These Aren’t Prisoners. They’re Asylum-Seekers

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In 2017 more than 100 prison reform advocates filled a Baton Rouge conference room, ready to celebrate with Louisiana Governor John Bel Edwards. “I’m not proud of our title as the most incarcerated state,” said Edwards, “but that now is going to be part of our history.” On the table in front of him sat a stack of pending laws, each designed to empty thousands of jail and prison cells. As his pen touched paper, the room erupted in applause.

For about two decades, prison-building was a booming business in Louisiana. Tucked away in rural parishes, a number of those isolated prisons generated numerous reports of inmate abuse and neglect. The new laws, reducing mandatory sentences and increasing eligibility for parole, helped cut Louisiana’s prison population by 15% from its peak. More than a dozen jails and prisons closed.

Several of the biggest weren’t empty for long. US Immigration and Customs Enforcement under President Donald Trump had begun detaining record numbers of migrants and needed places to lock them up. In 2019, five ICE detention centers opened in Louisiana, bringing the state’s total to nine. All the new centers were former jails, operated by private contractors. ICE paid generous day rates, sometimes three times as much as had been paid to jails to house criminal inmates. Suddenly, Louisiana became a new capital of incarceration—this time not of criminals but of immigrants. The shift began under Trump, but it has intensified under President Joe Biden. Now facilities there hold a daily average of over 6,000 migrants, more than the border states of California and Arizona combined, according to ICE statistics.

US law draws a sharp distinction between criminal incarceration and immigrant detention; ICE facilities serve an administrative purpose and must be “non-punitive,” while jails and prisons are designed to punish and deter. Overall, about a third of ICE detainees are in custody because they committed crimes and await deportation. Of people taken into custody at the border, though, 9 out of 10 have no known criminal records in the US or abroad other than immigration-related violations, according to ICE data.

Many of those violations are self-reported, as more arriving migrants turn themselves into officials at the border. A Bloomberg Businessweek analysis of available data suggests almost half the people in ICE’s custody are seeking asylum, meaning they’ve made a formal claim that they were persecuted in their home country. In Louisiana and several other Southern states, the percentage is even higher, according to ICE data. Anecdotally, lawyers who’ve conducted thousands of interviews with detainees in Louisiana detention centers estimate that roughly 80% of them have applied for asylum. They generally are being held to ensure they show up at hearings in front of immigration judges. Often they’re detained for months, even years, waiting on a broken and badly backlogged immigration court system.

Read more: Justice Is Beside the Point in America’s Immigration Courts

The agency’s data indicates that at the five detention centers opened in 2019, 93% of the immigrants held there in the last three years have no criminal history. But some of the centers are run by the same private operators that had been accused of mistreating inmates when the facilities were jails and prisons. Allegations of abuse and neglect directed at the old institutions have persisted.

ICE’s decision to either detain migrants or let them live with sponsors as they await their court hearings—to parole them, in the parlance—is unrelated to the merits of their individual asylum claims. If detainees have no criminal history, they’re most commonly held because they’re deemed flight risks, a determination that ICE officers aren’t required to justify or explain to the detainees. That discretionary decision has consequences beyond exposure to prison-like conditions: Once they’re locked in detention, statistics indicate, their chances of being granted asylum drop dramatically. Nationwide, court data shows that immigration judges denied asylum to roughly half of all claimants granted a court hearing in the past decade. By comparison, immigration judges denied asylum to 82% of all those who were detained. Some of those decisions resulted in migrants being sent back to countries to face imprisonment, torture and death.

The campaign of Biden and Kamala Harris in 2020 vowed to reform immigrant detention by closing all the country’s privately operated centers—part of a “commitment to asylum seekers” outlined in a platform that asserted “no business should profit from the suffering of desperate people fleeing violence.” Opposition to private detention centers generally follows a similar logic to opposition to private jails—that the profit motive can encourage corner-cutting and degrade conditions. And during his term, Biden’s Department of Homeland Security has repeatedly condemned conditions inside several of the private ICE facilities, going so far as to recommend the closure of some in Louisiana after internal inspections cited them for inappropriate use of force and substandard living conditions.

