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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: July 8, 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 June 21, U.S. Immigration and Customs Enforcement (ICE) reported that 863 individuals currently in ICE custody had confirmed cases of Covid-19, with 8,858 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. 

Immigration Enforcement

Brennan Center Recommendation: 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. 
  • As of the third week of June, the CDC indefinitely extended a March order that bars migrants seeking protection at land borders, including children. Despite US anti-trafficking law that requires Border Patrol to transfer children to the Office of Refugee Resettlement, children are still being turned away.
  • Despite the Chuckwalla Valley State Prison having a massive coronavirus outbreak, ICE arrested three inmates upon their release from the prison in early June, and transferred them to the Adelanto detention center.
  • The Trump administration has used Title 42 of the US Code (a measure related to public health) to strip asylum-seekers of legal protections, forcibly returning them to communities that many believe are dangerous. Over 2,000 children have been returned to large, potentially unsafe cities as unaccompanied minors under this process in the past few months.
  • Six North Carolina jails have entered into new contracts with ICE during the pandemic, and many immigration rights organizers have reported that ICE subsequently increased immigration enforcement in May and June. This agreement has also facilitated transfers between jails/prisons and detention centers, of which ICE is not required to report details, as they are below the regional level. Immigration advocates fear that these agreements are furthering the virus’s spread.
  • Due to their knowledge of ICE presence at courthouses, some undocumented people in Texas are “self-evicting” in response to landlords threatening eviction. Despite the fact that undocumented tenants have the same rights as anyone else during the eviction process, advocates say that many such tenants fear ICE detention and deportation if they try to exercise their rights.
  • On July 21, Mayor Bill De Blasio of New York City announced the Landlord-Tenant Mediation Project, an alternative to eviction proceedings that bypasses the court system entirely. This provision, while broadly applicable, will allow undocumented people who fear being detained by ICE at courthouses to safely defend their rights as tenants during the pandemic.
  • Because of mass furloughs at US Citizenship and Immigration Services, many lawful immigrants who applied to become citizens months ago may not be able to vote. The COVID-related furloughs have caused massive delays at USCIS that will likely not be resolved before the election, given that the agency already had 700,000 pending naturalization applications at the beginning of the pandemic.

Immigration Detention

Brennan Center Recommendation: 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.

  • 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. 
  • 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. 
  • 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.
  • 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.
  • 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. 
  • 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. 
  • 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. 
  • 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.
  • 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. 
  • Migrants detained at the La Palma ICE facility in Arizona (operated by CoreCivic) say that they were forced to clean the facility without adequate PPE. As of June 7, there were 78 confirmed Covid-19 cases at the detention center. (June 10)
  • At the Eloy Detention Center in Arizona, Covid-19 cases increased by 460% from June 11 to June 15. ICE spokesperson Yasmeen Pitts O’Keefe has said that the surge is due to increased testing, and that Eloy has restricted intake in response.
  • At the Port Isabel Detention Center in South Texas, positive Covid-19 cases have increased from four cases on June 5 to 54 cases on June 22. ICE officials are reported to have refused testing to 32 people who requested it because they felt sick.
  • Immigration lawyers and advocates have received hundreds of requests from people in ICE detention, who are seeking deportation to avoid the risks of being held in crowded detention facilities during the pandemic. Due to the scarcity of masks and other essential hygiene products in ICE facilities, seeking deportation seems safer to many, even though it generally means forfeiting one’s immigration case.
  • As of June 2020, concerns have been raised that ICE is significantly underreporting their COVID cases. The Vera Institute has designed its own epidemiological model based on ICE’s transfers and detention facilities, and estimates that the number of COVID-19 cases in their custody could be 15 times higher than ICE reports. Still, ICE maintains that they are following hygienic procedure, and continues to book thousands of people into custody.
  • At the end of June, US District Judge Dolly Gee ordered that children who had been housed at family residential centers (about 1% of the total population detained by ICE) for more than 20 days be released by no later than July 17. Gee specified that the releases were essential for the health of those in facilities. Acting DHS Secretary Chad Wolf responded that ICE would not allow a “jailbreak,” asserting that the people in ICE facilities have no right to be in the country.
  • At the Farmville ICE Detention Center in Virginia, nearly 75% of detainees have contracted COVID-19, heightening alarm among immigration advocates who have been publicizing the center’s poor conditions. In June, there were 49 cases at the detention center. At that time, the center also received a transfer of 74 detainees from Arizona and Florida facilities. Now, as of July 22, 268 out of 360 detainees at Farmville are confirmed as positive.
  • Based on mid-July data from ICE and the Texas Department of State Health Services, people in Texas detention centers are 15 times more likely to have an outbreak of COVID-19 than the rest of the state’s population. Nearly 30 detainees across the state report that ICE officials are still failing to provide adequate social distancing and medical care.
  • Immigrants at the Stewart detention center run by Core-Civic in Georgia reported on July 23 that they are consistently denied COVID-related medical help, and violently punished to the point of injury for requesting it. This follows reports that Core-Civic officers pepper-sprayed detainees at the Stewart detention center in April.
  • At Sherburne County Jail in Minnesota, ICE detainees have reported that authorities habitually deny people for COVID tests (even when symptoms like chest pains and coughs are present), and threaten indefinite isolation and punishment if detainees are sick. This comes a month after Minnesota governor Tim Walz announced that Minnesota had reached its goal of making 20,000 tests available each day.
  • The US government has yet to release immigrant children detained with their parents, despite the deadline for their release this week set by a federal judge. Instead, this July, more parents and children were held in the three centers covered by the order than were held the month before.
  • Attorneys are calling for the immediate release of dozens of ICE detainees, after the Bergen County jail’s air conditioning failed over the weekend of July 25 and 26. Temperatures reached the 90s, and attorneys wrote that their clients were enduring “oppressive and dangerous conditions” that added even more danger to the ongoing pandemic.

