LEGAL DEPARTMENT
NATIONAL PRISON
PROJECT

AMERICAN CIVIL LIBERTIES UNION

I

June 27,2007
U.S. Department of Homeland Security
Privacy Office
Mail Stop 0550
245 Murray Lane, S.W.
Washington, DC 20528-0550

AMERICAN CIVIL
LIBERTIES UNION FOUNDATION
PLEASE RESPOND TO,
NATIONAL PRISON PROJECT
915 15TH STREET. NW
7TH FLOOR
WASHINGTON. DC 20005-2112
T/202.393.4930
F/202.393.4931

Health Resources and Services Administration
Office of Communications
FOIA Requester Service Center
5600 Fishers Ln., Room 14-18
Rockville, MD 20857
U.S. Public Health Service
Freedom of Information Office
5600 Fishers Ln., Room 17A-46
Rockville, MD 20857

WWW.ACLU.ORG
ELIZABETH ALEXANDER

Re: FOIA Request Related to Deaths in Immigration Detention

DIRECTOR
ATTORNEY AT LAW
NATIONAL OFFICE
125 BROAD STREET. 18TH FL.
NEW YORK. NY 10004-2400
T/212.549.2500
OFFICERS AND DIRECTORS
NADINE STROSSEN
PRESIDENT
ANTHONY D. ROMERO
EXECUTIVE DIRECTOR
RICHARD ZACKS
TREASURER

Dear Freedom of Information Officers:
This letter constitutes a request (Request) pursuant to the Freedom of Information
Act, 5 U.S.C. § 552 (FOIA). The Request is submitted on behalf of the National
Prison Project (NPP) of the American Civil Liberties Union (ACLU). NPP is also
requesting expedited processing for this request, pursuant to 5 U.S.c. §
552(a)(6)(E) and agency regulations, and a fee waiver, pursuant to 5 U.S.C. §
552(a)(4)(A)(iii). The request is simultaneously being filed with the U.S.
Department of Homeland Security, the Health Resources and Services
Administration, and the U.S. Public Health Service.

BACKGROUND
Recent news reports indicate that individuals detained by U.S. Immigration and
Customs Enforcement (ICE) have died as a result of grossly inadequate medical
care. Until recently, it was unknown how many individuals had died in ICE
custody. Such deaths are not publicly reported and no government agency
appears to be charged with the task of tracking and investigating such deaths.
One attempt by the ACLU to account for in-custody deaths identified 20 deaths
since 2004; this list was generated through a review ofpublicly available
documents and correspondence with immigrants' rights advocates around the

country. However, according to a figure recently released by ICE to The New
York Times, the number of immigrant detainee deaths since 2004 is actually 64. 1
The circumstances surrounding many of these deaths are highly disturbing and
demand further investigation and oversight. In one account, a Korean woman
detained at a privately-run facility in Albuquerque, New Mexico complained for
weeks about her need for medical attention. 2 Despite her deteriorating health, the
woman received little attention until she was transferred to a local hospital where
she died. 3 In February 2007, a detainee held in Hackensack, New Jersey, was
denied powerful prescription medication despite experiencing crippling pain;
according to other detainees, the man's severe distress was common knowledge at
the jail, and he committed suicide after five agonizing days.4

