June 6, 2008

Overcrowding for immigrant detainees to end at Otay facility

By Mariana Martínez

Eighteen months after filing a lawsuit against the Department Of Homeland Security and Corrections Corporation of America (CCA), the American Civil Liberties Union (ACLU) of San Diego County has reached a settlement with the hope of ending severe overcrowding at the San Diego Correctional Facility.

In January of last year, the ACLU joined a lawsuit, previously filed in San Diego Federal Court by Isaac Kigondu Kiniti, a Kenyan man who was arrested in May 2004 for immigration violations and has been at the Otay Mesa facility since November of that year.

Kiniti is awaiting a ruling on whether he will have to return to Kenya, but he is resisting going back, claiming that if he goes back, he would be subjected to persecution and torture.

The lawsuit alleged immigration detainees at the Otay Mesa facility (managed by CCA) is severely overcrowded and people suffer from unsafe conditions that threaten their health.

The civil-rights group claimed in their class action lawsuit, that the over one thousand detainees at the Otay Facility are cramped up like sardines, and that this has been a systematic, long-term outrageous overcrowding, as well as cases where people have been denied medicine or medical attention for chronic illnesses.

The ACLU has documented at least one case where one detainee was repeatedly denied care for a cut on his foot, and ended up with a bone infection and may have to have his foot amputated, and another case where a detainee had a lesion on his genitals that was never treated and later turned into cancer.

When the lawsuit was filed, more than 650 immigration detainees at the facility were living three-to-a-cell – resulting in one of them having to sleep on a plastic slab on the floor by the toilet.

Additional detainees slept on bunk beds in the recreation area, making some areas over 50% over design capacity.

In the lawsuit, ACLU lawyers claimed the policy of triple-celling, “resulted in delays in medical and mental health treatment, physical and psychological suffering, the spread of infectious diseases, lack of adequate exercise, and poor sanitation.”

Overcrowding at the Detention Center is also linked to a September 2006 disturbance, in which detainees asked to speak with Immigration officials about the new triple-celling policy, but were tear-gassed and pepper-sprayed by CCA officers.

“Some detainees at the facility are held for relatively short periods, but hundreds live in these overcrowded, intolerable conditions for many months or years as their immigration cases work their way through the system,” said Anthony M. Stiegler, litigation partner at Cooley Godward Kronish LLP.

“These conditions are particularly unjust given that more than half of the detainees in ICE custody have never been convicted of a crime and all detainees are only in custody awaiting civil proceedings related to their immigration status.”

After the ACLU appeared in the case, DHS transferred more than 100 immigration detainees out of the facility, resulting in an end to triple-celling.

“The constitutional guarantee of due process applies to all people in this country, not just U.S.citizens,” said Gouri Bhat, a senior counsel with the ACLU National Prison Project. According to Bhat, this agreement will ensure that both DHS and CCA abide by their constitutional obligations to provide safe and humane living conditions.

This type of lawsuit is one of the first of its kind in the nation and could end up having wide-ranging effects on the conditions of confinement for thousands of people held in more detention centers around the country.

If approved by the court, the settlement with ACLU will help ensure that CCA be held to demonstrate three times between now and January of 2009 that it is keeping the facility’s population within design capacity.

“This agreement is a step toward justice for a particularly vulnerable constituency of people who have no right to appointed counsel,” said David Blair-Loy, Legal Director of the ACLU Foundation of San Diego and Imperial Counties.

“Detaining these people in crowded, unsafe conditions for months or years on end is perverse and inhumane and should never be acceptable,” he added.

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