Stepping into that cell, it felt like I lost all hope. You could smell the concrete, the isolation, the loneliness. And I knew in my heart that I would die here.
— Five Mualimm-ak1
After that first or second week, I lost my mind. . . . Sometimes I feel like someone is choking me. I have flashbacks, like I’m still confined in that little room.
— Ayo Oyakhire2
Introduction
Pitch black darkness. Screams of neighbors in pain. Excluded from everything: your family, neighbors, and vital medical help. Thrown in the hole because you spoke Spanish, left “juice” in your cell, a guard was upset at you, you are gay or transgender,3 you have a preexisting medical or mental health condition, you do not want to work for $1 a day, you are fasting during Ramadan, you are on a hunger strike to protest prison conditions, or you ask for help with a medical or legal issue.4 Days feel like months, months feel like years, and years feel like an eternity when you are in an elevator-sized cell5 fully enclosed by cold concrete walls.
In 2015, the United Nations recognized that solitary confinement — the caging of people in isolation for twenty-two to twenty-four hours a day in a cell — beyond fifteen consecutive days is cruel, inhumane, and degrading treatment amounting to torture.6 During prolonged periods in isolation, people may be subjected to horrors such as sensory and sleep deprivation,7 physical restraints,8 restrictions on religious practice,9 chemical attacks,10 and sexual assault.11 Voluminous research studies consistently show that solitary permanently harms a person’s psychological and physical health.12 Compared to the general nonincarcerated population, rates of self-harm and suicide are seven and five times higher, respectively, among those in solitary.13
The United States leads the world in the use of long-term solitary confinement14 — disproportionately impacting LGBTQ individuals, women, immigrants, people of color, and people with disabilities and mental illnesses.15 Prior to the COVID-19 pandemic, there were approximately 60,000 people nationally in solitary confinement.16 However, after March 2020, there was a 400% increase to more than 300,000 people in solitary.17 One study estimated that, in 2021, over 60% of men and over 40% of women in solitary confinement were nonwhite.18 Though designed to sanction the most violent behavior, solitary is a common punishment for trivial infractions.19 At the whim of prison staff, incarcerated persons are denied human contact, educational and legal resources, and medical treatment.
Solitary confinement has increasingly been used on immigrants in immigration prisons20 during admission and removal proceedings.21 According to data from U.S. Immigration and Customs Enforcement (ICE), in fiscal year 2023, people spent an average of twenty consecutive days and over thirty-eight cumulative days in solitary confinement (both administrative and disciplinary).22 Recall that, according to the U.N., placing a person in solitary for more than fifteen consecutive days amounts to torture.23 According to the Department of Homeland Security’s Office of Inspector General (OIG), between fiscal years 2015 and 2019, there were a total of 13,784 immigrants placed in segregation, the term ICE uses for solitary confinement.24 The report determined that for 72% of segregation placements, ICE did not “maintain evidence showing it considered alternatives to segregation.”25 The report also highlighted how solitary confinement worsened mental and physical health conditions, causing depression, post-traumatic stress disorder, and increased risk of self-harm and suicide.26 In a subsequent report, the U.S. Government Accountability Office (GAO) reported that, from fiscal years 2017 to 2021, there were 14,581 segregated housing placements in immigration prisons.27 While 41% of these placements were for disciplinary reasons, about 60% were for administrative reasons for individuals with special vulnerabilities.28 During the COVID-19 pandemic, and between March 2020 to January 2022, the rate of immigrants placed in solitary confinement skyrocketed with the majority being for administrative and medical reasons.29
This problem is only bound to get worse. In 2022, global human displacement reached an all-time high of 108.4 million people as a result of famine, war and violence, poverty, and climate change.30 That year, 2.76 million people arrived at the U.S. borders, mostly from Latin American countries.31 While news media often portrays immigrants as “illegal[s]” threatening society, the reality is that displaced people seek a better life from the ravages of colonialism, racial capitalism, military imperialism, climate change, and poverty.32 And as more people are displaced, more will seek refuge in the United States (as an expression of self-determination and decolonization33), and more will likely be incarcerated and confined in solitary. Therefore, it is critical that we, lawyers and scholars, join with organizers34 and people who are grappling with the implications of solitary confinement in immigration prisons.
This Essay first traces the evolution of immigration prisons leading to the contemporary use of solitary confinement. Second, the Essay examines how solitary confinement in immigration prisons is an extrajudicial segregation condoned and designed by courts and congressional plenary power.35 Third, the Essay examines the limited pathways that the U.S. government offers to advocates and lawyers to curtail the use of solitary confinement in immigration prisons.36 The Essay concludes by exploring harm-reduction legislative options and by advocating for abolishing solitary confinement entirely.
