By: Daniel B. Robinson
“We’re mothers. Don’t let us die like this, as if we’re animals. We’re human beings.”[i]
The Global Detention Project (GDP) in Geneva tracks national detention policies related to the COVID-19 pandemic “within the context of their migration control policies.”[ii] The GDP reports that, for the first time in three decades, Spain emptied its seven immigrant detention centers by early May, due to the impossibility of removing detainees in response to COVID-19.[iii] In Italy, three of nine pre-removal detention centers had closed, and the number of immigrant detainees fell from 600 to 178 by May 29.[iv] Zambia has released all of its detainees.[v] In the United Kingdom, the number of immigrant detainees fell from 1,225 on January 1, 2020 to 368 in early May.[vi] It is clear that countries around the nation have made great strides toward slowing the spread of COVID-19 in their detention systems and throughout their greater populations, respectively. Unfortunately, the same cannot be said for the United States of America.
According to the American Bar Association, there were a total of 26,660 detained in ICE detention as of late May.[vii] As of May 31, 2020, ICE reported having tested only 2,781 people in its custody, with 1,461 positive cases at just 60 of over 200 detention centers, which means that a minimum of 52 percent of detainees tested through May 31 had contracted COVID-19.[viii] Shockingly, these numbers are merely a fraction of their realistic totals. The ICE COVID-19 webpage reports only on the number of currently detained people, and on the number of current cases in detention centers—it neither reports on the total number of people that have been or are currently detained since the outbreak of COVID-19, nor the total number of confirmed cases within detention centers since the outbreak.[ix] However, calculations conducted by the Vera Institute of Justice (Vera), using ICE’s own detention statistics show that, in June of 2020, nearly 66,000 people had been detained or newly booked into detention at any since ICE’s first reported COVID-19 case.[x] Vera’s model estimated that nearly one in five people detained for any length of time during the period of mid-March to mid-May would be infected with COVID-19.[xi] Vera’s estimates make it clear that “there is no scenario in which the data ICE has reported to the pubic reflects the true scope of the spread of COVID-19 in detention [centers]” and that “the actual number of positive cases may be up to 15 times higher than the figures reported by the ICE as of mid-May.”[xii]
The last few months have been an extraordinarily challenging time for almost everyone in our country, but it is no secret that the coronavirus pandemic is disproportionately impacting the most vulnerable members of our society. And by no fault of their own. On the contrary, ICE detention centers are not subject to any sort of codified, legislative framework governing institutional responses to emergencies such as the COVID-19 pandemic, and the inconsistencies between the ICE and CDC guidelines make it nearly impossible to ensure the health and safety of those detained. Robert B. Greifinger, medical consultant to DHS and the US Department of Justice reported that immigrant detention centers pose “a greater risk [of] the spread of COVID-19” than USCIS field offices, which the DHS had closed in response to the crisis.[xiii] Greifinger reported that detention centers are even more dangerous than cruise ships due to “conditions of crowding, the proportion of vulnerable people detained, and often scant medical care resources.”[xiv] Detainees share “toilets, sinks, and showers” and their “[f]ood preparation and food service is communal.”[xv]
In an open letter to ICE Acting Director Matthew T. Albence, hundreds of medical directors detailed the following problem:
