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Immigration Detention and Covid-19

Immigration enforcement strategies must change to help alleviate the worst damage of Covid-19.

Last Updated: June 1, 2020
Published: March 27, 2020

Covid-19 poses a grave threat to those in immigration custody, including those being held along the southern border and at other immigration facilities around the country. The conditions at some of these facilities are deplorable, and it would be unconscionable to place additional people into these facilities absent an extraordinary reason. The federal government, in partnership with state and community actors, must create a comprehensive response to minimize the impacts of Covid-19 on those who are at risk of arrest by immigration authorities. The federal government should also dramatically reduce the number of people in immigration detention.

As of May 31, U.S. Immigration and Customs Enforcement (ICE) reported that 754 individuals currently in ICE custody have confirmed cases of Covid-19, with 2,781 people tested. However, advocates believe the actual number of cases to be much higher. CBP is not publicly sharing data or information on reports of any cases. 

On May 6, Carlos Ernesto Escobar Mejia, a 57-year-old man from El Salvador, died in ICE custody in Southern California. He is the first person die in ICE custody after testing positive for Covid-19. 

On May 24, Santiago Baten-Oxlag died of Covid-19 complications while waiting to voluntarily depart to Guatemala. He is the second person to die in ICE custody due to Covid-19. 

ICE recently started publishing the number of court-ordered releases from immigration detention. As of April 24, 192 people had been released. 

ICE and CBP should suspend all immigration-related arrests unless the person to be arrested presents a serious risk to public safety independent of their immigration status. The Department of Justice should not initiate any new prosecutions for immigration offenses absent a threat to public safety.

  • On March 18, ICE announced that it would temporarily scale down arrests, except for those that “pose a threat to public safety.” Specifically, ICE’s Covid-19 guidelines state that: “ICE Enforcement and Removal Operations (ERO) will focus enforcement on public safety risks and individuals subject to mandatory detention based on criminal grounds. For those individuals who do not fall into those categories, ERO will exercise discretion to delay enforcement actions until after the crisis or utilize alternatives to detention, as appropriate.”
  • One day after the head of ICE announced the policy change, Acting Deputy Secretary of Homeland Security Ken Cuccinelli tweeted that, because “the health and safety of Americans is paramount,” the agency would continue to “conduct enforcement operations.”
  • Since the March 18 announcement, ICE has continued to make arrests around the country, including the recent arrest of a teenager from a New York City shelter. 

For more, see “DHS Must Suspend Certain Immigration Enforcement Practices During the Coronavirus Outbreak” from the Center for American Progress.

ICE and CBP should release all individuals who are not a “credible threat” to public safety on parole/bond, including all people without a criminal record or with only a minor violation as their most serious criminal conviction. This would encompass most of the detained population.

Government and Courts Response

  • Following a lawsuit by ACLU Massachusetts, ICE released two immigrant detainees from an immigration detention facility in Massachusetts. Both detainees had serious preexisting medical conditions that put them at a higher risk of illness or death were they to contract Covid-19. 
  • On March 28, Judge Dolly M. Gee ordered the federal government to "make continuous efforts" to release migrant children from federal detention facilities. Although she did not order an immediate release, she did order that ICE and the Office of Refugee Resettlement must provide an account of their efforts to release those in custody by April 6. 
  • On April 4, ICE directed field offices nationwide to reassess custody of anyone over 60, as well as those of any age with chronic illnesses compromising their immune systems. 
  • On April 9, U.S. District Judge James E. Boasberg ordered ICE to disclose the number of releases they have granted or denied from detention centers in five southern states to migrants considered at higher risk of dying from Covid-19. 
  • On April 10, the Marshall Project reported that deportation hearings for unaccompanied migrant children are proceeding across the country, including in Covid-19 hotspots such as New York City and Los Angeles. The Executive Office for Immigration Review, the DOJ agency in charge of the immigration courts, has rejected calls from judges, prosecutors and immigration lawyers to shut down immigration courts nationwide.
  • As of April 16, ICE had released nearly 700 detainees from custody. According to advocates in New Jersey, where there have been severe Covid-19 outbreaks in immigration detention facilities, ICE has released at least 245 detainees from immigration detention. 
  • In April, U.S. District Judge Marcia G. Cooke ordered ICE to shrink its detainee populations to 75 percent of capacity to allow for social distancing at three immigration detention facilities in South Florida. On May 10, ICE told Cooke in a court filing that, as of May 7, they had reduced the facilities to 71 percent capacity, 74 percent capacity, and 65 percent capacity, respectively.

Advocacy Response

  • The former acting director of ICE called on the agency to release all nonviolent, low flight risk detainees.
  • Two doctors, who are contracted experts for the Department of Homeland Security's Office for Civil Rights and Civil Liberties, wrote a letter to Congress asking the department to consider releasing all detainees who do not pose a risk to public safety. The doctors are co-directors and co-founders of the Center for Prisoner Health and Human Rights.
  • More than 3,000 physicians signed on to a letter to ICE urging the agency to release all detainees while their legal cases proceed, particularly those in high-risk categories (the elderly and immuno-compromised). The letter was written by physician members of New York Lawyers for the Public Interest Medical Providers Network and Doctors for Camp Closure.
  • On April 7, Amnesty International released a report and statement calling for the United States to release all immigration detainees from detention, "except in the most extraordinary of circumstances requiring ongoing detention.”
  • More than 60 women detained at the Northwest Detention Center in Tacoma, Washington have gone on a hunger strike. They are demanding the immediate release of vulnerable people, humanitarian visas to detainees, and a moratorium on deportations and transfers. 
  • On April 29, ICE released 6 migrant women from an El Paso immigration detention facility. The release came five days after the women filed a petition for a writ of habeas corpus on April 24, seeking their release from ICE detention because of underlying health conditions that put them at risk of complications from Covid-19. 