I. The Evolution of Solitary Confinement in Immigration Prisons
A. Immigration Prisons
Immigration prisons, described as “civil detention,” are structures of confinement designed to segregate and isolate noncitizens during the admission and removal process.37 The use of immigration prisons as a tool of settler-colonial segregation38 began with the 1891 Immigration Act,39 which authorized, for the first time, the detention of immigrants at Ellis Island.40 The law also created the first immigration department, criminalized the first classes of excludable immigrants, and created new border enforcement procedures.41 The following year, the Supreme Court upheld Congress’s power to arrest immigrants and hold them in “civil detention.”42 Over time, that power was justified as part of Congress’s plenary power to exclude anyone whom they deemed undesirable and to detain and deport them in whichever manner Congress elected.43
At the turn of the nineteenth century, Congress expanded immigration incarceration. In 1910, for example, Angel Island in San Francisco was an immigration prison where thousands of mostly Asian immigrants were detained for days or months to enforce the Chinese Exclusion Act of 1882.44 In 1924, Congress instituted racial quotas limiting who could enter the country and created the U.S. Border Patrol.45 The majority of the newly formed border patrol was composed of a majority of working-class landless white men who toiled in agriculture, staunchly opposed unrestricted migration from Mexico, and violently policed the borderlands, with militia groups, to maintain strict racial divides, protect their socioeconomic status, and climb the social ladder.46 As such, anti-immigrant violence is embedded at the core of the Border Patrol. For example, the early Border Patrol agents witnessed Texas Rangers or local police (often the same recruits) inflict brutal violence on Mexicans along the borderlands with impunity.47 Such violence often included lynchings.48 With the Undesirable Aliens Act of 1929,49 Congress criminalized U.S.-Mexico border crossings, leading to over 44,000 prosecutions and convictions by the close of the 1930s,50 surpassing all other federal crimes.51 Throughout the 1940s, Congress further criminalized, incarcerated (most notably in internment camps), and deported immigrants, all while authorizing exploitative labor practices for immigrants.52
In the 1980s and 1990s, Congress adopted a tough-on-crime regime and augmented its efforts to criminalize, detain, incarcerate, and deport more immigrants.53 For example, the Immigration Reform and Control Act of 198654 (IRCA), the Anti-Drug Abuse Act of 1988,55 and the Illegal Immigration Reform and Immigrant Responsibility Act of 199656 all expanded the list of crimes under which noncitizens could be charged, incarcerated, and deported. As Congress expanded the list of removable offenses, more immigrants were incarcerated and immigration prisons burgeoned alongside the prison industrial complex.57 Congress again expanded its authority to criminalize and detain immigrants by empowering local and state law enforcement to detain immigrants.58 In the post-9/11 era, Congress drastically enhanced surveillance, detention, and deportation measures via the USA PATRIOT Act,59 specifically targeting Middle Eastern, Arab, and North African communities, and created the Department of Homeland Security (DHS), which included Customs and Border Protection (CBP) and ICE.60 Subsequently, Congress passed the first immigration detention bed quota — requiring that a minimum of 33,400 prison beds be maintained nationally.61 Throughout the steady expansion of the immigration incarceration and deportation regime, the Supreme Court has steadily upheld Congress’s growing use of prolonged detention during removal proceedings.62
The U.S. immigration system is now a well-oiled incarceration and deportation machine with over 200 prisons63 that, in fiscal year 2024, collectively house an average daily population of over 38,000 people64 —about 91% of whom are held in privately operated prisons.65 When people seeking asylum arrive at the border, the majority are deemed to be a “security risk” and are held in immigration detention for an average of 36 days before they are either released on parole or bond to continue their asylum case or deported.66 Moreover, the average length of detention of people already in the country facing removal for criminal or immigration violations is 48.8 days, and 52% of detainees remain in detention and are denied parole or bond.67 About 67% do not have any criminal record.68 According to ICE, in fiscal year 2024 so far, there are over 192,000 people being monitored and tracked by GPS, SmartLink, VoiceID, and Veriwatch technology as part of Alternatives to Detention (ATD) programs.69 In all, the immigration incarceration and deportation regime is a formidable and sophisticated machine that continues to grow and is rooted in the settler-colonial logics of the eighteenth century: criminalization, forced displacement, segregation and isolation, and removal of those designated as the “other” — noncitizens.
