Last year, as COVID-19 swept through immigration detention centers, detained people participated in a growing number of hunger strikes nationwide, demanding that Immigration and Customs Enforcement (ICE) take basic steps to protect them from the virus. Instead, ICE officials and detention center staff responded with increased use of force, such as pepper spray, physical force, rubber bullets, and facility-wide lockdowns, as well as retaliatory punishment for those singled out as instigators.

Now, as the Biden administration takes steps to close two notorious ICE detention centers, a new report examines never-before-reported details about ICE’s systemic response to hunger strikes. The report, Behind Closed Doors: Abuse and Retaliation Against Hunger Strikers in U.S. Immigration Detention, reveals that the routinization of coercion and retaliation against hunger strikers in ICE detention is far greater than previously known, even dating back to President Joe Biden’s years as vice president.

Released today by the American Civil Liberties Union (ACLU) and Physicians for Human Rights (PHR), the report is based on an assessment of over 10,000 pages of previously undisclosed documents, including emails, case records, procedural directives, and court filings, obtained under the Freedom of Information Act (FOIA) related to hundreds of hunger strikes in ICE detention from 2013 to 2017. These include hunger strikes by at least 1,378 people from 74 countries across 62 immigration detention centers in 24 states. Additionally, ACLU and PHR researchers conducted six in-depth interviews with formerly detained individuals who participated in hunger strikes during the COVID-19 pandemic in 2020.

ICE’s Retaliatory Abuse of Hunger Strikers

The report spotlights an array of punitive and egregious practices used against hunger strikers in ICE detention facilities, including involuntary and invasive medical procedures, solitary confinement, retaliatory deportation and transfer, and use of force. ICE documents reveal mistreatment of parents who engaged in hunger strikes while in family detention facilities, including plans to separate parents from their children. The documents also show how ICE officials frequently use coercive efforts to try and break hunger strikes, including the threat of criminal prosecution.

ICE detention facilities routinely locked hunger strikers in solitary confinement, endangering their health. ICE has claimed that its policy to isolate hunger strikers is for the detained person’s well-being. But as medical experts have concluded, there is no medical reason to place a hunger striker in solitary confinement, which can lead to additional serious physical and mental health consequences. Compounding the harm, ICE also subjects hunger strikers who have mental illnesses to the same abusive solitary confinement policies. Since 2017, at least three former hunger strikers – Kamyar Samimi, Amar Mergensana, and Roylan Hernandez-Diaz – have died in detention, raising serious questions about medical neglect, lack of mental health services, and abuse during and after their hunger strikes.

Through our review of thousands of pages of disclosed documents, we found that ICE engages in retaliatory deportations and transfers of hunger strikers, despite clear medical risk, and in violation of their First Amendment rights. Government records reveal multiple cases in which ICE sought to transfer or deport a hunger striker in an effort to break the hunger strike — and, in some cases, despite the hunger striker’s physical or mental vulnerability and need for continued medical monitoring.

The records describe how ICE officials mistreated parents who were driven to hunger strike in family detention facilities, where ICE physicians made plans to separate hunger striking parents from their children. While discussing a hunger strike by several mothers at the Berks Family Residential Center in Pennsylvania, an ICE physician noted that

we are using the food protest (or meal refusal) label rather than hunger strikes for acouple of reasons. Since this is a family facility, we don’t want the messaging going out that there is a hunger strike going on. The optics just look bad. Then people wonder if the kids are on strike too and starving.

The same physician proposed family separation and force-feeding as responses to the hunger strike.

ICE officials frequently used coercive efforts to break hunger strikes, including meetings with religious leaders and consular officials. In one instance, an ICE officer used dehumanizing language to describe hunger strikers:

I really feel that we should stop neglecting these poor innocent fruit flies. I mean really, why should they have to go without fruit? Maybe a protest is in order.

In some cases, ICE officials threatened to seek prosecution of hunger strikers for failure to depart the United States.

