LINDSAY TOCZYLOWSKI, an immigration attorney, arrived in Victorville, California, a few days after hundreds of immigrants, most of them refugees seeking political asylum, were transported to the medium-security federal penitentiary there. Toczylowski had obtained from a partner organization a list of names of men she suspected were incarcerated at the Victorville prison, located about 90 miles from Los Angeles in the Mojave Desert. Her colleagues at the nonprofit immigration firm she leads had looked up the names in the Bureau of Prisons’ online database, which revealed their BOP numbers, and she brought that information with her on a sheet of paper.
She approached the front desk and told the guard that she was there to speak to the detainees on her list. The day before, she had called the prison repeatedly to let them know she was coming, but she could not get through. The guard, flustered, called a few numbers, trying to get a supervisor to assist. When one finally arrived, she told Toczylowski that visitation hours were over, that she couldn’t show up without making an appointment, and that she would need permission from Immigration and Customs Enforcement to see any of the detainees. “Everyone was surprised to see an attorney there,” Toczylowski recalled.
The supervisor was friendly and polite until Toczylowski handed her the list of names, with the Bureau of Prisons numbers next to them. Then her tone changed. She wanted to know how Toczylowski had gotten a hold of the BOP numbers, claiming that it was not public information. She told her she wouldn’t be allowed to see anyone that day, and should come back another time.
Toczylowski went to her car and began texting her colleagues to ask them to fax the facility to request access. Then a truck pulled up, with a man in plainclothes behind the wheel. He asked her if she was the lady who had just tried to get inside. Toczylowski said she was, and that she was an attorney. “You’re going to need to leave the property immediately,” he ordered. She asked if there was a problem. “Can you hear me? You need to leave the property immediately,” he repeated.
As Toczylowski pulled out and drove to the exit, the truck tailgated her all the way to the front gate. The guard at the gate motioned for her to roll down her window. He asked her if she was the person who had just tried to go inside and visit detainees. “Did my guard catch you?” he asked. Another guard walked up and joined the one who was interrogating her. At this point, Toczylowski was boxed in by the truck behind her and two guards in front of her car. She started worrying that they were going to arrest her. “The whole thing felt like I was in another country or something,” she said. Over the course of her career, Toczylowski has made visits to detention facilities 100 times, she estimates. “I’ve never been treated like that.”
A few weeks later, after Toczylowski finally managed to get access to the detainees, she began to understand what the facility was hiding. “Everything I suspected they were doing, they were doing,” she said.
A Human Rights Crisis
On August 1, the American Civil Liberties Union, along with the Prison Law Office in Berkeley, California, and the Civil Rights Education and Enforcement Center in Denver, filed a class-action lawsuit in federal court, which enumerated allegations of egregious conditions for detainees at Federal Correctional Institute Victorville. In its press release, the ACLU referred to the conditions as a “human rights crisis.” The suit describes detainees, all of whom are adult men, “crying in their beds” at night and “cutting themselves due to depression and desperation.”
Detainees told Toczylowski that they were locked in their cells 23 hours a day, or in some cases for days at a time. One asylum-seeker she met with had been allowed outside of his cell three times in as many weeks, and had not been given a clean change of clothes since the day he arrived. For five weeks, according to the ACLU suit, there were no clocks in the cellblocks, so detainees had no way of knowing what time it was or how much time had passed, compounding their disorientation.
In the ACLU complaint, one detainee recalled seeing a young man who had sliced himself across his arms and wrists with a razor blade. He wasn’t given with any mental health services, and didn’t receive medical care for three days. Another detainee complained to guards for nearly a week about a toothache, seeking medical attention. In response, he was locked in his cell and threatened with pepper spray if he kept complaining. Michael Kaufman, a lawyer with the ACLU of Southern California, visited the prison in June. “A guard told one detainee that unless he was dying or had been raped, they won’t provide any medical care,” he said.
