On February 2, 2017, 50 ACLU affiliates submitted FOIA requests seeking information about Customs and Border Protection’s on-the-ground implementation of the Muslim Bans at field offices around the country. When the government failed to respond in the time allotted, certain ACLU affiliates filed suit in April to get the requested records.
Since then, the government has released three “partial” responses that paint an incomplete picture of how CBP headquarters reacted. Because the FOIA requests now in litigation focus on how the bans were implemented locally, very few, if any, of the records produced thus far are responsive to the affiliates’ requests or relevant to the pending lawsuits.
But, because you have a right to know — and question — what the government is up to, we are publishing the documents the government released here and highlighting some themes that emerge from them.
Top Officials Were Confused About the First Muslim Ban
You may remember that shortly after the first Muslim Ban was announced, public confusion erupted about whether or not it applied to lawful permanent residents (LPRs). But it wasn’t only the public that felt confused — top government officials did, too. These documents reveal deep confusion among DHS agencies on this question.
Hours after the first Muslim Ban came down on January 27, Acting Commissioner of CBP Kevin McAleenan wrote to officials at the Department of Homeland Security (DHS) to ask, “Was it your understanding that the EO was intended to apply to LPRs?” Gene Hamilton, senior counselor to DHS, responded, “They should generally be provided the case-by-case exemption . . . provided that it is in the national interest to do so.” And McAleenan replied, “Understood. We want to faithfully and quickly execute the EO, but want everyone to know that this guidance changes our status.” In other words, Hamilton’s answer is not what McAleenan expected. Indeed, reflecting this, McAleenan’s estimate of affected travelers more than tripled from 175 to 600-800 individuals per day upon hearing that LPRs should be included in the estimate.
Jumping in on the thread, Principal Deputy White House Chief of Staff Kirstjen Nielsen wrote, “I believe this will be news” to “the Secretary” (though without specifying of which agency). CBP then communicated to staff that lawful permanent residents would require case-by-case exemptions from the first Muslim Ban.
But, five days later, Counsel to the President Donald McGahn issued a memorandum to the acting secretary of state, acting attorney general, and secretary of homeland security stating that the first Muslim Ban’s provisions did not apply to LPRs. He wrote, “I understand that there has been reasonable uncertainty about whether those provisions apply to lawful permanent residents of the United States. Accordingly, to remove any confusion, I now clarify that Sections 3(c) and 3(e) do not apply to such individuals.
CBP Officials Tracked Compliance With Court Orders, but They Won’t Show Us the Results
In the hours and days following the first Muslim Ban, courts around the country held that the order was unconstitutional and enjoined implementation. These FOIA documents show that the government was aware of the court orders — though, at least with regard to the Western District of Washington case, McAleenan learned of the result from a news story. And the documents suggest that the government responded to the court orders — but CBP has refused to show us how. In email after email about “compliance with” or “guidance from counsel on” a particular court order, we are left with little more than redactions.
In the First Week Alone, the Muslim Ban Affected at Least 1,926 Individuals Travelers
CBP released a listing “all Executive Order related travelers who were encountered at CBP primary inspection” from January 27 to February 4, 2017 “and were referred for secondary inspection.” It has nearly 2,000 entries.
CBP Set Up a “Crisis Action Team” to Monitor the Agency’s Implementation of the First Muslim Ban
On Saturday, January 28, 2017, CBP set up a 24-hour-a-day, seven-days-a-week "" (CAT) to monitor implementation of the first Muslim Ban. The documents reveal concerns that, without centralization, the amount of work required to track ban-related issues could overburden the field.
Indeed, documents from the early hours after the Muslim Ban was announced suggest a lack of coordination and preparation. Shortly after the announcement, McAleenan wrote to officials at other DHS agencies, asking, “Do we have official confirmation that is has been signed? Any way I can get the latest version electronically?” Jennifer Higgins, an associate director at the U.S. Citizenship and Immigration Services (USCIS), wrote, “Gene, they really need the signed version to assist in execution.” An hour later, DHS senior counselor Gene Hamilton attached the final version of the ban.
When thousands of us took to the airports to protest the first Muslim Ban, the government heard us. If you were at Dulles, chanting — “Love, not hate! That’s what makes America great!” — or at Logan, chanting — “Say it loud, say it clear, everyone is welcome here” — your words reached CBP, including Acting Commissioner McAleenan.
Reports summarizing protests at airports around the country — from Los Angeles International Airport (LAX) and San Francisco International Airport (SFO) to Dallas-Fort Worth International Airport (DFW) and O’Hare International Airport (ORD) to John F. Kennedy International Airport (JFK) and Baltimore/Washington International Airport (BWI) to — were sent to CBP headquarters. These reports include crowd estimates, specific chants, and law enforcement’s actual and intended response. It is worth remembering that, at some point, government attention to protest can morph into unconstitutional surveillance that chills dissent. But one of the goals of protest is to speak truth to power — and that is precisely what the airport protests did.
