Week 43: Emails show that ICE asked contractor not to test detainees

Immigration news, in context.

This is the forty-third edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week, we published a premium post explaining DHS’s ability to patrol protests, effectively acting like a national police force.

This week’s edition:

  • In The Big Picture,we dig into recently released emails showing how ICE has prevented a full accounting of the extent of the coronavirus problem in detention..

  • In Under the Radar, we discuss expulsions of migrants at the border and the rise of use-of-force incidents in ICE detention.

  • In Next Destination, we look into ICE’s attempt to deport a witness in an ongoing investigation into a Border Patrol-involved car crash.

The Big Picture

The news: Deaths in ICE detention continue as newly revealed emails, unearthed as part of an ongoing court case involving detainees at the Mesa Verde ICE detention facility in California, show that ICE officials and affiliated private contractors moved away from widespread testing over concerns that a large number of positives would present logistical challenges.

What’s happening?

At a total of 17 deaths, this has already been the deadliest fiscal year for people in ICE custody since 2006. Two men died in ICE custody just this week; ICE has released no additional information, but it is presumed that they died due to COVID-19. The spike in deaths  has resulted from a mix of incompetence and outright indifference, as demonstrated by emails released as part of a class-action lawsuit seeking to have hundreds of people released from the GEO Group-run Mesa Verde ICE Processing Center in Bakersfield, California.

In one particularly damning email sent on July 6, an employee of detention clinical services provider Wellpath—a company so staggeringly inept that it was the focus of a CNN investigation looking at catastrophic outcomes around the country, with one county calling its performance “morally reprehensible”—wrote to an ICE official that ICE leadership had turned down a plan for widespread testing at the facility “due to the housing restrictions we face.” 

“Testing all detainees will potentially cause the same housing issue we had last week but on a larger scale,” the Wellpath employee wrote. “Completing the testing is not the issue it is just what we will need to do with the results once they are received.”

There is a lot of pretty incriminating information contained in those three sentences, so let’s break it down bit by bit:

  1. This is essentially an admission that GEO and subcontractor Wellpath have the full capability to test every detainee (“completing the testing is not the issue”). This is significant because those of us who cover immigration detention have often been told that the issue with testing is not one of will but capacity, i.e. that the agency and its subsidiaries do not have the funds or the tests to provide one for everyone who has symptoms, let alone everyone in custody. That notion is shot down here.

  2. The facility was already having issues isolating and keeping under monitoring even the small number of COVID-19-positive detainees that they had identified using the limited number of tests staff had run by that point (“the same housing issue we had last week”). Remember, this is in July. ICE, GEO, and Wellpath by this point have had months of lead-in time to find ways to accommodate sick detainees, which means either they didn’t try or it wasn’t possible. Which brings us to...

  3. There is no bandwidth to actually deal with additional sick detainees (“due to the housing restrictions we face”). This is the crucial point here, in the sense that it establishes, at least for this facility that, that detention cannot be done safely. No matter what precautions ICE and its contractors claim to take, this facility and presumably the others much like it simply are not equipped to hold hundreds of people in a pandemic. Of course, we knew this already, but it is nonetheless notable coming from the detention health personnel.

It’s also worth noting that the email was sent in response to an inquiry from Janese Mull, ICE’s assistant field office director in Bakersfield, and it derives the information from an earlier request escalated by a separate assistant field office director to ICE headquarters. This means that these decisions were being made at an agency level and not necessarily even communicated clearly to field office leadership. While these exchanges pertain to one specific ICE contractor facility, it’s hard to imagine that ICE leadership is issuing separate directives to separate field offices that all have roughly the same basic set of problems and options. It’s likely that we’re getting a glimpse into standing ICE policy here, and it’s not pretty.

A separate issue here is the web of private entities that ICE relies on for its sprawling detention apparatus, which each will have their own policies and procedures and react more or less appropriately to developing situations. Another email released as part of the lawsuit has Paul Laird, GEO’s vice president for the western region, pillorying Mesa Verde facility administrator Nate Allen for failing to develop “mitigating procedures you could put in place for detainees who do not consent to testing and are put directly into a unit. We cannot just throw up our hands and say there isn’t anything we can do.”

While it’s good that the GEO official was asking that his facility administrators actually develop plans to deal with the pandemic, it’s a little concerning that the order was for them to develop an “at minimum” solution in late June. However, if the structures of oversight are weak enough when it comes to ICE itself, they are practically nonexistent as it relates to its many contractors.

In response to these revelations, District Judge Vince Chhabria wrote that “plaintiffs have demonstrated a strong likelihood of success on the merits of their claim that the defendants have violated the due process rights of the class members through deliberate indifference to the risk of an outbreak… This conduct by the defendants has put the detainees at serious risk of irreparable harm. The defendants have also jeopardized the safety of their own employees. And they have endangered the community at large.” He ordered ICE and GEO to maintain a separate dorm for COVID-19-positive detainees, not accept any new detainees at the facility, and test current detainees weekly.