Detainees at FCI Victorville have been routinely prevented from practicing their religions. They are prohibited from praying together. Detainees who have asked for Bibles have been denied them. Many of the detainees are Sikh and have had their turbans confiscated. Even though many Sikhs are vegetarian as a matter of faith, the prison has served them meals with meat. One of the detainees reported losing 15 pounds as a result.
The ACLU lawsuit describes detainees being served spoiled milk with breakfast, and meat that appeared to be infested with worms or maggots. “Some days we receive sandwiches with nothing in them — just two pieces of bread,” one detainee complained.
“They’re rushed into eating,” said Meeth Soni, an attorney who works with Toczylowski and has visited detainees at FCI Victorville. “They all have to scarf down the food, or it’s taken away from them.” According to the ACLU complaint, detainees are given five minutes to eat each of their meals in the chow hall. Anything left on their plates is thrown out.
Soni was told by one detainee that ICE had informed them that the only detainees being moved out of the prison were those who had been separated from their families and people with medical emergencies. Detainees began cutting themselves and trying to break their own bones in order to qualify for a medical transfer. Some detainees have become so despondent that they have abandoned their asylum claims and agreed to their deportation, even though they face persecution and possibly death in their home countries.
“I think that’s what the administration wanted,” Soni said.
Kaufman said he has spoken to numerous attorneys who have worked in detention centers all over the country and are now seeking to represent detainees at FCI Victorville. “They have said they’ve never seen levels of despair from a group of immigrant detainees that they have in this facility,” he said.
Washington state Attorney General Bob Ferguson, second left, speaks as Gov. Jay Inslee, left, looks on at a news conference announcing a lawsuit against the Trump administration over a policy of separating immigrant families illegally entering the United States, in front of the Federal Detention Center Thursday, June 21, 2018, in SeaTac, Wash. Ferguson made the announcement outside the federal prison south of Seattle, where about 200 immigration detainees have been transferred — including dozens of women separated from their children under the administration’s “zero tolerance” policy.
A Warehouse for Human Beings
In June, the Trump administration began using federal prisons in California, Arizona, Texas, Oregon, and Washington state to house immigrant detainees for the first time, having run out of space in the regular detention centers as a result of its “zero tolerance” and family separation policies. FCI Victorville is one of five federal prisons enlisted for the purpose. With 1,000 detainees at its height, it is by far the biggest.
“What became immediately clear was they had done no preparation to make the facility appropriate for immigrant detainees,” said Kaufman. “No attorney access was arranged. There was no way for people to call to the outside.” The prison had not expanded its food services capacity to feed all of the new inmates, so when they first arrived, the detainees were served cold meals three times a day. FCI Victorville didn’t even have enough prison uniforms to accommodate the new population, so detainees were given only a single set of clothes to wear for the first two to three weeks of their incarceration, including underwear. In the ACLU complaint, one detainee recounted using hand soap to wash his prison jumpsuit in the toilet of his cell.
Even before the detainees were brought in, FCI Victorville was understaffed. “The federal prisons are experiencing a staffing crisis because the federal government has put a hiring freeze on them,” said Margot Mendelson, an attorney with the Prison Law Office, one of the firms representing the detainees in their class-action suit. Nevertheless, the prison brought in no additional staff to handle the expanded population. The understaffing at Victorville as a result of the detainees’ transfer is now so severe that in the fall the prison plans to institute a process known as “augmentation,” in which civilian prison staffers, such as nurses, doctors, and teachers, are drafted into roles as correctional officers.
Because of the staffing issue, the union representing the prison guards at FCI Victorville has been adamantly, and very publicly, opposed to housing the immigration detainees, which union leaders believe put their members at risk. “We are a prison. We are not a detention center. We don’t function at all like a detention center,” the union’s president, John Kostelnik, told the local NPR station in June.