But as record numbers of asylum-seekers continued to arrive at the southern border in the past three years, the administration has relied increasingly on privately operated immigration detention centers. The centers that DHS recommended be closed have remained open, continuing to hold thousands of detainees. And even though overall immigrant detention has fallen under Biden from the all-time highs during the Trump administration, the US now concentrates more of its immigrant detainees than ever in privately operated ICE facilities—the same ones Biden vowed to drive out of the sector.

Part of that shift is tied to an executive order he signed less than a week after taking office, one barring the Department of Justice from renewing any contracts with privately contracted prisons and jails. The ban, importantly, didn’t apply to immigrant detainees. Some of those private contractors quickly converted criminal jails into immigrant detention centers, signing new contracts with ICE. In 2021 about 79% of all ICE detainees were held in privately run detention centers; by mid-2023 the percentage had jumped to more than 90%, according to the American Civil Liberties Union. In the South, which absorbed much of the shifts in detention flows, the portion was even greater. In Louisiana, for example, about 97% of detainees are now overseen by private companies. Such shifts have helped some of America’s largest private prison contractors rake in more revenue during the Biden administration than ever.

Six Democratic-led states—California, Illinois, Maryland, New Jersey, Oregon and Washington—have tried to do what the federal government hasn’t by passing laws banning or limiting ICE detention locally. And anti-incarceration activists across the country continue to target facilities for closure. But that has repercussions for people whose fates will be decided by immigration courts. Rajan Dhungana, a Las Vegas-based immigration lawyer who represents clients throughout the US, says it could ultimately create an unintended consequence, hurting the very people the protesters are trying to help by moving more detainees to rural areas underserved by lawyers. When asylum-seekers have an attorney, the chances they’ll win their cases are about 50-50; without an attorney their chances drop to about 14%, according to a Businessweek analysis.

“There’s a detention center in Aurora, Colorado—about a 10-minute drive from the Denver airport—that gets picketed,” Dhungana says. “When I see them out there, I’m thinking, ‘You dumbasses! You’re pro-immigrant, but if you shut this place down, they’re just going to move them to, you know, Brokeback Mountain, Wyoming.”

Or, more likely, the rural South.

Winn opened as a criminal prison in 1990 and began holding immigrants in 2019 under a contract with Louisiana-based LaSalle Corrections. The atmosphere is traditional jailhouse: razor wire, locked gates, barred doors and detainees wearing jumpsuits and slip-on shoes. Signs near the center dating to the facility’s time as a prison give the clear impression that passersby should be wary of detainees: “Caution Offenders Working Near Highway on Mowing Machines.”

The fundamental difference between a prison and an ICE detention center—that the latter is “non-punitive”—is a distinction that isn’t always easy to discern. Winn and other centers in Louisiana regularly have disciplined detainees by locking them in solitary confinement cells, sometimes for months at a time.

“It’s virtually indistinguishable from criminal detention, with the exception that people in civil immigration detention actually aren’t provided with a right to an attorney, as they are in the criminal system,” says Sarah Decker, an attorney with Robert F. Kennedy Human Rights, a nonprofit advocacy group. “They’re subjected to the same abusive conditions of confinement, but the vast majority are going through it completely alone.”

Decker’s organization is part of a coalition that has conducted more than 6,000 interviews with detainees inside the nine Louisiana detention centers since 2022. They’ve compiled stories of beatings, sexual assaults and attacks with pepper spray and tear gas. Detainees reported being shackled in five-point restraints for as long as 26 hours, unable to eat or use the restroom, and left with cuts on their wrists and legs. They described conditions inside the centers that included rat infestations, black mold, leaking ceilings and worm-infested food. “The pattern repeated especially in the privately run facilities is that the companies are actually profiting by offering substandard quality of food, clothing and medical care,” Decker says. “Less than the bare minimum.”

LaSalle Corrections and other contractors in Louisiana have repeatedly denied these anecdotal reports of abuse. The Day 1 Alliance, an industry group representing the country’s largest private detention contractors, including LaSalle and GEO Group Inc., says the companies provide an essential service by “providing dignified, respectful care under multiple levels of government oversight.”

