Despite President Joe Biden’s stated commitment to opening a path to citizenship for undocumented immigrants and promises to stop retaliation against immigrants and their advocates, immigrants who denounce abusive treatment in detention are still subjected to violent and abusive reprisal. According to testimonies and court documents, as recently as in May, immigrants in detention who engaged in protests were punished and official records show that the Department of Homeland Security (DHS)—in charge of the Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP)—has renewed contracts to procure the same technology that has been used to surveil and harass advocates and activists. If anything, DHS will now have a larger budget to expand its surveillance infrastructure and more resources to intimidate people into silence and prevent them from shedding light on abuses.
“The Biden administration has not yet signaled that this is an issue important enough to address,” said Sejal Zota, the legal director of Just Futures Law, a nonprofit that advocates for immigrants’ rights. Zota edited a report released last August that documents surveillance and retaliation against immigration advocates from 2011 to 2020. “Retaliation is still happening under this new administration.”
The Biden administration’s immigration enforcement guidelines issued on Sept. 30 mention that a noncitizen’s freedom of speech should never prompt enforcement action and warns against using the law to retaliate for the assertion of legal rights. They also call for immigration officials to apply discretion in each case, and DHS director Alexandro Mayorkas told reporters the guidelines will enable the department to “understand the totality of the facts and circumstances and then make a determination whether the individual in fact poses a public safety threat.”
However, the guidelines do not explicitly protect activists and organizers, said Zota. Grassroots organizers also noted there’s no mention of monitoring ICE officers for unjust and harmful enforcement practices and no suggested mechanisms to hold officers accountable. Furthermore, prosecutorial discretion falls upon CBP and ICE field offices, operated essentially by the same officials as in previous administrations, said Jennifer Lee Koh, a professor at the Pepperdine Caruso School of Law and author of the “Targeted but not Silenced” report.
“We have fundamentally the same structure in place, with multiple local ICE field offices having the same authority to investigate,” said Koh. “The leadership has changed at the very top, but the rank and file have not changed.”
Activists point out that the immigration enforcement guidelines still rely on a racist criminal legal system that discriminates against asylum seekers, especially those who are Black. Providing discretion to ICE agents, who have a history of terrorizing, detaining, and separating communities of color, advocates say, may amount to little without accountability mechanisms.
Punishment for speaking out
On Aug. 26, the American Civil Liberty Union (ACLU) Foundation of Northern California filed a complaint on behalf of eight people in five immigration detention centers in California who allegedly endured unlawful retaliation for speaking out against inhumane and life-threatening conditions, including five cases where the harassment occurred under the current administration. Among them is Anthony Alexandre, who has struggled with life-threatening conditions since being detained in February 2020 that he alleges are the result of retaliation from ICE employees for his sustained public advocacy at the Otay Mesa Detention Center, a private facility in California run by the company CoreCivic. According to the complaint, Alexandre was punished for denouncing detention conditions during the pandemic and talking to members of the press. In addition to being denied release, Alexandre was exposed to COVID-19 by CoreCivic and ICE staff after he and other people in his dorm organized a hunger strike. Alexandre later contracted COVID-10 while in custody. The complaint further states that CoreCivic and ICE employees used excessive force in physical altercations and “the retaliation escalated in May 2021” to include sexual harassment.
Alexandre’s experience isn’t unique. On July 13, a group of 15 immigrants in the Bergen County Jail in New Jersey filed a multi-individual complaint to denounce incidents of abuse occurred in April and May. The complaint describes deplorable standards of care that fail to meet even ICE’s own protocols, blatant racial and religious discrimination in decisions related to medical care and release from detention, and a culture of fear where immigrants were routinely punished for speaking out. The testimonies reveal a pattern that includes medical abuse, sexual assault, and unwarranted use of pepper spray.
“Every time you make a complaint against an ICE official they retaliate,” said one of the individuals included in the complaint, who asked to remain anonymous for fear of retribution. “Every time we raise our voices there are consequences.”
Other cases of retaliation against immigrant protesters have been documented as well. In February, a group of Cameroonian women detained at the T. Don Hutto Detention Center in Texas held a sit-in to protest lack of medical attention. In apparent retaliation, ICE suspended visitations and turned away legal representation and community members who could expose the medical neglect inside the facility.
