The Irreparable Harm of Dying in Darkness

Families who filed FOIAs about loved ones who died behind ICE's walls await answers years later. #DetentionKills FOIA Journal Vol. 2022-8

Families Fight FOIA Delays in Court

If your loved one died in the hands of the state, how long would you expect it to force you to wait for answers about how it happened? How long would you expect the government should take to provide those answers?

What if the answer the government gives is “years”? Would those years of delay be harmful to you? Could that harm be repaired?

ICE recently told a federal court in Los Angeles and two families who lost loved ones in the agency’s custody that years-long delays in providing death records to families aren’t redressable by an injunction accelerating production in Freedom of Information Act (FOIA) cases.

The families cannot speed up the government’s self-imposed 500-page-per-month review rate, ICE claims, because the harm they experience as a result of the agency’s delay is neither “immediate” nor “irreparable.” So says the agency in whose custody they lost loved ones. In this post, we’ll meet some of the families asking questions, and share their demands to the agency and the Court in Owen, et al. v. U.S. Immigration & Customs Enforcement, No. 2:22-cv-00550-DSF-AFM (C.D. Cal.)

Gourgen

For Miran “Mike” Mirimanian, a young lawyer from California, ICE’s answer to “How long must we wait?” has been: “Over four-and-a-half years. And counting.”

After the tragic loss of his father, Gourgen, in April 2018, Mike, his mother, and his brother sought answers from ICE about Gourgen’s treatment in the agency’s custody. Based on their conversations with Gourgen while he was in ICE custody, Mike and his family have serious questions about the medical care he received and exactly how he died. The agency’s public communications about Gourgen’s death have proved so demonstrably incomplete or incorrect that they raise more questions than they answer.

Gourgen’s case is special. After years of tepid Congressional oversight failed to prevent the sharp increase we witnessed of deaths in ICE custody, Congress changed the law. Beginning in Fiscal Year (FY) 2018, ICE’s $3.2 billion in taxpayer-funded “custody operations”, included a requirement that the agency notify Congress and the public within 24 hours of a death in custody; post an initial, public death report within 30 days of the death; and publish an updated death report within 60 days after the initial report, unless the agency needed more time to redact personally identifiable information. Gourgen’s was the first death where these Congressional death notification requirements applied to ICE.

ICE broke this law by failing to release any public report about the death of Mike’s father until no earlier than November 29, 2018 — four years ago today.

Why then—in late 2018? What changed? As documented by Into’s Kate Sosin, ICE simply chose to ignore the law until it got caught.

It got caught after vehemently and categorically denying allegations of pre-death, in-custody physical abuse that were supported by evidence collected during an independent autopsy of Roxsana Hernandez—evidence the first autopsy simply did not collect. ICE claimed it hadn’t found anything to indicate abuse in its post-death investigation. So the public then asked to see a copy of the Congressionally mandated ICE death report for Roxsana.

The initial version of that report was due online by June 25, 2018. It wasn’t there. Neither were any other of the other required reports for deaths in custody during the period of FY18 mandating 30-day death disclosures. The agency that was assuring the public nothing unlawful happened in the case of a person who died in its custody had not complied with the law governing how it communicates with the public about deaths in custody. ICE, through a spokesperson, elected to treat the 24-hour death notification as the 30-day death report. Voila!

Not so fast, claimed NIJC’s Heidi Altman. And she was right, as anyone who can read the law will plainly see:

So, in December 2018, with its hand in the cookie jar, ICE began publishing its Congressionally mandated death reports. Gourgen’s appears first on the FY18 ICE Detainee Death Report list.

Demonstrably Incomplete Information

As his son Mike explained to a federal judge in Los Angeles last week, “Finally, in late November or early December 2018, ICE released my father’s Detainee Death Report. Despite having all that time, ICE erased me and my brother from existence.”

If ICE’s Death Report couldn’t get something as basic as how many kids Gourgen had right, what trust could the children ICE erased put in the rest of the agency’s conclusions?

