Week 27: ICE detention and infectious diseases

Immigration news, in context.

This is the twenty-seventh 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.

Recently, we rolled out a way for you to support the work we do every week to untangle these complex concepts. If you find what we do useful, you can help us keep it going and keep improving by becoming a backer. In addition to the weekly newsletter, you will receive additional sections, including Q&As with experts and more detailed policy analyses.

This week’s edition:

• In The Big Picture, we explain why attorneys are calling for ICE to mass-release immigrants from centers and dig into the history of communicable diseases in federal immigration detention.

• In Under the Radar, we examine how the coronavirus pandemic has affected intake of migrants at the border and naturalization ceremonies for immigrants living in the U.S. 

• In Next Destination, we look at the future of Deferred Action for Childhood Arrivals, whose fate will soon be decided by the Supreme Court.

The Big Picture

The news: As legal and public pressure mounts on ICE to mass-release detainees in response to the novel coronavirus pandemic, the discussion around its ability to keep those in its custody safe from infectious disease does not exist in a vacuum. There’s a history of infectious disease outbreaks in immigration detention, and a lot of case law setting a precedent.

What’s happening?

Legal groups around the country are making relatively straightforward arguments: there is a clear and present risk of irreparable harm to practically all detainees in ICE custody, particularly those with medical vulnerabilities. During a pandemic this risk is ever-present, even if neither they personally nor detainees in their immediate vicinity have contracted the virus, because “[a]n injunction cannot be denied to inmates who plainly prove an unsafe, life-threatening condition on the ground that nothing yet has happened to them,” (Helling v. McKinney, 1993).

Civil detainees typically aren’t considered to fall under the Eighth Amendment protections against cruel and unusual punishment, because technically speaking they aren’t being punished at all. But the courts have held that they must enjoy at least the same protections as people who are criminally incarcerated. Under the Fifth Amendment, the government cannot be indifferent to the medical needs of people in its custody. This argument typically surfaces in reference to the treatment of existing medical conditions, but here is being deployed to mean that having non-mandatory detainees in custody is itself such indifference, especially if they have co-morbidities. The government cannot ignore “serious medical needs,” which as a standard “contemplates a condition of urgency such as one that may produce death, degeneration, or extreme pain,” (Charles v. Orange County, 2019). Exposure to COVID-19 is obviously a scenario that carries a high risk of such death and degeneration, and attorneys are claiming that the only “treatment'' in this situation is release.

ICE itself has admitted that people in custody are being exposed to the pathogen in increasingly large numbers. As of this morning, its dedicated counter has 48 confirmed cases at over 15 different detention centers, including 10 cases just at the Otay Mesa Detention Center in San Diego. This is a known undercount, as reports flood in of dozens more symptomatic detainees, and testing appears to remain low. There is broad agreement among epidemiologists that the conditions of detention are extremely conducive to outbreak and death, which lends further credence to the reasoning that keeping people detained is equivalent to denying treatment.

The agency’s responses to these arguments have mostly run along the lines that it still is making case-by-case decisions on detention, taking into account individual medical circumstances in making such decisions. ICE has also said keeping people in detention doesn’t put them at particular risk . A senior official last week wrote a new guidance, which was circulated to congressional staffers, directing officials to identify vulnerable detainees for release, considering such factors as chronic conditions and pregnancy. The extent to which line officers will follow such a guidance is an open question.

How we got here

ICE and other federal immigration agencies have had to deal with infectious disease outbreaks in the past. The current COVID-19 outbreak is extraordinary because the virus is entirely new — but ICE and Customs and Border Protection facilities have seen outbreaks of diseases as common as the flu and as rare as measles and mumps in recent years.  

In 2016, for example, there were 22 cases of measles at the Eloy Detention Center in Arizona. Nine of those infected were employees of the CoreCivic-operated facility, the New York Times reported at the time. Public health officials said the outbreak was exacerbated by ICE and CoreCivic’s “failure … to make sure their staff was vaccinated. The lingering issue has been the staff passing illness among each other and going out into the community.” The culprit didn’t appear to be immigrants bringing in the disease from abroad, but rather a declining vaccination rate among Arizonans. But immigrant detainees still suffered the consequences, as did guards and other staff at the facility.

Immigrant detention facilities across the country also experienced a mumps and chicken pox outbreak during the summer of 2019. At one point, 5,200 immigrants — or nearly a tenth of the total detention population of about 52,000 — were placed in quarantine after being exposed to the diseases, according to CNN. The diseases had reached 39 ICE detention centers. ICE blamed migrants for bringing the diseases into the U.S., with one official telling the Washington Post that the influx of migrants at the southern border had been a “significant” contributor to the outbreak. 

But immigrant advocacy groups and attorneys who represent immigrant detainees say the persistence of these outbreaks is due to ICE’s own detention practices. A 2019 class-action lawsuit against the agency filed on behalf of Al Otro Lado and other groups said ICE failed “to ensure constitutionally adequate medical and mental health care” and placed immigrants in isolation — effectively solitary confinement — to limit their exposure to mumps, chicken pox, and other communicable diseases rather than addressing the outbreaks themselves.

There are several years’ worth of media and government reports detailing the lack of adequate medical care in ICE detention facilities. BuzzFeed News obtained an internal DHS document explaining how substandard medical care at several ICE facilities led to two preventable surgeries and contributed to the deaths of four detainees. Last summer, the DHS Office of the Inspector General released a damning report on four detention facilities, saying inspectors had found “egregious violations” there, including “inadequate medical care.”