“The Biden administration has decided that simply not being Trump was good enough,” said Yoliswa Cele, national director of narrative and media of UndocuBlack Network, an organization that advocates for the rights of Black immigrants. “We see the same abuse during the Biden administration because it is a continuation of the history of ICE, CBP, and DHS, heightened by Trump, but not tangibly and holistically addressed by the Biden administration.”
Cele, who has also been physically harassed by ICE agents, sees these human rights violations as part of a long pattern of abuse disproportionately endured by Black people. The outrageous images of Border Patrol agents on horseback charging on Haitian asylum seekers at the Southern border in September are a case in point. Thousands were later deported in violation of their right to file asylum claims. UndocuBlack Network, along with other organizations, sent a letter to the White House requesting a halt to the deportation of Haitians, but they continue to face barriers. Advocates stressed that current policies are also trying to block their attempts to provide more direct support to immigrants and gather accurate information.
“They are not allowing activists to go and get real and frontline information from the people currently in the border camps,” Cele said.
The harassment of immigration advocates has been amply documented since the Obama presidency. The Immigrants Rights Voices project, created by the New York University Law School’s Immigrant Rights Clinic and the New Sanctuary Coalition, has recorded 1,015 incidents of alleged retaliation against immigrant rights groups, individual activists, and journalists who denounced abuses of government agencies. It registered cases of detained immigrants who suffered “brutal beatings, force-feeding, solitary confinement, and retaliatory transfers to other facilities [sic]” after protesting conditions of confinement. Most of the incidents occurred under the Trump presidency from 2016 to 2020, but some predate that administration.
For example, from 2014 to 2018, 20 members of the immigrant rights organization for dairy farm workers in the state of Vermont, Migrant Justice, were detained after they launched a campaign for local police to stop cooperating with ICE. Evidence of direct retaliation was alleged against nine members. While Migrant Justice’s members haven’t found any indication of targeted harassment or surveillance related to their public activities or speech this year, spokesperson Will Lambek cautions against linking that lack of evidence to the most recent change in administrations.
“It’s worth noting that the surveillance and harassment we experienced began under the Obama administration and continued under Trump,” Lambek said. “[This] challenges attempts to link such practices to a particular administration.”
Advocates argue that ICE has used various methods apart from physical punishment to intimidate immigrants and activists into silence, such as social media monitoring and third-party data collection. Evidence of these tactics is harder to gather however, according to experts. Cases of remote surveillance during the Trump administration have been documented through Freedom of Information Act (FOIAs) records and related litigation. Yet, there is no indication that the DHS surveillance tactics have been modified in the recent months.
Watchdog groups have noted that the Biden administration budget proposal contains significant funding for invasive technologies, biometrics collection, and surveillance tools devoted to immigration enforcement tasks. Social media monitoring and data collection have been supplemented with face recognition technologies and license plates detectors.
“These tools are just opening the door to facilitating ICE’s ability to select people for enforcement proceedings in a retaliatory way,” Koh said. “Is there a continued risk of this kind of retaliation taking place right now? Yes, very much so.”
Government contracts awarded in recent months shed light on these risks. Giant Oak offers tools “to predict and detect real threats to safety and security at home and in communities around the world, reducing crime, fraud, and violence.” The company’s software, Gost, was used to surveil activists, according to information from FOIA requests. A contract to acquire this tool for CBP started last March and continued until August. In total, Giant Oak has a potential award amount of $37 million with DHS until August 2022. So far, the primary user of these products within the U.S. federal government has been ICE, according to federal government contracts.
Babel Street’s Locate X, which markets its tools as an “enabled analytics platform” dedicated to “uncovering threats and opportunities – known and unknown, foreign or domestic, physical, or cyber,” has been awarded $7.4 million in DHS contracts, with ICE as its second main client after the US Secret Service. The company, with potential awards from DHS of $6.5 million until 2024, tracks people through their social media accounts. The data produced by the company, which warns its customers not to use or even mention the information in court proceedings, allows ICE to track a phone, skirting the agency’s obligation to get a judge order to do it. The DHS renewed licenses for these products on Sept. 30.