In the absence of clear, timely, or even remotely accurate answers from the agency, Mike had to turn to the Freedom of Information Act (FOIA). FOIA requires federal agencies to respond to the Mirimanian family’s records requests within statutorily defined time limits. Some agencies, like the Bureau of Prisons (BOP) and United States Citizenship and Immigration Services (USCIS) did so.

BOP acknowledged receiving Mike’s request in August of 2018, and responded with hundreds of pages of records in February 2019. The BOP records reveal Gourgen had medical conditions of such severity and risk that the federal prison system’s medical professionals concluded he needed a higher level of care in order to be safely imprisoned. Like ICE, BOP owes a legal obligation to humans locked inside the places it runs to ensure adequate, timely, and appropriate medical care. Gourgen’s medical needs included treatment for hypertension, hyperlipidemia, and anxiety.

BOP acted on that obligation by transferring Gourgen from the Taft Correctional Institution in California to a BOP Federal Medical Center (FMC) in Ft. Worth, Texas—a specialized, secure medical facility that allowed for cardiac monitoring and treatment. ICE presumably knew where Gourgen was when it arrested him at that location upon his release from BOP custody in early 2018. But the agency apparently made no efforts to ensure him a higher level of care than its contract Prairieland Detention Center in Alvarado, TX, could provide.

More than four and a half years after seeking records from ICE through FOIA, Mike and his family are still waiting to know what consideration ICE gave to locating Gourgen according to his serious medical needs. BOP records contain no indication of the required continuity of care communications that should have happened between the Immigrant Health Services Corps (IHSC) and BOP in order to make a suitability determination.

It is with this context that Mike and his family view the recently released IHSC Mortality Review into Gourgen’s death. IHSC found Prairieland had a 40% vacancy rate in nursing positions, and a 25% vacancy rate for licensed vocational nurses while Gourgen was there.

As a result, unqualified medical workers performed basic tasks like sick call, pill pass, and consent/refusal for medication documentation.

Nevertheless, IHSC found Gourgen’s care to be within safe limits of practice, ICE didn’t acknowledge his prior need for higher levels of care, or the fact that he’d been seeking an outside provider appointment that ICE hadn’t scheduled.

Mike and his family want to see the records the government reviewed that justified their conclusions.

Ben

Ben Owen left behind a wife, Tammy. and their infant daughter, Gia, when he died inside ICE’s Baker County Detention facility in Macclenny, Florida in January 2020. Because Gia was sick and she needed to care for her, Tammy was not able to visit Ben in jail as planned. He died on the one-year anniversary of their union.

In the wake of his death, ICE put out a Detainee Death Report that contained demonstrably incomplete information about Ben’s immigration status. Ben had been in the U.S. lawfully on an O-1 Visa until Tammy filed a marriage-based immigrant visa petition prior to its expiration.

As a matter of immigration law, this maintained Ben’s lawful presence in the United States, putting him in A Period of Stay Authorized by the Attorney General. Consequently, DHS’s allegation in the Dummy Death Report and Notice to Appear in removal proceedings that Ben was deportable from the U.S. because he’d overstayed his visa and was thus present without authorization was false. Tammy has alleged Ben’s detainer and arrest by ICE were unlawful, and consequently, he was being falsely imprisoned when he died.

Tammy is still here, demanding answers to Ben’s death. She wants the video and audio recordings from the day he died. She wants to know why, if Ben was deemed unstable by officers when he was arrested, none of that information got shared with Baker. ICE says she can the video from the facility in 30 minute per month increments, whenever it’s able to get around to providing it.

FOIA Delays and Death Records

A federal district court will soon determine whether ICE’s failure to make records promptly available to Gourgen and Ben’s families and the public constitutes sufficient irreparable harm to justify a preliminary injunction requiring ICE to speed up its process. In doing so, it will have to weigh the agency’s statements about resource constraints, and the impracticability of reviewing and processing more than 500 pages of records per litigation per month. We’ll keep you posted on the outcome.