Continuing the trend of government representatives seeking to suppress or silence the successful, democratic protests that they should be celebrating, however, CBP officials appeared to take an adversarial view of individuals who were exercising their rights. At LAX, rather than serve its function, CBP’s Public Information Office shut down in response to protest. And, when CBP officials discussed the high volume of calls from attorneys regarding the first ban, they hypothesized that questions about whether CBP officials were following the law constituted “a form of telephonic protest to the EO.”
All documents released to date
This is likely to be just the tip of the document iceberg. We will update this page with new productions as the government releases them.
Learn More About the Issues on This Page
-
Press ReleaseDec 2024
Immigrants' Rights
ACLU FOIA Litigation Reveals ICE Actively Considering Proposals to Expand Immigration Detention NationwideACLU FOIA Litigation Reveals ICE Actively Considering Proposals to Expand Immigration Detention Nationwide
NEW YORK – New documents obtained by the ACLU reveal that Immigration and Customs Enforcement (ICE) is actively considering proposals to expand its immigration detention capacity in at least six states across the country, including in California, Kansas, Nevada, New Mexico, Texas, and Washington state. The records, obtained as a result of a Freedom of Information Act (FOIA) lawsuit filed by the ACLU in September 2024, disclose that private prison corporations, as well as other corporate entities that provide services to build temporary facilities, monitor compliance, and staff facilities submitted proposals for expanded immigration detention in response to ICE’s contract requests. The discovery comes just weeks after the ACLU received its first tranche of FOIA documents revealing that ICE is considering expanding detention in three different facilities in New Jersey. “You cannot have mass deportations without a significant expansion of ICE detention capacity in states across the country and that’s exactly what the incoming Trump administration is preparing to do,” said Eunice Cho, senior staff attorney at the ACLU’s National Prison Project. “Rather than permanently shutting down abusive detention facilities, the Biden administration is paving the way for President-elect Donald Trump to make good on his cruel and inhumane mass deportation proposals.” The FOIA documents reveal that GEO Group, Inc., CoreCivic, and the Management & Training Corporation (MTC) submitted contract proposals to Requests for Information (RFI) to expand detention capacity and facilities, several of which have a lengthy history of abusive conditions. The proposals for expanded immigration detention facilities include: Midwest Regional Reception Center in Leavenworth, KS – formerly known as Leavenworth Detention Center – which has a track record of abusive conditions, which led the federal government to end its contract with the facility in 2021. South Texas Family Residential Center in Dilley, TX – a facility where children as young as 19 months have died as a result poor medical care. Nevada Southern Detention Center in Pahrump, NV – which has been subject to a federal invesitgation for medical negligence, racial discrimination, and verbal abuse of detained people. Cibola County Correctional Center in Milan, NM — which has been the site of numerous deaths in recent years, with incidents of neglect, abuse, and lack of medical care. Torrance County Detention Facility in Estancia, NM – which Department of Homeland Security’s Office of Inspector General cited in 2022 due to poor conditions. California City Correctional Center in California City, CA – which was previously used as a California Department of Corrections prison until March 2024. ICE also withheld a number of documents in its FOIA disclosure, obscuring the names of the specific facilities. However, the documents produced indicate that the following detention facilities are likely under consideration by ICE: Lea County Correctional Facility in Hobbs, NM (Proposal by GEO Group, Inc. for the El Paso Field Office) Northwest ICE Processing Center in Tacoma, WA (Proposal by GEO Group, Inc. for the Seattle Field Office) Golden State Annex in McFarland, CA (Proposal by GEO Group, Inc. for the San Francisco Field Office) Mesa Verde Detention Center in Bakersfield, CA (Proposal by GEO Group, Inc. for the San Francisco Field Office) MTC facility in South Texas, which may include the Willacy County Jail in Raymondville, TX (Proposal by MTC for the Harlingen Field Office) GEO Group, Inc. facility in IL, IN, WI, MI, KT, or KS (Proposal by GEO Group, Inc. for Chicago Field Office) GEO Group, Inc. facility in South Texas, which may include the Brooks County Detention Center, Falfurrias, TX; Coastal Bend Detention Center, Robstown, TX; or the East Hidalgo Detention Center in LaVilla, TX (Proposal by GEO Group, Inc. For the Harlingen Field Office) Other corporate entities, including Kastel Enterprises, LLC., and Active Deployment Systems, which provide services to build temporary facilities, and Sabot Consulting, which provides compliance monitoring and detention staffing services, also submitted responses to ICE’s request. As the ACLU has previously documented, the federal government’s immigration detention system overwhelmingly relies on private prison corporations. Private prison corporations, like the GEO Group, CoreCivic, LaSalle Corrections, and the Management & Training Corporation have pocketed billions from ICE detention contracts over the past two decades. The FOIA records are available here: /documents/multi-state-detention-facility-support-foia-documents-request-for-information -
