPE”) such as masks, and retaliation for protesting unsafe conditions," their FOIA lawsuit alleges.

Slow trickle of released documents

Legal battles over government records are not new to ICE.

According to FOIAProject.org, the agency has been sued 329 times for FOIA complaints in a 20-year span across the nation. The number of lawsuits in 2020 was almost four times higher than three years prior.

News 4 Investigates found 33 more lawsuits against ICE since 2021.

In the local FOIA lawsuit, ICE argued it cannot be compelled to produce records that it believes are exempt. In addition, ICE stated the groups' lawsuit includes "immaterial and impertinent allegations that should be stricken by the Court..."

ICE produced one set of records in March 2023.

A month later, a judge ordered ICE to produce monthly reports detailing the number of pages it has released, and provide an index of documents it redacted or denied with detailed explanations for the decisions.

The judge noted that the requirements were intended to allow the plaintiffs to “gauge ICE’s progress and to identify any concerns with the search process that may require Court involvement prior to summary judgment.”

ICE failed to comply with the court order and the two sides couldn't agree on the number of documents ICE should produce and how often.

The differences resulted in a second order that mirrored the first one.

The judge said ICE re-stated the same arguments, which do not "excuse ICE’s attempt to decide unilaterally whether — and when, and in what respects — to comply with this Court’s order."

"As plaintiffs point out, ICE never asked the Court to reconsider or modify that order," U.S. Magistrate Judge H. Kenneth Schroeder Jr. wrote in his second order in April 2024. "Instead, ICE repeatedly failed to comply with it — in the face of plaintiffs’ objections — for six months until plaintiffs filed the instant motion."

The most recent filing in the FOIA litigation is a report from ICE, which states it has released about 10,000 pages of documents and estimates it has 11,000 more that may be responsive to their request.

But Connor didn't think the records they got from ICE were what they asked for.

“But they have not been forthcoming despite federal judge orders to supply meaningful documents that align with the FOIA,” Connor said.