But in 2021 the Department of Homeland Security’s civil rights division conducted an investigation into allegations of abuse at Winn. The subsequent DHS report, published that November, raised “serious concerns” about substandard conditions, inappropriate use of force by staff and numerous “serious medical and mental health concerns.” A DHS memo written a month later recommended that Winn “be closed or drawn down” and that ICE immediately “discontinue placing detainees at Winn until the identified culture and conditions that can lead to abuse, mistreatment, and discrimination toward detainees are corrected.”

But Winn never closed. When ICE’s five-year contract for the facility expired this May, the Biden administration renewed it. The precise terms of the deal haven’t yet been made public, but Winn continues to hold hundreds of detainees.

ICE and the White House didn’t respond to questions for this story. But the agency has previously defended conditions in all of its facilities by declaring that it “is firmly committed to the health and welfare of all those in its custody.” It has emphasized that it uses “multi-layered inspections, standards, and an oversight program” to continuously review the detention centers to ensure humane treatment as well as comprehensive medical and mental health care.

The byzantine agreements governing operations at centers like Winn have allowed its various stakeholders to effectively shield the facility from public scrutiny. In Winn’s case, the Louisiana Department of Public Safety and Corrections owns the facility. The Winn Parish Sheriff’s Office leases the property from the state. The sheriff’s office then signs a contract with the federal government to allow the facility to be used for ICE detainees. Finally, LaSalle Corrections is subcontracted to handle day-to-day operations.

Attorneys with the Southern Poverty Law Center (SPLC) have fought to get internal records that might shed light on possible abuses or mismanagement at Winn. But years of litigation have yielded scant information. According to the group’s lawyers, each contractual stakeholder—the sheriff’s office, ICE and LaSalle Corrections—has maintained that one of the others maintains custody of the records being sought. The contracts, called intergovernmental service agreements, are often exempt from federal rules to ensure competitive bidding and to guarantee quality control. Investigations by the US Government Accountability Office in 2019 and 2021 found that ICE has used such agreements to avoid time-consuming procedural hurdles, and the investigators concluded that ICE “does not adequately hold detention facility contractors accountable for not meeting performance standards.” ICE has argued that it requires the sort of contractual flexibility the agreements provide so it can quickly respond to fluctuating demand for immigrant detention space.

The lawyers who’ve tangled with Winn and the other ICE facilities for records say they believe those contracts wouldn’t stand a chance of approval if normal standards applied to them. “They’d be canceled for cause—immediately and a thousand times over—given how badly the facilities constantly breach national detention standards,” says Rose Murray, a lawyer who formerly worked with the SPLC.

The industry group representing the contractors says such criticism masks broader motives. “The goal of the long-standing, politically motivated campaign to attack ICE’s contractors is to abolish ICE and end federal immigration detention by proxy,” says Alexandra Wilkes, a spokesperson for the Day 1 Alliance. She says that having no “privately contracted detention facilities would leave a major hole in our immigration system. Those who enter the country illegally would likely be housed in overcrowded jails or released directly into communities even more than they are now.”

GEO Group houses more detainees in Louisiana than any other company, and it operates four of the nine ICE detention centers in the state. The value of the company’s federal contractual obligations surpassed $1 billion for the first time in 2021. Almost three-quarters of GEO’s federal contracts are with ICE.

As good as the Biden years have been to prison contractors, far more opportunities for growth beckon if Trump becomes president again and follows through on promises to detain millions of immigrants for mass deportation. Earlier this year, GEO became the first corporation in America to max out on political contributions to the Trump campaign.

Regardless of who wins the election, it appears unlikely the private contractors that have been converting old prisons into immigrant detention facilities will suffer any sudden downturn prompted by politics. Unlike in 2020, Harris isn’t calling for reductions in ICE detention, much less the closure of privately operated facilities. The advocates who campaign against ICE detention continue to target facilities across the country, trying to rally local support for closure. But some communities fight to keep detention centers, especially those that are run by sheriffs. In Louisiana, ICE reimbursements to local governments are almost three times more per day than what the state prison system pays, according to research by the Brennan Center for Justice at New York University.

