US Detention and Release Policies Fatally Flawed: Detention System Increasingly Serves as Vector to Spread COVID-19

Donald Kerwin
Center for Migration Studies of New York

Editorial credit: Simone Hogan / Shutterstock.com

US Detention and Release Policies Fatally Flawed: Detention System Increasingly Serves as Vector to Spread COVID-19

This essay was last updated on May 28.

On May 25, Santiago Baten-Oxlag, a 34-year old Guatemalan national, became the second US immigrant detainee confirmed to have died due to complications from COVID-19 (Montoya-Galvez 2020a). Baten-Oxlag died at the Piedmont Columbus Regional Hospital, in Columbus, Georgia, where he had been treated since April 17, 2020.[1]  Prior to his hospitalization, he had been detained at the troubled Stewart Detention Center in Lumpkin, Georgia. Immigration and Customs Enforcement (ICE) vowed to undertake “a comprehensive agency-wide review of this incident.”[2] Core Civic, a private prison corporation, administers the Stewart facility, which has experienced a massive outbreak of COVID-19.

Baten-Oxlag’s death follows the death on May 6th of Carlos Escobar-Mejia, a 57-year old El Salvadoran national and 40-year US resident (Rivlin-Nadler 2020).  Escobar-Mejia had suffered from hypertension and diabetes, resulting in an amputation.[3]  He died at Paradise Valley Hospital in National City, California, [4] and had been detained at Otay Mesa Detention Center, which is also administered by CoreCivic.  At the time of his death, 140 of the 629 detainees at Otay Mesa tested positive for COVID-19 (ibid.).  By May 27, 158 detainees at this facility had contracted the coronavirus (ICE 2020b).

The Size and Direction of the Problem

In mid-March, ICE reported that there were no “confirmed” cases of COVID-19 in its detention centers, a meaningless claim given the lack of testing, the certainty of “unconfirmed” cases, and the confirmed presence of COVID-19 in facilities holding both immigrant detainees and prisoners.[5]  A month later, ICE reported 124 confirmed cases. By May 1, this number had more than quadrupled to 522 cases in 34 facilities, with an additional 39 infected ICE employees in those facilities (ICE 2020b).  By May 19, 1,145 detainees in 51 facilities and 44 ICE detention staff had contracted COVID-19 (ibid.).  By May 27, these figures had increased to 1,327 detainees in 54 facilities, with 44 ICE staff infected. A modeling study released in late April projected that infections would increase exponentially in the US detention system over 90-days, and would overwhelm intensive care units in surrounding hospitals (Coombs et al. 2020).

While sobering, ICE’s posted figures of “confirmed” cases reveal only the tip of an iceberg. By mid-April, ICE had tested a paltry 300-400 detainees (Misra 2020).  In late April, news sources reported that ICE planned to secure 2,000 tests per month from the US Department of Health and Human Services (HHS) (Hesson and Rosenberg 2020).  Yet by May 1, it had tested only 1,073 detainees, by May 19 only 2,194, and by May 27 only 2,620 (ICE 2020b).  A very low percentage of those in ICE’s custody during the pandemic have been tested, and a very high percentage of those tested (51 percent by May 27) have tested positive (ibid.).  It stands to reason that if ICE tested more extensively, it would “confirm” many more infected detainees. By way of comparison, the infection rate of detainees significantly exceeds the rates of those tested (for the week ending May 16) at public health (8.5 percent), clinical (6.4 percent) and commercial (9.9 percent) laboratories (CDC 2020e).

Even if accurate, ICE’s figures on infected detainees would significantly understate the size of the problem in the US detention system.  ICE’s estimates mostly do not include former ICE detainees who contracted COVID-19, a large number of whom were deported prior to being tested (Dickerson and Semple 2020).[6]

By late May, the Guatemalan government had identified 119 deportees from the United States with COVID-19, including 16 infected persons from a May 13 flight (Pérez 2020). This record led Guatemalan President Alejandro Giammattei to assert that “the United States is not Guatemala’s ally.” (ibid.).  Guatemala has repeatedly suspended US deportation flights due to high rates of infection among deportees (Carcamo and O’Toole 2020), who account for more than 15 percent of the country’s confirmed coronavirus cases.  In early May, the United States agreed to test every potential deportee to Guatemala, as a condition of resuming deportation flights to Guatemala (ibid.).

At least three US deportees have tested positive upon arrival in Haiti, a country whose four medical centers have only 200 beds available for COVID-19 patients (Sieff 2020).  A Haitian presidential panel has recommended that Haiti suspend deportations from the United States (Madan and Charles 2020).  ICE reportedly informed Haitian officials in May that it would test potential deportees prior to their flights, but it is not certain that this has occurred (ibid.). Ecuador, El Salvador, Honduras, Jamaica, and Mexico have all requested that the United States test potential deportees (Hesson and Rosenberg 2020).

US deportees to Mexico have also tested positive (Sieff and Miroff 2020).  A study by the Center for Economic and Policy Research (CEPR) reports that ICE Air made 232 flights with deportees to Latin American and Caribbean countries between February 3 and April 24, 2020 (Johnston 2020).  It concludes that, as a result, it is likely that “many other countries” have also received infected deportees (ibid.).

In March and early April, ICE released several news bulletins regarding its use of ICE Air – following deportation flights – to transport stranded US citizens and lawful permanent residents back to the United States (ICE 2020e).  While a laudable goal, the US government has not reported on whether any of these returnees contracted COVID-19 on the flights.

Nor do ICE statistics count the infected staff of its detention contractors, including employees of the private prison corporations. This represents a glaring omission. As of November 2019, two corporations – GEO Group and CoreCivic – managed facilities that held more than one-half of all ICE detainees.  Five private contractors – GEO Group, CoreCivic, LaSalle Corrections, Management & Training Corp. and Immigration Centers of America – administered facilities with more than three-quarters of ICE detainees (Gomez et al. 2019).  Private prisons own nine of the 10 facilities in Texas with confirmed COVID-19 cases (Trevizo 2020).  ICE’s failure to report on the infection of its contractors’ staff minimizes the risks faced by detainees in its legal custody.

To suggest the scope of this problem, CoreCivic administers the massive Stewart Detention Center.  On April 2, ICE reported no confirmed case of infected detainees at Stewart, but one suspected case.[7]  By April 10, it “knew of” 30 suspected and five confirmed cases at Stewart.[8]  By April 28, 42 CoreCivic employees and one ICE employee at Stewart had tested positive for COVID-19 (Stokes 2020).  By May 27, 19 detainees tested positive at Stewart (ICE 2020b).

In an April 21 email to Mark Dow, Amanda Gilchrist, the Director of Public Affairs at CoreCivic said there had been 98 positive cases among CoreCivic staff since the onset of the pandemic, a number that did not count staff who had “recovered from COVID-19” and received “a doctor’s clearance to return to work” (on file with author). Guards at the Otay Mesa Detention Center have sued CoreCivic for allegedly failing to meet its legal obligation to provide a safe working environment. [9]

In mid-April, ICE confirmed that “a number of non-ICE employees (contractors) in facilities that hold ICE detainees had contracted COVID-19, and some of them died from COVID-19” (Misra 2020).  By late April, two guards at the Richwood Correctional Center in Monroe, Louisiana had died from COVID-19 (Merchant 2020).[10]  Prison officials had advised guards not to wear masks or gloves “to avoid spreading panic among detainees” (ibid).  Subsequently, they informed detention staff that “they would be required to work 12-hour shifts, seven days a week” due to staffing shortages caused by the COVID-19 crisis (ibid.)  The widow of one of the guards reported having also contracted the virus (ibid.).

ICE’s statistics also fail to include the number of members of surrounding communities that have contracted COVID-19 due to exposure its detainees and detention staff. The surge in COVID-19 infections in detention centers has raised concerns in host communities, many of them “rural areas with little medical infrastructure.”[11]  Frio County commissioners and city officials, for example, have asked the GEO Group – which manages the South Texas ICE Processing Center in Pearsall, Texas – to explain its plans to safeguard the community from the outbreak at its facility (ibid.).[12]  According to the GEO Group, 13 of its employees had tested positive for COVID-19 and 62 “were self-quarantining due to exposure” as of April 24.[13]

ICE also stated that it had been “unable to determine how many non-ICE personnel in state and local jails – many administered by private corporations – have contracted COVID-19 or died from COVID-19” (ibid.). It reported that “some non-ICE detainees in non-ICE facilities, shared with ICE detainees, also contracted COVID-19, and some of them died from COVID-19” (ibid.).  For example, 66 US Marshals Service detainees at the Otay Mesa facility had tested positive by May 7 (Morrissey 2020b).