B. Solitary Confinement in Immigration Prisons
In 2021, an estimated 1,193,934 people were held in state and federal prisons across the United States.70 In 2019, an estimated 5.6% of the prison population was held in solitary confinement.71 Solitary in immigration prisons follows the use of solitary on the general prison population starting in the 1980s,72 and is used to segregate, isolate, and punish adults and families facing long-term detention across over 200 immigration prisons in the country.73
Immigration prisons use two forms of solitary: disciplinary and administrative segregation.74 Though disciplinary segregation can be used only against serious violence, detainees have been sent to disciplinary segregation for trivial reasons, including “for requesting to watch Spanish language television, for submitting complaints to the facility administration for intimidation and wrongful placement in segregation, or for having medically necessary pills on [their] person that had been previously approved by another facility.”75 Prison guards also use administrative segregation for detainees designated as “vulnerable” — which can include LGBTQ persons, persons with disabilities or physical and mental health conditions, and people who need protective custody.76 According to ICE’s data, in fiscal year 2023, people spent an average of approximately twenty consecutive days and thirty-eight cumulative days in solitary confinement (both administrative and disciplinary).77 Moreover, the average number of consecutive and cumulative days immigrants spent in solitary confinement increased from 2022 to 2023.78
In 2013, ICE issued Directive 11065.1, providing increased oversight and reporting mechanisms to “ensure the safety, health and welfare of detainees” when solitary confinement is used.79 After this directive, detainees may be confined to solitary only if they have a special vulnerability, such as a known mental illness or serious medical illness.80 The ICE Directive requires a review if the detainee is in solitary for longer than fourteen days, but there is no right of action for wrongful placement.81 Recently, the OIG found that immigration prisons do not uniformly comply with ICE’s standards or implementation practices governing solitary.82
Immigrants in solitary experience the same psychological, physical, and physiological impacts as the general prison population in solitary.83 Both groups are confined in cells that are smaller than the size of an elevator,84 some detainees for twenty-two to twenty-three hours a day,85 with limited out-of-cell recreation, medical care, and mental health services. As a result, and as the OIG recognized, survivors of solitary commonly experience debilitating physical and psychological ailments86: panic attacks, depression, paranoia, intrusive obsessive thinking, suicidal ideation and self-harm, severe weight loss, chronic physical ailments, and other severe mental health conditions.87 Additionally, because some immigrants, such as asylum seekers, are more likely to experience premigration post-traumatic stress disorder and trauma, they are more likely to enter detention and solitary confinement with underlying psychological and physical ailments88 — conditions exacerbated by solitary.89
The use of solitary confinement against immigrants is a torturous practice90 and a revealing microcosm of the larger structural segregation, state violence, and organized abandonment that the migra state91 inflicts on immigrants at home, abroad, and at the borders.92 Recently, several states have adopted punitive anti-immigrant enforcement measures.93 The rationale for exercising such violence on immigrants is justified by a bipartisan tough-on-immigration paradigm whereby both parties pass punitive laws — condoning the use of solitary — that criminalize and dehumanize immigrants and that bolster the immigration detention machine.94 As I argue below, solitary in immigration prisons is another layer of this violence: extrajudicial segregation.95
II. Extrajudicial Segregation: Congressional Plenary Power
The Supreme Court has cast immigrants as pretrial civil detainees and defined their incarceration and removal as “a purely civil action” that is not punishment.96 The Court has reasoned that, under the plenary power doctrine, Congress, as a matter of nation-state sovereignty, has the ultimate decision over whether, and under what conditions, it designs these proceedings.97 Namely, the Supreme Court affirmed that Congress has the unfettered power to designate immigrants as a “menace” to the nation and can determine how to deal with this “menace.”98
According to the Supreme Court, people in immigration detention do not have Eighth Amendment protections to challenge the conditions of their confinement because they have not been formally adjudicated guilty of a crime, so incarceration to facilitate their deportation is not a punishment.99 The Supreme Court later held that people may be incarcerated for a period “reasonably necessary” to deport them, which can be up to ninety days or for months and years under the rationale of national security.100 At best, the Court has commented that “deportation is a particularly severe ‘penalty’” and recognized that “deportation is . . . intimately related to the criminal process.”101 But ultimately, Congress has carved out an extrajudicial realm of law — a second system of “justice” — whereby noncitizens can be incarcerated for long periods of time with relatively few rights and remedies.102
Many scholars agree that the plenary power is extraconstitutional — resulting in extrajudicial proceedings and confinement.103 As a result, plenary power is used to justify immigration incarceration as a form of state-sponsored action not bound by constitutional protections.104 By existing outside of the constitutional protections required for other forms of state-sponsored confinement, solitary in immigration prisons is extrajudicial.
The lack of congressional and judicial oversight also exemplifies how solitary in immigration prisons is extrajudicial.105 Congressional lack of oversight is intentional inaction because Congress can design the immigration prison system any way it wants.106 Indeed, Congress can remove solitary or immigration incarceration altogether and design a more humane process. Yet, it has not. Rather, and as demonstrated in Part I, a bipartisan Congress has, for decades, consistently strengthened and expanded the immigration detention machine to be more punitive, harsh, and far-reaching.107 So, the use of solitary against immigrants is intentional.
There is also a lack of oversight within the executive branch because there is a systemic absence of robust internal grievance procedures within prisons and a lack of resources and assistance to challenge solitary.108 Recently, an OIG Report found that immigration prisons vary significantly in their administration of solitary confinement, with each prison providing different documentation to justify solitary confinement, conditions of confinement, length of placement, and reporting requirements.109 Notably, across all prisons, ICE did not record thirteen percent of the instances when people were placed in solitary; improperly destroyed records; and did not address complaints of people in solitary who were denied medical attention, refused adequate food and showers, were not informed why they were placed in solitary, or were threatened with solitary for not working or following prison rules.110
In all, bipartisan congressional inaction and lack of executive oversight represent two intentionally designed systemic ways in which solitary in immigration prisons is extrajudicial segregation. As explained below, the legal system’s lack of relief is another layer — thus showing that solitary in immigration prisons is tolerated across all branches of government.