Involuntary Medical Procedures and the Role of Health Professionals in Abuses

The report also finds that ICE has employed involuntary and invasive medical procedures on detained hunger strikers, including force-feeding, forced hydration, forced urinary catherization, involuntary blood draws, and use of restraints, which increase risk to the hunger strikers and violate medical ethics and international human rights law.

The use of forced medical procedures against hunger strikers in detention violates the physician’s ethical obligation to respect the autonomy of a competent individual. For this reason, the World Medical Association and the American Medical Association have long described force-feeding as a violation of medical ethics. Similarly, international human rights experts have held that force-feeding constitutes cruel, inhuman, or degrading treatment or even torture, including as used by the U.S. government against detainees at Guantánamo Bay.

The FOIA documents reveal that ICE not only sought to force-feed hunger strikers under the Trump administration, as previously reported, but also under the Obama administration, and began seeking orders for involuntary treatment years earlier than was previously known.

The documents reveal a previously unknown force-feeding case from 2016 and an allegation of forced urinary catheterization from 2015. Court documents from 2015 to 2017 include at least six separate cases in which ICE coordinated with U.S. Attorneys’ offices to obtain federal court orders for force-feeding, as well as 11 separate cases in which ICE obtained federal court orders for forced hydration and other involuntary medical procedures, including involuntary blood draws, forced urinary catheterization, restraints, sedatives, and forced medication. The documents also include further government requests for court orders from 2012 and 2013; it is not clear whether these were granted.

Health professionals played a disturbing role in facilitating and enabling these and other abuses against hunger strikers. Rather than acting as patient counselors and advocates, these medical personnel appear to have acted as part of the ICE apparatus attempting to break the strike.

For example, in a December 2015 email, an ICE Health Service Corps (IHSC) nurse relayed guidance from an ICE conference call on hunger strikes:

Most agree through past experience that the best way to handle these cases is to first, separate the ring leader. Continue to speak to them and try to break their numbers. Stand our ground and discuss with the detainees what we plan to do. Discuss with the detainee how force feedings will be administered.

ICE physicians also played a troubling role in the management of hunger strikes in family detention. As noted above, in August 2016, an ICE physician proposed that ICE separate families in response to an August 2016 hunger strike of 22 mothers at the Berks Family Residential Center in Pennsylvania:

If it appears they really are on a hunger strike, we will need to separate the mother and children – send mom to an IHSC facility to address the hunger strike.

In an email earlier that day, the physician revealed what it would mean to “address the hunger strike,” proposing the transfer of a hunger striking mother for force-feeding:

If she gets closer to 120 lbs., we may consider telling her that IHSC will transfer her to a facility that could administer involuntary feeding if it is needed.

Physicians, nurses, and other health professionals have a duty to act in ways that preserve a person’s autonomy and uphold the right of competent individuals to control their bodily integrity. Yet the court documents also included at least 14 ICE medical declarations in support of government motions for force-feeding, forced hydration, and/or involuntary medical testing of hunger strikers. The declarations, which dated from 2013 to 2017, were signed by family medicine physicians, family nurse practitioners, and an emergency room doctor who were employed by ICE Health Service Corps (IHSC) or contracted medical service providers.

In some instances, ICE sought to use private prison medical staff to force-feed hunger strikers within a detention facility after nearby medical facilities refused to do so. In one instance at the Aurora Detention Center in Colorado, ICE officials could not find any local hospital staff who would agree to force-feed a hunger striker, due to ethical prohibitions. ICE officials finally turned to medical officers employed by the GEO Group, Inc., the private prison company that operated the detention facility, who offered to force-feed the hunger striker.

By lending their medical expertise to court orders on involuntary treatment, these doctors and nurses violated the ethical mandates of their own profession, which clearly state that forcible, involuntary intervention on competent individuals is never ethically permissible. They also incorrectly framed the involuntary treatment as the only option, without considering the value and necessity in these circumstances of providing legal representation to the hunger striker, allowing them to consult an independent physician, and recognizing and addressing the merit of their claims.