In late March, an earlier iteration of this paper argued that the US Department of Homeland Security (DHS) should embark on an aggressive program of release, supervised release and alternative-to-detention (ATD) programs for immigrant detainees in response to the COVID-19 pandemic.  ICE has abundant experience in administering ATD programs,[14] and both private and non-profit, community-based organizations have extensive experience in running them.  Well-structured ATD programs have consistently ensured high court appearance rates (USCCB-MRS and CMS 2015). ATD programs should be expanded and adapted in response to the current crisis.

Detainee Numbers Decline, but Too Slowly

Between March 21 and May 23, the number of ICE detainees fell from 38,058, to 25,911, not nearly as dramatically as necessary in the circumstances (ICE 2020a). Over the same period, the spread of the virus has accelerated through the detention system, into local communities, and to nations that have received infected US deportees. The May 23rd figure includes 14,549 persons apprehended by ICE and Homeland Security Investigations, and 11,362 referred by Customs and Border Protection (CBP) (ibid.).

By way of comparison, Canada – which detains many times fewer immigrants than the United States – released more than one-half of those in its custody between March 17 and April 19 (Global News 2020).  Mexico, in turn, released nearly all of the migrants in its custody, although without support and relegating many to dangerous situations (Averbuch 2020).

As of May 23, ICE still unconscionably held 4,449 persons who had established a “credible fear” of persecution” or a “reasonable fear of persecution or torture” (ICE 2020a).  The overwhelming majority of persons in these categories – bona fide asylum-seekers and persons seeking “withholding of removal” under the Convention Against Torture – should not be detained.  ICE has also continued to detain persons approved for release; in late April, for example, detainees in New York could not post bond because of the closure of ICE’s New York City office (Katz 2020). In addition, ICE held nearly 11,000 non-violent persons.[15]

ICE also continues to detain families and minors. On March 28, a federal district judge issued a temporary restraining order that required ICE and ORR to “make and record continuous efforts” to release the more than 5,000 minors in ICE family detention facilities and ORR shelter-like facilities for unaccompanied minors.[16]  Her decision recognized the “severity of the harm” to which children in these facilities, particularly ICE facilities, “are exposed and the public’s interest in preventing outbreaks of COVID-19 … that will infect ICE and ORR staff, spread to others in geographic proximity, and likely overwhelm local healthcare systems.”  On April 24, the judge ordered ORR and ICE “to make every effort to promptly and safely release” children with “suitable custodians.”[17]

As of May 11, 2020, there were 1,500 unaccompanied children in 195 facilities funded by HHS’s Office of Refugee Resettlement (ORR), awaiting placement with a sponsor, typically a close family member (HHS 2020).  The coronavirus has raced through many of these shelter-like facilities as well.  In one Chicago facility, 42 immigrant children had tested positive for COVID-19 by April 21 (Sanchez 2020).  In early April, seven staff members tested positive for COVID-19 at a Houston area facility (Trovall 2020).

On April 13, the Washington Post reported that the population at ICE’s three family detention centers had fallen from 1,350 to 826 persons (Hsu 2020).  By April 21, the number had fallen to 698 persons, including 342 minors.[18]  On May 21, a group of House Democrat wrote DHS/ICE for information regarding reports that ICE had tried to pressure parents to relinquish control of their children to ORR or another “custodian,” or to remain detained indefinitely with their children.[19]  ICE has denied offering parents the so-called “binary choice” between family separation and long-term detention.

ICE Policies and Procedures

ICE can decrease its detention population in two main ways, by admitting fewer persons into its detention system and by more appropriate release standards. The expanded use of alternative-to-detention programs can help it achieve both of these goals.  However, it has failed to move decisively in any of these directions.

            CBP Referrals and the Effect of Closing the Border 

On March 20, the Center for Disease Control and Prevention (CDC) issued a document titled “Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists,” which closed US land borders to non-essential travelers (CDC 2020a), and subsequently extended the order through May 20 (CDC 2020b).  On  May 26, it expanded the order to coastal ports-of-entry (POEs) and extended it indefinitely – until “the danger of further introduction of COVID-19 into the United States has ceased to be a serious danger to the public health, and the continuation of the Order is no longer necessary to protect the public health”  (CDC 2020c).

The CDC order has resulted in the expulsion, with only cursory screening, of non-citizens apprehended by CBP near its land borders and at POEs. In early May, CBP reported that it had expelled nearly 31,000 persons encountered by the Border Patrol in March (6,457) and April (14,430) at US land borders, as well as an additional 702 persons apprehended by its Office of Field Operations, at POEs (CBP 2020). Although CBP border facilities have emptied as a result (O’Toole 2020; Miroff 2020b), high numbers of CBP-referred immigrants remain in ICE custody.

The order seeks to prevent the “serious danger” of the spread of COVID-19 at land and coastal POEs and Border Patrol stations, which it accurately characterizes as “congregate settings,” and into the US “interior.” Social distancing and minimizing movement in public space have become central tools in the nation’s response to the pandemic.  Yet the administration has not acted with similar urgency to slash detention populations at ICE facilities, which are likewise congregate settings “not designed for, and … not equipped to, quarantine, isolate, or enable social distancing by persons who are or may be infected with COVID-19” (CDC 2020a).

The order also overreaches in ways that endanger migrants and spread the virus. In particular, it has eviscerated US asylum laws and anti-trafficking protections for minors, and has returned thousands of persons to potentially life-threatening conditions (CMS 2020).  The United Nations High Commissioner for Refugees (UNHCR) has recognized that states may need “to implement exceptional measures to curb the spread of the virus and to protect public health.” (UNHCR 2020).  However, it has urged that alternative measures be adopted “to protect public health while ensuring access to territory for persons seeking international protection and protecting them against the risk of refoulement” (ibid.).

Under US law, an asylum seeker without proper documents must express a fear of persecution or request asylum in order to avoid “expedited removal.”[20] If they express fear or request asylum, border officials must refer them to US Citizenship and Immigration Service (USCIS) asylum officers for an interview.  This statutory requirement – often observed in the breach – has been characterized as an immigration enforcement “loop-hole” by the president and administration officials (Kerwin 2018).  If found by an asylum officer to possess a credible fear, they must be referred to removal proceedings, where they can request asylum. At this point, they can “paroled” (released) by DHS or released on bond by an Immigration Judge (Hillel 2019).

The CDC order denies asylum-seekers any of these protections. It states that border officials can admit certain individuals based on “the totality of the circumstances, including consideration of significant law enforcement, officer and public safety, humanitarian, and public health interests.” (CDC 2020a). In practice, however, border officials consider exceptions only for those expressing a fear of torture if returned home (Lind 2020).  Between March 21 and mid-May 13, USCIS screened only 59 cases under the Torture Convention, rejected 54 of them, and allowed just two persons to remain in the United States (Miroff 2020b).

The administration has similarly attacked the Trafficking Victims Protection Reauthorization Act (TVPRA), which requires that unaccompanied minors from non-contiguous countries be transferred to HHS for trafficking screening and be placed in removal proceedings, where they can seek asylum and other relief. The CDC order violates these requirements. The United States can achieve its legitimate public health and safety concerns in stemming COVID-19, while ensuring the safety of asylum-seekers and potential trafficking victims. Yet in April alone, CBP expelled 600 unaccompanied children with no process or protections (Merchant and Pérez 2020).

In a May 18 letter, a group of public health experts sharply criticized the Trump administration for “using the imprimatur” of CDC “to circumvent laws and treaty protections designed to save lives.”[21]  The letter accused the administration of disregarding “alternative measures that can protect public health while preserving access to asylum and other protection.”[22]  It pointed out that the order did not apply to airline or ship travel, which pose “a higher risk of disease transmission than land travel.” [23]  It also outlined ways to safeguard asylum seekers, unaccompanied children, and relevant public officials, consistent with the “best available public health guidance,”[24] and it urged the United States to follow the example of the European Union, which exempts those seeking international protection from travel restrictions.

The CDC order treats asylum-seekers, children, and other migrants as a potential source of contagion to the United States, but the opposite has been closer to true. The detention and deportation policies of the United States – a nation with 4 percent of the world’s population, but which has experienced 29 percent of the world’s COVID-19 deaths (Chamie 2020) – has contributed to the spread of the pandemic to states with far lower infection rates.

The expulsion process reportedly occurs in an average of 96 minutes, without medical examination, except for migrants “in distress” (Miroff 2020a).  Removal via “ICE Air” of “detainees who are not ‘new apprehensions’” entails “medical clearance,” not just the “visual screening” provided to “new apprehensions” (ICE 2020a). Persons deported by plane also receive “temperature screening” at the “flight line” (ibid.).  Yet these precautions do not test for the virus and, thus, have not prevented the deportation of significant numbers of infected persons.  At least 11 contract employees at one of ICE’s pre-deportation staging facilities in Alexandria, Louisiana have contracted COVID-19, potentially exposing deportees to the coronavirus (Johnston 2020).  Deported or expelled migrants have also arrived at their destinations without any treatment plan or notice of their condition to health officials or to the shelter providers that house them.