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

Just yesterday, The New York Times published a front page story describing two
other in-custody deaths. 5 Sandra Kenley, a lawful pennanent resident of more
than 30 years, died in December 2005 after being detained in two Virginia
regional jails for approximately seven weeks. Prior to being taken into custody,
Ms. Kenley notified airport immigration inspectors of her serious medical
conditions, which included a scheduled surgery to treat her fibroid tumor and
uterine bleeding. She complained until her death of continued hemorrhaging and
the jails' refusal to provide her with necessary prescription medications.
One year later, while detained in yet another Virginia regional jail, Abdoullai Sall
died approximately ten weeks after entering immigration custody. Throughout
his detention, Sall complained to jail officials that he was not receiving the proper
medication for his serious medical condition, and attempts by his immigration
attorney to notify the jail of his client's worsening health were largely ignored.
Recent press attention to deaths in detention reveals just how little infonnation is
available about this problem. According to the ICE Detention Standards, when an
immigrant detainee dies in custody, the Assistant District Director for Detention
and Removal Operations (DRO) is supposed to notify the District Director, the
Assistant Regional Director for DRO, and the Director ofField Operations at ICE
Headquarters. 6 A local representative ofthe U.S. Public Health Service is to
receive medical reports within 48 hours of the death, and both the family ofthe
deceased and consular officials are to be notified about the death. 7
The Department of Homeland Security's Office of Inspector General (OIG)
publicly released a report in January 2007 detailing a series of problems with the
Nina Bernstein, New Scrutiny as Immigrants Die in Custody, N.Y. Times, June 26, 2007.
Barbara Ferry, Crackdown's Fallout, The New Mexican, May 20,2007.
3 Id.
4 Nina Bernstein, One Immigrant Family's Hopes Lead to a Jail Cell Suicide, N.Y. Times, Feb.
23,2007.
5 Bernstein, supra note 1.
6 INS Detention Standard, Terminal Illness, Advance Directives, and Death (Sept. 20, 2000), 6-7.
7 Id.
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treatment of immigrant detainees at five facilities. 8 One problem highlighted by
the OIG was that four of the five facilities reviewed showed serious problems
with the delivery of adequate health services. Although the report made a general
reference to one suicide death at the Passaic County Jail,9 it made no mention of
at least three other deaths that occurred at the San Diego Correctional Facility.
The OIG also releases semiannual reports to Congress that contain sporadic and
vague references to investigations into in-custody deaths. Such reports provide
little useful information to assure the public that meaningful investigations are
conducted into each death, and that steps are taken to guarantee that detainees
receive necessary medical services before it is too late. 10

AMERICAN CIVIL LIBERTIES
UNION FOUNOATION

Over the last ten years, the United States has dramatically increased the use of
detention for individuals in civil immigration proceedings. In 1997, the number
of immigrants detained in the custody of U.S. Immigration and Naturalization
Service on a given day was approximately 13,000. 11 Just ten years later, ICE has
funding to detain 27,500 individuals at any given time. 12 As the nation considers
comprehensive immigration reform legislation, it is likely that ICE will receive
funding to detain many thousands more. This issue will only grow in importance
over the coming years, and it is essential that the federal government-which is
ultimately responsible for the health and welfare of individuals detained pursuant
to its authority--do more to ensure that immigrant detainees do not suffer and die
unnecessarily.

RECORDS REQUESTED
Please disclose:
1. A complete list of individuals who have died while detained in ICE
custody since January 1, 2004. For each death listed, please include:
a. Complete name;
b. Alien number;
c. Date on which detention began;
d. Date of death;
e. List of all facilities where the detainee was housed along with
dates of detention; and
8 Department of Homeland Security, Office of Inspector General, Treatment ofImmigration
Detainees Housed at Immigration and Customs Enforcement Facilities, OIG-07-07 (Dec. 2006).
9 !d. at 29.
to The OIG recently began a "special review" of two in-custody deaths, and is considering the ICE
Detention Standards that pertain to in-custody deaths and medical care. The ACLU hopes that the
results of the OIG review are made public, and that the OIG make recommendations to ensure that
preventable deaths are reduced and that all deaths are properly investigated by an independent
government body.
11 U.S. Department of Justice, Office of the Federal Detention Trustee, Detention Needs
Assessment and Baseline Report: A Compendium ofFederal Detention Statistics, at
http://www.usdoj.gov/ofdt/.
12 U.S. Immigration and Customs Enforcement, ICE Accomplishments in Fiscal Year 2006 (May
15,2007), at http://www.ice.gov/pi/news/factsheets/2006accomplishments.htm.

