ICE detention number rising, along with COVID in custody—05-14-21

Immigration news, in context

This is the seventy-ninth 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’s edition:

  • In The Big Picture, we explore the rising number of detained immigrants, and increasing COVID-19 rates among them.

  • In Under the Radar, we note FEMA’s suspension of work on child migrant shelters.

  • In Next Destination, we look at the progress made in bringing asylum seekers stuck in Mexico under MPP into the United States.

The Big Picture

The news: As Biden continues pledging a less punitive approach to immigration enforcement, the number of people in ICE detention has grown by about 3,000 since the beginning of March, with the number of acknowledged active COVID-19 cases among the detainee population growing about sixfold, from 359 as of March 7 to 2,043 as of May 12, both of which are probably undercounts.

What’s happening?

Despite a number of whispers early on that the administration would move to terminate its reliance on private immigration detention providers, no such order has come down. Instead, the president has limited himself to declining to renew private prison contracts for federal criminal custody. Biden did sign an executive order intended to narrow enforcement priorities, which would presumably have lowered detention populations, but recent reporting points to such orders only being sporadically upheld and generally running up against a defiant ICE culture. It’s also likely that some of the recent increases don’t come from internal enforcement but the border, where a trickle of asylum seekers are being permitted exemptions from the Title 42 expulsion policy.

We should note that, while the last detention number of 16,721 (as of May 7) represents a substantial increase, it is still far below the staggering numbers that the Trump administration hit at its height, which stood at a record of about 52,000 almost exactly two years ago. We’ll get more into the history below, but the numbers dropped precipitously as the coronavirus crisis worsened last year, and have stayed relatively low. For the first couple of months of the Biden administration, the detention numbers kept dropping, falling by about 1,000 since just before he took office. The recent spike has been most eye-popping in terms of the COVID-19 infections, with just the number of confirmed cases in active isolation or monitoring—which, again, is almost certainly an undercount given lax testing and reporting processes in many facilities—now accounting for over 12 percent of all people in custody.

In total, ICE officially recognizes nine people in its care as having died from COVID-19, but this is, again, misleading. The agency has been known to pull tricks like releasing detainees just before they die in order to fudge the numbers. Since the very beginning of the pandemic, ICE and its various contractors and local detention partners have consistently failed to take serious measures to control the spread of the disease among detainees. This is partly due to an agency culture where each field office and even individual detention centers operate a bit like their own fiefdoms, without much of a coherent national strategy for virus management or humanitarian release.

Meanwhile, as vaccination rates climb and health officials are cautiously embracing a return to relative normalcy, ICE itself still doesn’t appear to have any plan to vaccinate people in detention. The agency continues to hold the bewildering position that local and state officials are responsible for the vaccination of federal immigration detainees. These localities, for their part, have often pointed back to the federal government, leaving thousands of detainees in a limbo where no government entity feels tasked with vaccinating them. Reliable numbers are hard to come by, but all in all it seems like a very small percentage of the ICE detention population has been vaccinated.

In the face of federal passivity, state and local organizers and officials have been undertaking their own efforts to both close individual detention centers and enact legislation that would limit or prohibit their future operations. York County in Pennsylvania, for example, could terminate a contract with ICE to hold immigration detainees, which has been active since the 1990s (though the county is also attempting to potentially renegotiate a more lucrative contract). New York State legislators are considering legislation that would bar counties from entering into any such contracts at all. Still, the federal government will almost always find somewhere to detain immigrants if it so chooses, with states like Louisiana more than happy to pick up the slack from New York and California. 

How we got here

The number of immigrants the U.S. detains has more or less steadily risen each year since 2001. In 2001, the Immigration and Naturalization Service’s average daily population was just over 20,000; by 2009, ICE had an average of 32,098 people in its custody each day. In 2017, Trump’s first year in office, ICE’s average daily population hit 38,106. By 2019, ICE was at one time detaining more than 52,000 people—an all-time high. (For a detailed look at the year-by-year numbers, we suggest looking at the Crimmigration blog.) 

This drastic increase in detention is largely the result of the conflation of immigration enforcement and criminal enforcement—and, more specifically, of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). That law, signed by President Bill Clinton, expanded the categories of deportable immigrants. As Dara Lind, formerly of Vox, put it, IIRIRA “essentially invented immigration enforcement as we know it today—where deportation is a constant and plausible threat to millions of immigrants.” IIRIRA made it easier to deport people in the country without authorization and made it harder for undocumented immigrants to get legal status. The law expanded the list of crimes that make immigrants deportable, allowed for the expedited deportation of anyone apprehended within 100 miles of the U.S.’s borders, and—most importantly for our purposes—required the mandatory detention of immigrants who had been charged with or convicted of certain crimes. (That said, immigration judges can still order people released from detention regardless of their criminal records, and ICE retains the capability to release anyone for humanitarian reasons, but neither happens often.) 