Government Transparency

Brennan Center Recommendation: 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.

  • 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.
  • 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." 
  • 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. 
  • ICE has been releasing COVID-19 testing data intermittently, with periods of silence up to a month long. Additionally, ICE is only reporting the positive tests and total tests, which makes it impossible to construct a reliable daily positive rate, as the number of daily tests sometimes exceeds the number of tests administered in reported data.
  • Rep. Mark Takano from Riverside, Ca is calling for investigations by the House Committee on Homeland Security into the excessive use of toxic chemicals at the Adelanto ICE Processing Center. Many unanswered inquiries have been made with ICE officials about the extensive indoor use of HDQ Neutral in response to COVID, as people detained at Adelanto have claimed that the disinfectant is continuing to cause serious injuries (e.g., nosebleeds, burning eyes, migraines, respiratory issues).
  • People detained at the Otay Mesa Detention Center, which is in the midst of a mass COVID outbreak, report dire conditions, a lack of medical care, and the repeated use of pepper spray by officials in response to hunger strikes. Additionally, advocates for those incarcerated at Otay Mesa say that they were forced to sign contracts written solely in English in exchange for improper PPE.
  • In July 2, at the Torrance county detention facility in New Mexico, a group of Cuban asylum seekers were assaulted with pepper spray by ICE officers for organizing a hunger strike. ICE policy allows the use of pepper spray by officials to “gain control” of someone in ICE custody, with the specification that detention facilities must keep records of such uses of force. No documentation of the Torrance county incident was shared.
  • On June 29, seven detainees who were in the process of suing ICE were transferred from a Pennsylvania jail without any COVID cases to an Alabama jail that had up to 20 active cases of COVID-19. The ACLU calls this “blatant retaliation” by ICE in its lawsuit.
  • On Wednesday, July 22, a federal judge denied a blanket request to release families in ICE custody as a result of the coronavirus pandemic. Judge James E. Boasberg recognized shortfalls in ICE’s COVID response, but argued that petitioners “must demonstrate that no court-ordered remedy other than their release will do.”
  • U.S. District Judge Dana Sabraw denied the ACLU’s request to release medically vulnerable detainees on July 22, finding that the Imperial Regional Detention Facility in California had taken appropriate prevention and protection measures. He cited the fact that only two detainees tested positive in his decision, despite the ACLU’s argument that the IRDF had not tested all detainees and wasn’t maximizing social distancing.
  • A former officer at the Richwood Correctional Center in Louisiana has reported that he was instructed to blast the air conditioner to “freeze out” ICE detainees so they could pass temperature checks to be deported. Whistleblowers’ accounts show that LaSalle Corrections (the private company that runs Richwood) also deliberately withheld PPE and vital information from staff and detainees to prevent panic, resulting in the deaths of two ICE officers and at least 65 positive cases among detainees.
  • According to Border Patrol agents, as of July 28, the Trump administration is continuing to use public health code Title 42 to quickly return immigrants who cross the border, even those who are intended to go through a formal legal process (e.g., asylum seekers and children) before being refused entry. A leaked Border Patrol memo from April indicates that the federal government is operating under the assumption that public health law supersedes immigration law.
  • The Trump administration has agreed not to expel a group of unaccompanied immigrant children detained in a Texas hotel during the pandemic, but has not stated whether ICE will stop using hotels to detain children. The 17 children covered by ICE’s agreement were removed from the hotel in which they were detained, but as of July 27, ICE refuses to disclose their new location.