It wasn’t a full victory for the plaintiffs, as the judge refused to set caps on the number of people per dormitory because it “would possibly force ICE to immediately release dozens of detainees—to many of whom the Court has denied bail based on evidence of dangerousness—without conducting any safety evaluation,” indicating that he took these evaluations (which are often conducted unilaterally by ICE) at face value and was not keen on ordering mass releases.

How we got here

Early on in the pandemic, there had been some signs that the encroaching threat could prompt a reevaluation of ICE’s detention standards and lead to widespread releases (as we’ve written about before, ICE had broad discretion to release anyone in its custody, which is technically civil and not criminal detention despite the fact that it’s often indistinguishable).

By the end of March, federal judges had ordered a number of releases on humanitarian grounds, and in early April ICE itself announced that it had developed standards to evaluate detainees for release, having supposedly identified 600 by that time. However, it quickly became clear that things weren’t fundamentally going to change. As our Felipe De La Hoz wrote in mid-April, the decision-making was largely taking place at the field office level, or even by individual offices with their own sets of standards. In the period since, detainees asking for information and protesting detention conditions have been met with force (more on that below).

ICE’s average daily population has steadily dropped since the beginning of the fiscal year, but those numbers don’t tell the whole story. In October, ICE was detaining an average of 50,220 people per day, about 60 percent of whom were transferred to ICE custody after being apprehended by Customs and Border Protection. By July, ICE was detaining an average of 22,552 people per day, 40 percent of whom had been referred to ICE by CBP. Both the total number of people detained by ICE on any given day and the number of people detained by ICE after being apprehended at the border have dropped since the pandemic began, but not for the same reasons.

In March, the Centers for Disease Control and Prevention implemented a new rule instructing Border Patrol agents to quickly “expel” all inadmissible (a term that here merely means they lack valid immigration documentation) migrants apprehended at the border, causing the number of migrants referred to ICE to drop precipitously. (We dug into the order in a previous edition.) The number of recent migrants in ICE custody, then, isn’t dropping because ICE was ordered to release more people due to the pandemic but because most migrants apprehended at the border are no longer being referred to ICE at all. Looking at the overall detention numbers, it’s clear that the number of CBP referrals began dropping even before the pandemic began, but it’s undeniable that the CDC order had an effect on overall detention rates. The number of immigrants taken into ICE custody after being arrested in the interior has also dropped since February, but not to the same degree. 

Immigration court hearings for non-detained immigrants have been put on hold due to the pandemic, but detained hearings have continued—albeit with some hiccups, due to sporadic coronavirus-related court closures. This means that immigrants in detention are still being deported, often exporting the virus to other countries

But the fact that the detained population is dropping obscures another element of ICE’s detention practices amid the pandemic: ICE continues to receive new detainees daily, replenishing its overall population. Many new detainees are referred to ICE detention from criminal custody, such as jails or prisons. In North Carolina, for example, immigrants arrested in counties that participate in ICE’s Warrant Service Officer program are first taken to the Alamance County Detention Center before being transferred to the Stewart Detention Center in Georgia, according to North Carolina Health News. This series of transfers—from one county jail to another county jail to an ICE detention center hundreds of miles away—increases an immigrant’s risk of exposure to the coronavirus, which thrives in carceral settings.

In other words, even though ICE’s overall detained population has decreased since the pandemic began, its detention practices have largely remained the same, facilitating the spread of the virus in detention centers. By continuing to take in new detainees and transferring them from facility to facility, ICE is all but guaranteeing that COVID-19 will never leave its detention centers.

What’s next?

At this point it’s been pretty evident for months that there is no safe way for people to remain detained and for transfers to take place during a pandemic. Despite dwindling numbers of people in ICE detention, thousands remain in a situation that ICE’s own contracted medical staff acknowledges cannot be effectively mitigated, and it’s now clear that the agency has chosen to deal with this by simply not collecting the information that might force it to take action.

With the emails released as part of the Mesa Verde lawsuit laying bare this dynamic, it’s possible that there will be a new wave of lawsuits or additional filings in ongoing lawsuits attempting to obtain evidence of the same sort of apathy across the country. The Mesa Verde facility will also become a sort of experiment on what happens when an ICE detention center is ordered to take the basic steps that ICE has so far declined to take. The expectation is that the number of confirmed cases will shoot up wildly once detainees are actually being tested, and if this is the case there, it is the case everywhere. Such an outcome would provide strong backing to the notion that the reported levels of cases in ICE detention nationally are severe undercounts.

