Lawfare Daily: Why Immigrants are Challenging the Conditions of their Detention

[Intro]

Elora Mukherjee: Unfortunately, across the country, immigration detention facilities, both those that are run by ICE, but as well as those that are run by private prison corporations, they are failing to meet these agency standards, and they're also failing to meet the Fifth Amendment's due process standards.

Natalie Orpett: It's the Lawfare Podcast. I'm Natalie Orpett, executive editor of Lawfare, with Elora Mukherjee, director of the Immigrants' Rights Clinic at Columbia Law School.

Elora Mukherjee: When I've had, for example, a client detained at Delaney Hall, I couldn't reach them, and I ended up filing a federal habeas petition. I let the federal judge know I cannot access my client.

Natalie Orpett: The Trump administration's aggressive immigration enforcement policies have resulted in an unprecedented number of people being held in detention facilities. Today, we're talking about one of the consequences. The conditions of those facilities are, according to both reporting and numerous lawsuits filed across the country, horrific. There are reports of excessive force, unsanitary conditions, lack of access to food, water, and medical care. But immigrants challenging these conditions in court face major obstacles, both legal and practical.

[Main Podcast]

I've invited you on today to talk about one piece of the immigration enforcement landscape, and that is detention.

So there's been a fair amount of news about these really dramatic increases to the number of people being detained, and correspondingly, some pretty poor conditions based on overcrowding and things like that. But also allegations in a number of lawsuits around the country of unsanitary conditions, of mistreatment, of insufficient access to healthcare, all sorts of things.

It is, however, as I think lawsuits are finding, a very complicated legal framework in which to operate. And so I wanna start by just setting out the legal framework here. It's complicated, just like everything else in immigration law, but I think it's really important to understand because it helps explain why it's so hard to actually deal with the abuses that are being alleged here.

So just to start with the basics, what is the body of law that governs detention of immigrants? Because, you know, most of the time people hear detention, they think cruel and unusual punishment, the Eighth Amendment, but that's actually not what applies here. So tell us about that framework.

Elora Mukherjee: Sure. Thank you so much for having me on, Natalie.

So the U.S. Constitution applies to all people on U.S. soil, regardless of their immigration status or their citizenship status. For non-citizens who are apprehended, their apprehension needs to be governed first by the Fourth Amendment. A person cannot be unreasonably searched or seized. That is a basic protection that all people on U.S. soil have. Have. Once people are in immigration detention facilities, they must be given basic due process rights that are set forth and protected in the Fifth Amendment's Due Process Clause. And all non-citizens are also protected by the First Amendment, so they shouldn't be retaliated against because of their speech.

With regard to conditions in immigration detention facilities, there is the Fifth Amendment's Due Process Clause, and then there are additional agency standards that detention centers must meet. For a detention facility that is run by ICE, the standards are set forth in what's called the Performance-Based Detention Standards.

They are agency regulations set forth by ICE itself. For many ICE facilities, they're not directly run by ICE, but they're run by private, for-profit prison corporations such as CoreCivic and the GEO Group. And for those facilities, those facilities must meet what's called as the PBNDS, the Performance-Based National Detention Standards.

So these two agency regulations basically set forth in detail that a person in immigration detention must be cared for in a reasonable way. They must be safe in immigration detention. They must have access to adequate food, drinking water. There are transportation standards that must be adhered to. And unfortunately, across the country, immigration detention facilities, both those that are run by ICE, but as well as those that are run by private prison corporations, they are failing to meet these agency standards, and they're also failing to meet the Fifth Amendment's due process standards.

Natalie Orpett: And can you spell out in a little bit more detail what the Fifth Amendment standards are? Because if that... of course, that's constitutional. There are sort of different teeth to regulatory requirements. But in terms of just the basic constitutional rights, you know, I, as I understand it, there is a requirement for civil detention, of which immigration detention is a type, that the detention cannot amount to punishment.

But how does that sort of play out in, in practical terms? What do the, the items that you listed, the conditions, et cetera, how is that actually determined or assessed?

Elora Mukherjee: Right. So as you've already mentioned, the Fifth Amendment's due process clause protects people who are in immigration detention from punitive detention.