Detention facilities, like the jails and prisons in which they are housed, are designed to maximize control of the incarcerated population, not to minimize disease transmission or to efficiently deliver health care. This fact is compounded by often crowded and unsanitary conditions, poor ventilation, lack of adequate access to hygienic materials such as soap and water or hand sanitizers, poor nutrition, and failure to adhere to recognized standards for prevention, screening, and containment. The frequent transfer of individuals from one detention facility to another, and intake of newly detained individuals from the community further complicates the prevention and detection of infectious disease outbreaks. A timely response to reported and observed symptoms is needed to interrupt viral transmission yet delays in testing, diagnosis and access to care are systemic in ICE custody.[xvi]
As an initial matter, ICE simply cannot adhere to social distancing standards “in virtually every facility it operates.”[xvii] Even in private facilities that operate at roughly a third of capacity, such as those managed by private prison corporation Management and Training Corporation (MTC), effective social distancing may be impossible—MTC’s five facilities have a combined capacity of nearly 5,000 but consists of “open-bay housing units with dorms that can accommodate up to 100 individuals.”[xviii]
Moreover, ICE’s many long-standing oversight deficiencies make it “unlikely” that it can “ensure compliance [with its guidelines].”[xix] And the Department of Homeland Security’s Office of the Inspector General agreed with this assessment—concluding that neither ICE’s inspection programs, nor ICE’s on-site monitoring system by its Enforcement and Removal Operations (ERO) division, promote “consistent compliance with detention standards or comprehensive correction of identified deficiencies.”[xx] And due to these deficiencies, Homer Venters, nationally recognized leader in health and human rights, and the Senior Health and Justice Fellow of COCHS, said that detainees would “experience higher risks of serious illness and death.”[xxi]
On April 10, 2020, ICE ERO released the COVID-19 Pandemic Response Requirements (PRR), “a guidance document developed in consultation with the Centers for Disease Controls and Prevention (CDC) that builds upon previously issued guidelines.”[xxii] The PRR was updated and re-released on June 22, July 28, and finally, on September 4, 2020.[xxiii] The PRR focuses primarily on four functions (for lack of a better term) to aid ICE detention centers in mitigating the spread of COVID-19: (1) preparedness; (2) prevention; (3) management; and (4) testing.
One detainee at a detention center in Ohio, who prefers to remain anonymous, very adequately summarizes the current state of preparedness in ICE Detention Centers:
Soap? We are only given two small bottles, there is nothing to wash dishes with. Where we wash dishes is where we wash our hands, and we have to use our own personal things to clean the bathrooms. There is a lot of racism here, the officials insult us and they don’t use masks, we’re here exposed to whatever disease and if one is sick, everyone inside is at risk. There is no form of prevention here inside. It’s ugly what we’re living through here, to be honest, and I don’t know why, because we are people just like them.[xxv]
Another individual, Tom Owens, detained in Ottowa County said: “this place is completely filled to the maximum. Our beds three feet apart. There’s no way to be six feet apart. Once [coronavirus] comes in here, it’s going to hit 30% of the population. There’s enough low-level people in here, you could reduce the population fairly rapidly.”[xxvi]
The analysis of immigration court data identified 268 transfers of detainees between detention centers in April, May and June, after hundreds in ICE custody had already tested positive for COVID-19.[xxviii] And half of the transfers identified involved detainees who were either moved from centers with COVID-19 cases to centers with no known cases, of from centers with no cases to those where the virus had spread.[xxix] Of particular concern is the Farmville Detention Center in Virginia. Prior to June 2, only two detainees had tested positive at Farmville—both immigrants transferred there in late April.[xxx] On June 2, ICE relocated 74 detainees from Florida and Arizona, more than half of whom later tested positive for COVID-19.[xxxi] On July 16, Farmville tested all 359 detainees, and a staggering 268 tested positive.[xxxii] And Farmville is just one of the many hundreds of centers that have seen similar outbreaks.