This in turn could certainly make federal judges more amenable to the notion of ordering large-scale humanitarian releases; if infection rates are far higher inside a detention facility than they are in surrounding jurisdictions, then it must be the detention situation itself that is hazardous for detainee health. The Mesa Verde situation may also further expose that, once high infection levels are identified, ICE and its contractors won’t really have a reasonable plan for dealing with them, which could compound this phenomenon.

At the legislative level, a number of proposed bills have addressed immigration detention, such as through the creation of standardized criteria that would trigger release if certain other factors are met. The best bet is probably whatever successor to the CARES Act ultimately makes it through the McConnell gauntlet, which as an omnibus bill would be harder to block than something exclusively addressing detention.

Under the Radar

Expulsions of migrants at the border—including children—continue

The Centers for Disease Control and Prevention’s order effectively shutting down the border to asylum seekers has led to the “expulsion” of migrants as young as eight months old, the, Texas Tribune’s Lomi Kriel reports. More than 240 children have been rapidly deported back to either their home countries or Mexico over the past three months without going through the typical deportation process, which includes a hearing before an immigration judge. In fact, migrants who are expelled under the CDC order aren’t even given alien registration numbers, making it “virtually impossible” to find them, according to a declaration filed by the Texas Civil Rights Project.

One relative of a teenage migrant from Honduras reportedly told an advocate that the boy had been taken into U.S. custody after they crossed the border. CPB told immigration attorney Linda Corchado that the boy had been taken to a hotel to be sent back to Honduras; the adult relative, meanwhile, was back at the El Paso port of entry. It’s unclear whether the pair were separated because the relative was not the boy’s parent or guardian, or for another reason.

Meanwhile, Reuters’ Sofia Menchu and Mimi Dwyer report that hundreds of Guatemalan migrant children have been sent to shelters alone after being expelled from the United States, often without being tested for coronavirus before being sent back. The shelters have limited testing capabilities and are quickly reaching capacity, as many children can’t go back to their families because of ongoing threats to their safety in their hometowns.

Other migrants, however, have found an upside to the expulsions. The New York Times reports that some Mexican migrants now feel incentivized to make multiple attempts to enter the U.S., since they won’t have a deportation on their record after being expelled.

Uses of force in ICE detention skyrocket 

Internal government reports obtained by BuzzFeed News’s Hamed Aleaziz show that uses of force in ICE detention have surged since March, the beginning of the coronavirus pandemic. Guards at detention facilities have used pepper spray, pepper balls, and other irritants on groups of ten or more immigrants 12 times in four months, affecting more than 600 immigrant detainees. Several uses of force have been in response to peaceful demonstrations: immigrants detained in facilities in Louisiana, Georgia, and California have all been pepper sprayed for protesting a lack of testing, ICE’s release policies, or raising other concerns about their safety during the pandemic.

As José Olivares and our Gaby Del Valle recently reported for The Intercept, immigrants at one facility—the Stewart Detention Center in Georgia, where guards pepper sprayed detainees in two separate incidents in April—have been subjected to force after asking for medical attention, often making their conditions worse. As BuzzFeed reported, ICE doesn’t compile use-of-force data from its hundreds of detention centers across the country, many of which are run by private contractors, making it difficult to determine the full scope of the problem.

Next Destination

Will ICE deport an immigrant who witnessed a deadly Border Patrol crash?

In late June, a car transporting 10 people crashed in downtown El Paso, Texas, killing seven people. A Border Patrol spokesperson said agents were pursuing the car, which they believed to be smuggling undocumented immigrants, but stopped following it after the car began speeding. But witnesses—including one man who survived the crash—said Border Patrol never stopped giving chase. Wilmer Gomez, one of the 10 people in the car, told El Paso Matters in July that the Border Patrol vehicle “never stopped chasing us.” At one point, Gomez said, all seven Border Patrol cars ran a red light to catch up to the vehicle. Another witness said he saw several Border Patrol cars chasing the vehicle before the crash.

Now Gomez, an immigrant from Guatemala, is in the midst of deportation proceedings—and ICE may deport him before he can testify in the case. He was scheduled to be deported on Thursday, but the El Paso District Attorney’s office asked ICE to halt his deportation while it investigates potential misconduct related to the crash. Assistant District Attorney Roberto Ramos told El Paso Matters that despite the office’s intervention, ICE isn’t obligated to stay Gomez’s deportation. “They treat every request, whether it’s deferred action or public benefit parole request on a case by-case basis,” Ramos said.

Gomez hasn’t been deported yet, though it’s unclear whether he will be. His deportation has been put on hold for now, and advocates—including his attorney, Linda Corchado—have been calling on ICE to postpone it indefinitely while the investigation continues. If he is ultimately deported before then, it’s possible that he could bring a suit against ICE.

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