Additionally, LexisNexis, a subsidiary of RELX that sells data mining platforms, was also awarded a contract potentially worth $22 million for services destined to ICE in February. Meanwhile, Thomson Reuters has employees embedded in ICE offices to help agents track immigration activists through social media monitoring and has an active contract with this agency worth a potential $22.8 million until 2026.
ICE also uses more general data brokers, which advocates say help the agency “evade legal limitations on what personal data it can access, buying what might otherwise be impermissible for it to collect.” These brokers collect information from state agencies, utility companies, and other sources in a manner that raises fundamental privacy questions. These services created an extensive report about Maru Mora-Villalpando, founder of La Resistencia, a nonprofit that advocates for the closure of the Northwest Detention Center in Tacoma, Washington.
Demanding actions, not just words
For advocates and experts, little has changed during the Biden administration regarding its general treatment of immigrants and their advocates’ claims for fairness, despite the politically correct rhetoric.
“Actions speak louder than words,” said Zota.
Not content to wait for the administration to change course on its own, immigrants and advocates are determined to make themselves heard through their own actions.
In October, law students from over 20 law schools across the country organized a week of protest to demand that LexisNexis and Thomson Reuters end their contracts with ICE and no longer provide the agency with database access, analytics, and data dossiers used to surveil undocumented immigrants. Students at 17 law schools sent letters to their respective deans, calling on them to denounce LexisNexis and Thomson Reuters contracts with ICE, while in four of those schools (Seattle University, Stanford, NYU, and UC Davis), students displayed banners to reiterate their demands. On Oct. 7, more than 40 protestors gathered in front of the LexisNexis headquarters in New York City to demand the termination of the company’s contracts with ICE.
“LexisNexis and Thomson Reuters have built their businesses on the backs of immigrant communities through contracts that allow them to surveil, incarcerate, and deport our people,” said Cinthya Rodriguez, organizer from Mijente, an organization that co-sponsored the week of action.
Dave Moran, a Thomson Reuters spokesperson, disputed these claims: “Our solutions were not designed to be used for mass illegal immigration inquiries and are not an effective tool for addressing this issue.” In an emailed statement, he added that “it would also be inaccurate to characterize our solutions as surveillance tools,” as none of them involve any monitoring or surveillance of individuals or communities. Thomson Reuters, however, does have a license agreement with Vigilant Solutions, a company that collects license plate recognition data. LexisNexis did not respond to a request for comment.
Pressure has also come from within the companies. Workers at Elsevier, another RELX subsidiary, issued a letter in October: “We are publicly calling for the cancellation of LexisNexis’ contract with ICE, and a written promise not to work with state actors or agencies who are using our services to commit human rights abuses in the future.” According to advocates, at least one LexisNexis worker quit in protest of the company’s contracts with ICE.
Lawmakers are also pressing the Biden administration to cancel ICE contracts in order to stop abuses against immigrants who speak out. On Oct. 21, two dozen Democratic representatives signed a letter urging Biden to “take immediate steps” to terminate ICE contracts with the Yuba County Jail, the Otay Mesa Detention Center, and the Adelanto ICE Processing Facility in California. They deplored the use of solitary confinement as a tactic to silence detainees. “This situation is consistent with previous reports of retaliation,” the letter states. “Detainees have also reported retaliation after reporting sexual assault.”
For some, the solution is to eliminate immigration detention altogether, holding that the practice is an inherently extreme and unnecessary measure.
“The truth is, the abuses that occur here are endemic to the entire immigration detention system,” said Tania Mattos, then-policy and Northeast monitoring manager at Freedom for Immigrants, a nonprofit that co-filed the multi-individual complaint on behalf of immigrant detainees at the Bergen County Jail. The violations underscore “the urgent need to shut down not only this ICE jail, but all detention centers,” Mattos added.
Yet, even less ambitious demands have not been met. The illegal harassment, surveillance, and retaliation against immigrants and advocates continue, despite the fact that “a fair and humane” approach to immigration was pledged by Biden during his presidential campaign.
“Despite lip service by DHS that retaliation won’t be tolerated,” Zota said, “the current administration essentially continues to stand by this agency’s past practices.”