Immigration detention is only supposed to be used for two purposes: one, if someone poses a flight risk, and two, if someone poses a danger to the community. But otherwise, civil confinement for immigration purposes is not permitted under the law. In terms of the conditions that immigrants are facing across the country in detention centers, repeatedly people are talking about overcrowding.

They're talking about not having access to sufficient clean drinking water. They don't have access to palatable, appropriate, edible food. They are sleeping in conditions that are terrible with the lights on twenty-four seven, where they may not even have access to sufficient bed space. A few years ago, under the Biden administration, there were about thirty-five to thirty-six thousand immigration detention beds available on any given day.

By January of twenty twenty-six, there were more than seventy thousand people in immigration detention facilities. That number has dropped slightly today, so we're currently seeing about sixty thousand people in immigration detention facilities, but that is still far larger than the number of people who should be in these facilities.

And overwhelmingly, immigrants who are being detained currently do not have any criminal histories whatsoever. So according to statistics that I saw recently from TRAC, upwards of seventy percent of people in immigration detention facilities have no criminal histories whatsoever, not even traffic violations.

And then if you look at the percentage of people who have very minor offenses such as traffic violations, it makes up another really big proportion of people who are in immigration detention facilities. So these are individuals who are not criminals, who have by and large done nothing wrong, and yet they are being treated As criminals, as prisoners, without being given access to the basic conditions that people need to survive and thrive.

Natalie Orpett: Yeah, and if I understand correctly, part of that huge increase, at least of late, is because of the Trump administration's new, and one might say novel, interpretation of when mandatory detention is required. Can you talk a little bit about that and how that corresponds or doesn't to the two justifications for immigration detention that you outlined?

Elora Mukherjee: Absolutely. So there are two statutes. Getting into the weeds, there are two statutes that we should be looking at when we're having this conversation. There's 8 U.S.C. 1225, and then there's 8 U.S.C. 1226. These govern what is mandatory detention and what is discretionary detention. And historically, across administrations, Democratic, Republican, across decades, we as a nation have understood mandatory detention to be very limited to a certain group of people who, for example, present at a port of entry when entering the United States and are subject to mandatory detention.

And overwhelmingly, people who have lived in the United States for periods of time, who have built lives in the United States, who are generally law-abiding and are trying to do everything right, they have historically been understood not to be subject to mandatory detention. About one year ago, the Trump administration presented a radical rereading of these two provisions of the US Code, and their interpretation subjects large swaths of non-citizens who never before had been subject to mandatory detention to a claim that all of a sudden these individuals who are law-abiding, who are doing everything right, who are showing up for their ICE check-ins, who are going to their immigration court hearings, are now subject to mandatory detention, even if they've been living law-abiding lives in the United States for decades.

And this is a radical and fringe reading of these two provisions of the U.S. code. And over the past year plus, there have been thousands of federal habeas petitions filed by people who shouldn't be subject to mandatory detention under the Trump administration's reading, who are now asking the federal courts to order them released because never before would a person in that position be subject to mandatory detention.

And now we're at the point where the federal habeas cases have wound their way through the federal appeals courts. There is now a clear circuit split on this issue. And given how stark the split is, it seems likely that the Supreme Court will weigh in on this question.

Natalie Orpett: Okay. So I think that gives a good sense of just how dramatically large the population is that we're talking about. If I understand correct, correct me if I'm wrong, once in detention, the means by which someone arrived in immigration detention does not matter with respect to the rights that they have once they are in detention. Is that correct?

Elora Mukherjee: Right. So over the past year, I've filed federal habeas petitions for people who entered the United States lawfully, for example, with CBP One appointments, and who've been arrested when they did exactly what they're supposed to be doing, which is showing up for their ICE check-ins, which is showing up for their alternatives to detention programs, or showing up for their immigration court hearings, and they are being swept into the Trump administration's deportation machine.

And even families with children who I'm representing, children as young as 18 months old, 16 months old, they're being arrested and detained by armed ICE agents in masks with weapons, and they're being taken into detention. And once they are in detention, it is really, really difficult for the overwhelming majority of people to vindicate their right to release, even though they should never have been arrested and detained in the first place.

