Bad Watchdog S2 E3: The Three Reports

Content Note: This episode discusses suicide and recounts an incident in which a homophobic slur was used.


Maren follows the story of Berto Hernandez, who recounts their detainment at ICE’s Adelanto Detention Center and the treatment and conditions they faced inside. But when people in detention are mistreated, where can they turn for help? Experts from the Department of Homeland Security’s Office for Civil Rights and Civil Liberties (CRCL) investigate complaints involving ICE’s detention facilities, then file reports on their findings and recommendations. Maren breaks down POGO’s investigation into three of these expert reports — and their disturbing findings regarding Adelanto’s overuse of solitary confinement.

Maren talks with Berto, who shares how the conditions in Adelanto affected them and how they grew determined to fight for their release. POGO Senior Investigator Nick Schwellenbach delves into his investigation into CRCL’s reports, what those findings revealed about the problems at Adelanto, and the upcoming obstacles to get more reports out of the Department of Homeland Security.

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Bad Watchdog is a member of the Airwave Media network and a part of The Democracy Group, a network of podcasts that examines what’s broken in our democracy and how we can work together to fix it.


 

While recording this episode, POGO reached out to ICE and DHS but neither agency responded to our request for an interview. As we were producing this episode, well after our deadline to respond for comment, an ICE spokesperson responded via email to our questions on the conditions in Adelanto as well as our investigation into the use of solitary confinement at the facility. We share their comment below.

U.S. Immigration and Customs Enforcement (ICE) respects a detained noncitizen’s right to exercise self-expression and medical autonomy by refusing nourishment and medical care. At the same time, these cases can be extremely challenging. ICE Health Service Corps (IHSC), the division within ICE that ensures each detained noncitizen receives the appropriate and timely healthcare, balances a noncitizen’s exercise of self-expression and medical autonomy through a hunger strike with its duty to prevent imminent serious bodily harm or death that may result from prolonged malnutrition. IHSC continues to fulfill its duty to provide the detained noncitizen adequate medical care through compassionate and humane treatment in a safe, secure, and orderly environment.

IHSC provides involuntary medical treatment only to prevent imminent life-threatening harm or death. Medical staff provide treatment, only to medically stabilize the patient, bringing the detained noncitizen outside imminent harm, incapacitation, or death. The treating physician determines medical stability by considering the noncitizen’s age, pre-existing medical and mental health conditions, overall degree of illness, extent of weight loss and malnutrition, and any other relevant factors that affect the detained noncitizen's well-being. If medically necessary, the detained noncitizen will be transferred to a community hospital or a detention facility that is appropriately equipped for treatment. Medical personnel may monitor the detained noncitizen in a single-occupancy observation room, when medically advisable, and taking into consideration the detained noncitizen’s mental health needs. This decision is reviewed every 72 hours. During hunger strikes, ICE continues to provide three meals a day, delivered to the detained noncitizen’s room, and an adequate supply of drinking water or other beverages.

The safety and wellbeing of those in ICE custody is one of the agency’s top priorities. As a result, ICE’s detention standards, which govern ICE’s detention facilities to ensure a safe and secure detention environment for staff and detained noncitizens, provide guidance for these challenging cases. Each set of detention standards provides hunger strike guidance for facilities housing individuals in immigration detention. All staff working with detained noncitizens in ICE detention facilities must be trained initially and annually thereafter to recognize the signs of a hunger strike and to implement the procedures for referral for medical assessment and management of a detained noncitizen on a hunger strike.

ICE’s detention standards concerning hunger strikes may be access at ICE.gov/doclib/detention-standards/2011/hunger_strikes.pdf

U.S. Immigration and Customs Enforcement (ICE) is committed to ensuring that all those in the agency’s custody reside in safe, secure, and humane environments under appropriate conditions of confinement. ICE continually reviews its immigration detention centers nationally, monitoring the quality of life and treatment of detained individuals, among other factors relevant to the continued operation of each facility.


 

Host Maren Machles: Before you listen, we want to give you a heads up that today’s episode discusses suicide and recounts an incident where a homophobic slur was used.

[Music plays.]

Maren: Last time on Bad Watchdog...