Constitutional Violations and Due Process Failures

Participating in a hunger strike — the act of refusing food and drink to communicate an urgent need — is a uniquely expressive mode of communication protected by the First Amendment. As Justice William Brennan once noted, “the passive nonviolence of King and Gandhi are proof that the resolute acceptance of pain may communicate dedication and righteousness more eloquently than mere words ever could.” For this reason, courts have widely considered hunger strikes to be protected by the First Amendment if it was intended to convey a particularized message.”

Officials may not retaliate against people in prison or detention for exercising their right to free speech. First Amendment protections extend to non-citizens, including those in detention. But as this report describes, people who engage in hunger strikes in immigration detention regularly experience unlawful retaliation in violation of their constitutional rights. Such unlawful retaliation may include assault by officers, threats, placement in segregation or solitary confinement, false disciplinary charges, denial or interference with medical or mental health care, and transfer to other facilities.

Immigrants in detention likewise have substantive due process rights under the Fifth Amendment to bodily integrity and to refuse unwanted medical treatment. Civil detainees who participate in hunger strikes have the right to refuse unwanted medical treatment, such as force-feeding through nasogastric tubes, or involuntary hydration. But as this report finds, ICE and detention center officials regularly engage in practices that violate these fundamental constitutional protections.

Once ICE decides to pursue a court order for involuntary medical procedures, including force-feeding, hunger strikers face significant disadvantages. Hunger strikers, for the most part, have no legal representation in such proceedings. Government attorneys often pursue these orders using ex parte motions (requests without response from the other side) that are sealed and unavailable to the public for review, which courts most often grant without serious consideration, until a hunger striker is able to find counsel. In most cases that we analyzed, detained hunger strikers lacked representation in court to defend themselves against the government’s pursuit of force-feeding orders or other forms of involuntary medical procedures. In a few limited instances, courts appointed counsel to represent hunger strikers, over the objections of ICE attorneys.

Legal representation of hunger strikers has helped to level the playing field and can deescalate the situation to avoid a force-feeding order. In one case arising out of the Florence Detention Center in Arizona, a hunger striker was represented by the ACLU of Arizona. During a court hearing, ICE agreed to change the hunger striker’s housing assignment, the demand underlying the hunger strike, averting the need for force-feeding.

A New Opportunity: Ending a System of Abuse 

Upon his recent announcement that the Department of Homeland Security would soon close two ICE detention centers, DHS Secretary Alejandro Mayorkas declared that “We have an obligation to make lasting improvements to our civil immigration detention system.” But at the root of these hunger strikes is a system that is inherently inhumane. ICE should end its reliance on a mass immigration detention system, and invest in community-based social services as alternatives to detention. As the COVID-19 pandemic continues to spread in detention facilities nationwide, ICE should also reverse course from recent increases in population and continue to depopulate facilities to ensure safety. 

In the meantime, ICE should ensure that hunger strikers in detention are guaranteed appropriate care, consistent with national and international ethical norms. ICE should ensure that people in detention are provided fully independent and qualified physicians and mental health providers throughout the course of a hunger strike. ICE should refrain from taking punitive and retaliatory measures, including the use of force, solitary confinement, and retaliatory transfer and deportation against hunger strikers. ICE should consider the requests made by hunger strikers and make reasonable attempts to accommodate these requests prior to seeking court orders for involuntary medical treatment. Hunger strikers should be guaranteed counsel in the event that ICE and the Department of Justice (DOJ) seek a court order for involuntary medical treatment. 

ICE is not alone in ensuring accountability: DOJ should refrain from pursuing orders for force feeding and other involuntary medical procedures and avoid retaliatory prosecutions against detained hunger strikers by threatening or bringing charges for refusal to depart. At the same time, medical and health professional associations should censure and expel professionals who authorize or participate in involuntary medical procedures on medically competent individuals.

President Biden, who was vice president during most of the period covered by this report, has promised to reverse the Trump administration’s anti-immigrant policies. He now also has the opportunity to change his own legacy by heeding hunger strikers’ calls for humane treatment and release, and ending a harmful and unnecessary civil immigration detention system.

Image: Razor wire is seen on the Metropolitan Detention Center in Los Angeles, California. Photo by David McNew/Getty Images