Natalie Orpett: Right. So as you mentioned, one of the ways in which detention is being challenged is through habeas cases that are challenging, just as you said just now, whether or not detention is even proper. But what I wanna focus on now is the cases that are challenging what is happening in detention. So whether that's part of habeas cases where there are separate challenges that are asking for, for example, injunctions to ask the judge, you know, "Please order ICE to do this or not do this," or whether it's just in the form of other types of requests.

I, I wanna lay out what those rights are and just drill down on how they are presenting themselves, how the sort of boundaries are being tested, and that's primarily in a tension between what right does an individual have versus what deference is the government or a detention authority given to sort of keep things running in an orderly fashion, that sort of thing.

But let's just take the different sort of categories or buckets of, of claims one at a time, and if, if you could just talk through what are the parameters, what are the tensions of each one. So if we could start with use of force. They're, I think, the most well-known case right now challenging use of force instances i- in Delaney Hall in New Jersey. But I know there are several others. So what can you tell us about use of force in detention?

Elora Mukherjee: Unfortunately, officers in immigration detention facilities are using force excessively against people when it is absolutely not appropriate, and this has led to myriad lawsuits across the country alleging use of force violations.

It has also led to the death of one non-citizen in ICE custody being ruled a homicide. And over the past fiscal year, the federal fiscal year from October 2025 onwards, there have already been 29 deaths of non-citizens in ICE custody, which is an all-time high, and it's appalling.

Natalie Orpett: It is. Let's, let's talk though about the legal parameters of it, right? Because as I mentioned, there is some tension the government would presumably argue in some of these cases alleging excessive use of force, that force was justified. What is the test that a court is going to impose to balance the argument of excessive force versus necessary force, the dispute between the two parties?

Elora Mukherjee: Yeah, the federal court will have to adjudicate whether the use of force was reasonable or not. And what lawyers who are working with non-citizens in detention are trying to do is to gather as much evidence as possible in these lawsuits, which are often proceeding as class action lawsuits, to try to document what is actually happening in these facilities.

So they are gathering sworn testimony from people who are in immigration detention facilities, who are in ICE holding facilities, and they are trying to present a compelling case to the judge. In some cases, there should be video footage of what is happening, and that is sometimes how the truth actually comes out.

Natalie Orpett: Okay. So another bucket of claims that we're seeing in a number of lawsuits which we've mentioned already, relates to unsafe or unsanitary conditions, including things like overcrowding. This has come up in 26 Federal Plaza, in Baltimore, in several other cases. So of course, you can imagine the government making defenses along the lines of, you know, conditions are what they are by necessity.

These plaintiffs are being unreasonable in the types of things that they're demanding the, you know, restrictions on just capacity, et cetera, whatever counterarguments the, the government would have. So talk to us similarly about the calculus a court would make between what the government might argue in terms of what it is required to provide versus a plaintiff or class' argument about the rights to which they/it is entitled.

Elora Mukherjee: Right. So f- first at the outset, I feel like I have to say that, overcrowding is not necessary in these facilities. The overwhelming majority of individuals in these facilities do not belong there, are being held there in violation of their people's rights under the Constitution, under the Fourth Amendment, under the Fifth Amendment, and they should be released. So overcrowding is a creation of ICE's monstrous deportation machine. It is not inevitable. So that's first.

But second, with regard to overcrowding, what we are hearing about ICE holding facilities across the country, including earlier places like 26 Federal Plaza before class action litigation there was successful, is that people were literally jammed up against each other with hardly any space at all in rooms with open toilets where people are being forced to sleep next to a toilet that has no privacy, where people do not have access to mattresses, to pillows, to blankets, where conditions are often really cold.

That's a complaint that comes up often across these cases, that the facilities are just really cold. And people in these overcrowded holding facilities do not have access to showers or to adequate food or to adequate water. And part of it is because the holding facilities were initially designed not for long-term stays, but for short periods of time, just several hours until a person could be transported from, let's say, 26 Federal Plaza to an ICE facility that is designed for longer-term detention.