Law professor and author César Cuauhtémoc García Hernández: These were native-born white men, who perpetrated this mass murder. Um, and yet the reality of that tragic event in Oklahoma City did not do anything to alter the political trajectory that the country was already on, and that this event just pushed further along.

POGO Senior Investigator Nick Schwellenbach: The biggest user of solitary confinement, Adelanto in California. 

Maren translating for Ouderwuil Esteban Marval Rivas: They punished us, they put us in a place they call the hole.

Nick Schwellenbach: The tipster said that experts had extraordinarily damning findings uh, when they went in and looked at the use of solitary by Adelanto, which obviously piqued my interest.

[Music out.]

Berto Hernandez: Getting to Adelanto, I remember how cold it was, like, super, super cold.

Maren: The Adelanto Detention Center is a sprawling complex in the Mojave Desert. It used to be a men’s state prison. A private prison company called the GEO Group bought the facility in 2010 and contracted with ICE to run it as an immigration detention center in 2011. 

At one point in 2019, the average daily population was 1,700. It was one of the largest immigration detention centers in the county when Berto arrived. 

Berto Hernandez: They had me, like, strip naked in front of other people. Um, I remember, like, changing there, and I just remember, like, just, feeling so humiliated and feeling so violated by like all of these prying eyes that were just like looking at me. And it just, I just felt so dehumanized. Being an immigrant, like you always have to be responsible. You always have to know, like, what to do, who to contact. But when you’re like snatched and kidnapped and taken away from the people that bring you the security, then you feel so, so small and then there’s nothing. There’s that impotence that you have. And I remember this really dark feeling just, like overwhelmed me, overcome me, and I know I cried. I cried for like three days straight, trying to decide what, what to do. I just couldn’t believe that that was my reality. Like, that I had started my day so worried of like writing a, a paper for school. And then I ended my day with like my whole existence being turned upside down.

Maren: Last episode, we learned that while Nick was parsing through ICE’s solitary confinement data and uncovering that Adelanto used isolation more frequently than any other facility, he got a tip: Someone from inside DHS told him that experts working for a department in the agency had done inspections of Adelanto and had written internal reports about the conditions there.

[Theme music plays.] 

Maren: This is a podcast about finding the truth and holding the powerful accountable. What happens to people who are thrown into the Department of Homeland Security’s detention facilities, with the presumption that they may be national security threats? This season we dig into POGO’s exclusive investigations uncovering the agency’s treatment of people in detention — all justified in the name of homeland security, and all overshadowing the most dangerous threat: far-right violent extremists.

This episode, we’ll learn what the experts found: Troubling accounts from inside one of ICE’s largest detention facilities at the time. We’ll learn more about what DHS did after it received these reports — or more accurately what it didn’t do. And we’ll hear Berto’s firsthand account about their time inside Adelanto, how they found community and fought for their release.

I’m Maren Machles and from the Project on Government Oversight, this is Bad Watchdog

Episode Three: The Three Reports

[Music out.]

Maren: Berto didn’t know this when they arrived there, but Adelanto has been in the news for years. In 2017, some detainees launched a hunger strike to protest the conditions in the facility.

KPIX news reporter: During a hunger strike in June, Julio told us he and the other strikers were pepper sprayed and beaten.

[Julio speaking Spanish.]

[Translation] They beat me in the knees, stomach, elbows. They treated us like animals. They doused us with hot water. That made the pain from the pepper spray ten times worse.

Maren: That same year, an immigrant who’d been detained in Adelanto between 2012 and 2015 filed a lawsuit against the GEO Group for paying a dollar a day for the cleaning work the plaintiff had done in the facility. 

KPIX news reporter: They live in locked housing units and sleep four to a cell. There’s two hours a day to use the outdoor recreation fields, and no internet. Telephones are the only access to the outside world.

Maren: The GEO Group never responded to our request for comment on these allegations. So, if the guards at Adelanto started abusing Berto or denying them their rights, where could Berto turn? 

When people have these experiences, one thing they can do is file a complaint with an office inside DHS. It’s called the Office of Civil Rights and Civil Liberties — or CRCL. CRCL will take these complaints, and then at their discretion, they may choose to send a subject matter expert to inspect a facility.