III. The Limited Pathways for Challenging Extrajudicial Segregation
Congress and the Supreme Court have limited the legal vehicles that immigrant detainees may use to challenge solitary confinement in immigration prisons. Though immigrants are confined in the same prisons and experience nearly identical traumatic prison conditions as the general prison population,111 they are denied the protections offered to the general prison population.112 So, immigrants must rely on convoluted pathways to challenge solitary in immigration prisons. Accordingly, it is unsurprising that no federal court has ruled on the constitutionality of solitary in immigration prisons.113
As an initial hurdle, because about ninety-one percent of people are held in privately run immigration prisons, and the remaining nine percent are held in state and federal prisons,114 the greatest initial challenge for immigrant detainees in solitary is knowing whom they can sue, which claims they can bring, and how to do so. Additionally, immigrant detainees face other structural challenges such as difficulty securing counsel; lack of access to legal resources; language, knowledge, and financial barriers; retaliation by prison officials; and the threat of removal115 — systemic barriers reinforcing their extrajudicial segregation.
A. State Claims Against Private Officials
Because immigrant detainees are overwhelmingly held in private prisons, the most viable claims are state tort claims for wrongful death, negligence, and violations of state statutes and constitutions.116 Plaintiffs, or their estates, may, for example, bring a wrongful death claim if their loved one died as a result of their solitary confinement either by suicide, denial of medical care, excessive force, or some alleged negligent act or acts by the prison officials.
In a current federal case in California,117 Mr. Choung Woong Ahn, a seventy-four-year-old man with a history of mental illness who had reported suicidal ideation, was placed in solitary without medical care, evaluation, or monitoring at Mesa Verde, a private immigration prison.118 Shortly thereafter, he died by suicide.119 Mr. Ahn’s daughter filed a suit alleging several state claims for wrongful death, negligence, negligent training and supervision, and disability discrimination against GEO Group.120 She alleged, inter alia, that GEO Group failed to identify Mr. Ahn as disabled or at risk for suicide or self-harm, failed to provide Mr. Ahn with the requisite medical treatment and evaluation, and neglected him by placing him in solitary despite knowing about his mental illness and ignoring his pleas for help.121 The case, which is still pending unfortunately, represents the horrific and deadly consequences of solitary. It also showcases the kind of lawsuits that plaintiffs may bring to remedy the harms they experienced while in solitary confinement.
B. Bivens Claims
In addition to state law claims against the private prison guards, plaintiffs may attempt to sue individual federal officers for constitutional and federal law violations under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.122 But, for plaintiffs in private prisons, a successful Bivens claim is essentially foreclosed. And, for those in federally run detention centers, success is unlikely.
In Bivens, the Supreme Court recognized an implied right of action to compensate a plaintiff whose constitutional rights were violated by a federal agent.123 There are three legal hurdles to bringing a Bivens claim. First, the Supreme Court has declined to extend Bivens to a federal agency due to qualified immunity protection, so the doctrine only applies to federal officers.124 Thus, a plaintiff can only sue the particular federal officer involved in placing them in solitary. Because about ninety-one percent of immigrant detainees are held in private prisons, there will usually not be an individual federal officer to sue (except for the nine percent of detainees held in federally run detention centers). Second, the Supreme Court has declined to extend Bivens to private facilities and their employees who have a contract with the Bureau of Prisons125 — though it is unclear if this would also apply to private prison contracts with ICE. Relatedly, the Supreme Court has held that incarcerated persons cannot bring constitutional claims against officials in privately run prisons where there are state tort claims available.126 As noted above, because most states allow the relevant tort claims, a federal court may decline to hear a Bivens claim on this ground. Third, Bivens’s applications have been limited to a few contexts involving a Fourth Amendment unreasonable search and seizure claim,127 a Fifth Amendment equal protection claim based on gender employment discrimination,128 and an Eighth Amendment claim based on failure to provide adequate medical care.129
Assuming that an immigrant-detainee plaintiff is suing a federal officer, a federal court would have to determine whether the plaintiff can bring a Bivens claim challenging solitary confinement in the immigration-conditions context. To extend Bivens to a new context, a federal court would have to, first, examine whether the plaintiff’s claim arises in a new context (or implicates a new constitutional right) and, second, whether there are any alternative remedies or “special factors” counseling hesitation in extending Bivens to the new context.130
Several circuit courts have held that challenging conditions of confinement in immigration facilities against prison officials presents a new Bivens context.131 As to the second factor, several courts have recognized that the special factors governing immigration law — national security, federal separation of powers, and congressional plenary powers — preclude extending Bivens to the immigration-conditions context.132 But because the Supreme Court has not settled this question, there may be an opportunity in circuits that have not yet had occasion to examine the question to extend Bivens claims to persons held in solitary confinement in federal immigration detention centers. In all, the nearly impossible challenge in bringing a successful Bivens claim (and its limited scope) represents a key example of how our legal system has constructed an extrajudicial realm of law for immigrants in detention, generally, and in solitary confinement, specifically.