But what we've seen over the past year is that individuals are being detained in ICE holding facilities for days at a time, even longer than a week or weeks. And this is just absolutely inappropriate, inhumane, deplorable. It violates people's rights under the Fifth Amendment. And again, here, lawyers who are working with non-citizens are trying to document what is actually happening in these facilities through written testimony.

And often it's hard to do that. It's hard to do that because as a lawyer, I have limited access to my clients in ICE holding facilities. I have limited access to my clients who are in immigration detention facilities. And people are understandably so worried about retaliation. If I speak out, what will ICE do to me? What will ICE do to my family? Will they deport me faster? Will I be subject to worse conditions? So there is real fear pervading The efforts to try and hold the government accountable for its worst abuses.

Natalie Orpett: Yeah, and I, I do really wanna dig into that even more when we move on to the sort of obstacles to actually getting relief here and looking for accountability.

But to drill down a little bit on the, the parameters of the rights, I mean, I know that in the criminal law context, in criminal punishment, there has been a fair amount of litigation that has refined the question of is this reasonable? Is, you know, the devil is always in the details. I think some of the examples that are alleged, it's hard to imagine how a judge could possibly say, "Oh, no, that, okay, that's reasonable."

But of course the, the test is either subjective or objective, is this reasonable? The parameters of what types of things are inherently problematic versus not, how you weigh that against, you know, government claims of necessity. All of that is, is complicated when you're not talking about the, the real outlier, egregious examples.

Can you talk a little bit about how all of those factors balance and, and really do we know enough or is there still a lot of uncertainty in, in this context as opposed to a context that can use the Eighth Amendment?

Elora Mukherjee: So federal district courts across the country have found in favor of non-citizens when they've brought either individual actions or class actions that allege that conditions are deplorable and inhumane and that conditions are overcrowded and people don't have access to sufficient water or sufficient food and that they're being held in facilities far longer than they should be.

One area that I do a lot of work in is the Dilley Family Detention Center in Texas. This is the facility that is designed for babies, toddlers, and children and their parents. It is a prison for babies, toddlers, and children. It is a place where families are treated as criminals even though no one there has any criminal history, any criminal record.

And in the context of children and families, there is a even more clear law that applies, it's the Flores Settlement Agreement from nineteen ninety-seven, which sets forth in great detail that children must be, if they are to be detained, then they must be detained in, quote, "safe and sanitary conditions."

And second, that children's release must be prioritized, which has been interpreted in the context of children accompanied by their parents to limit the time that children spend in detention to no more than twenty days. And in this context with children and families, we are seeing gross violations of the Flores Settlement Agreement, where kids and families report and have testified repeatedly that they do not have access to sufficient clean drinking water, that they do not have access to appropriate food, that children and parents alike have found live worms, bugs, and mold in their meals.

Even in this context, lights are on twenty-four/seven and children are being detained far, far longer than they should be. I've worked with children who've been in detention at Dilley for well over a hundred days, a hundred and twenty days, a hundred and thirty days, far beyond the twenty-day limit. And what we're seeing, unfortunately, is an executive branch that is not abiding by the rule of law when it comes to immigration detention, both in terms of conditions and in terms of not detaining people who shouldn't be detained under the Constitution and then not releasing people who deserve to be very clearly released under, for example, the Flores Settlement Agreement when we're talking about very young children and their parents.

So Natalie, I do not have good news to report on any of these fronts, except that the federal district courts have been an important bulwark against the worst abuses of the executive branch in this context. But there's a gap between when a federal district court rules and when there are changes on the ground that have a meaningful impact on the lives of those who are most affected.

Natalie Orpett: Absolutely. I am gonna ask you to talk a bit more about that. I do wanna run through two other categories of claims that we've been seeing in courts and just get a sense again of what we know about the rights to which immigrants in detention are entitled. I suspect it's similar to, to the ones we've gone through already, but if we were to, for the sake of understanding the legal parameters, you know, set aside the, the real egregious examples and just understand, you know, how is a court gonna have to judge or test whether or not a right has been violated.

The, the next category is access to medical care. Unfortunately for this one, I think there are quite a lot of truly egregious allegations being made in court. But what exactly are the rights to which people are entitled? What do we know about the test that a court would apply to understand whether a right has really been violated?