Apparently, and quite shockingly one might add, medical isolation and solitary confinement are synonymous with one another in this context. According to detainees, ICE agents are locking detainees with COVID-19 or COVID-19-like symptoms in solitary confinement cells “for days or weeks at a time, with little opportunity for medical treatment.”[xxxiv] “In the end, what they did was psychologically torture me,” said Carolos Hernandez Corbacho, who said he spent more than a week in isolation cells at Arizona’s La Palma Correction Center.[xxxv]
Moreover, with an average of 660 tests per week since February for an average detained population in that period of approximately, 60,000 this results in approximately 11 tests conducted per one thousand people—meaning ICE’s testing levels barely edge past the World Health Organization’s safety threshold.[xxxvii]
Under the supreme law of this land, any individual physically situated within the United States, regardless of their immigration status, is entitled to constitutional protections.[xxxviii] The stark disregard for human life and human rights that has occurred in ICE detention centers across this nation since the outbreak of COVID-19 is both heartbreaking and pathetic. And the outcries for help from ICE detainees have made it clear that, if not addressed, this country, and this government, will bear the burden of thousands of deaths within our detention systems. More than 2,000 immigrants at ICE facilities in California, Florida, New Mexico, Ohio and other states have refused meals in protest of their inhumane living conditions.[xxxix] One attorney commented, “[C]onditions are awful under normal circumstances, and now they’re outrageously abysmal and dangerous for people.”[xl]
So how do we fix this? Who is responsible? Where do we begin? Well, for starters, “release is [both] a legal option and a public health imperative.”[xli] ICE has argued that it has no choice but to detain immigrants who are subject to mandatory detention, and the Supreme Court has held that mandatory detention during the pendency of removal proceedings is “constitutionally permissible.”[xlii] However, this holding does not preclude DHS/ICE from releasing imperiled detainees or opting not to detain them In the first place.[xliii] The Immigration and Nationality Act (INA) mandates the detention of “applicants for admission,” whether those arriving at POEs or apprehended after an unauthorized entry.[xliv] However, it also allows DHS to parole applicants for admission for “urgent humanitarian reasons or significant public health benefit.”[xlv] The urgent humanitarian reasons are clear in this instance, as is the significant public health benefit.
Moreover, the “immense number of non-detainees in the removal adjudication system undermines the claim that the detention is necessary to safeguard the public.”[xlvi] And the great majority of detainees do not even present a public safety threat—by the end of March 2020, 61.2% of ICE detainees had never been convicted of a crime and just 10.7% had committed “Level 1” crimes, which are “thought to pose a threat to public safety.”[xlvii] While there are certainly a number of different alternatives that may be pursued in order to ensure the safe of ICE detainees, we can start by releasing non-violent offenders, in accordance with their constitutional guarantees under the laws of the United States of America. It may not solve the problem in its entirety, but it is certainly a step in the right direction.
[i] Tramontela, In Their Own Words: Incarcerated People Talk About COVID-19, (Apr. 6, 2020), https://ohioimmigrant.org/2020/04/06/quotes-dont-let-us-die-in-here-inmates-speak-out-on-covid-19/
[ii] Donald Kerwin, Immigrant Detention and COVID-19: How a Pandemic Exploited and Spread through the US immigrant Detention System, Center for Migration Studies 1, 26 (August 2020), https://cmsny.org/wp-content/uploads/2020/08/CMS-Detention-COVID-Report-08-12-2020.pdf.
[iii] Id.
[iv] Id.
[v] Id.
[vi] Id.
[vii] American Bar Association, Impact of COVID-19 on the Immigration System, https://www.americanbar.org/groups/public_interest/immigration/immigration-updates/impact-of-covid-19-on-the-immigration-system/ (last visited Oct. 22, 2020).
[viii] Dennis Kuo, et al., The Hidden Curve: Estimating the Spread of COVID-19 Among People in Ice Detention, The Vera Institute of Justice (June 2020), https://www.vera.org/the-hidden-curve-covid-19-in-ice-detention (last visited Oct. 22, 2020).
[ix] Id.
[x] Id.
[xi] Id.
[xii] Id.
[xiii] Declaration of Robert B. Greifinger, MD (March 14, 2020). https://www.aclu.org/sites/default/files/field_
document/4_declaration_of_robert_b._greifinger_1.pdf.
[xiv] Id.
[xv] Id.