As Kostelnik suggests, the staff of FCI Victorville is trained and accustomed to managing criminal inmates, not refugees fleeing humanitarian catastrophes and seeking refuge in the United States. “This is the first time they’ve been confining immigration detainees in a federal prison setting,” said Tim Fox, from the Civil Rights Education and Enforcement Center, one of the groups that brought the class-action lawsuit. “From the perspective of the Constitution, it’s quite clear that the status of these people is very different from those convicted of criminal offenses.”
Despite the radical differences between immigrant detainees and criminal inmates, the prison has conducted no re-training of its staff. Combined with the understaffing crisis, this has created a situation in Victorville in which conditions for detainees, who are being held on a civil violation, are identical and in some cases worse than those of the criminal population.
Mendelson calls the conditions that the detainees are facing “appalling,” even for convicted criminals. “The kinds of things we’re seeing with lack of adequate food, laundry exchange — these conditions are exceptionally bad even for a prison that handles post-conviction prisoners,” she said.
Indeed, the rules that the detainees are subjected to in confinement are in some cases even more severe than those for the general population. Detainees, for instance, are not allowed to participate in the prison’s educational programs, and they have no access to the courts and extremely limited access to attorneys.
“Immigration detainees aren’t pretrial, pre-conviction, or even in the realm of the criminal justice system,” said Eva Bitran, an attorney with the Southern California chapter of the ACLU. But you couldn’t tell that from the conditions at FCI Victorville. When immigrant detainees at Victorville are transported, their ankles are shackled and their wrists are cuffed and fixed to belly chains. “The Bureau of Prisons is imposing their facility rules on detainees,” said Toczylowski. “They’re all civil detainees, but they have not relaxed any of the protocols.”
“They’re not supposed to be punished,” said Bitran. “This is a civil process. We wouldn’t tolerate this for any other civil violation.”
Bitran was the first attorney to be allowed access to detainees in the prison, and it had taken the threat of a court order for that to happen. Prior to her visit, the detainees had been held incommunicado. They were permitted no access to attorneys, no visits from family members, and no way to make telephone calls. Attorneys like Toczylowski who tried to access the facility were met with a brick wall. Bitran herself was told on one occasion that she couldn’t enter the prison because her dress was too tight. Bitran had to explain that her dress fit that way because she was pregnant.
Since the court order, the prison has been forced to allow some access, but instead of a brick wall, lawyers have been faced with a Kafkaesque labyrinth of ever-shifting and unwritten rules that make it all but impossible for them to effectively represent detainees. In interviews with The Intercept, two attorneys referred to FCI Victorville as an immigrant “black site.”
Typically, upon surrendering themselves to Customs and Border Protection, refugees seeking asylum are given an initial screening called a “credible fear” interview. If their fears of persecution in their home countries are deemed credible, they are referred to an immigration court for a full hearing. This process is followed, however imperfectly, by the staff of detention centers administered by ICE or by private corporations contracted by ICE. In the Bureau of Prisons, however, it has been utterly ignored.
“They’re just holding people,” said Kaufman. “They can’t even get evaluated. They can’t get credible fear or ask ICE to release them.”
When Bitran visited the prison in late June, she spoke to a detainee who had no idea where he was. He asked her for the name of the prison he was incarcerated in and the city where it was located. “Nobody had told them anything,” she said.
“They appear to be using Victorville as a warehouse for human beings,” Kaufman said of the BOP.
As far as the attorneys working with Victorville detainees can tell, BOP is transferring detainees out to regular detention facilities as space becomes available. But that’s just a guess. There are detainees in FCI Victorville who have been there since early June, when they were first brought in, while others who were brought in later have been moved out. There is no clear logic behind who gets out, when, or why.
The Bureau of Prisons and ICE both declined to comment, citing pending litigation.
In the meantime, the detainees exist in desperate conditions and in a legal limbo, almost entirely detached from the judicial system. “You’re holding people in captivity, in a prison, with no charges filed against them, nothing happening in their cases, for a significant period of time incommunicado,” said Soni.
“This is the Guantánamo Bay for asylum-seekers.”