In a May 1st letter to US Secretary of State Mike Pompeo and Acting DHS Secretary Chad Wolf, 15 Senate Democrats decried the apparent lack of regard for effective pre-deportation “screening, and testing, quarantining and treating symptomatic migrants in accordance with medical guidelines.” [25] They characterized this practice not only as a “breach” of public health and humanitarian standards, but as a threat to the “United States’ ability to defend against re-introduction of the virus once the epidemic is brought under control in the United States.”[26]

            Detainees Apprehended by ICE

ICE also continues to arrest and detain immigrants.  On March 18, the agency announced that it would prioritize immigration enforcement against “public safety risks and individuals subject to mandatory detention based on criminal grounds” (ICE 2020c). For others, it vowed to exercise prosecutorial discretion to delay enforcement and to expand its use of ATDs. ICE’s announcement of this potentially life-saving policy, which tracked Obama-era enforcement priorities, infuriated White House and other administration ideologues (Lipman and Kumar 2020).  Although ICE arrests have fallen significantly over the course of 2020 (Stock et al. 2020), the new ICE policy does not go far enough.

ICE has argued that it has no choice but to detain immigrants who are subject to mandatory detention. Yet US immigration statutes, agency regulations, directives and practices cannot abridge Constitutional rights.  Thus, it would be more accurate to say that ICE has a fundamental duty to forego detaining and to release those whose: (1) constitutional rights cannot be safeguarded in detention, or (2) who qualify for release under the Immigration and Nationality Act (INA).  The HEROES Act, which the House passed on May 15, 2020, would require DHS to “review the immigration files” of all persons during the current public health emergency in order to assess the “need for continued detention.”[27]  The Act would also require ICE to prioritize non-mandatory detainees for release on recognizance or to an alternative to detention program.  However, ICE should also thoroughly review and assess the possibility of release for possible mandatory detainees.

The Supreme Court has found that mandatory detention during the pendency of removal proceedings is “constitutionally permissible.”[28] This holding, however, does not preclude DHS/ICE from opting not to detain or from deciding to release detainees who would imperiled in detention.

Moreover, the INA creates a series of carve-outs and exceptions to mandatory detention.  It mandates, for example, the detention of persons who are in removal proceeding on various criminal and terrorist-related grounds.[29]  However, it also allows ICE to release persons in these categories if necessary to protect a witness, potential witness, person cooperating in a criminal investigation, or an immediate family member of such a person.[30]

It provides that ICE “shall take into custody” persons subject to mandatory detention “when the alien is released.”[31]  The Supreme Court has interpreted this language to require detention, even if the non-citizen has never been in criminal custody or if ICE has failed to assume custody of them for a long period after their release from prison.[32]  However, the decision did not speak to the constitutionality of this provision, and it remains an open question whether “mandatory detention of aliens long after their release from criminal custody is constitutionally permissible” (Hillel 2019).

The INA requires the detention of an “applicant for admission,” whether a person arriving at a POE or apprehended after an unauthorized entry.[33]   However, it also allows DHS to parole (release) applicants for admission for “urgent humanitarian reasons or significant public benefit.”[34] Saving lives and slowing the spread of a catastrophic pandemic meet these standards. Moreover, one category of “arriving alien” – asylum-seekers subject to expedited removal who have a “credible fear” of persecution – can be released on bond by an immigration judge.

Finally, persons ordered removed cannot be indefinitely detained beyond a 90-day “removal period.”[35]  The Supreme Court has interpreted this language – in order to avoid finding it unconstitutional ­– to require detention only “for a period reasonably necessary to secure removal,” generally for six-months following the removal order.[36]  ICE should be able to track and identify non-mandatory detainees, as well as persons who fit into mandatory detention categories, but can be released under the law.

The administration could also open ATD programs to “mandatory detainees” by formally acknowledging that these programs – many of which have strict tracking and reporting requirements — constitute a form of detention.  Of course, it could also work with Congress to suspend mandatory detention for select populations, given the “serious danger” detention poses to public health and to the spread of COVID-19.[37]   Instead of taking any of these steps, however, it has resorted to the blanket claim that it cannot release detainees subject to mandatory detention.

The great majority of detainees do not present a public safety threat. Sixty percent of those in ICE custody on May 23rd had not been convicted of a crime (ICE 2020a). Moreover, most detainees with criminal records are non-violent offenders, as classified by the Federal Bureau of Investigations (FBI) National Crime Information Center (NCIC), and high percentages have been convicted of misdemeanors, or immigration traffic, and drug possession offenses (USCCB-MRS and CMS 2015).  Santiago Baten-Oxlag had been convicted of driving under the influence.[38] Most importantly, all ICE detainees with criminal records have served any sentence they received.

An estimated two dozen lawsuits have been filed in federal court, demanding the release of individual or distinct groups of detainees. To provide a sampling, on April 20, a federal district judge in California in a nationwide class action lawsuit ordered ICE to identify, track and make timely custody determinations for all detainees with factors that put them at risk of serious illness and death if infected.[39]  The court certified two subclasses: (1) all ICE detainees with at least one risk factor that places them “at heightened risk of severe illness and death upon contracting the COVID-19 virus”;[40] and (2) all ICE detainees “whose disabilities place them at heightened risk of severe illness and death” if they contract COVID-19.

The judge recited a litany of unhygienic and dangerous conditions in ICE facilities, concluding that ICE had “likely exhibited callous indifference” to detainees with particular vulnerabilities.[41]  He ordered ICE, inter alia, “to identify and track all ICE detainees” with risk factors and “to make timely custody determinations” for them.

On May 5, ICE reported that it had identified 4,409 detainees in its long-term facilities “who belong to one or both” subclasses, and that it had been “conducting new custody reviews as soon as possible following the identification of subclass members.”[42]  Yet by May 28, ICE had released only 392 detainees “after court order.”  Its website lists select “charges or convictions” for the 290 of the 392 persons released (ICE 2020b).  Yet this list does not distinguish charges from convictions or indicate the numbers convicted by category of crime.  It also seems to be incomplete and weighted more heavily to violent offenses. In any event, federal judges have reviewed the records of all those ordered released.[43]  By mid-May, ICE reported that it had also released 900 detainees (Montoya-Galvez 2020b), based on its review of who “might be at higher risk for severe illness as a result of COVID-19,” including pregnant women and persons over age 60 (ICE 2020b).

On April 30, a US district court judge for the Southern District of California certified the vulnerable subclass of detainees at Otay Mesa Detention Center as those aged 60 and over whose medical conditions puts them “at heightened risk of severe illness or death from COVID-19.” [44] It ordered ICE to identify and release subclass members “in a manner that comports with public health guidelines for self-quarantine …, social distancing, and other recommendations of public health departments in their destination cities or counties.” [45]

On April 30, a US district court judge in Maryland ordered the release of a detainee, following the infection of a nurse in the facility. The court criticized “the deficiencies” in the facility’s “mitigation measures,” and pointed out that it had no apparent plans to test or quarantine detainees with whom the nurse had come in contact. [46]  On April 30, a magistrate judge recommended the immediate release of 13 of 16 detainees with risk factors in Louisiana facilities.[47]

Inappropriate and Inconsistent Standards

Over the years, the US Department of Justice (DOJ) and DHS have developed immigrant detention standards and guidelines, which represent a great improvement over the barebones standards that preceded them.  However, none of these standards has been codified by regulation.  Moreover, they still adhere to a prison or jail model, which is not appropriate for civil detainees such as those in ICE custody (USCCB-MRS and CMS 2015).

ICE administers a national detention system that should be subject to uniform, national standards. However, different standards govern different types of detention facilities. At present, ICE’s Performance Based National Detention Standards (PBNDS), revised most recently in 2016, cover facilities dedicated entirely to immigration detention (ICE 2020f). A separate set of National Detention Standards (NDS) for Non-Dedicated Facilities – released in 2019 – govern facilities that hold immigrant detainees and other populations, particularly US Marshals Service facilities, and state and local prisons and jails (ICE 2020g).  These streamlined standards cover medical, health, security, administration and other issues relevant to the COVID-19 crisis. They eliminate or reduce “a number of prior standards” on the grounds that local law enforcement “appropriately covers these requirements” (ibid., Foreword).

In addition, on March 23, the CDC released its “Interim Guidance on Management of Coronavirus Diseases (DOVID-19) in Correctional and Detention Facilities,” which “seeks to reduce the risk of transmission and severe disease from COVID-19,” but recognizes that its standards “may need to be adapted based on individual facilities’ physical space, staffing, population, operations, and other resources and conditions.”(CDC  2020d).

An April 10, 2020 document entitled “COVID-19 Pandemic Response Requirements,” which ICE developed in consultation with CDC, provides instruction and guidance to detention facilities and sets forth ICE’s expectations for mitigating the risk of infection to detainees and detention stakeholders (ICE 2020d).  The document requires both dedicated and non-dedicated detention facilities to comply with the March 23 CDC guidelines. Yet it also reveals the severe limitations and yawning gaps in protection in ICE and CDC detention standards.

