What are ICE’s official criteria for counting a death as occurring “in custody” and how have those rules changed?
Executive summary
ICE’s public criteria treat a death as “in custody” when the person is under ICE supervision — whether at a detention facility, a field office, or while hospitalized after transfer — and the agency requires internal notification within 12 hours and public reporting of in‑custody death reports in accordance with the DHS appropriations timing rules [1] [2]. Outside analysts and advocacy groups say ICE’s practical counting and disclosure have shifted and narrowed over time, producing discrepancies between ICE’s tally and independent lists that track broader categories or ambiguous custody statuses [3] [4].
1. What ICE’s official policy says about labeling a death “in custody”
ICE’s written detainee‑death policy and National Detention Standards treat any death that occurs while a person remains under ICE custody as an in‑custody death and require a multilayered response and written facility protocols; the Field Office Director with oversight of the facility or area of responsibility must report the death within 12 hours to ICE custody management, the Joint Intake Center, and other ICE offices [1]. ICE’s public newsroom and its Detainee Death Reporting page are the designated places to publish notifications and the agency states it makes official notifications to Congress, stakeholders and the media following in‑custody deaths [2] [5].
2. Who is included: facilities, field offices and hospital transfers
ICE has explicitly counted people who died at detention centers, in ICE field offices and those who were transferred to hospitals but remained under ICE custody at the time of death — language and individual reports show deaths after hospital transfer are included when the person remained in ICE custody [6] [7]. ICE’s public statements about recent cases reiterate that some detainees who died had been transferred to hospitals for care yet were still characterized as dying “in ICE custody,” and ICE posts such events on its Detainee Death Reporting page [6] [2].
3. Legal and procedural changes that affect counting and disclosure
Congressional direction in the DHS Appropriations Act of 2018 required ICE to make public all reports regarding in‑custody deaths within 90 days, a statutory reporting obligation that ICE now cites on its Detainee Death Reporting and newsroom pages [4] [2] [5]. Operationally, ICE’s requirement that Field Office Directors notify headquarters within 12 hours is a procedural rule for internal tracking and rapid escalation that appears on ICE’s published policy guidance [1].
4. How practice, external tallies and definitions have diverged over time
Independent trackers and journalists note that ICE’s official counts sometimes exclude deaths other organizations consider related to ICE custody — for example, deaths during deportation proceedings, deaths after purported release while hospitalized, or deaths in state custody while deportation was in process — and that leads to lower counts in ICE’s dataset compared with advocates’ lists [3] [4]. Reporting practices have also been criticized as opaque by oversight groups, who document gaps between the number of deaths identified through investigative reporting and those recorded in ICE’s official lists; POGO and others link such gaps to weakened inspections and transparency during recent detention expansions [8] [4].
5. Why the definitional and procedural shifts matter
How ICE defines “in custody” determines which cases trigger mandatory congressional notice, formal reviews, and public scrutiny; when agency counting excludes ambiguous cases or relies on narrow custody definitions, families, lawyers and watchdogs report delayed or missing public reports and sometimes must litigate for records — a pattern that spurred the 2018 appropriations reporting requirement and fuels ongoing disputes about preventability and accountability in a period of rising in‑custody deaths [4] [8] [9].
6. Where reporting remains unclear or contested
Public sources establish the legal reporting timetables and ICE’s internal 12‑hour notification rule and show that ICE includes hospital deaths that occur while a person remains under ICE supervision, but independent trackers and news investigations point to cases ICE omits or classifies differently; available reporting documents these tensions but do not provide a single, public timeline of every definitional change, so precise historical shifts in ICE’s counting rules beyond the 2018 disclosure mandate and the stated 12‑hour notification procedure are not fully reconstructed in the public record provided here [1] [4] [3] [8].