Elora Mukherjee: A person who is detained has the right to basic medical care, and if they're facing a health emergency, they deserve and are entitled to emergency healthcare. And the National Performance-Based Detention Standards and the ICE detention standards set forth some parameters on what constitutes appropriate medical care.

Unfortunately, the cases that are litigated are often the worst cases with the most horrific consequences for non-citizens, including people dying in federal immigration custody.

Natalie Orpett: Just to be clear, the standards, the ICE standards that you referenced, you said are, are regulatory. So are those housed under a specific statute?

Elora Mukherjee: So they were first issued in 2000 by the Department of Justice's Immigration and Naturalization Service. And over the past 25 years, ICE has continued to promulgate them and use them to facilitate oversight in both their own facilities as well as privately run facilities as well as state and local facilities.

Natalie Orpett: Okay. So those have the force of law. They're not just sort of policy that has been in place that any administration could choose to opt out as a, on a claim that it is a different policy now, right? These are regulations that are law.

Elora Mukherjee: Yes, they should be treated as law

Natalie Orpett: All right. The last item which I suspect you and I will both feel strongly about and think does not get nearly enough attention in the press is access to counsel, which you have referenced already.

It's important to say up front, as not everyone may know this, but unlike in a criminal law context, immigrants even in detention are not entitled to a government-appointed lawyer. They don't have an absolute right, for example, under the Sixth Amendment, to be represented by counsel. But there are still some cases out there that are talking about a government's violation of someone's right to counsel. So what right are they asserting? What does that look like?

Elora Mukherjee: So a non-citizen, as you've explained, Natalie, doesn't have a right to government-appointed counsel, but they can hire their own attorney at their own expense, and they should be given reasonable access to that attorney. Courts have interpreted this to mean that non-citizens in immigration detention facilities should have the opportunity to communicate with their lawyer, whether that be by phone, by video, or in person.

And unfortunately, at immigration detention centers across the country, especially ICE holding facilities, it's been really, really difficult for lawyers to access their clients. For example, in December when I had a client who was showing up for his ICE check-in and doing exactly what he was supposed to do, he was unexpectedly arrested at his ICE check-in.

And then neither me nor his family had any idea where he was because the ICE detainee locator, which you can use, which you should be able to use to search where a non-citizen is in detention, it hadn't updated. And for hours and hours, we didn't know where he was being held. And then even once the detainee locator listed that he was located at 26 Federal Plaza, I didn't have a way to get in touch with him there because he was in this overcrowded holding facility without phone access.

And this is just one example of many that immigration lawyers can share in terms of the challenges with accessing their clients. Another really sad example of this from one of my cases is I was working with a family that was detained at Dilley last year, and all of a sudden the ICE detainee locator showed that they were in a different Area that they were being held in the Washington, D.C. area.

And I didn't know why. I had no way to get in touch with them, and I ended up filing a federal habeas petition for them within a few hours trying to stop what I imagined was an imminent deportation. I wrote to the U.S. Attorney's office immediately to put them on notice that the federal habeas petition had been filed and the family shouldn't be deported.

The U.S. Attorney's office didn't get back to me for several days, and by the time they did, they wrote to let me know that the family had been deported and that my federal habeas petition, which was filed in D.C., it wasn't filed in the right jurisdiction because although the ICE detainee locator showed the family as being detained there, they were actually in other facilities in the southern part of the United States.

So I had no way to know where they were, how to communicate with them, and where to file a federal habeas petition for them that would be successful So it's, it's been a really hard time for many immigration lawyers in terms of trying to access clients in detention

Natalie Orpett: What is the client side of this? So presumably, you know, people who are represented are asking the officials in the facility where they're being held to communicate with their lawyers.

What are they hearing? What are ICE officials or private officials who are running ICE detention facilities, what is their affirmative duty to, to represent, to facilitate access to counsel? Are they, you know, is it that they- Yeah ... need to give a phone call? Is it that they need to give some update? What is the right of an immigrant who's being held in detention to ask for and get access to their counsel?