Infectious disease experts emphasize the overarching importance of testing, tracing the contacts of those who have tested positively, and isolating or quarantining the infected (Quammen 2020). The ICE detention system has failed in all three regards.  As the guidelines tacitly acknowledge, ICE cannot adequately protect detainees or stem the spread of the virus.

The document requires “pre-intake” screening for “new entrants,” both “temperature screening” and “a verbal symptoms check” (ibid.) However, screening does not cover existing detainees, will not identify asymptomatic infected “new entrants,” and falls short of actual testing.

It concedes that “strict social distancing may not be possible in congregate settings, such as detention facilities,” and thus advises detention centers, “to the extent possible,” to reduce their populations to “75 percent of capacity.” Yet ICE may have a financial incentive – given contractual requirements to pay for a certain percentage of a facility’s detention beds per night – to keep facilities at or near capacity.  More importantly, reductions by 75 percent will be insufficient to stem the spread of the virus in most facilities. ICE’s guidance also advises facilities, “to the extent possible,” to house detainees in individual cells.  Yet this may be impossible in dormitory-style detention facilities, such as the Mesa Verde Detention facility where “100 men … sleep in double bunks that are two to three feet apart” (Stock et al. 2020). In these common conditions, the guidance offers a hopeless course of action; i.e., that those “sharing sleeping quarters” should sleep “head to foot” and pursue other unspecified “social distancing strategies.”

The guidelines also call for consideration of the release of those “who may be at higher risk for serious illness” from exposure. Yet the virus kills low-risk persons as well.  ICE also urges detention facilities to consider “cohorting” (housing together) “all new entrants” for 14 days. However, the guidance concedes that “cohorting options and capabilities” vary by facility.  According to one physician, this strategy will only work if new entrants are not exposed to detainees, guards, or others from outside their cohort, which is unlikely in a detention setting. The “safer solution,” he says, “would be simply to allow detainees to live with their families.”

This conclusion seems well-founded. Between March 1 and April 25, 174 persons were transferred from Bexar County jail where (by May 7) 303 inmates and 55 staff had contracted COVID-19, to the South Texas ICE Processing Center (Trevizo 2020).  ICE also transferred 72 detainees in April from facilities with confirmed cases in New York and Pennsylvania, to the detention facility in Prarieland, Texas, which had no confirmed cases.  Since then, 41 detainees in Prarieland have tested positive, including 21 of the Bexar transferees.[48] In addition, ICE detainees continue to be transferred between facilities (Merchant 2020),  guards continue to move within and between facilities, and staff from a variety of private contractors pass through them, providing food, medical, mental health, janitorial, video and phone services (Gomez 2019).

The guidance advises that facilities make “every possible effort” to isolate infected detainees (suspected and confirmed), but it acknowledges that the number of confirmed cases may exceed the number of “individual isolation spaces.” It directs that “ill detainees” should not be “cohorted with other infected individuals,” but “if unavoidable” it advises that “all possible accommodations” should be made until the transfer of infected detainees, presumably to other detention facilities. These safeguards acknowledge the obvious: the ICE detention system cannot safeguard those in its custody.

In fact, ICE has limited ability to enforce or even assess compliance with these guidelines. ICE staff have conceded that they lack effective control over the operation of contract facilities.[49] Moreover, ICE contractors like CoreCivic have insisted that they have, in fact, complied with CDC guidelines, notwithstanding high rates of infection in their facilities and, in at least one case, denial of protective masks to detainees unless they agreed to “hold harmless” CoreCivic for any legal claims related to wearing them (Morrissey 2020a).[50]

This situation points to systemic problems in the US immigrant detention system that COVID-19 now exploits and throws into sharp relief.  Homer Venters, the former Director of Programs for Physicians for Human Rights and the Chief Medical Officer for the NYC Jail system, concludes that: (1) ICE’s guidance is inconsistent with CDC guidelines in critical ways for example, ICE will be unable to adhere to social distancing standards “in virtually every facility it operates”; (2) ICE’s longstanding oversight deficiencies makes it “unlikely” that it will “ensure compliance” with its guidance; and (3) Detainees will, as a result, “experience higher risks of serious illness and death.”[51]  In fact, this is exactly what is occurring and will continue to occur without large-scale screening, testing and release of ICE detainees.

A May 14 letter to DHS and ICE by the Chairwoman of the House Committee on Oversight and Reform and the Chairman of the Subcommittee on Civil Rights and Civil Liberties, also questioned ICE’s claimed compliance with CDC guidelines.[52] The letter pointed out that, contrary to ICE policy and practice, CDC recommended against cohorting detainees who had been exposed to coronavirus, except if there were no other “available options.”  Yet, ICE cohorts as a matter of course and, “at some facilities” is “making little effort to isolate exposed detainees.”[53]  ICE’s default position should be to release detainees, and to make arrangements for them to quarantine outside its facilities.

Expert Opinion

Public health experts have long recognized prisons as “risk environments,” which can lead to the concentration and transmission to inmates and to the broader community of HIV, hepatitis B, hepatitis C, tuberculosis, and other infectious diseases (Kamarulzaman et al. 2016).  ICE has a troubled history in preventing and responding to infectious disease outbreaks (Dow 2020; Hall and Smith 2020), including a 2018 outbreak of the mumps in two Texas detention centers that spread to 57 facilities (Stock et al. 2020).

On March 20, the American Jail Association posted a set of “Recommended Strategies for Sheriffs and Jails to Respond to the COVID-19 Crisis,” which emphasize the need to “reduce the jail population as quickly as possible.” (Deitch 2020). This document explains that “immediate reductions … are critical because of the need to allow for social distancing, because the virus could be a death sentence to many incarcerated people, and because this will reduce the strain on the health care delivery system in the jail.”  Attorney General William Barr has ordered the early release of at-risk inmates in federal prisons (Gerstein 2020).[54]  However, Barr has remained silent regarding the need to release immigrant detainees who endure the same conditions and risks, often in the same facilities.  In this way, the US approach to immigrant detainees resembles states such as Tunisia, which has announced the release of prisoners, but not immigrant detainees, which it continues to hold in overcrowded, unsanitary, and dangerous conditions (Welsford and Flynn 2020).

In an open letter to ICE Acting Director Matthew T. Albence, several hundred medical professionals detailed the 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.[55]

The letter argued that social distancing was “nearly impossible in immigration detention.” It recommended that “ICE implement community-based alternatives to detention to alleviate the mass overcrowding in detention facilities.”

A medical consultant to DHS and the US Department of Justice reported that immigrant detention centers present “a greater risk” of “the spread of COVID-19” than USCIS field offices, which DHS has closed in response to the crisis.[56] They are also more dangerous than cruise ships because of “conditions of crowding, the proportion of vulnerable people detained, and often scant medical care resources.” Detainees share “toilets, sinks, and showers” and their “[f]ood preparation and food service is communal.” Because detention staff “arrive and leave on a shift basis,” there is “little to no ability to adequately screen staff for new, asymptomatic infection.”

In a March 19 letter, two medical doctors, who have investigated immigrant detention facilities and worked as subject matter experts for DHS, warned Congress of “the imminent risk to the health and safety of immigrant detainees, as well as to the public at large, that is a direct consequence of detaining populations in congregate settings.”[57]  They urged the release of detainees from these “high-risk” settings in order to avoid a “tinderbox scenario,” in which a “rapid outbreak” of COVID-19 overwhelmed local hospitals, monopolized health care resources, and infected members of surrounding communities (Sholchet 2020).

The World Health Organization (WHO) has warned that “prisons, jails and similar settings where people are gathering in close proximity may act as a source of infection, amplification and spread of infectious diseases within and beyond prisons” (WHO 2020).  For this reason, it explains, prison health is “widely considered as public health” (ibid.)  On March 31, WHO, UNHCR, the International Organization for Migration, and the Office of the United Nations High Commissioner for Human Rights (OCHR) voiced similar concerns regarding the “situation for refugees and migrants held in formal and informal places of detention, in cramped and unsanitary conditions.” (OCHR, IOM, UNHCR, and WHO).  It urged that they be released “without delay” (ibid.)

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.” (GDP 2020).  Michael Flynn, GDP’s Executive Director, told me by email that US policies could benefit from the experience of other countries.  Spain, for example, has emptied its seven immigrant detention centers, for the first time in three decades, given the impossibility of removing detainees (Martín 2020).   In the United Kingdom, the number of immigrant detainees fell from 1,225 people on January 1, 2020, to 368 in early May (GDP 2020).  In Switzerland, Flynn reports, “entire detention facilities are being shuttered precisely because of the inability in these facilities to keep detainees and staff from being exposed to the virus.”  Detention, he concludes, “exposes an already vulnerable population to the increased possibility of getting gravely ill in an environment that is patently unfit for providing adequate healthcare.”