C. Section 1983 Claims for Violations of Fifth, Eighth, and Fourteenth Amendment Rights
For the subset of immigrant detainees who are held in local or state jails, even those in privately operated ones, they can attempt to bring a § 1983 claim alleging that a state prison or jail official (for example, a guard, physician, or employee) violated their Fourteenth, Eighth, and Fifth Amendment rights by placing them in solitary confinement.133 A § 1983 civil rights action can provide injunctive and declaratory relief, as well as damages, for the deprivation of a constitutional or statutory right by persons acting under the color of state law.134 Prison officials are liable under § 1983 if they act under the “authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.”135
Immigrant plaintiffs can bring due process claims under the Fourteenth and Fifth Amendments. The Supreme Court has held that, under the Fourteenth Amendment, the confinement of immigrant detainees must “bear some reasonable relation to the purpose for which the individual is committed,”136 and prison officials cannot subject detainees to conditions that “amount to punishment.”137 Conditions of confinement for pretrial detainees are punitive where the restriction is expressly intended to punish or serves an alternative (nonpunitive) purpose but is nonetheless excessive, or is used to achieve objectives that could be accomplished with nonpunitive methods.138 The Fifth Amendment also applies to immigrant detainees in the United States139 and prohibits the government from imposing conditions of confinement that amount to punishment without an adjudication of guilt.140
Meanwhile, the Eighth Amendment’s prohibition against cruel and unusual punishment requires the government to provide immigrant detainees the “minimal civilized measure of life’s necessities.”141 Plaintiffs may challenge their conditions in solitary confinement by bringing claims regarding inadequate medical care, food, clothing, or shelter, as well as excessive force, or failure to protect.142
These claims, however, face three significant hurdles: proving state action, navigating a circuit split on the deliberate indifference standard, and bypassing qualified immunity.
1. State Action. — Typically, state prisoners bring § 1983 claims to challenge the conditions of their confinement against state or local officials. But immigrant detainees held either in ICE custody or in privately run prisons (holding ninety-one percent of detainees) who have contracts with the federal government are barred from such claims.143 Still, these claims may be viable in cases where a plaintiff is held at a state or local jail. In these cases, the federal court must first determine whether the jail official acted under color of state law — which is complex in the immigration context.
First, in cases where a state officer or employee strictly applies federal rules, courts have held that federal involvement “is so pervasive that the actions are taken under color of federal and not state law.”144 In immigration prisons, a court could find federal involvement in a case where, for example, the state jail guard is following ICE’s rules and regulations governing solitary confinement.145 In most cases, however, immigration prisons do not follow ICE’s segregation directions and guidelines.146 And most, if not all, state, county, and local jails and prisons have their own solitary confinement rules and procedures — which may overlap with ICE’s policies. Thus, a court may have to carefully examine the prison guards’ reasons for placing an immigrant detainee in solitary. Unfortunately for plaintiffs, and as the recent OIG report highlighted,147 immigration prisons vary significantly in reporting or documenting the reasons for placing a detainee in solitary confinement.148 For example, from a “sample of 147 segregated housing placements in fiscal years 2019 and 2021,” the GAO found that “documentations for 61 of those placements (about 41 percent) did not provide a detailed explanation of the incidents or circumstances leading to the segregated housing placements.”149 Some of these cursory justifications included, for example, “conduct that disrupts or interferes with the security or orderly operation of the facility” or statements that a person was a security risk to themselves or the facility.150 Accordingly, a court may find no state action where state jail officials applied ICE’s Segregation Standards.151 On the other hand, if the state or local jail also has an overlapping policy regarding placing a detainee in protective custody in solitary confinement, this might be a factual question for the jury.
Second, in cases where federal involvement is not so clear, courts examine “whether day-to-day operations are supervised by the Federal [or state] government.”152 For example, a federal court found state action in a case involving the death of an ICE detainee in a state prison because of inadequate medical care, reasoning that that the jail authority had “substantial control over its own operations.”153 In another case, a federal court found state action where an ICE detainee alleged excessive force by jail guards. The court reasoned that ICE rules and regulations did not specify how the jail should supervise its guards and that immigration detainees were confined alongside the jail’s general population.154 In solitary confinement cases, a federal court could find state action on grounds that the state jail guard has substantial control over the day-to-day operations (in other words, the decision to use solitary confinement). Alternatively, a court could find state action in cases where state jail guards do not follow ICE’s rules governing solitary confinement.
Additionally, in cases where the state jail guard is employed by a private prison company, courts have held that the private prison official may be acting under color of state law because the official is contracted with the state to perform a traditional public function.155 This is particularly evident where the private facility houses both state prisoners and ICE detainees.156 Some courts, however, have held that private immigration facilities were performing a federal function, not a state function, despite having a contract with the local municipality.157 In these cases, the private state prison official would be shielded from § 1983 liability.