Elora Mukherjee: People in detention should have access to their attorneys. They should be able to make phone calls to their attorneys. They should be able to meet with their attorneys. When I've had, for example, a client detained at Delaney Hall, I couldn't reach them, and I ended up filing a federal habeas petition. I let the federal judge know I cannot access my client.

And fortunately in that case, the federal judge ordered ICE to permit me to access my client. But he couldn't call me. He couldn't access a phone to reach me so that we could work on his case together. So these are unfortunately examples of what's happening across the country.

Natalie Orpett: And would that have been a claim that he could have made? So he could say, you know, "I, I asked the officials in this facility to let me have a phone call so that I could call my lawyer, and they didn't let me." Is that in and of itself a violation?

Elora Mukherjee: If there is a pattern of a person being unable to reach their counsel, then yes, that could amount to a violation, but there are so many steps between being denied access to a phone call to call your lawyer and filing a case that makes it to a federal judge. They're almost insurmountable for the overwhelming majority of people in immigration detention.

Natalie Orpett: Right. And let's turn to that now because, you know, I've, I've tried to sort of sketch out what the rights are, but unfortunately, as we know, there can be, as you said, quite a large gap between the rights that people very clearly do have and the ability to actually realize and enforce those rights.

And I wanna talk about why. And you've spoken somewhat already about, you know, what these rights are actually looking like in practice. Do they, do they have any teeth? Can you tell us to start, we've talked about, I think, two different types of lawsuits that could be brought in an effort to enforce these rights.

One is through habeas cases, one is through filing for injunctions. Can you talk about the different forms that lawsuits might take?

Elora Mukherjee: Sure. Those are the two main categories, and a federal habeas petition is designed to seek the release of someone. It's not really designed to challenge conditions, though of course if a person is suffering in detention, as a litigator, I would want to detail all the ways that they're suffering in detention so that the judge understands why release may be particularly urgent in a certain case.

The second type of action that you mentioned is an individual action or a class action that's seeking declaratory or injunctive relief that is seeking to remedy conditions for a class of people or an individual who is currently in detention. And so that type of lawsuit does not necessarily seek individuals' release from detention.

Natalie Orpett: Okay, so the challenge, as I understand it, for injunctions in particular, which it seems are the main route to challenge conditions, even if you are either separately filing a habeas suit for release or perhaps you don't have a basis for release, but you still want to challenge the conditions in which you're being held or the treatment that you're experiencing.

Injunctions seem very tricky these days, particularly after Trump v. CASA making it pretty much impossible for a district court to issue universal injunctions. And you've spoken a little bit about some of the other just procedural hurdles to being able to litigate these cases. But can you talk about why injunctions in particular are tricky for this population and for within the, the legal structure that we've talked about?

Elora Mukherjee: Sure. So as you've mentioned, after CASA, a federal district judge may not issue a universal injunction that says to ICE, "Make sure that everyone in immigration detention facilities have access to adequate water, food, lights at a reasonable level, and basic humane conditions across the country." And so since CASA, a lot of the challenges to immigration detention conditions have been on a much narrower basis.

So challenging conditions in one particular detention center or with regard to one ICE holding facility. And these cases are challenging to put together. First of all, as we've already discussed, it's hard for non-citizens in these facilities, especially in the holdings facilities, to access counsel. And then it's hard to collect evidence.

Often lawyers are working across languages and with individuals who have limited access to phone calls or video calls with their attorneys. And at least at ICE holding facilities, it is often impossible for lawyers to do in-person visits to collect testimony and to learn what's going on. So it is hard to bring these lawsuits, and yet it is so important as a mechanism for challenging deplorable conditions in ICE facilities.

Natalie Orpett: Yeah, and it, it seems to me another really tricky part of it is just who is the plaintiff, right? Because if you're filing on behalf of an individual, it might be, in some cases at least, more possible to get the evidence you need to make a good claim. It might be a little bit faster, at least to get a preliminary injunction.

But of course, that would only apply to the individual and not even to the whole facility in which the individual is, is located. So then it seems that the alternative is a class action, which I know many individuals are filing, but that takes longer to get through. First of all, do I, do I have that right and are there any pieces I'm missing as to the pros and cons of, and just the challenges of securing an, an injunctive relief?