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AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

f. Location at time of death.
2. For each individual whose death is included in (1), all records:
a. Pertaining to the cause of death;
b. Pertaining to requests for medical help by anyone, including the
deceased, hislher family members, and fellow detainees;
c. Pertaining to Treatment Authorization Requests (TARs) submitted
to the Division of Immigration Health Services (DillS), including
any DillS responses to those TARs;
d. Pertaining to reports of investigations into the circumstances
surrounding the death, including all after-action reports and critical
incident reports;
e. Pertaining to whether any of the detainees who died were
diagnosed with terminal illnesses while in immigration detention
or beforehand;
f. Pertaining to whether any of the detainees who died were taken to
outside hospitals for treatment, and if so, the names of those
hospitals and the dates of treatment;
g. Pertaining to whether and how ICE notified families of the deaths
of detained family members;
h. Pertaining to whether and how ICE notified consular officials of
the deaths of detained persons;
1. Pertaining to whether and how state, county, local officials and
review boards were notified of the deaths.
3. All records, including written and electronic correspondence, pertaining to
deaths in ICE custody.
4. All records, including policies, procedures, or guidelines provided to or
maintained by Contract Detention Facilities, Service Processing Centers,
and Intergovernmental Service Agreement facilities relating to deaths in
detention, including memoranda and training materials.
5. All records identifying the manner by which your agency or any of its
components track deaths in detention.
6. All records, including written and electronic correspondence, generated in
response to requests for information from the Washington Post and The
New York Times about immigrant detainee medical care and deaths, and
in reaction to those articles. This request pertains specifically to records
generated in preparation for and in response to two articles: (a) Darryl
Fears, Illegal Immigrants Received Poor Care in Jail, Lawyers Say,
Washington Post, June 13,2007; and (b) Nina Bernstein, New Scrutiny as
Immigrants Die in Custody, N.Y. Times, June 26, 2007.
THE REQUESTOR
The ACLU is a nationwide, nonprofit, nonpartisan organization dedicated to
protecting human rights and civil rights in the U.S. It is the largest civil liberties
organization in the country, with offices in 50 states and over 500,000 members.
The ACLU is specifically dedicated to holding the U.S. government accountable

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to universal human rights principles in addition to rights guaranteed by the U.S.
Constitution.
Furthermore, the ACLU publishes newsletters, news briefings, right-to-know
handbooks, and other materials that are disseminated to the public. These
materials are widely available to everyone, including tax-exempt organizations,
not-for-profit groups, law students and faculty, for no cost or for a nominal fee
through its public education department. The ACLU also disseminates
information through its heavily subscribed website, http://www.aclu.org. The
website addresses civil libertIes issues in depth, provides features on civil liberties
issues in the news, and contains hundreds of documents that relate to the issues
addressed by the ACLU. The website includes features on information obtained
through the FOIA. See, e.g., http://www.aclu.org/patriot foia/index.html. The
ACLU also publishes an electronic newsletter, which is distributed to subscribers
bye-mail.
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

Accordingly, the ACLU is an organization whose "main professional activity or
occupation is information dissemination." 6 C.F.R. § 5.5(d)(3). The ACLU is
also a "representative of the news media" for purposes of 45 C.F.R. § 5.5.
Finally, the ACLU meets the criterion laid out in National Sec. Archive v. US.
Dep't ofDefense, where a representative of the news media is defined as an entity
that "gathers information ofpotential interest to a segment of the public" and
"uses its editorial skills to turn raw materials into a distinct work, and distributes
that work to an audience." National Sec. Archive v. Us. Dep 't ofDefense, 880
F.2d 1381,1387 (D.C. Cir. 1989).
EXPEDITED PROCESSING

We request Track 1 expedited treatment for this FOIA request. This request
qualifies for expedited treatment pursuant 5 U.S.C. § 552(a)(6)(E) and applicable
regulations.
As demonstrated above, there is a "compelling need" for expedited processing
sought by the ACLU. 5 U.S.C. § 552(a)(6)(E)(i)(I). The lack of expedited
disclosure of records related to these deaths in detention could "reasonably be
expected to pose an imminent threat to the life or physical safety of an
individual." 5 U.S.c. § 552(a)(6)(E)(v)(I); 6 C.F.R. § 5.5(d)(1)(i).
Moreover, there exists a clear "urgency to inform the public concerning actual or
alleged Federal Government activity." 5 U.S.c. § 552(a)(6)(E)(v)(lI). See also 6
C.F.R. § 5.5(d)(1)(ii) (expedited processing is warranted where there is "[a]n
urgency to inform the public about an actual or alleged federal government
activity.").
The ACLU is therefore entitled to expedited processing of this request.