There have also been outbreaks of more common diseases in CBP facilities that process immigrants who arrive at the border. These outbreaks have led to the deaths of several migrants in federal custody, including children. Last summer, CBP temporarily stopped processing migrants at the McAllen Central Processing Center in Texas due to a “flu-related illness” after 32 migrants there tested positive for the flu. A few weeks earlier, a 16-year-old Guatemalan boy had come down with the flu at that facility. He died of acute respiratory distress — the same condition that causes most COVID-19 deaths — after being transferred to another detention center, and was the fifth migrant child to die in CBP custody in a six-month period.

Generally speaking, the daily conditions in both ICE and CBP facilities can quickly turn deadly after the introduction of a communicable disease. This is especially true in border processing centers that hold both children and adults, which are only equipped to hold people for a maximum of 72 hours — immigrants detained at such facilities have reported a lack of soap, toothbrushes or toothpaste, and sporadic access to showers or sinks to wash their hands. Most border facilities are almost entirely empty at the moment, since the border is effectively closed.  Meanwhile at ICE detention facilities, which are set up like prisons or jails, dozens of immigrants are packed into cell blocks, making social distancing impossible even under the best circumstances.

What’s next?

We’re getting dangerously close to what could become uncontrollable COVID-19 outbreaks in several detention centers. The risk here is as soon as there is one case, there could be five the next day, and as soon as there are five, there could be twenty the next, and so on. ICE’s track record at handling far less aggressive pathogens leaves a lot of room for concern about how coronavirus will be managed.

As many others have pointed out, many detention centers are in relatively rural areas, where the health systems are relatively small. Given the likelihood that the virus would be introduced to detention by guards or other staff who live in nearby communities, it’s probable that there would be outbreaks in and around detention centers at the same time, overwhelming local hospitals and raising the mortality rate.

Insofar as the hope that a federal judge will order mass releases, the biggest impediment might be a jurisdictional one. The federal courts have found time and again that they don’t have the jurisdiction to review individual ICE detention determinations, only the sort of constitutional, habeas questions that are presented in many of the injunction requests. So, as long as ICE can claim that it is in fact reviewing individual petitions for release —and pursuant to some impartial and coherent process, deciding against release for particular detainees — it might avoid being ordered to let people go.

This means we’ll probably continue to see ICE exercising its discretion to facilitate sporadic releases from detention centers around the country, which it will then be able to point to to claim that release is possible without a federal court order, and such court orders are therefore unnecessary.

Under the Radar

CBP is no longer processing migrants over COVID-19 concerns, but thousands still wait at the border and in Mexico

As we explained last week, the Trump administration has closed the border to virtually all unauthorized migrants, including asylum seekers, claiming it’s doing so to prevent the spread of COVID-19. But thousands of migrants are still waiting at the border, according to a new report by researchers at the University of Texas Austin and the University of California San Diego.

As of the beginning of April, 14,400 migrants were on waitlists in 11 cities across the U.S.-Mexico border, a 4 percent decrease from February. These waitlists are a hallmark of the Trump administration, though they aren’t formally run by U.S. officials. They’re the result of “metering,” the practice of limiting how many migrants are allowed to petition for asylum at ports of entry each day. Typically, U.S. border officers wait at the midpoint between the bridges connecting the U.S. and Mexico, where they tell migrants who try to claim asylum to come back later. 

In several Mexican cities along the border, migrants and local organizations have created a numbered system to keep track of people as they arrive. According to the report, most waitlists are no longer taking on new migrants — but since the border is on lockdown, migrants who have been waiting for weeks or even months now find themselves in limbo. Many also find themselves without a place to live, since migrant shelters operated by nonprofits and churches are taking in fewer guests to prevent the virus from spreading further.

COVID-19 has put naturalizations on hold

U.S. Citizenship and Immigration Services — the DHS agency that handles asylum, visa, permanent residency, and citizenship applications, as well as naturalization ceremonies — suspended all in-person services in mid-March in light of the coronavirus pandemic. Although the agency has altered its renewal processes for work authorization forms and DACA status, one key service is indefinitely on hold: naturalization ceremonies. As BuzzFeed News’ Hamed Aleaziz reports, tens of thousands of immigrants have had their naturalization ceremonies delayed due to the virus. 

If social distancing measures continue through the fall, it’s possible that many immigrants who would have otherwise been naturalized this year won’t be able to vote in the upcoming presidential election. Moreover, any non-citizen — including legal permanent residents eligible for naturalization — can be put in removal proceedings if they commit certain offenses that render them “deportable.” 

For immigrants whose naturalization ceremonies are on indefinite hold, being unable to adjust their status may not only prevent them from voting; it may also jeopardize their status in the U.S. altogether.

Next Destination

DACA uncertainty

After hearing arguments in the case over the administration’s attempts to end the DACA program late last year, the Supreme Court had been expected to rule around June. Advocates and attorneys are now trying to ensure that the program does not end during what may still be a raging nationwide pandemic, both urging the Trump administration itself to automatically renew work permits for DACA recipients, and the court to delay its decision. As we’ve mentioned before, what the court is considering is not whether the program itself was a lawful exercise of executive power, but whether the current administration’s effort to terminate it was proper, and if the court even has the jurisdiction to decide on that.

There are a few reasons why the specter of the termination of DACA is of particular salience at this moment in time. For one, many DACA recipients provide a crucial financial lifeline for their families even in regular times, and doubly so as the economy craters and many of the service-sector jobs on which millions of undocumented people rely have disappeared almost overnight. Also, an estimated 27,000 DACA recipients are medical professionals, who would be forced to stop working at a moment when there are already barely enough medical professionals to stave off total public health catastrophe.