Elora Mukherjee: You're exactly right. So for injunctive relief that may have a lasting effect, that is likely to have a lasting effect, it's far more effective to pursue this through class action litigation. It's also harder to pursue class action litigation. You need to meet the class action requirements, and you need to find plaintiffs who will represent the class.

You need to prove numerosity, commonality, typicality of the claims, and you need to have the class certified, which is a time-consuming hurdle. It's a significant evidentiary hurdle, and it makes succeeding in these lawsuits far more difficult.

Natalie Orpett: Yeah, and, and am I right that there have been a number of instances where cases have been filed for injunctive relief on behalf of plaintiffs that then the government was able to either moot by deporting someone or defeat jurisdiction by transferring them to a different facility or sort of otherwise use its ability to really control the individual and their fate in order to sort of get out of some of these lawsuits?

Elora Mukherjee: Yeah, so I'm not personally familiar with those, so I can't speak to that, but it seems like you have good evidence that you're talking about.

Natalie Orpett: I think that's right. I think those are relating to injunctive relief cases. I know there have been a couple that are where the government has mooted habeas claims asking for release by just deporting someone.

But in any event, even if there aren't specific cases to that effect, it seems like certainly a tool that the, that might be available to try to evade some of these lawsuits. The other type of relief that seems like it should be available but I think is probably not in any realistic sense, but I wanna explore why, is some sort of damages, right?

So for some of these really egregious abuses, including things like the use of force, you know, one might think, okay, well, why don't, why doesn't someone sue the federal government, sue the officials who were responsible for this abuse and, and get damages out of it in addition to some sort of injunctive relief stopping the abuse? Is that happening? And if not, why is that?

Elora Mukherjee: So this has happened in the immigration detention context over the years. The mechanism for bringing a damages lawsuit for abuses that a non-citizen or anyone suffers in immigration detention is the Federal Tort Claims Act. So to file a Federal Tort Claims Act, a person must first exhaust administrative remedies, which means filing a FTCA claim, administrative claim first, waiting at least six months for the administrative tolling period to expire, and then a person can file for damages in federal court.

We have seen this most often in recent years in the context of the first Trump administration's family separation policies. So in 2017, 2018, going into 2019, the Trump administration had an intentional government policy of ripping babies, toddlers, and children apart from their parents at the southern border.

This was the so-called zero tolerance policy. And many of the families who were subject to those family separations that were clearly in violation of both the Constitution and federal law and human decency filed Federal Tort Claims Act, first administrative actions, and then they filed lawsuits in federal courts across the country, and a number of those cases have settled for damages.

It, but I, I guess I should say, this is a long process. This is not an easy fix. And the damages that are ultimately paid, if damages are paid at all, do not come out of the pockets of the abusers, of the individual ICE officers or private prison guards who have inflicted the abuse, the excessive force, the neglect that nearly results in, for example, a child's death.

They are not personally paying out of pocket. So there are questions about the extent to which this has a deterrence effect on subsequent bad behavior, unlawful, unconstitutional behavior

Natalie Orpett: Right. And I mean, it does also emphasize the significance of access to counsel because those sound like very complicated procedures, and how would you know to file an administrative claim before you can try to access relief through the federal courts?

The other piece of it that I think affects this and, and also has a much broader effect relates to, as we were talking about before, the role of private sector actors in serving as contractors to do much of this detention. And I'll put a little plug in for the, the work that you did with us on our Deportation, Inc.

project with Situ which looked at detention and the role of private companies. And we'll encourage all of our listeners to go check that out as well. But talk to us about what that has to do with all of this and, and the extent to which that makes lawsuits even more complicated.

Elora Mukherjee: Yeah. So private prison corporations h- wield enormous power in the immigration detention space.

There are two private prison companies, CoreCivic and GEO Group, that hold incredibly lucrative contracts with the federal government to run immigration detention centers across the country. The Dilley facility, the family detention facility that I've referenced a few times, it's run by CoreCivic.

CoreCivic has an annual contract with ICE to run the Dilley facility, and in return, CoreCivic is paid about $180 million annually for the Dilley facility alone. So these are incredibly lucrative contracts. And the private for-profit prison corporations have an invested interest in locking up as many people as possible.

