Giulia DiPasquale
Associate Editor
Loyola University Chicago School of Law, JD 2027
Last month, 60,000 people were detained by ICE (United States Immigration and Customs Enforcement) – a new record for the United States. Once individuals are taken into custody during an ICE raid, a new set of high-risk regulatory and constitutional compliance issues emerge. ICE, and cooperating law enforcement agencies, are supposed to adhere to multiple statutory and internal standards that govern how detainees are identified, processed, housed, and given access to legal and medical protections. Compliance failures at this stage are some of the most frequent sources of civil-rights litigation, class actions, and federal court injunctions. The distance between what the standards require, and how detention facilities are actually operating right now, raises an urgent question: what does a regulatory regime mean when the agency tasked with enforcing it is the first to ignore it?
The purpose and limitations of the PBNDS
The Department of Homeland Security (DHS) created the Performance-Based National Detention Standards (PBNDS) to ensure that civil detention centers provide humane, safe, and legally compliant conditions for the hundreds of thousands of individuals detained each year. Immigration detention in the United States currently occupies a grey space within the law. Being detained due to lack of required immigration documents in this country is formally categorized as a “civil” offense, yet increasingly resembles punitive criminal incarceration. Violating immigration policy in this country is not a crime, leaving the regulatory compliance of detention centers largely separated from the criminal-justice safeguards that typically govern incarceration. Contrary to popular belief, constitutional rights indeed also protect undocumented individuals in this country, so long as they have developed “substantial connections” to the United States – such as living, working, paying bills, or having children in the United States – a standard articulated in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
In practice, however, a mounting body of investigative journalism, medical research, legal scholarship, and government reports reveal something very different. PBNDS noncompliance has become pervasive across the system, exposing detained individuals to severe medical neglect, language-access barriers, psychological harm, and due-process violations. PBNDS violations cannot be dismissed as isolated failings or the product of a few negligent facilities. Rather, the evidence illustrates a structural collapse in compliance that affects nearly every aspect of detention. From healthcare and legal access, to oversight, the gap between written policy and on-the-ground reality has grown so wide that the term “civil detention” has become, for many detainees, effectively meaningless. The crisis of PBNDS compliance reveals a regulatory system collapsing under its own contradictions. The standards were created to ensure that immigration detention remained humane, proportional, and consistent with the civil character of the proceedings. Yet, the past decade demonstrates that the PBNDS are routinely ignored, inadequately enforced, and structurally incapable of providing meaningful protections. The result is a detention system that operates outside Constitutional norms, medical standards, and basic principles of human dignity.
The PBNDS were created to establish a consistent, uniform baseline of care across immigration detention centers. ICE describes the standards as a system designed to protect detainees’ health, ensure access to counsel, safeguard due process, and maintain appropriate living conditions. However, the central weakness of these standards is embedded in their legal structure. They are not formalized regulations, rather internal guidance documents that articulate what ICE believes detention should look like, not what facilities are legally required to provide. As scholars have noted, PBNDS serve more as “normative aspirations” than enforceable mandates.
When violations occur, detainees are unable to sue under the PBNDS, nor demand legal remedies based solely on noncompliance. Because the standards lack formal enforcement mechanisms, ICE’s internal audits and oversights become the primary, and often the only, system of accountability. This framework is fundamentally flawed. Many audits are pre-announced, heavily reliant on self-reported data, and arguably designed to preserve the appearance of compliance than to uncover misconduct. The structural limitations of the PBNDS allow ICE, and private corporations, to disregard essential protections of human life with little fear of consequences, placing detainees in a regulatory environment where their rights exist on paper, but rarely in practice.
Medical, language, and legal accommodation failures
One of the clearest areas of the breakdown in PBNDS is medical care. Extensive medical literature documents preventable deaths, delayed treatment, and chronic understaffing across detention centers. A comprehensive review published through the National Institutes of Health shows that ICE’s medical system is “dangerously inadequate,” leading to untreated conditions, failures in continuity of care, and systemic lapses in mental-health treatment. Many detained individuals have reported on these nightmare conditions. For example, USA Today reported that Nexan Aroldo Asencio—detained in Burlington, Massachusetts—was forced to sleep on the wet, foul-smelling floor of a bathroom, illustrating the extreme disconnect between PBNDS housing standards and actual conditions.
Mental-health care also demonstrates this troubling pattern in immigration detention facilities. Detainees with mental-health conditions are frequently isolated as punishment or as a misguided method of “behavioral management,” a practice that only exacerbates psychiatric symptoms and increases the risk of self-harm further. Similarly, disability accommodations are often overlooked in these facilities. Despite requirements for accessible housing, mobility assistance, and reasonable modifications, reports show facilities failing to provide even basic support, leaving vulnerable detainees in unsafe or inaccessible environments Additionally, the ACLU has recently reported on ICE’s denial of access to legal counsel in U.S. immigration detention centers, providing the first comprehensive study of the barriers to access in these centers nationwide. This report shows ICE has systematically restricted the most basic modes of communication that those detained need in order to connect with legal aid. All of these patterns further illustrate that ICE’s internal standards for human rights compliance exist primarily in text, not practice.
What now?
Oversight is perhaps the most profound failure here. ICE facility audits frequently function as performative exercises, rather than actually being evaluated. Audits are typically announced ahead of time, allowing facilities to temporarily stage compliance. Inspections rely heavily on paperwork instead of direct observation, enabling facilities to mask chronic understaffing, sanitation failures, and medical neglect. External investigations consistently reveal severe violations – spoiled food, extreme temperatures, broken sanitation systems, and retaliatory abuse at facilities that ICE rated as compliant only months earlier. Even when these violations are documented, ICE rarely terminates contracts or issues sanctions. Instead, facilities receive “corrective action plans, which are inconsistently monitored and often ignored.
Until the PBNDS become enforceable regulations backed by independent oversight, the divide between policy and reality will continue to grow. These pervasive human rights violations being documented across ICE detention centers today show that the problem is structural: a regulatory system without enforceability, transparency, or accountability cannot safeguard the rights or lives of those it governs. Measures must be taken to transform these standards into real protections, because until ICE’s fake compliance tactics melt, the abuses buried beneath this system will remain frozen in place.