In all, the thorny question of who acted represents a key example of how solitary confinement in immigration prisons is extrajudicial segregation because the answer to this question is convoluted by design to make it difficult to sue immigration prison officials, and, critically, determines whether a detainee may bring a § 1983 claim.
2. Objective Unreasonableness or Deliberate Indifference: A Circuit Split. — Assuming that there is state action, the second hurdle is to show that the state official acted with either objective unreasonableness or deliberate indifference.
In Kingsley v. Hendrickson,158 the Supreme Court held that claims brought by a pretrial detainee for excessive force under the Fourteenth Amendment did not need to show subjective deliberate indifference and need only demonstrate “that the force purposely or knowingly used against him was objectively unreasonable.”159 Following Kingsley, courts have split on whether immigrant plaintiffs must also satisfy the subjective element of the deliberate indifference standard when challenging the conditions in immigration prisons.
On one side, the Second, Sixth, Seventh, and Ninth Circuits apply Kingsley to immigration detention.160 To establish objective unreasonableness, these circuits require that the plaintiff “prove more than negligence but less than subjective intent — something akin to reckless disregard.”161 To meet this standard the plaintiff must show that:
(1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined;
(2) Those conditions put the plaintiff at substantial risk of suffering serious harm;
(3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved — making the consequences of the defendant’s conduct obvious; and
(4) By not taking such measures, the defendant caused the plaintiff’s injuries.162
The reckless disregard standard is a “high standard”163 that requires showing more than an inadvertent failure to remedy the prison condition or lack of medical care. It is unclear what evidence courts require to establish that prison officials acted with reckless disregard. Recently, for example, the Ninth Circuit considered a case where five immigrant-detainee plaintiffs with serious underlying health conditions alleged that ICE acted with deliberate indifference to their medical needs and recklessly disregarded their known health risks despite the ongoing COVID-19 pandemic.164 On appeal, the Ninth Circuit held that the plaintiffs failed to bring forth affirmative evidence showing that prison officials acted with reckless disregard.165 The court reasoned, rather, that “the slew of national guidance, directives, and mandatory requirements that [ICE] issued and then frequently updated in the spring of 2020 belie[d]” plaintiffs’ contention.166 In solitary confinement cases, a defendant could argue that immigration prison officials did not act with reckless disregard to the plaintiff’s health but rather, per the ICE Segregation Standards,167 used solitary confinement to protect their health and wellbeing. Nevertheless, a plaintiff could readily counter by pointing to the mounds of scientific literature showing that solitary confinement does not improve mental, physical, and emotional health, but rather worsens outcomes.168 And a plaintiff may show that prison guards recklessly disregarded the impact of solitary confinement on their health. Ultimately, no court has yet faced this question.
On the other hand, the Fifth, Eighth, Tenth, and Eleventh Circuits have not squarely decided whether Kingsley applies to the immigration prison context. These circuits require showing the prison officials’ subjective knowledge, intent, or culpability in disregarding the risk of the prison condition.169 In these circuits, a plaintiff must establish that prison officials acted with deliberate indifference to serious harm by placing them in solitary confinement.170 Litigating a solitary confinement case in these circuits with this higher standard will be tough but necessary because over sixty percent of immigrant detainees are held in these circuits.171
Under this standard, plaintiffs could first rely on the many conditions-of-confinement cases involving pretrial detainees to demonstrate deliberate indifference.172 Also, several courts have found that long-term solitary confinement creates due process concerns.173 In line with these cases, a plaintiff could argue, for example, that solitary confinement is “an additional punishment of the most important and painful character.”174 Plaintiffs could point to other circuit courts that have held that prison officials act with deliberate indifference when they deny vital medical care to an incarcerated person in solitary, after being informed about the person’s serious physical and psychological injuries.175
Ultimately, under either standard, knowledge about the subjective harm of solitary confinement is apparent as the government recognizes that placing immigrants in solitary confinement causes serious physical and psychological harm.176 Recently, the OIG “identified violations of ICE detention standards for segregation” as facilities placed detainees in segregation for “extended periods without proper documentation or reviews” or in “disciplinary segregation prematurely or inappropriately.”177 Moreover, there is robust scientific consensus that solitary confinement worsens physical and psychological health outcomes, leads to premature death, and exacerbates debilitating illnesses.178 The same is true for immigrant detainees.179 Solitary confinement also does not serve any penological interest and, in fact, worsens recidivism rates.180 Though federal courts have yet to consider a Fourteenth Amendment conditions claim involving solitary confinement in immigration prisons, circuit courts have relied on this scientific consensus to hold that prison officials know about the harmful impacts of solitary confinement.181
3. Qualified Immunity. — Finally, a plaintiff must clear the hurdle of qualified immunity,182 which precludes damages but is not a defense to injunctive relief.183 A plaintiff may proceed with damages with a § 1983 claim against a state official in their personal capacity when the official’s conduct “violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known.”184 A plaintiff must show that state officials had notice that their conduct violated established statutory or constitutional rights and the right itself was clearly established.185 Unfortunately, there are no cases holding that solitary confinement in immigration prisons is unconstitutional and no state has established statutory limits on its use. Still, courts could rely on cases involving solitary confinement of the general prison population to find that state officials had notice. Also, though prison guards may be shielded from liability in early cases that establish the constitutional right, they will not in subsequent cases. Thus, plaintiffs may bring cases with a long-term strategy of paving the path for future litigants.