So they have enormous lobbying power, and they're using their lobbying power to put people into our government, both at the state level and at the federal level, who will crack down on immigration and try to lock up as many people as possible and make offenses that previously were not deemed offenses to be something that results in people being locked up because it's good for the company's bottom lines.

Natalie Orpett: And what sorts of complications does that introduce for lawsuits that immigrants in detention might try to bring against those companies or against their detention more generally, but it turns out that the defendant might have to be a private corporation rather than the government?

Elora Mukherjee: Yeah. So o- one way that both CoreCivic and GEO Group deflect responsibility for what's happening is, for example, if there's media coverage of the Dilley Detention Facility, then CoreCivic will put out a statement saying, "We don't have any decision-making authority over whether a person is in detention or not, whether a child is in detention or not. We are only doing our very best to take care of everyone."

And one way that it becomes more complicated to hold private corporations accountable is in the context of the Federal Tort Claims Act. You need to prove that the corporation and the federal government together bear liability for any abuses or neglect that's been perpetuated by the abusers against the non-citizens, and there is, in the FTCA context, something called the independent contractor exemption.

So as a litigator, you need to figure out how to get around that, and it is extraordinarily difficult, especially without access to counsel, to get around that exception to Federal Tort Claim Act liability.

Natalie Orpett: So, you know, you've been, you've been litigating a lot of cases, and you've mentioned a couple of them and some, some really, frankly, terrible facts.

But just, I, I guess as an overarching matter, litigating in not only this environment with this dramatic increase in the number of immigrants being held in detention, but also in this really complicated, messy legal framework that existed long before this administration, what do you find to be the biggest obstacles as a litigator in vindicating the rights of your clients?

Elora Mukherjee: Yeah, there are numerous obstacles. I don't know that I can just focus on one. There are challenges with accessing clients who are in detention. There are challenges with accessing the medical records of our clients in detention. Very often, for the children and families I represent, they try to get their medical records from the detention center, which we need to prove wrongdoing and in-inadequate medical care, and they're not given those records, at least not in a timely manner.

There are challenges with gathering the evidence needed to bring compelling cases. And overhanging all of this is the fear of deportation. We are doing all this work in the federal system trying to improve conditions and protect people's rights, but this is all taking place as people are facing deportation, and the Trump administration's deportation machine is moving faster than ever before to do, to deport people, especially people in detention, and it makes doing this work really, really hard.

Natalie Orpett: I can imagine. Okay. To wrap us up, I think I just wanted to ask you about what we're looking for going forward. There are all of these uncertain areas of law. We've talked about a couple of different circuit splits that seem to be existing. You mentioned one actually that you expect might get to the Supreme Court.

Give us just a sense of looking forward, what are the key legal issues that are likely to persist and maybe have to get to a point of actually being opined on by higher courts and ultimately the Supreme Court?

Elora Mukherjee: So there are two major issues that I would draw your attention to. First, the circuit split over mandatory detention and what is the actual meaning of these two provisions, 8 U.S.C. 1225 and 1226. To what extent can non-citizens just be arbitrarily swept off the streets and be put into detention centers? And if they are put into detention centers, to what extent do federal courts have habeas jurisdiction to hear those claims? So that big set of issues is likely to be resolved by the Supreme Court at some point in the next year or so.

The second big issue that I'm looking at, given the work I do on a daily basis, involves the Flores Settlement Agreement, and the Trump administration has moved to terminate the Flores Settlement Agreement, which would leave children in federal immigration custody with virtually no protections at all.

And a federal district court last year rejected the Trump administration's effort to terminate that settlement agreement, but now the case is on an expedited appeal to the Ninth Circuit. Oral argument is scheduled for June 17th, so we will see what the Ninth Circuit does. But if the administration does not prevail there, I expect that they will appeal to the Supreme Court as well.

Natalie Orpett: Okay. Lots to look for going forward. I want to thank you for helping walk us through all of this complicated law and for the work that you're doing. Thanks so much for joining us.

Elora Mukherjee: Thank you so much, Natalie. I appreciate it.

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