IIRIRA also created the 287(g) program, a partnership between federal immigration authorities and local law enforcement agencies that lets cops and sheriff’s deputies conduct certain operations for ICE (or, at the time of its creation, for the INS). Under 287(g), local law enforcement agencies that underwent a month-long training program could screen anyone charged with a crime to determine whether they may be in the country without authorization; if someone in criminal custody was suspected of being deportable, the law enforcement agency would detain them until immigration officers could pick them up to begin deportation proceedings against them. The program was later expanded to include a “task force” model, in which local law enforcement could arrest people they suspected of being in the country illegally. Unsurprisingly, this type of enforcement often relied on racial profiling and led to a number of civil rights lawsuits. ICE ultimately ended the task force model in 2012, but the jail model continues to this day. 

The federal government has poured hundreds of millions of dollars into 287(g) over the years. In 2006, Congress allocated $5 million towards 287(g) funding; by 2009, 287(g) funding had increased by 980%, to $54 million, according to federal data analyzed by the American Immigration Council. Funding for the program reached its peak in 2010, when it hit $68 million, and plateaued for the next three years before dropping substantially to $24.3 million in 2014. 

In theory, the opt-in nature of 287(g) means that local law enforcement agencies decide whether to cooperate with ICE. Since Trump took office, a number of sheriffs have ended their counties’ agreements with the federal government; in fact, many of them specifically ran on ending 287(g). But other federal programs, such as Secure Communities, made it nearly impossible to disentangle criminal enforcement from immigration enforcement. Secure Communities began in 2009, and under it, fingerprints forwarded to federal databases from local jail bookings were automatically shared with DHS, potentially triggering deportation proceedings. 

The expansion of immigrant detention over the last three decades is ultimately due to a bipartisan policy of tying immigration enforcement to criminal enforcement. The “criminal alien” trope isn’t just deployed by conservatives; during the last few years of the Obama administration, ICE supposedly targeted “felons, not families.” The Obama administration ended Secure Communities in 2014, replacing it with the Priority Enforcement Program (PEP). PEP created a new enforcement hierarchy, prioritizing the arrest and deportation of those deemed “national security threats,” gang members, convicted of state or local felonies or aggravated felonies, or who were apprehended at the border. People who had been convicted of “serious” misdemeanors, three or more misdemeanors of any kind, who had “significantly abused the visa or visa waiver programs,” or who entered the U.S. without authorization after July 1, 2014 were deemed “priority 2” for arrest and deportation. Trump revived Secure Communities as soon as he took office, and expanded ICE’s deportation priorities to include “all removable aliens.” While Biden narrowed the agency’s enforcement priorities, he has yet to end Secure Communities.

Crucially, any non-citizen—including legal permanent residents and visa holders—can be deported. The only protection against deportation is citizenship. For those who don’t have it, even being charged with a crime they’re never actually convicted of can lead to deportation.

All of this leads us to the state of affairs at the beginning of the pandemic. In March 2020, there were approximately 37,000 people in ICE custody. That figure was substantially lower than the number of people ICE detained at its peak, which surpassed 52,000 in 2019, but nonetheless posed a serious danger to those in federal custody. Advocates pointed out that physical distancing was all but impossible in carceral settings; immigrants in ICE custody told reporters that they weren’t being provided with adequate protective equipment, such as masks, and in some instances weren’t even given soap. As the pandemic dragged on, ICE began releasing detainees with conditions that made them particularly vulnerable to complications from COVID-19. But the agency didn’t release people of its own volition; these releases were the result of federal lawsuits across the country. 

What’s next?

At this point, it’s pretty clear that the only way that the Biden administration could significantly and permanently reduce ICE detention is by making it a clear and standalone priority and, essentially, wrestling the agency into submission, with clear top-down directives that it would be expected to follow across the board, and consequences for failure to do so. If the administration really wanted to commit, it could set a detention target to work towards. Ultimately, activists want detention brought down to zero, which is certainly a much more feasible goal than a similar attempt in the criminal justice sphere. Immigration detention is, after all, a civil hold that is meant solely to ensure that immigrants facing removal processes attend their hearings and are deported if so ordered, a task that the government could plausibly conduct while having almost no one in physical detention.