Nick Schwellenbach: The CRCL on-site expert reviews, they tend to be triggered by complaints from detained persons, advocate groups, and they tend to look for also patterns of complaints. So, when you read the CRCL expert reports, they’ll usually say, like, “We got X number of complaints over X period of time. And we decided to launch this review.” They’re not routine; they tend to be complaint driven.

Maren: Subject matter experts are authorities in their relative field — so medical doctors, psychiatrists, experts on the sanitary conditions for prisons. They are independent contractors, usually with advanced degrees.

I spoke to one of these subject matter experts. They’ve asked to remain anonymous because they’ve signed a non-disclosure agreement with DHS. Here’s my colleague, Brandon Brockmyer, to read their transcript. 

CRCL expert transcript: We are a cadre of experts in, typically in corrections, though some experts may not have as much experience in corrections but have a lot of experience in their area of expertise.

Maren: The subject matter experts will speak with staff and detainees and examine records to determine if there are issues in the facility that should be addressed. 

CRCL expert transcript: I didn’t typically get sent to a place that was doing an excellent job just to pat them on the back, obviously. I was getting sent to a place because there was a problem. And generally, I did find problems with the quality of the health care.

Maren: So, as we heard earlier, Nick filed a Freedom of Information Act request to get his hands on these reports. He asked for all subject matter expert reports from 2015 to 2018 — not just for Adelanto. DHS dragged its feet, failing to produce records in response to Nick’s FOIA request.   

Nick Schwellenbach: So, we sued. 

Maren: POGO sued the government to demand a response to Nick’s FOIA in August of 2018. We’re going to talk more about FOIA and how incredibly hard it is to get records from DHS later this season. But for now, what you need to know is that it took a whole year from when POGO sued to get just three of the potentially dozens of reports he requested. These three reports were about Adelanto. 

Nick Schwellenbach: There was sort of a batch of three reports that we got relating to Adelanto that came out of the site visits in late 2017.

Maren: The three reports from these November 2017 on-site visits came from three different experts: one from a medical expert, one from a mental health expert, and one from a corrections expert. The onsite visits were triggered by the deaths of three people while in Adelanto detention. One of those people had died by suicide in March of 2017, using a bedsheet as a noose. Though the three reports Nick got weren’t the inspections following the three deaths, they were prompted by them, as well as other allegations of abuse. 

[Music plays.]

Maren: The report from the mental health expert said that at the time of the site visit, months after the death by suicide, it still found conditions that increased the risk of suicide by hanging in disciplinary segregation cells. Those are the solitary confinement cells.

In our last episode, Diego called it “el hueco,” the hole. The cells had bunks with places for “tie-offs.” Detainees could use them to hang themselves.

These inspections also corroborated Nick’s findings from an earlier investigation — that Adelanto was disproportionate in its use of solitary confinement. 

Nick Schwellenbach: These experts were not, you know, mincing their words. They used words like shocking levels of solitary confinement, disturbing levels of solitary confinement. It also is very validating because we had published, um, you know, a month earlier, this, this big investigation based on data. And here we have experts contracted by DHS who are finding similar things.

Maren: The report prepared by the mental health care expert said that Adelanto’s reliance on solitary confinement to hold detainees with mental illness was “both inhumane and in violation of” ICE’s policy. In one case, they found a detainee with mental illness had been held in solitary for a cumulative 904 days — around two and a half years. Experts found other serious problems at Adelanto. 

Nick Schwellenbach: They were withering in their criticism.

Maren: The report prepared by the medical care expert said that “incompetent clinical medical leadership” was a root cause of Adelanto’s failure to give adequate medical care to detainees. The failure to hire a competent leader resulted in “medical injuries, including bone deformities and detainee deaths.” 

CRCL expert transcript: I think one of the underlying problems with the quality of care that people get in ICE detention is that the mission of these places is not health care. The mission is public safety. And while health care is not unimportant, uh, it’s not the mission. And that makes a big difference. It has a big impact in how health care is delivered. 

[Music out.]

Maren: After the on-site reviews, CRCL notified Matthew Albence, then the head of ICE’s Enforcement and Removal Operations, of the problems they found and made informal recommendations to fix them. Here’s the thing. I wish I could tell you what the recommendations were that they made, but I can’t. In the reports that CRCL delivered to POGO, these recommendations are redacted. But there is another way to get a sense of whether ICE took these findings seriously. Almost a year after CRCL experts inspected the facility, in May of 2018, the DHS Office of Inspector General — at that point led by John Kelly — conducted an unannounced site visit to Adelanto and shared its findings.