Immigration detention authorities should make public their quarantine/emergency plans, both to the public and to those in immigrant detention, and their success in executing those plans.

Government Response

  • ICE has released its policy on how to mitigate disease spread in detention facilities. It reads as follows: “Detainees who meet CDC criteria for epidemiologic risk of exposure to Covid-19 are housed separately from the general population. ICE places detainees with fever and/or respiratory symptoms in a single medical housing room, or in a medical airborne infection isolation room specifically designed to contain biological agents, such as Covid-19.”
  • The aforementioned White House budget request includes a request for personal protective equipment for detention center staff as well as funds to convert four facilities into dedicated quarantine facilities, with higher standards of sanitation and janitorial services.
  • On March 13, ICE suspended all social visits to detention facilities.  
  • Private prison companies, which operate a majority of ICE detention centers, have issued their own Covid-19 responses, noting changes in staffing procedure, cleaning/hygiene, and visiting policies. On March 13, GEO Group released a press statement. Notably, the statement did not include any specific details about quarantine policies, separation, or increased access to medical care beyond ordered tests. CoreCivic also issued a statement on their Covid-19 response, again without specific policy changes. Note that as of March 17, 10 detainees in one of GEO Group’s detention facilities in Colorado were being isolated after possible exposure to the coronavirus.

Advocacy Response

  • The Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative and partner organizations sent a letter to ICE field offices in the Deep South urging them to “immediately make public all protocols ICE and its contractors are implementing to control the spread of Covid-19 inside scores of immigrant detention centers not run by the Immigrant Health Services Corps (IHSC), which only operates 20 facilities nationwide” and “grant release from custody to all detained individuals at high risk of serious effects from Covid-19.” Note that advocates and health professionals have expressed concern over ICE’s ability to follow through on these policy guidelines, particularly in rural or smaller detention facilities.
  • Immigrant detainees at three ICE detention centers in New Jersey have launched hunger strikes demanding their release, either on bond or another form of community corrections. The hunger strikes were launched in response to dangerous, unsanitary conditions in the detention centers and the threat of a disease outbreak. "They're not taking any measures to protect us," one detainee told Vice. "They haven't done any cleaning. We spent three days without soap." 

Litigation

With Covid-19 cases on the rise, advocacy groups around the country are filing lawsuits calling for the release of people held in immigrant detention. Below, we have compiled examples of litigation unfolding across the country: 

  • The American Civil Liberties Union, the ACLU of Washington, and the Northwest Immigrant Rights Project (NWIRP) recently sued ICE on behalf of immigrants held in the Tacoma Northwest Detention Center in Tacoma, Washington. The lawsuit seeks the release of individuals who are in civil detention and are at a high risk of serious illness or death were a Covid-19 infection to occur in the detention center.

  • ALDEA-The People’s Justice Center in Reading, the Rapid Defense Network in New York, and the Refugee and Immigrant Center for Education and Legal Services, or RAICES, in San Antonio, Texas, recently filed a suit in the U.S. District Court for the District of Columbia demanding that the government release all families currently detained at ICE’s Family Residential Centers across the country. On March 30th, Judge James Boasberg denied the aforementioned request for release. However, he did demand that the government produce a report in one week detailing whether the facilities are in compliance with CDC guidelines for "congregate" facilities. He also said that the government must turn over videos documenting the over-crowding at the facilities in question. 

  • On April 13, the ACLU asked a San Diego federal judge to dismiss a lawsuit against ICE related to the Covid-19 pandemic. This announcement after the ACLU's four clients were released from the Otay Mesa Detention Center and the Imperial Regional Detention Facility, respectively. All of the ACLU's clients had serious preexisting conditions. 

  • On April 14, immigration attorneys in Aurora, Colorado sued for the release of 14 medically vulnerable detainees. After the lawsuit was filed, ICE released eight women out of the plaintiff group, all of whom are HIV positive. 

  • On April 23, a federal judge in Los Angeles ordered ICE to reduce the number of detainees at a facility in Adelanto, California, so that detainees can practice safe social distancing amid the Covid-19 pandemic. In order to reduce the population at the facility, the judge said that ICE would be expected to release at least 100 detainees by April 27, and at least 150 more detainees by April 30. 

  • On May 21, the Inland Coalition for Immigrant Justice and Freedom for Immigrants filed a civil rights complaint with the Department of Homeland Security, alleging detainees have been subject to chemical exposure at the Adelanto ICE Processing Center in San Bernardino County, California. Several people detained at the facility reported that the frequent use of a disinfectant used at the facility has caused people to have eye irritation, bloody noses, and to cough up blood.