[xvi] Open Letter from Medical Professionals to Matthew Albence, Acting Director ICE. https://nylpi.org/wp-content/
uploads/2020/03/FINAL-LETTER-Open-Letter-to-ICE-From-Medical-Professionals-Regarding-COVID-19.pdf
[xvii] Fraihat, et al. v. US Immigration and Customs Enforcement, et al., No. 19-cv-01546-JGB (SHKx) (C.D. CA., March
24, 2020) (Declaration of Homer Venters in Support of Motion for Preliminary Injunction and Class Certification).
https://www.documentcloud.org/documents/6818810-Declaration-of-Dr-Homer-Venters.html
[xviii] Testimony of Scott Marquardt, Chief Executive Officer, Management & Training Corporation Before US House
Committee on Homeland Security, Subcommittee on Border Security, Facilitation, and Operations (July 13, 2020).
https://homeland.house.gov/imo/media/doc/Testimony%20-%20Marquardt.pdf
[xix] Fraihat, No. 19-cv-01546-JGB (SHKx) (C.D. CA., March 24, 2020) (Declaration of Homer Venters in Support of Motion for Preliminary Injunction and Class Certification). https://www.documentcloud.org/documents/6818810-Declaration-of-Dr-Homer-Venters.html
[xx] John V. Kelly, Acting Inspector General, ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements, Department of Homeland Security 1, 2 (June 26, 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67-Jun18.pdf.
[xxi] Id.
[xxii] U.S. Immigration and Customs Enforcement, ICE’s Enforcement and Removal Operations COVID-19 Pandemic Response Requirements, https://www.ice.gov/coronavirus/prr (last visited Oct. 22, 2020).
[xxiii] Id.
[xxv] Tramontela, In Their Own Words: Incarcerated People Talk About COVID-19, (Apr. 6, 2020), https://ohioimmigrant.org/2020/04/06/quotes-dont-let-us-die-in-here-inmates-speak-out-on-covid-19/
[xxvi] Id.
[xxviii] Mica Rosenberg, et al., U.S. Immigration Officials Spread Coronavirus with Detainee Transfers, Reuters (July 17, 2020), https://www.reuters.com/article/us-health-coronavirus-immigration-detent/u-s-immigration-officials-spread-coronavirus-with-detainee-transfers-idUSKCN24I1G0.
[xxix] Id.
[xxx] Id.
[xxxi] Id.
[xxxii] Id.
[xxxiv] Carmen Molina Acosta, Psychological Torture: ICE Responds to COVID-19 With Solitary Confinement, The Intercept (Aug. 24, 2020), https://theintercept.com/2020/08/24/ice-detention-coronavirus-solitary-confinement/.
[xxxv] Id.
[xxxvii] The World Health Organization recommends at least 1 test per 1000 people per week for a reliable positive rate calculation.
[xxxviii] Becky Esquenazi, ICE Detainers – Constitutional or Not?, Univ. Miami. L. Review (Sep. 23, 2019), https://lawreview.law.miami.edu/ice-detainers-constitutional-not/
[xxxix] Farida Jhabavala Romero, ICE Detainees at Yuba Jail Press for COVID-19 Protections, KQED (Aug. 28, 2020), https://www.kqed.org/news/11835611/ice-detainees-at-yuba-jail-press-for-covid-19-protections
[xl] Id.
[xli] Donald Kerwin, Immigrant Detention and COVID-19: How a Pandemic Exploited and Spread through the US immigrant Detention System, Center for Migration Studies 1, 15 (August 2020), https://cmsny.org/wp-content/uploads/2020/08/CMS-Detention-COVID-Report-08-12-2020.pdf.
[xlii] Id. (citing Demore v. Kim, 538 US 510, 513, 531 (2003)).
[xliii] Id.
[xliv] Id. (citing Nielsen v. Preap, 139 S. Ct. 954, 971-72 (2019)).
[xlv] INA § 235(b).
[xlvi] Supra, note XLII at 16.
[xlvii] Id.