ABC reporter: A report the ACLU describes as scathing. 

ACLU spokesperson: This is an outright neglect. Some of the details that are in the OIG’s report are truly horrifying. In some circumstances, you have detainees being left in wheelchairs for days at a time without even being able to get some assistance to be moved to their beds. In one case, you have a dentist who, when informed that detainees did not have access to floss, said they could use strings from their socks.

Maren: And what about the heightened risk of suicide the CRCL experts had found almost a year before the OIG’s office went in and inspected Adelanto?

ABC reporter: Pictures from the report show bed sheets made into nooses hanging in many of the cells. And a detainee quoted as saying, “I’ve seen a few attempted suicides using the braided sheets by the vents. And then the guards laugh at them and call them suicide failures once they are back from medical.” 

Maren: The OIG wrote that quote, “ICE’s lack of response to address this matter at the Adelanto Center shows a disregard for detainee health and safety.”

[Music plays.]

Maren: In the summer of 2019, almost a year after the OIG inspected Adelanto, ICE’s Matthew Albence went on Fox & Friends to defend the facility. 

Then-Acting Director of Immigration and Customs Enforcement Matthew Albence: That one is just representative of all our detention centers. That is how we run all our detention facilities. They’re safe, they’re humane, they’re secure. The individuals are not there for punitive purposes, they’re not being punished or sentenced for a criminal violation. They’re being detained pending their immigration proceedings or prior to their removal. 

Maren: Nick published his investigation into Adelanto in September of 2019, nearly two years after the CRCL subject matter experts had inspected the facility, and one year after the OIG had found some of the same abuses during their surprise inspection.

Nick Schwellenbach: CRCL turned over these reports to us, um, and, you know, I think within a week or two, I, I wrote this story after getting these reports. And I was like these are just so like, I mean, troubling. We felt we had to publish immediately.

Maren: The same month that Nick published the findings, Berto was taken to Adelanto. 

[Music out.]

Berto Hernandez: I remember, telling them, you know, like, I don’t want to be with like all of these men. Like, I don’t identify like that. I don’t want to, like, get hurt. And they’re like, “Well, you can’t go to the women’s, and you can’t go to the men’s. We don’t know where to put you.”

Maren: Berto said, when they first got to the facility, because they are non-binary, the guards asked if they would prefer to be put in solitary for their own protection. 

Berto Hernandez: They were like, “Well, because you don’t identify as one and you don’t identify as other, the only thing that we can give you is solitary.” And I was like, "What?” He’s like, “Yeah, but you’re only gonna be able to come out once a day for like an hour and like your meals.” And I was like, “Oh my God.” Your survival instincts kick in, right? And, and you’re like, well, I guess I’ll go with the men if that means that I’m able to see people, talk to people, right?

Maren: Berto said they chose not to go into solitary, but they did still worry that they could potentially be singled out and victimized for being visibly queer. 

Berto Hernandez: I remember when I got to, like, my holding cell. The person that was there, he was like, “Oh yeah, I know, you’re, you’re gay, right? Don’t worry, like, cry, you’re gonna be okay.” Like, and I remember that he told me that. And I just began crying even more. He was like, “You know, you can cry, and it’s okay,” but I was like, “I don’t know what to do,” and he was like, “No, no, you’re gonna be fine.”

Maren: After the first few days, Berto felt like the sanitary conditions were impacting their health.

Berto Hernandez: My hair began to fall off because I was really depressed and I wasn’t eating and then my skin was, like, really pale but like a nasty yellow, uh, green yellowish. There was a weird tint to my like skin. You will take a shower, but then like, after you got out, like you had like this white cast. Your skin was really, really dry. Later, I found out it’s because, like, the water in Adelanto is, like, really, really bad. I got a bacteria, like, in the back of my head. I would get, like, kind of like pimples, but they were full of pus. And they would make me bleed.

Maren: Berto told me they asked to see a doctor to be treated for the infection. But they said they were told the doctor wasn’t available and then they were given an antiseptic ointment to help manage it. 

Berto Hernandez: I woke up one day and like the back of like my pillow was full of blood because that was like, I was bleeding so much throughout the night.