D. Federal Tort Claims
In addition to challenging the use of solitary confinement, people in immigration detention may challenge how solitary is used to coerce prison labor. For example, various coalition groups have brought constitutional challenges under the Thirteenth Amendment and the Trafficking Victims Protection Act of 2000186 (TVPA), which prohibits obtaining “labor or services of a person . . . by means of,” inter alia, “force, threats of force, physical restraint, or threats of physical restraint.”187 In Menocal v. GEO Group, Inc.,188 for example, a class of immigrants alleged that GEO Group violated the TVPA’s prohibition against forced labor because, inter alia, the prison used solitary confinement as a tool to coerce people to work for as little as one dollar a day.189 The complaint alleged that GEO Group placed people who refused to volunteer to clean into solitary confinement for up to seventy-two hours.190 Though the case is still pending, the Tenth Circuit has held that the district court did not abuse its discretion in certifying the class of plaintiffs and allowing them to proceed with their TVPA and unjust enrichment claims.191
E. Habeas and International Law Claims
1. Habeas Petitions: Navigating More Splits. — The federal habeas corpus statute, 28 U.S.C. § 2241, allows incarcerated people to challenge their incarceration as violating the Constitution or laws of the United States.192 The Supreme Court has held that a prisoner may challenge “the very fact or duration of [his] confinement” but has not definitively ruled on the use of the habeas corpus statute to combat conditions of incarceration.193 Federal courts are “sharply divided as to whether conditions-of-confinement claims can be brought under the habeas statutes.”194 Moreover, courts are divided on whether immigrant detainees may use habeas petitions to challenge their confinement or prison conditions.
On one hand, one circuit court has ruled that habeas petitions are a proper remedy for challenging indefinite immigration detention.195 At the same time, circuit courts are split over whether habeas petitions are the appropriate vehicles for challenging solitary confinement among the general prison population.196 During the COVID-19 pandemic, for example, the Third Circuit held that it had jurisdiction over habeas petitions brought by immigrant detainees challenging their conditions of confinement.197 Several district courts also held that they have jurisdiction to hear habeas claims brought by immigrant detainees because they “have no vehicle by which to seek redress for . . . constitutional violation[s].”198
On the other hand, some courts have held that habeas petitions cannot be used to challenge an immigrant detainee’s conditions of confinement,199 reasoning that plaintiffs have other remedies available, such as a § 1983 or a Bivens claim.200 A notable distinction is that these cases were brought during the COVID-19 pandemic when several ICE facilities used solitary as a means to isolate detainees for public health purposes.201 So, their reasoning may not be applicable in the solitary context.
In all, habeas petitions may not offer a clear path to challenging solitary in immigration prisons but more research is needed in this area to explore this as an avenue for relief.
2. International Law Claims. — Immigrants may also bring claims under the Alien Tort Statute202 (ATS) against the United States for violating international law.203 As one scholar argues, “Civilly detained immigrants are uniquely positioned to use this statute to sue for violations.”204 Under the ATS, a noncitizen in solitary could bring a claim against the United States alleging cruel and inhuman treatment under international law. Namely, the Convention Against Torture (CAT),205 the Universal Declaration of Human Rights,206 the American Convention on Human Rights,207 and the International Covenant on Civil and Political Rights208 prohibit torture and cruel, inhuman, or degrading treatment. Indeed, the United Nations has recognized that solitary confinement amounts to torture.209 Unfortunately, federal courts may refuse to hear these claims on grounds that they pose a political question.210
Another challenge is that ATS claims can only be brought against federal officials. Given that over ninety percent of detainees are held in private prisons,211 an ATS claim would likely be barred. The remaining plaintiffs could bring these claims, but they would still have to argue that their confinement in solitary violates the Fifth, Eighth, and Fourteenth Amendments because the United States ratified the CAT and defined “cruel, inhuman or degrading treatment or punishment” to cover conduct only if it was already prohibited by those Amendments.212
* * *
Ultimately, and as demonstrated above, the difficulty in navigating the convoluted maze of legal remedies to challenge solitary in immigration prison is a prime example of the extrajudicial segregation, intentionally beyond the reaches of law, that noncitizens experience. To reiterate, per its plenary power doctrine, Congress intentionally designed this convoluted maze, and federal courts have condoned the maze. And so, without any changes, solitary confinement in immigration prisons remains a legalized form of segregation and violence.