As stated, ICE policies and CDC guidance recognize the impossibility of social distancing in most facilities. Detainees and their families understand in a more personal way the deadly risk that these conditions pose. According to the US-based Detention Watch Network, detainees have responded with more than 29 confirmed hunger strikes since March, and countless desperate appeals for release (Lang 2020).

On April 7, Amnesty International reported the case of a pregnant Honduran asylum-seeker, who believes that she cannot prevent herself or her 4-year-old daughter from contracting the virus in a family detention center. It reported that:

ICE and its detention facilities have failed to adequately provide soap and sanitizer or introduce social distancing. Nor has it halted the unnecessary transfers of people between facilities in the interest of public health, routinely transporting thousands in and out of facilities … ICE has the obligation to grant humanitarian parole to immigration detainees before any more people in its custody contract COVID-19. Thus far, ICE has failed to adopt even the most minimum necessary measures to protect public health both in and around its large network of facilities.

While downplaying the risk of COVID-19 outbreaks in its detention facilities, ICE has concealed and understated the number of detainees who may have been exposed to or contracted COVID-19, hiding vital information about potential outbreaks from the people detained, their lawyers and loved ones, and the public (AI 2020).

On April 7, USA Today reported on a Cuban asylum-seeker, detained for eight months at the South Louisiana ICE Processing Center, who spoke of the impossibility of social distancing in her dormitory, where more than 70 women “share five bars of soap” and “guards come in and out … without wearing masks or gloves.” (Gomez, Clark and Plevin 2020).

On April 12, the Washington Post reported on an El Salvadoran detainee, desperate to leave the Farmville Detention Center in Prince Edward County, Virginia, where lawyers reported that an “entire dorm — where more than 60 people sleep — has been quarantined” (Lang 2020).

On April 23, National Public Radio reported on a 65-year-old Pakistani immigrant who has lived in the United States for 22 years, and now shares a small cell at the McHenry County Jail in Illinois with a man “’who coughs all night’” (Zamudio 2020).

On April 28, The Intercept reported on reprisals against detainees who had been communicating their fears to family members, reporters, and the broader public through tele-conferencing apps and other means (Nathan 2020).[58]  At Irwin County Detention Center in Georgia, one woman recounted that an ICE official told her and fellow protestors that “’the hospitals are filled and there’s no place to send us … that ICE’s only job is to deport us, and they make their money doing that … that we were like roaches that ICE keeps in boxes.  To make money.” (ibid.). Subsequently, detention officials placed several of these women in solitary confinement, held them incommunicado, and pressured them to sign papers saying they had “acted improperly” in making a video regarding their situation.

On May 8, Nicholas Morales, who participated in a hunger strike at Elizabeth Detention Center in New Jersey, described in an op-ed the detainees’ feelings of “being left to die” after a guard contracted COVID-19.  Detainees lived in dormitories of 40 persons, with only two to three feet between beds.  They “shared toilets, showers, sinks, communal surfaces and breathing air,” were denied hand sanitizers and masks, and could not disinfect “shared surfaces” (Morales 2020).  It ultimately took a federal court order for Morales – the spouse and parent of US citizens who himself had arrived in the United States as a child – to be released.

On May 17, Choung Woong Ahn, a 74 year old South Korean committed suicide at the Mesa Verde ICE Processing Center in Bakersfield, California.[59] Ahn had “diabetes, hypertension and several heart-related issues,” putting him at risk of death if he contracted COVID-19.[60] Since March, a group of attorney had been requesting his release. Ahn’s brother said: “‘He did not deserve to be treated this way. He’s a human being, but to them, he’s just a number. There are other people in the same situation. It shouldn’t be happening again.’” [61] In response to Ahn’s death, ICE announced that it was “undertaking a comprehensive agency-wide review of this incident.” [62]  It should share its escalating number of comprehensive reviews with the public.

Conclusion

Immigrant detention is intended to serve two main purposes, to ensure that non-citizens appear for their removal proceedings and to protect the public. Yet in the current circumstances, detention imperils detainees, staff and contractors at detention facilities, court officials, health care providers, the public in nearby communities, and communities to which detainees return. ICE has adopted – abetted by CDC – unenforceable policies and practices that fail to reflect the severity of this crisis. It cannot safeguard those in its custody and should move with far greater dispatch to release far more immigrants.

References

AI (Amnesty International).  2020. “USA: Amid Covid-19 pandemic, authorities must release immigration detainees.”  https://www.amnesty.org/en/latest/news/2020/04/usa-covid19-pandemic-authorities-must-release-immigration-detainees/ (last visited Apr. 27, 2020).

Averbuch, Maya. 2020. “With Coronavirus Spreading, Mexico Vowed to Empty Detention Centers — But Migrants Were Thrust Into Chaos and Danger.The Intercept, May 11. https://theintercept.com/2020/05/11/coronavirus-migrants-mexico/

Browne, Rachel. 2020. “Canada is releasing immigration detainees at ‘unprecedented’ rates amid COVID-19 fears.” Global News, updated Apr. 28. https://globalnews.ca/news/6861756/canada-releasing-immigration-detainees-coronavirus-covid-19/

Carcamo, Cindy, and Molly O’Toole. 2020. “Migrants deported by U.S. make up more than 15% of Guatemala’s coronavirus cases.” Los Angeles Times, May 4.  https://www.latimes.com/world-nation/story/2020-05-04/u-s-deportation-flights-to-guatemala-resume-with-assurances-of-coronavirus-testing

CBP (US Customs and Border Protection). 2020. “Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions.”  Washington, DC: CBP. https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/title-8-and-title-42-statistics (last visited May 19, 2020)

CDC (US Department of Health and Human Services, Centers for Disease Control and Prevention).  2020a. “Order Suspending Introduction of Persons from a Country Where a Communicable Disease Exists.” 85 Fed. Reg. 16157. Washington, DC: CDC. https://www.federalregister.gov/documents/2020/03/24/2020-06241/order-suspending-introduction-of-persons-from-a-country-where-a-communicable-disease-exists

______. 2020b. “Extension of Order Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists.” 85 Fed Reg. 22424.  Washington, DC: CDC. https://www.federalregister.gov/documents/2020/04/22/2020-08605/extension-of-order-under-sections-362-and-365-of-the-public-health-service-act-order-suspending

______. 2020c. “Amendment and Extension of Order Under Sections 362 and 365 of the Public Health Service Act; Order Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists.” 85 Fed. Reg. 31503.  Washington, DC: CDC. https://www.federalregister.gov/documents/2020/05/26/2020-11179/amendment-and-extension-of-order-under-sections-362-and-365-of-the-public-health-service-act-order

______. 2020d. “Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities.”  Washington, DC: CDC. https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html

______. 2020e. “COVIDview: A Weekly Surveillance Summary of US COVID-19 Activity.” Washington, DC: CDC. https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html (last visited May 16, 2020).

Chamie, Joseph. 2020. “United States Leads the World in COVID-19 Deaths.” Inter Press Service, May 18. http://www.ipsnews.net/2020/05/america-leads-world-covid-19-deaths/

CMS (Center for Migration Studies of New York). 2020. “COVID-19 Migration-Related Developments.” New York, NY: CMS. https://cmsny.org/cms-initiatives/migration-covid/ (last visited May 19, 2020)

Coombs, Daniel, Michael Irvine, Julianne Skarha, Brandon del Pozo, Josiah Rich, Faye Taxman, and Traci C. Green.  2020.  “Modeling COVID-19 and impacts on U.S. Immigration and Enforcement (ICE) detention facilities, 2020.” Journal of Urban Health (in press).  https://whistleblower.org/wp-content/uploads/2020/04/Irvine_JUH_ICE_COVID19_model.pdf

Deitch, Michele. 2020. “Recommended Strategies for Sheriffs and Jails to Respond to the COVID-19 Crisis,” Mar. 20. https://www.americanjail.org/files/Deitch–Strategies%20for%20Sheriffs%20and%20Jails%20to%20Respond%20to%20the%20COVID-19%20Crisis–3-20-20–FINAL_rev%20(1).pdf.

Dickerson, Caitlin, and Kirk Semple. 2020. “US Deported Thousands Amid COVID-19 Outbreak. Some Proved to Be Sick.” New York Times, Apr. 19. https://www.nytimes.com/2020/04/18/us/deportations-coronavirus-guatemala.html.

Dow, Mark. 2020. “’Egregious violations are not new to ICE.” AL.Com, May 5.  https://www.al.com/opinion/2020/05/egregious-violations-are-not-new-to-ice.html

GDP (Global Detention Project). 2020. “Covid-19 Global Immigration Detention Platform.” Geneva: GDP. https://www.amnesty.org/en/latest/news/2020/04/usa-covid19-pandemic-authorities-must-release-immigration-detainees/ (last visited May 17, 2020).