Maren: Berto remembers their family was troubled to hear what their loved one was going through. But they couldn’t afford a lawyer to take on Berto’s case. And even if they could, they didn’t have the money to pay Berto’s bond. The situation seemed hopeless to them. 

Berto Hernandez: Like every time that I would call them, they were like, “No, like, you don’t belong in a place like that. Just sign, just like go to Mexico.” 

[Music plays.]

Berto Hernandez: I had to speak to the person that does psych there, because I was so depressed I wasn’t eating. And they were like, “If you don’t get outta here, like if you don’t get out of this rut that you have, like, I’m gonna put you on medication. You’re gonna be sleeping all day.”

Maren: I can’t even imagine. Being stuck, trapped in a former prison, feeling helpless, like the life you’ve always known is crumbling around you, in ways that feel unsafe, and the only relief from that anxiety, stress, fear, rage is a pill that could make you sleep all day.

Berto Hernandez: They asked me like, “Are you suicidal?” I was so angry because I was like, “How dare you ask me this question, like, right now.” And I was like, “This is your job, and then you get to go home to your family, to your safety, to who you are, and I’m stuck here. I’m caged here. Of course I feel trapped. I feel angry. I feel, like, grief. I feel all of these things because you took my humanity away from me.” But then I was like, I’m not going to lose myself in this, in this grief, in this depression, because if I get sedated like they want to do, I’m not going to be able to fight.

[Music out.]

 Maren: Berto said that because their family couldn’t afford a lawyer, they represented themselves during their first two court appearances. When they came back from their second court date, they debriefed with their friend who was also in detention. 

Berto Hernandez: My friend, Juan, he was like, “Oh, so how did it go?” I was just like, you know, “I fear going to Mexico because of who I am. But my family’s tired, I’m really tired.” I remember he hugged me. This GEO guard came in and he saw him hugging me. He just, like, opened the door to where we were. And then he’s like, “Don’t hug him, don’t touch him, get away from him.” He was like, “You faggots.” And I remember that he said that, and I was like, “What?” I think that was like the last straw, where I was like, you know what, I am done with this. I am done allowing you to make me feel like this. And I just began to organize.

[Music plays.]

Maren: Berto decided they would do everything they could to be released from Adelanto.

Berto Hernandez: I went to find out what it was that I needed to get my bond and to get that, that legal process going. Never in my life did I thought that I had the, the preparedness and the tenacity of a lawyer to get lawyer things done. I went, and I found the resources. I went to the law library. I found out how to put together a bond package.

I would just sit on that phone and just call like every day for three months to see like, for two and a half months, to see, like, who will, like, help me? Or who has time to hear my story, you know?

Maren: Berto was giving it their all to get released. And at the same time, they described starting to share information and helping other people with their cases — many of the people in detention did not speak English and, like most people, weren’t familiar with the complexities of immigration law.

Berto Hernandez: I was like, “I’m going to help these people. I’m going to help them, help myself, distract myself.” And I remember, I was writing letters for them, I was filling out paperwork for them. Whatever they needed to communicate in English that they couldn’t, I was doing that for them, and I, I think I began to, like get a lot of joy out of that and it began to like ease that existence in that place that was void of all, like, hope and humanity.

[Music out.]

Maren: Berto said, a little more than a week before their third court hearing in the fall of 2019, they heard back from a nonprofit they had been in touch with — all those calls had paid off.

Berto Hernandez: My friends, Mario and Janaya. At the time they were working for the Inland Coalition for Immigrant Justice. I got a call from Mario that they had found me a lawyer. They were going to go see me in Adelanto. They were going to decide whether or not, like, they would be able to take my case. They met with me. I told them my story. I gave them everything that I had. And I remember, like, one of them went outside to, like, make a call, and I was just like, oh my God, like, please let them say yes. Please let them say yes. He came back and he was like, “Oh yeah, we’re, we’re able to take your case.” I felt like I won the lottery.

Maren: The next few days were a blur. They had to get everything ready for their hearing.