When Illinois passed a statewide ban on ICE detention in 2021, two sheriff’s departments sued the state, eager to keep the reimbursements from ICE flowing. Kankakee County Sheriff Mike Downey says his county’s deal to house ICE detainees in its jail—worth about $5 million per year—was a critical source of income. The deal “helped save Kankakee County from a financial standpoint,” Downey says. “Before we had ICE, the county was approximately $14 million in the red, and today we’re about $20 million in the black. Now, not all of that is because of ICE, but it was certainly beneficial.” The last of the Kankakee ICE detainees were transferred to other facilities in 2022.

Advocates for closure argue that the local economic impact, particularly for centers in remote communities, is short term and minimal: The jobs are mostly low wage, they argue, with high turnover and burnout rates. They also counter the argument that shutting down facilities could further feed the trend of pushing immigrant detainees toward more remote locations, harsher conditions and the country’s strictest immigration judges. Incremental wins, they argue, eventually lead to systemic change. Even so, those leading the drives recognize that in the current election both parties seem to be campaigning on the assumption that detention will remain a crucial part of the immigration system. “It’s just so different today from where the conversation was four years ago,” says Ariel Prado, a Department of Justice-accredited representative with the Innovation Law Lab who’s advocated for the closure of ICE detention centers in Georgia and New Mexico.

Indeed, the Biden administration now partners with private companies in trying to combat campaigns against closures. California’s statewide ban on ICE detention was upheld in court in 2020, but the federal government joined GEO Group in fighting the law by appealing the decision. Last year the California ban was repealed after a court ruled that parts of it were unconstitutional.

Later, the Biden administration also fought the New Jersey ban. It joined another private prison company, CoreCivic Inc., in fighting to keep open the last remaining ICE detention center in the state. A closure, the government said, could force ICE to move those detention operations to more remote locations, resulting in higher costs for travel and overtime pay.

But the main thrust of the administration’s argument marked a 180-degree shift from the one it made four years ago, when the Biden campaign said private companies shouldn’t be involved in immigrant detention. In the court filing, ICE now argued that a closure would have “a severe impact on national security, public safety and border security operations.”

The threat of ICE detainees being released to endanger the general public has become a talking point of the Trump campaign, which has used recently released ICE data to falsely claim that more than 13,000 immigrants with homicide convictions have been allowed by the Biden administration to live freely in the US, outside of ICE detention. That statistic, in fact, spans a four-decade period and includes those incarcerated in federal and state prisons—not murderers who’ve been freed from ICE detention.

Although the agency’s own statistics show that most of its detainees have no criminal history, the arguments made by Biden’s ICE in the New Jersey case struck a tone that was practically indistinguishable from the rhetoric associated with Trump. In the court filing, the Biden administration argued that a closure of the private facility could lead to the release of “dangerous noncitizens.”

He fled Tajikistan after he criticized the country’s authoritarian ruling family—comments that were reposted online by a prominent pro-government blogger. Shortly after that, he says, he was threatened and physically attacked by strangers he believes were tied to the government. He fled to Turkey, and when his temporary visa expired he was denied a visa to the European Union. That’s when a Tajik friend in California offered to sponsor him and suggested he come to the US to seek asylum.

In September 2023 he took a series of flights to travel from Turkey to Nicaragua, then went overland into Mexico. Last October he crossed the border into California with a Tajik woman and her child, and they all surrendered themselves to border agents to apply for asylum. The others were paroled—allowed to live freely in the US while awaiting their immigration court hearings. Khudoynazarov doesn’t know why he alone was transferred to Louisiana and detained as a flight risk.

Such decisions, according to ICE directives, are discretionary, and in practice they can vary widely depending on the region. ICE’s New Orleans field office, which handles parole decisions for all the detention centers in Louisiana, is the subject of a pending lawsuit that accuses it of denying parole to virtually all detainees in the state, even those who meet established criteria for release. According to the suit, the field office as recently as 2016 granted parole to more than three-quarters of its detainees. But by 2018 it was paroling just 1.5% of detainees, and the number dropped to zero in 2019. At that time a judge issued a preliminary injunction requiring the field office to restore the opportunity for parole for qualifying asylum-seekers. Since then the field office’s parole rate has risen to roughly 50%.