Gerstein, Josh. 2020. “Barr to speed releases at federal prisons hard hit by virus.” Politico, Apr. 4.  https://www.politico.com/news/2020/04/03/barr-to-speed-releases-at-federal-prisons-hard-hit-by-virus-164175.

Gomez, Allen, Maria Clark, and Rebecca Plevin. 2020. “’Terrified of Dying’: Immigrants beg to be released from immigration detention as coronavirus spreads.” USA Today, updated Apr. 8.  https://www.usatoday.com/story/news/nation/2020/04/07/covid-19-hits-ice-detention-migrants-say-they-cant-clean-stay-safe/2953170001/ (last visited Apr. 27, 2020).

Gomez, Allen, Monsy Alvarado, Ashley Balcerzak, Stacey Barchenger, Jon Campbell, Rafael Carranza, Maria Clark, Daniel Gonzalez, Trevor Hughes, Rick Jervis, Dan Keemahill, Rebecca Plevin, Jeremy Schwartz, Sarah Taddeo, Lauren Villagran, Dennis Wagner, Elizabeth Weise, and Alissa Zhu. 2019. “’These people are profitable’: Under Trump, private prisons are cashing in on ICE detainees.” USA Today, Dec. 20. https://www.usatoday.com/in-depth/news/nation/2019/12/19/ice-detention-private-prisons-expands-under-trump-administration/4393366002/

Hall, Katarina, and Josh T Smith. 2020. “The US is deporting coronavirus.” The Benchmark, May 5.  https://medium.com/cgo-benchmark/the-us-is-deporting-coronavirus-434a17af70bb

Hesson, Ted, and Mica Rosenberg. 2020. “US to test some immigrants for coronavirus before deportation.” Reuters, Apr. 23. https://www.reuters.com/article/us-health-coronavirus-usa-immigration/u-s-to-test-some-immigrants-for-coronavirus-before-deportation-idUSKCN2253SE

Hsu, Spencer S. 2020. “Number of migrants held at ICE family centers plummets.” Washington Post, Apr. 13. https://www.lmtonline.com/news/article/Number-of-migrants-held-at-ICE-family-centers-15198361.php (last visited Apr. 27, 2020).  

ICE (US Immigration and Customs Enforcement). 2020a. “Detention Management.” Washington, DC: ICE. https://www.ice.gov/detention-management#wcm-survey-target-id (last visited May 28, 2020).

_______. 2020b. “ICE Guidance on COVID-19.” Washington, DC: ICE. https://www.ice.gov/coronavirus (last visited May 28, 2020).

_______. 2020c. “Updated ICE Statement on COVID-19.” Washington, DC: ICE. https://www.ice.gov/news/releases/updated-ice-statement-covid-19 (last visited May 1, 2020).

______. 2020d. “COVID-19 Pandemic Response Requirements.” Washington, DC: ICE. https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf (last visited May 1, 2020).

_______. 2020e. “News Releases.” Washington, DC: ICE.  https://www.ice.gov/news/all?created=All&page=2 (last visited May 12, 2020).

_______. 2020f. “2011 Operations Manual ICE Performance-Based National Detention Standards.” Washington, DC: ICE. https://www.ice.gov/detention-standards/2011.

_______. 2020g. “2019 National Detention Standards for Non-Dedicated Facilities.” Washington, DC: ICE. https://www.ice.gov/detention-standards/2019 (last visited May 16, 2020).

Kamarulzaman, Adeeba, Stewart E. Reid, Amee Schwitters, Lucas Wiessing, Nabila El-Bassel, Kate Dolan, Babak Moazen, Andrea L. Wirtz, and Frederick L. Altice. 2016. “Prevention of transmission of HIV, hepatitis B virus, hepatitis C virus, and tuberculosis in prisoners.” The Lancet 388 (10049): P1115-26. https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(16)30769-3/fulltext

Katz, Matt. 2020. “ICE’s ‘Mind-Blowing’ Barriers To Posting Bond Keep Immigrants Locked Inside Coronavirus Hot Spots.” Gothamist, Apr. 24. https://gothamist.com/news/ices-mind-blowing-barriers-to-posting-bond-keep-immigrants-locked-inside-coronavirus-hot-spots

Lang, Marissa J. 2020. “’It’s a time bomb’: ICE detainees seek release amid growing coronavirus fears.”  Washington Post, Apr. 12. https://www.washingtonpost.com/local/ice-coronavirus-detention-centers-release/2020/04/08/f4dcaef8-74ee-11ea-87da-77a8136c1a6d_story.html (last visited Apr. 27, 2020)

Langona, Kim. 2020. “Ongoing Detention Litigation Amid COVID-19.”  crImmigration, updated Apr. 27. http://crimmigration.com/2020/04/03/ongoing-litigation-over-migrants-release-amid-covid-19/ (last visited May 12, 2020)

Lind, Dara. 2020. “Leaked Border Patrol Memo Tells Agents to Send Migrants Back Immediately — Ignoring Asylum Law.” ProPublica, Apr. 2. https://www.propublica.org/article/leaked-border-patrol-memo-tells-agents-to-send-migrants-back-immediately-ignoring-asylum-law.

Lipman, Daniel, and Anita Kumar. 2020. “Immigration chief on thin ice for adopting Obama’s stance during crisis.” Politico, updated Mar. 27. https://www.politico.com/news/2020/03/26/white-house-immigration-chief-coronavirus-150497

Johnston, Jake. 2020. “Exporting COVID-19: ICE Air Conducted Deportation Flights to 11 LAC Countries, Flight Data Shows.”  Washington, DC: Center for Economic and Policy Research, Apr. 27. https://cepr.net/exporting-covid-19-ice-air-conducted-deportation-flights-to-11-lac-countries-flight-data-shows/

Kerwin, Donald. 2018. “From IIRIRA to Trump: Connecting the Dots to the Current US Immigration Policy Crisis.” Journal on Migration and Human Security 6(3): 192-204.  https://journals.sagepub.com/doi/full/10.1177/2331502418786718

Madan, Monique, and Jacqueline Charles. 2020. “ICE removes detainees with coronavirus from deportation flight to Haiti.” Miami Herald, May 11. https://www.miamiherald.com/news/local/immigration/article242645496.html  

Martín, María. 2020. “Los centros de internamiento de extranjeros se vacían por primera vez en tres décadas.El País, May 5. https://elpais.com/espana/2020-05-06/se-vacian-los-centros-de-internamiento-de-extranjeros-por-primera-vez-en-tres-decadas.html

Merchant, Nomaan. 2020. “2 guards at Richwood Correctional die after contracting coronavirus.”  Associated Press, Apr. 30. https://time.com/5829974/ice-guards-coronavirus/

Merchant, Nomaan, and Sonia Pérez D. “Trump ramps up expulsions of migrant youth, citing virus.”  Associated Press, May 13. https://apnews.com/b64523bed9c1ed15c6185b37896bd586

Miroff, Nick. 2020a. “Trump administration has expelled 10,000 migrants at the border during coronavirus outbreak, just 100 in custody at border.” Washington Post, Apr. 9. https://www.msn.com/en-us/news/us/trump-administration-has-expelled-10000-migrants-at-the-border-during-coronavirus-outbreak-just-100-in-custody-at-the-border/ar-BB12oCra

_______. 2020b. “Virus rules slam border shut to nearly all seeking refuge.” Washington Post, May 14.

Misra, Tanvi. 2020. “ICE’s COVID-19 test figures hint at health crisis in detention.” Roll Call, Apr. 17.  https://www.rollcall.com/2020/04/17/ices-covid-19-test-figures-hint-at-health-crisis-in-detention/ (last visited Apr. 27, 2020).

Montoya-Galvez, Camilo. 2020a. “Second immigrant dies of coronavirus complications while in ICE custody.”  CBS News, May 25.  https://www.cbsnews.com/news/second-immigrant-dies-of-coronavirus-complications-while-in-ice-custody.

_______. 2020b. “’My son is in Danger’: Fear mounts over largest coronavirus outbreak in ICE detention.” CBS News, May 15. https://www.cbsnews.com/news/coronavirus-outbreak-ice-detention-center-immigrants/

Morales, Nicholas. 2020. “We were left to sicken and die from the coronavirus in immigration detention. Here’s how I got out.”  Los Angeles Times, May 8. https://www.latimes.com/opinion/story/2020-05-08/immigration-detention-coronavirus-release

Morrissey, Kate. 2020a. “Detainees at Otay Mesa Detention Center were offered masks, but only if they signed contracts.” The San Diego Union-Tribune, Apr. 10.  https://www.sandiegouniontribune.com/news/immigration/story/2020-04-10/otay-mesa-detention-center-gets-masks-but-asks-detainees-to-sign-contract-first

_______.  2020b. “65 more medically vulnerable ICE detainees released from Otay Mesa Detention Center after judge’s order.” The San Diego Union-Tribune, May 8. https://www.sandiegouniontribune.com/news/immigration/story/2020-05-08/65-more-medically-vulnerable-ice-detainees-released-from-otay-mesa-detention-center-after-judges-order.