Berto Hernandez: I spent that weekend giving them my personal statement and giving all, getting all of the things done. They were like “Luckily, because you already put together the bond packet, like, we only have to, like, add, like, a few things. I felt really accomplished for doing that. I have never, ever, like, really done anything in, like, that. And I remember that Wednesday came, and they fought so hard for me to get my bond. They said 10 grand. And I was like, “Well, like, I guess. I mean, fuck it, we’ll take it, right?” That’s kind of how I felt.

Maren: The next big hurdle was getting ahold of $10,000.

Berto Hernandez: I don’t think that any family has like, “Oh yeah, let’s have $10,000 in the bank just in case you get kidnapped by ICE.” I think Janiyah sent my, my file to the RAICES, RAICES Texas.

Maren: RAICES is a group that helps detained immigrants with their cases. They also have a bail fund. After looking into their case, Berto said RAICES decided to cover Berto’s bail.

Berto Hernandez: I couldn’t believe that these people that have never met me, that don’t know anything about me willingly putting $10,000 for me to be liberated.

Maren: Berto was getting out. But they didn’t want to leave the people they were helping on the inside behind. 

Berto Hernandez: I just keep thinking, like, “But how do I help everybody like, that’s still there?”

[Music plays.]

Berto Hernandez: I was helping somebody with a letter. It was so sad because, like, because I was working on it through, the, like, account that I had in that really messed up computer that was so slow. Because I got released, all of the things that we were working with that person got lost because all of that gets erased. That person, he didn’t know how to speak English. I just remember feeling really, really sad. Because when I left, I remember that he looked at me and I was just like, “Oh my God, I’m not going to be able to help you anymore.”

Maren: Berto said their asylum case is still pending four years later. Today, Berto works for California Immigrant Youth Justice Alliance. They’re also part of a community that’s been fighting for Adelanto to be closed. We’ll hear more about this fight later in the season. 

[Music out.]

Maren: The three reports from subject matter experts who inspected the facility, the report from the inspector general’s office, and Berto’s experience in the years that followed point to a pattern of abuse and neglect at Adelanto that had gone unaddressed for years. The existence of these reports suggests that ICE was made aware of these issues within the facility and neglected to make changes. But is Adelanto a bad apple or just the tip of the iceberg? Remember how I said that Nick sought more records than he got? Well, after he published his investigation about the Adelanto reports, CRCL stopped responding to his FOIA requests for those other records. 

Nick Schwellenbach: Like it took us four more years to get, like, the other 33 or so reports that we were asking for.

[Theme music plays.]

Maren: Next time … POGO goes to court to fight for the rest of the documents. 

POGO Senior Paralegal Lance Sims: I wasn’t expecting this case to drag on as long as it did. CRCL drug their feet at what seemed like every possible turn.

Maren: And what they reveal about conditions in ICE detention around the country is absolutely chilling.

[Theme music out.]

Maren: While we’ve requested interviews with ICE and DHS for this podcast, we’ve not heard back. Additionally, ICE failed to respond to our request for comment before the deadline we gave them. However, as we were in the final stages of production, an ICE spokesperson reached out with a statement in regard to the allegations around Adelanto and our investigations into ICE’s use of solitary confinement there. The spokesperson said, quote, “U.S. Immigration and Customs Enforcement (or ICE) is committed to ensuring that all those in the agency’s custody reside in safe, secure, and humane environments under appropriate conditions of confinement. ICE continually reviews its immigration detention centers nationally, monitoring the quality of life and treatment of detained individuals, among other factors relevant to the continued operation of each facility.” You can read the entirety of ICE’s statement in this episode’s show notes or on our website.

[Music plays.]

Maren: Bad Watchdog is a production of Investigations and Research at the Project On Government Oversight. It’s co-written and produced by Padmini Raghunath and me, Maren Machles, and based on investigations by Nick Schwellenbach, Freddy Martinez, Mia Steinle, Andrea Petersen, and Katherine Hawkins. Additional research by Julienne McClure. Edited by Julia Delacroix, Brandon Brockmyer, and Henry Glifort. Fact checking by Amaya Phillips. This episode was mixed by Padmini Raghunath. This episode was mastered by Verenda Lowe. Our theme music was written and recorded by Will Wrigley. POGO’s director of Investigations and Research is Brandon Brockmyer. POGO’s editorial director is Julia Delacroix. Find out more about our work to investigate and improve the federal government at www.pogo.org.

[Music out.]

This podcast is part of The Democracy Group.