News & CommentaryDec 2024
Immigrants' Rights
Trump’s Remarks on Birthright Citizenship, ExplainedTrump’s Remarks on Birthright Citizenship, Explained
The president-elect has said he intends to end birthright citizenship. We break down why that’s clearly unconstitutional. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general. -
Press ReleaseNov 2024
Immigrants' Rights
ACLU FOIA Litigation Reveals New Information Regarding ICE’s Plans to Expand Immigration Detention in New JerseyACLU FOIA Litigation Reveals New Information Regarding ICE’s Plans to Expand Immigration Detention in New Jersey
NEW YORK – New documents obtained by the ACLU reveal that Immigration and Customs Enforcement (ICE) is actively considering proposals to expand its immigration detention capacity across the state of New Jersey. The records, obtained as a result of a FOIA lawsuit filed by the ACLU in September 2024, disclose that ICE capacity could increase by approximately 600 beds in at least two facilities in New Jersey. The discovery comes as President-elect Donald Trump continues to double down on his campaign promise to implement the largest mass deportation and detention program in the nation’s history. For months, the ACLU of New Jersey and advocates have raised concerns with the Biden administration’s plans to expand detention in New Jersey, as well as in potentially sixteen other states identified by ICE. “Instead of closing abusive detention facilities once and for all, the Biden administration is simply paving the way for the incoming Trump administration to conduct mass detention and deportation of immigrant communities nationwide,” said Eunice Cho, Senior Staff Attorney at the ACLU’s National Prison Project. “The Biden administration must instead work to close these facilities now.” These facilities under consideration include the Elizabeth Detention Center, located in Elizabeth, New Jersey and owned and operated by CoreCivic, Inc., and the Albert M. “Bo” Robinson Center (ARC) in Trenton, New Jersey, which was formerly owned by the GEO Group, Inc. Both facilities have significant records of poor conditions. Investigations of conditions at ARC exposed abusive conditions including “robbery, sexual assault, [and] menacing of the weak.” Meanwhile, the Elizabeth Detention Center has also come under fire for consistent medical neglect, cramped and unsanitary living quarters, and abusive treatment from guards. The ACLU obtained these documents as a result of Freedom of Information Act (FOIA) litigation, which sought in part records responsive to a contract solicitation for additional ICE detention space in the Newark, New Jersey area. The solicitation, originally issued on June 26, 2024, sought “comprehensive detention services for adult male and female noncitizens” to “provide for general population, intake, segregated housing, and medical beds at a contractor-owned/contractor-operated detention facility or facilities.” The documents provided by ICE provide a limited glimpse of the detention proposals, as the production appears to include only the environmental impact statement portions of the proposals submitted by CoreCivic, Inc. and GEO Group, Inc. to ICE. It is unclear from the documents whether there are additional New Jersey facilities that responded to ICE’s solicitation, or how much it would cost taxpayers. For example, the GEO Group, Inc. claimed in litigation earlier this year that it has readied the Delaney Hall Facility, located in Newark, New Jersey, to conform with ICE operating requirements. “New Jersey has already taken steps to oppose immigrant detention by phasing out ICE contracts and closing county-run ICE jails. But as federal plans to expand detention in New Jersey continue, the need for protections grows by the day. That’s why it’s imperative that the Biden administration immediately halt any efforts to expand this abusive detention machine,” said ACLU-NJ campaign strategist Ami Kachalia. “We also urge the New Jersey Legislature to quickly pass the Immigrant Trust Act so that New Jersey is not complicit in separating families or depriving our residents of due process.” State officials and members of New Jersey’s congressional delegation have opposed the expansion of ICE detention in the state. Earlier this year, eight Representatives and Senator Cory Booker raised concern regarding the development of additional private ICE detention facilities in the state. Prior to that, the New Jersey state legislature passed AB 5207 in 2021, which prohibited state and local entities and private detention facilities from entering, renewing, or expanding immigration detention contracts. Both CoreCivic, Inc., and GEO Group, Inc. filed suit to stop enforcement of the law, which has been enjoined pending appeal. The ACLU of New Jersey filed a friend-of-the-court brief on behalf of 28 community organizations in support of New Jersey's anti-detention law. The FOIA records are available here: /documents/foia-documents-re-nj-ice-detention-rfi