The question of detention management is only going to get more salient as the government begins letting more people apply for asylum at the border. As we’ve noted, historically people who entered and passed a credible fear interview—the first step in an asylum process, designed to be a relatively low bar—have been given court dates and sent on their way (even if sometimes after significant time in CBPP or ICE detention). Under Trump, the government started putting many more asylum seekers  in indefinite detention as a matter of course. Biden will have to figure out his own stance as larger numbers of asylum seekers are entering.

Despite promises to fully end the practice of family detention, officials have said that there are no plans to terminate the practice entirely. If and when the Title 42 order is fully struck down, there will also be thousands of single adults who have for months been barred from seeking asylum ready to apply. Keeping adults in detention has historically driven less outrage than doing the same for children and families, and the administration may be tempted to route most of these people into ICE detention, especially if it’s hanging on to the argument that releasing them would somehow pose a pandemic risk.

As far as vaccination goes, it’s obviously unacceptable that no one is taking responsibility despite months of questions. The party most indisputably accountable for this is ICE itself, which has legal custody over these detainees and is directly responsible for their health and safety. Vaccines have come up in a few of the lawsuits that have challenged ICE custody of medically at-risk people during the pandemic, but as of now there doesn’t appear to be litigation attempting to declare the totality of detainees a class entitled to a vaccination program. Such a lawsuit would probably lean on the same Fifth and Eighth Amendment arguments that the custody ones did, with the overarching point that at this stage, with the vaccine broadly available, it is medically negligent for the agency to not make efforts to supply it.

In the absence of any kind of mandate to vaccinate its detained population, the alarming growth in infections for those in custody is likely to continue, and with it the numbers of hospitalizations and deaths. At this point, detained immigrants are one of the only remaining groups in the United States that is not being offered access to any vaccine, at all.

Under the Radar

FEMA is no longer building emergency shelters for migrant children

In a recent interview with CBS News, Deanne Criswell, the head of the Federal Emergency Management Agency, said FEMA is “winding down” its cooperation with immigration agencies to build shelters for migrant children. DHS Secretary Alejandro Mayorkas had FEMA—a DHS agency, and one of the few that has nothing to do with migration—to help manage the rising numbers of unaccompanied children arriving at the border. FEMA deployed 81 staffers to Texas, California, and Washington, DC to help build temporary influx shelters, a project that is now slowing down. Criswell said FEMA will continue working with existing shelters under the purview of the Office of Refugee Resettlement, an agency within the Department of Health and Human Services.

Although Republicans continue beating the drum of a crisis at the southern border, this news suggests that the Biden administration has more or less figured out how to process unaccompanied migrant children and get them released to their sponsors. Customs and Border Protection data analyzed by the American Immigration Council shows that the number of children in government custody is declining. As of this week, there are more than 20,600 children in ORR custody, according to a Business Insider report—and, notably, the number of children being released to sponsors has now surpassed the number of children being transferred to shelters from CBP custody.

Next Destination

More than 8,000 Remain in Mexico cases transferred into the U.S.

One of Biden’s campaign promises was to end the Trump administration’s “Remain in Mexico” policy. Officially called the Migrant Protection Protocols, this policy required some asylum seekers from Spanish-speaking countries (and, later, Brazil) to wait in Mexico while their cases were adjudicated in the U.S. As Biden took office, migrants were no longer being put on the MPP docket—largely because the majority of those arriving at the border were being expelled under Title 42, but that’s another story—but that was only the first step in ending the program. The second step was getting those who were currently in Mexico into the United States, a process that is still ongoing.

As of the end of April, 8,387 asylum seekers subjected to the Remain in Mexico policy have been paroled into the U.S., according to a new report by TRAC. There’s still a long way to go: 18,087 migrants are still in Mexico, according to the TRAC report. The report also shows that nearly one-third of people whose cases were previously on the MPP docket had their cases transferred to Florida, and that most of those paroled into the U.S. are either Venezuelan or Cuban. 

The more than 18,000 migrants still waiting in Mexico are likely in serious danger. For years, advocates, lawyers, and migrants themselves have been sounding the alarm about the harm they face in Mexican border cities such as Tijuana and Laredo. Migrants—those on the MPP docket, those formerly subjected to Trump’s metering policy, and now those expelled under Title 42—are often preyed upon by gangs and drug cartels. Since migrants often have family members in the U.S., they’re seen as easy targets for extortion; they’re often kidnapped and held for ransom, paid for by their relatives in the U.S. 

The question is how quickly the remaining migrants on the MPP docket will be let into the U.S., and whether the Biden administration will pick up the pace on paroling those still waiting in Mexico. Last month’s numbers suggest that it will. Of the 8,387 migrants who have been let into the U.S. so far, more than 4,400 were admitted last month.