IV. Pathways for Reform
Our political system can be used to reduce the impact and use of solitary confinement in all prisons. Congress can use its plenary power to enact legislation to prohibit the use of solitary confinement in immigration prisons, as well as across federal prisons. To this end, there has been some bipartisan critique of the use of solitary confinement on immigrant detainees.213 Moreover, Congress has introduced various bills to curtail the use of solitary confinement in immigration prisons — though none has been signed into law. In 2019, for example, Senator Durbin introduced Senate Bill 2870, which would have limited the use of solitary to no more than twenty hours a day and for no more than fourteen consecutive days, with some additional oversight-review procedures and standards for confinement.214 The same bill was reintroduced in 2022215 and, in 2023, Representative Bush introduced the End of Solitary Confinement Act to curtail the use of solitary across all prisons,216 which has broad support.217
Given that over ninety percent of people in solitary confinement are held in state prisons and local jails,218 the most viable pathway to abolishing solitary confinement is via state and local legislation. According to Solitary Watch, some states and counties have limited the use of solitary confinement among youth, immigrants, and the general prison population.219 Still, no state has outright banned the use of solitary confinement entirely.220 In California, for example, the Governor recently vetoed a bill that would have vastly limited the use of solitary confinement in private immigration prisons.221 The bill has been reintroduced for the 2023 legislative session.222 Other states have introduced legislation to move closer to banning solitary.223 And, several counties have banned or severely restricted the use of solitary confinement.224
Lastly, advocates have coalesced around eradicating solitary confinement entirely. For example, in 2021, national, local, and state organizations convened the Federal Anti-Solitary Taskforce (FAST) to campaign to end the use of solitary confinement in state, federal, and immigration prisons.225 In all, though political reforms may be the most impactful at reducing the use of solitary in immigration prisons, the political process itself represents another realm of extrajudicial segregation as noncitizens are barred from participation and legislative efforts have not yet been effective.
Conclusion: Toward Abolition
The United States has created an extrajudicial realm of law emblematic of the segregated and tiered citizen system that is rooted in the border logic of exclusion, separation, and domination of racialized and marginalized populations. This Essay has shown how solitary confinement in immigration prisons is an extrajudicial segregation that is tolerated and maintained by all three branches of government. As solitary confinement is increasingly being used on immigrants in civil detention, legal advocates are struggling to reduce the scope and impact of solitary on migrants because of the limited pathways that our legal and political systems offer. This Essay argues that the U.S. settler-colonial system has a vested interest in limiting the legal and political relief available to noncitizens because our nation’s sovereignty is premised on violence and exclusion. To be sure, the legal system offers some material benefits to individuals, and in some cases, classes of incarcerated people, but the convoluted maze of law cannot dismantle institutions, practices, and social outcomes that are deeply rooted in this nation’s settler-colonial foundation. Indeed, many scholars are recognizing how the Constitution and legal system maintain the permanence of settler colonialism.226 The legal system conditions us to believe that “legal reform [is] the ultimate horizon of sociopolitical transformation,” but this also “violently circumscrib[es] the scope, depth, and shape of transformation to which we might aspire.”227 Moreover, an international lens is critical as solitary confinement is also used by other state regimes globally.
Ultimately, and as social movements and survivors of solitary confinement have called for, the path forward is complete abolition of solitary confinement across all contexts because it serves no legitimate purpose and, rather, inflicts harm on incarcerated people and their loved ones. Abolition, as a praxis requiring action, focuses on reorganizing how we live our lives in the world by centering those whose lives are most marginalized and reducing the conditions that cause harm at all levels in society. Abolitionists, like myself, understand that a better world centered on values of liberation, justice, equity, compassion, and peace is achievable and begins by naming and undoing the logics (and beliefs), structures, and relations of domination, difference, suffering, and exploitation wherever they exist in our world — particularly in the U.S. carceral and immigration systems. But, because the powers that be are staunchly invested in maintaining and expanding an oppressive world order, our struggle continues. Abolition, thus, calls on us to dismantle the social, political, and economic relations and structures, rooted in logics of settler-colonial imperial domination, that create the conditions of oppression of minoritized groups — like globally displaced people.228 As demonstrated above, the use of solitary confinement in immigration prisons is an extension, and only one piece, of the violence that our nation inflicts on people seeking refuge and a better way of life. Though the use of solitary in immigration prisons will likely increase, leading to more needless harm, lawyers, scholars, and activists are continuing to fight for transformative justice for we know that another world is possible.229 It is our responsibility to dismantle the interconnected web of oppression while fighting for liberation across society and organizing for what we need to have a better world in our lifetime.230 This includes, for example, eliminating borders, immigration prisons and police, citizenship, and the global conditions causing forced displacement, while also organizing for a global freedom of movement and a large-scale redistribution of resources.231 Thus, abolishing solitary in immigration prisons is a step toward abolishing the settler-colonial border logics of exclusion, domination, and premature death that create extrajudicial segregation.