The decision to deny parole can effectively make or break a migrant’s case to remain in the US. Most detainees are assigned to immigration courts that exclusively handle detainees; those who’ve been allowed to live freely argue their cases in different immigration courts. Since the modern immigration court system began in 1983, the courts that oversee free migrants have denied about 57% of the cases they’ve adjudicated, according to a study published this year by researchers at the UCLA School of Law. In the courts that hear only cases of detainees, the denial rate is 93%.

A related statistic helps explain the disparity: Overall a majority of migrants in immigration court hearings during that period were represented by lawyers; only 16% of those who were detained managed to get legal counsel.

The differences between the two categories of asylum-seekers are stark, in both process and case outcomes. Judges handling detainees adjudicate cases faster and often in hearings that are conducted via videoconference with no outside witnesses—circumstances that put asylum-seekers at a disadvantage and defy common standards of American jurisprudence.

After Khudoynazarov was transferred from California to Louisiana, he hoped to find an immigration lawyer to help him prepare his case. His immigration judge had provided him with a standard-issue printout listing local lawyers who sometimes accepted immigration cases for free or at least a reduced fee.

“But it’s impossible,” Khudoynazarov says. “You call and call, and you cannot get through.”

Currently just one organization in Louisiana is dedicated to providing pro bono representation to ICE detainees, a New Orleans-based advocacy firm called Immigration Services & Legal Advocacy. That firm employs five immigration lawyers. There are currently more than 6,000 detainees in Louisiana’s immigrant detention centers.

As more immigrant detention centers are concentrated in the rural South, away from large networks of immigration lawyers and advocates, the challenges for detainees intensify. Georgia, for example, has emerged as one of the top non-border states for immigrant detainees. Its immigration courts are also among the toughest in the country for asylum-seekers: A lawsuit alleging implicit bias in the state’s immigration courts claimed judges there were 23 times less likely than the national average to approve asylum claims. This year, ICE’s detainee population in Georgia is about 2,500—more than 50% higher than last year. The state is second to Louisiana in detainee population among non-border states and fifth overall. Only one legal aid organization, the Southern Poverty Law Center, provided pro bono legal services to Georgia’s detainees, and it ended that program in June as part of a systemwide restructuring.

Khudoynazarov, like the vast majority of detainees, was left to present his own case in court. As he tried to prepare, chaos occasionally overtook Winn. In late January this year, many of the detainees waged a hunger strike, protesting conditions at the center. According to complaints filed by human-rights groups, officers deployed pepper spray in a dorm room of about 200 people to quiet protests. Meanwhile, Khudoynazarov needed to compile evidence to back up his story for the immigration judge. To do that, he needed an internet connection.

He petitioned the court to make the detention center grant him temporary access to his cellphone, to retrieve the blog post and other information. The court complied, he says, but when he got the phone he still wasn’t allowed to connect online—so it did him no good. He struggled to convince officials that he needed the connection, just for a short time. “It’s very hard to get anyone’s attention here,” Khudoynazarov says.

His dilemma wasn’t unique. Last year a Kurdish activist from Turkey being held in an ICE detention facility run by local authorities in Allen Parish, Louisiana, sought to appeal his asylum denial by an immigration judge. According to a report published by a coalition of human-rights advocates, the man submitted six different written requests to the detention center to get the required appeal form. “We don’t have any ICE forms here,” the center responded in writing. “You need to write to ICE” for the form. But ICE officials failed to respond to his written requests, according to the report.

After the 30-day deadline for an appeal had passed, the man went on a hunger strike and filed a complaint with DHS. Detention center officials then belatedly gave him the form, according to the report—and the next day locked the man in solitary confinement for 11 days. Eventually, after advocates intervened on his behalf, the Board of Immigration Appeals allowed him to appeal and remanded his case to the immigration court. Earlier this year, he was granted asylum. He’s now living in Boston.

Khudoynazarov, who remains at Winn, was also driven to desperate measures. Detention center employees finally relented and allowed him access to the internet, he says—after he was three days into a hunger strike.

(Corrects Ariel Prado’s credentials in the 32nd paragraph.)