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FEE WAIVER
The ACLU requests a total waiver of fees on the grounds that disclosure of the
requested records is in the public interest and because disclosure "is likely to
contribute significantly to the public understanding ofthe activities or operations
of the government and is not primarily in the commercial interest of the
requester[s]." 5 U.S.c. § 552(a)(4)(A)(iii). See also 45 C.F.R. § 5.45. This
Request aims at furthering public understanding of government conduct, and
specifically to help the public determine whether civil detainees in the custody of
Immigration and Customs Enforcement are treated in a manner than comports
with our nation's values. On account ofthese factors, the ACLU has not been
charged fees associated with responding to FOIA requests on numerous
occasions. 13
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

In any event, as discussed supra, the ACLU qualifies as a "representative of the
news media" and the records are not sought for commercial use. Accordingly,
should fees be assessed for the processing of this Request, such fees should be
"limited to reasonable standard charges for document duplication." 5 U.S.C. §
552(a)(4)(A)(ii)(II).

The ACLU is therefore entitled to a total waiver of fees associated with this
request and should, in no event, be required to pay more than reasonable standard
charges for document duplication alone.

* * *
Thank you for your consideration of this request. If this request is denied in
whole or part, the ACLU asks that you justify all deletions by reference to
specific exemptions of the FOIA. We expect you to release all segregable
portions of otherwise exempt material. We reserve the right to appeal a decision
to withhold any information, or to deny expedited processing or a waiver of fees.
We look forward to your reply to the request for expedited processing within ten
(10) business days, as required under 5 U.S.c. § 552(a)(6)(E)(ii)(I).

13 The following are recent examples of requests for which agencies did not charge the ACLU fees
associated with responding to a FOIA request: (1) The Department of State did not charge the
ACLU fees associated with a FOIA request submitted by the ACLU in April 2005; (2) The
National Institute of Standards and Technology did not charge the ACLU fees associated with a
FOIA request submitted by the ACLU in April 2005; (3) The Office of Science and Technology
Policy in the Executive Office of the President did not charge the ACLU fees associated with a
FOIA request submitted by the ACLU in August 2003; (4) The Federal Bureau ofInvestigation
did not charge the ACLU fees associated with a FOIA request submitted by the ACLU in August
2002; (5) The Office ofIntelligence Policy and Review did not charge the ACLU fees associated
with a FOIA request submitted by the ACLU in August 2002; (6) and The Office ofInformation
and Privacy in the Department of Justice did not charge the ACLU fees associated with a FOIA
request submitted by the ACLU in August 2002.

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Notwithstanding your decision on the matter of expedited processing, we look
forward to your reply to the records request within twenty (20) business days, as
required under 5 U.S.c. § 552(a)(6)(A)(I).14
Please respond to Tom Jawetz, Immigration Detention Staff Attorney, ACLU
National Prison Project, 915 15th St. NW, 7th Floor, Washington, DC 20005,
telephone: (202) 548-6610, email: tjawetz@npp-aclu.org. Also, please notify us
in advance if the costs for photocopying the documents exceed $100. We eagerly
await your response, and thank you for your assistance.

* * *
Under penalty of perjury, I certify, to the best of my knowledge and belief, that
the above information is true and correct.
/."

AMERICAN CIVIL LIBERTIES
UNION FOUNDATION

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14 Pursuant to the Department of Health and Human Services regulations, a reply by HRSA and
PHS is due within ten working days after this request has been received. 45 C.F.R. § 5.35(b)(l).

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