OCHR, IOM, UNHCR, and WHO (Office of the United Nations High Commissioner for Human Rights,  International Organization for Migration, United Nations High Commissioner for Refugees, World Health Organization). 2020. “The rights and health of refugees, migrants and stateless must be protected in COVID-19 response.” Joint press release from OHCHR, IOM, UNHCR and WHO, Mar. 31, 2020. https://www.unhcr.org/news/press/2020/3/5e836f164/rights-health-refugees-migrants-stateless-must-protected-covid-19-response.html (last visited Apr. 27, 2020).

Nathan, Debbie. 2020. “Women in ICE Detention Face Reprisals for Speaking Up About Fears of COVID-19.”  The Intercept, Apr. 20.  https://theintercept.com/2020/04/28/ice-detention-coronavirus-videos/

O’Toole, Molly. “Trump administration, citing coronavirus, expels 10,000 migrants in less than 3 weeks.”  Los Angeles Times, Apr. 9. https://www.latimes.com/politics/story/2020-04-09/trump-cites-coronavirus-expel-migrants-at-border

Pérez, Sonia. 2020. “Guatemala president fumes over infected deportees from US.” Associated Press, May 21.  https://apnews.com/6d7909336525780f3b21f10a7928cb04

Quammen, David. 2020. “Why Weren’t We Ready For The Coronavirus”” The New Yorker, May 14.  https://www.newyorker.com/magazine/2020/05/11/why-werent-we-ready-for-the-coronavirus

Rivlin-Nadler, Max. 2020. “First Death Of Detainee In An ICE Detention Center From COVID-19.” NPR, May 7. https://www.npr.org/sections/coronavirus-live-updates/2020/05/07/852475822/first-death-of-detainee-in-an-ice-detention-center-from-covid-19

Sanchez, Melissa. 2020. “At Least 19 Children at a Chicago Shelter for Immigrant Detainees Have Tested Positive for COVID-19.” ProPublica Illinois, updated April 21. https://www.propublica.org/article/at-least-19-children-at-a-chicago-shelter-for-immigrant-detainees-have-tested-positive-for-covid-19

Sholchet, Catherine E. 2020.  “Doctors warn of ‘tinderbox scenario’ if coronavirus spreads in ICE detention.” CNN, update Mar. 20.  https://www.cnn.com/2020/03/20/health/doctors-ice-detention-coronavirus/index.html (last visited Apr. 27, 2020).

Sieff, Kevin. 2020. “Largely spared thus far, vulnerable Haiti now at risk of a major outbreak.” Washington Post, May 16.  http://thewashingtonpost.newspaperdirect.com/epaper/viewer.aspx.

Sieff, Kevin, and Nick Miroff. 2020. “As US deports infected migrants, worries grow.” Washington Post, Apr. 22.

Smith, Hillel R.  2019. “Immigration Detention: A Legal Overview.”  Washington, DC: Congressional Research Service, R45915. https://fas.org/sgp/crs/homesec/R45915.pdf.

Stock, Stephen, Robert Campos, Michael Horn, Mark Villareal, and Sean Meyers. 2020. “COVID-19 Outbreaks May Arise From Immigrant Detention Centers, Doctors Say.”NBC Bay Area, updated May 14.  https://www.nbcbayarea.com/investigations/covid-19-outbreaks-may-arise-from-immigrant-detention-centers-doctors-say/2289775/.

Stokes, Stephacnie. 2020. “More Than 40 Employees At Ga. Immigration Detention Center Test Positive For COVID-19.” WABE, Apr. 28. https://www.wabe.org/more-than-40-employees-at-ga-immigrant-detention-center-test-positive-for-covid-19/?fbclid=IwAR35iPa-qU-3WE0E2TREbx9zU48xIRaKn0CpqLZFozixHlDPto-rN2Jd0lU

Treviso, Perla. 2020. “COVID-19 cases at a Texas immigration detention center soared. Now, town leaders want answers.” The Texas Tribune and ProPublica, May 11. https://www.propublica.org/article/covid-19-cases-at-one-texas-immigration-detention-center-soared-in-a-matter-of-days-now-town-leaders-want-answers

Trovall, Elizabeth. 2020. “7 Staff Members Test Positive At Houston-Area Shelter For Migrant Children.” Houston Public Media, updated April 8. https://www.houstonpublicmedia.org/articles/news/health-science/coronavirus/2020/04/07/366215/7-staff-members-test-positive-at-houston-area-shelter-for-migrant-children/

UCLA Law (UCLA Covid-19 Behind Bars Data Project). 2020.  “Covid-19 Jail/Prison Confirmed Cases & Deaths.” Los Angeles, CA: University of California, Los Angeles, School of Law. https://law.ucla.edu/centers/criminal-justice/criminal-justice-program/related-programs/covid-19-behind-bars-data-project/  (last visited May 27, 2020).

UNHCR (United Nations High Commissioner for Refugees).  2020. “Practical Recommendations and Good Practice to Address Protection Concerns in the Context of the COVID-19 Pandemic.”  UNHCR Regional Bureau for Europe, April 9. https://data2.unhcr.org/en/documents/download/75453

USCCB-MRS and CMS (United States Conference of Catholic Bishops, Migration and Refugee Services, and Center for Migration Studies). 2015. “Unlocking Human Dignity: A Plan to Transform the US Immigrant Detention System.” Journal on Migration and Human Security 3 (2): 159-204, https://journals.sagepub.com/doi/abs/10.1177/233150241500300203

Welsford, Katie, and Michael Flynn. 2020. “Can Covid-19 End Immigration Detention?” Border Criminologies, May 13. https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/05/can-covid-19-end

WHO (World Health Organization, Regional Office for Europe). 2020. “Preparedness, prevention and control of Covid-19 in prisons and other places of detention: Interim guidance, 15 March 2020.” Copenhagen: WHO Regional Office for Europe. http://www.euro.who.int/en/health-topics/health-determinants/prisons-and-health/publications/2020/preparedness,-prevention-and-control-of-covid-19-in-prisons-and-other-places-of-detention,-15-march-2020 (last visited Apr. 27, 2020).

Zamudio, Maria Ines.  “Detained Immigrants Turn To The Courts To Protect Themselves From COVID-19.” NPR, Apr. 23. https://www.wbez.org/stories/detained-immigrants-turn-to-the-courts-to-protect-themselves-from-covid-19/e66b4471-9daa-4ad0-8a2d-eedf3e2ddc41


[1] US Immigration and Customs Enforcement (ICE), Press Release, “Guatemalan man in ICE custody passes away in Georgia“ (May 25, 2020). https://www.aila.org/File/Related/16050900bb.pdf.

[2] Id.

[3] Letter from Carolyn B. Maloney, Chairwoman, Committee on Oversight and Reform, and Chairman Jamie Raskin, Subcommittee on Civil Rights and Civil Liberties, to Acting  Secretary Chad F. Wolf, Department of Homeland Security, and Acting Director Matthew T. Albence, Immigration and Customs Enforcement (May 14, 2020). https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2020-05-14.CBM%20JR%20to%20Wolf-%20DHS%20Albence-ICE%20re%20Coronavirus%20in%20Detention%20Centers.pdf

[4] ICE does not report on the number of infected persons in its custody who are hospitalized in surrounding communities.

[5] Basank, et al. v. Decker, et al., No. 20 Civ 2518 (AT) (S.D.N.Y., March 26,2020) (memorandum and order). https://www.politico.com/f/?id=00000171-1a1a-da0d-a17b-fe5bec870000; 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

[6] ICE’s website states that infected detainees “may no longer be in its custody “(ICE 2020b).

[7] Fraihat, et al. v. US Immigration and Customs Enforcement, et al., No. EDCV 19-1546 JGB (SHKx) (C.D. CA., April 20, 2020) (Granting Plaintffs’ Motion for Preliminary Injunction). https://www.splcenter.org/sites/default/files/fraihat_pi_grant.pdf

[8] Id.

[9] Letter from Carolyn B. Maloney, Chairwoman, Committee on Oversight and Reform, and Chairman Jamie Raskin, Subcommittee on Civil Rights and Civil Liberties, to Acting  Secretary Chad F. Wolf, Department of Homeland Security, and Acting Director Matthew T. Albence, Immigration and Customs Enforcement (May 14, 2020). https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2020-05-14.CBM%20JR%20to%20Wolf-%20DHS%20Albence-ICE%20re%20Coronavirus%20in%20Detention%20Centers.pdf

[10] This facility is run by LaSalle Corrections.

[11] Letter from Carolyn B. Maloney, Chairwoman, Committee on Oversight and Reform, and Chairman Jamie Raskin, Subcommittee on Civil Rights and Civil Liberties, to Acting  Secretary Chad F. Wolf, Department of Homeland Security, and Acting Director Matthew T. Albence, Immigration and Customs Enforcement (May 14, 2020). https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2020-05-14.CBM%20JR%20to%20Wolf-%20DHS%20Albence-ICE%20re%20Coronavirus%20in%20Detention%20Centers.pdf.

[12] The county financed the construction of this facility.

[13] Id.

[14]As of May 23, 88,647 persons were enrolled in its ATD programs, with various levels of supervision (ICE 2020a).

[15] Letter from Carolyn B. Maloney, Chairwoman, Committee on Oversight and Reform, and Chairman Jamie Raskin, Subcommittee on Civil Rights and Civil Liberties, to Acting Secretary Chad F. Wolf, Department of Homeland Security, and Acting Director Matthew T. Albence, Immigration and Customs Enforcement (May 14, 2020). https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2020-05-14.CBM%20JR%20to%20Wolf-%20DHS%20Albence-ICE%20re%20Coronavirus%20in%20Detention%20Centers.pdf

[16] Flores, et al. v. Barr, et al., No. CV 85-4544-DMG (AGRx) (C.D. CA., March 28, 2020) (order re plantiffs’ ex parte application for restraining order and order to show cause re preliminary injunction).  https://files.constantcontact.com/baccf499301/cd171d0c-09c7-4050-a8b0-4b640ca093c8.pdf.

[17] Flores, et al. v. Barr, et al., No. CV 85-4544-DMG (AGRx) (C.D. CA., April 24, 2020) (order re plaintiffs’ motion to enforce). https://assets.documentcloud.org/documents/6877276/Jenny-Flores-vs-William-Barr.pdf

[18]Id.

[19] Letter from House Democrats, to Acting Secretary Chad Wolf, US Department of Homeland Security, and Acting Director Matthew T. Albence, US Immigration and Customs Enforcement (May 21, 2020). https://judiciary.house.gov/uploadedfiles/2020-05-21_letter_to_dhs_ice_regarding_binary_choice_policy.pdf?utm_campaign=2793-519

[20] Immigration and Nationality Act (INA) § 235(b)(1)(A)(i).  The geographical reach of the “expedited removal” process has expanded significantly over the years.

[21] Letter from Public Health Experts, to Secretary Alex Azar, US Department of Health and Human Services, and Director Robert R. Redfield, MD, Center for Disease Control and Prevention (May 18, 2020).  https://www.publichealth.columbia.edu/sites/default/files/public_health_experts_letter_05.18.2020.pdf

[22] Id.

[23] Id.

[24] Id.

[25] Letter from US Senators Richard J. Durbin, Robert Menendez, et al., to Secretary Mike Pompeo, US Department of State, and Acting Secretary Chad F. Wolf, Department of Homeland Security (May 1, 2020). https://www.foreign.senate.gov/imo/media/doc/Letter%20to%20Sec.%20Pompeo%20and%20Acting%20Sec.%20Wolf%20May%201,%202020.pdf.

[26] Id.

[27] The Heroes Act, H.R. 6800, 116th Congress §191205(a) (2020). https://www.govtrack.us/congress/bills/116/hr6800/text/eh

[28] Demore v. Kim, 538 US 510, 513, 531 (2003).

[29] INA §236(c)(1).

[30] INA §236(c)(2).

[31] INA §236(c)(1).

[32] Nielsen v. Preap, 139 S. Ct. 954, 971-72 (2019).

[33] INA §235(b)

[34] INA § 212(d)(5)(A).

[35] INA §241(a)(1).

[36] Zadvydas v. Davis, 533 US  678, 699 (2001)

[37] By way of contrast, the administration has shown no compunction about suspending US legal immigration laws during the pandemic.

[38] US Immigration and Customs Enforcement (ICE), Press Release, “Guatemalan man in ICE custody passes away in Georgia“ (May 25, 2020). https://www.aila.org/File/Related/16050900bb.pdf.

[39] Fraihat, et al. v. US Immigration and Customs Enforcement, et al., No. EDCV 19-1546 JGB (SHKx) (C.D. CA., April 20, 2020) (Granting Plaintffs’ Motion for Preliminary Injunction). https://www.splcenter.org/sites/default/files/fraihat_pi_grant.pdf

[40] These risk factors were; (1) age (55 or over); (2) pregnancy; and (3) chronic health conditions, including cardiovascular disease, high blood pressure, chronic respiratory disease, diabetes, cancer, liver disease, kidney disease, autoimmune diseases, severe psychiatric illness, a history of transplantation, and HIV/AIDS.

[41] Id.

[42] Fraihat, et al. v. US Immigration and Customs Enforcement, et al., No. 5:19-CV-01546 JGB (SHKx) (C.D. CA. 2020) (Declaration of Russell Hott, May 5, 2020).

[43] Letter from Carolyn B. Maloney, Chairwoman, Committee on Oversight and Reform, and Chairman Jamie Raskin, Subcommittee on Civil Rights and Civil Liberties, to Acting  Secretary Chad F. Wolf, Department of Homeland Security, and Acting Director Matthew T. Albence, Immigration and Customs Enforcement (May 14, 2020). https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2020-05-14.CBM%20JR%20to%20Wolf-%20DHS%20Albence-ICE%20re%20Coronavirus%20in%20Detention%20Centers.pdf

[44] Alcantara, et al., v. Archambeault et al., No: 20cv0756 DMS (AHG) (S.D. CA., April 30, 2020) (Order Granting Plaintiff-Petitioners’ Emergency Ex Parte Motion For Subclass-Wide Temporary Restraining Order).

[45] Id.

[46] Coreas, et al. v. Bounds, et al., No. TDC-20-0780 (D. MD) (Memorandum Order).

[47] Dada, et al., v. Witte, et al., No 1:20-CV-00458 (W.D. LA.) (Report and Recommendation).

[48] Letter from Carolyn B. Maloney, Chairwoman, Committee on Oversight and Reform, and Chairman Jamie Raskin, Subcommittee on Civil Rights and Civil Liberties, to Acting  Secretary Chad F. Wolf, Department of Homeland Security, and Acting Director Matthew T. Albence, Immigration and Customs Enforcement (May 14, 2020). https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2020-05-14.CBM%20JR%20to%20Wolf-%20DHS%20Albence-ICE%20re%20Coronavirus%20in%20Detention%20Centers.pdf

[49] Fraihat, et al. v. US Immigration and Customs Enforcement, et al., No. 19-cv-01546-JGB (SHKx) (C.D. CA. 2020) (Plaintffs’ Supplemental Post-Hearing Briefing and Response to Defendants’ April 15 Notice of Supplement al Factual Information).

[50] An investigative team of USA Today reporters, covering the role of private corporations in the US detention system during the Trump era, found “more than 400 allegations of sexual assault or abuse, inadequate medical care, regular hunger strikes, frequent use of solitary confinement, more than 800 instances of physical force against detainees, nearly 20,000 grievances filed by detainees and at least 29 fatalities, including seven suicides” (Gomez et al. 2020).  These failures anticipated ICE’s response to the COVID-19 pandemic.

[51] 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

[52] Letter from Carolyn B. Maloney, Chairwoman, Committee on Oversight and Reform, and Chairman Jamie Raskin, Subcommittee on Civil Rights and Civil Liberties, to Acting  Secretary Chad F. Wolf, Department of Homeland Security, and Acting Director Matthew T. Albence, Immigration and Customs Enforcement (May 14, 2020). https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2020-05-14.CBM%20JR%20to%20Wolf-%20DHS%20Albence-ICE%20re%20Coronavirus%20in%20Detention%20Centers.pdf

[53] Id.

[54] AS of May 26, 36,504 residents and 9,988 staff of US prisons and jails were “confirmed” to have contracted COVID-19, and 459 residents and 42 staff had died (UCLA Law 2020)

[55] 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.

[56] 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.

[57] Letter From Dr. Scott Allen and Dr. Josiah Rich to Congress re: Coronavirus and Immigrant Detention (March 19, 2020). https://www.documentcloud.org/documents/6816336-032020-Letter-From-Drs-Allen-Rich-to-Congress-Re.html#document/p4/a557238.

[58] Detainees have spoken of overcrowding, lack of protective equipment, fellow detainees with COVID-19 symptoms, and unsanitary conditions.

[59] ICE Press Release, “South Korean man in ICE custody passes away in California” (May 19, 2020). https://www.aila.org/File/Related/16050900ba.pdf

[60] American Civil Liberties Union (ACLU) of Southern California, Press Release, “Immigrant, 74, Dies by Suicide in Mesa Verde Detention Facility” (May 18, 2020). https://www.aclusocal.org/en/press-releases/immigrant-74-dies-suicide-mesa-verde-detention-facility

[61] Id.

[62] ICE Press Release, “South Korean man in ICE custody passes away in California” (May 19, 2020). https://www.aila.org/File/Related/16050900ba.pdf.

Author Names

Donald Kerwin

Date of Publication Last updated May 28, 2020
DOI 10.14240/cmsesy051320

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