Week 31: First death in ICE detention as government resists releases
Immigration news, in context.
This is the thirty-first 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 discuss the context that led to the first Covid-19 death in ICE custody.
In Under the Radar, we look at the latest news from the border, where immigrants are still being “expelled,” and the new hiring standards at the Board of Immigration appeals.
In Next Destination, we explore whether President Trump’s recent order limiting immigrant visas will be expanded.
The Big Picture
The news: After weeks of outbreaks in ICE detention centers around the country, Carlos Ernesto Escobar Mejía became the first detainee to die of Covid-19 while in the agency’s custody. He was being held at the Otay Mesa Detention Center in San Diego, California, the site of ICE’s largest acknowledged outbreak.
What’s happening?
As of Friday morning, ICE claims it has tested 1,528 detainees in its custody, of which 753 — about a half — have tested positive for the coronavirus. The agency currently holds about 30,000 people in detention, and some of those tested will have been released, meaning that around 4 percent of all detainees currently in custody have been tested. This is abysmal, especially given how many of those tested are positive.
The agency would probably counter that the number of positives is so high because those actually being tested already show signs of infection, which is in itself a problem. Time and again, detainees have described to us and other reporters how ICE, its local partners, and private contractors will only isolate and test people who have already been complaining of symptoms for days while remaining in close quarters and contact with other seemingly healthy detainees.
An asylum seeker at the Otero County Processing Center recently told our Felipe De La Hoz that he was detained with another man who had clear symptoms for three days before being isolated. It wasn’t until that man tested positive that the asylum seeker and others who’d been in the same unit as the sick man were themselves isolated. The asylum seeker has since tested positive for Covid-19. Meanwhile, as our Gaby Del Valle and co-writer Jack Herrera reported, detainees are still being shuttled to rural areas with health systems not set up to deal with outbreaks in and out of detention.
In Escobar’s case, perhaps the most important thing to note is that there was no legal need for him to be in detention. He had a bond hearing on April 15, where his bond was denied on the grounds that he was a flight risk, despite living with a U.S. citizen sister, having 40 years of presence in the country, and losing a foot to complications from diabetes. By that point, there was already an outbreak at Otay Mesa — where Escobar was sent in January after being detained by Border Patrol — which now has the highest confirmed number of detainee infections among all ICE detention centers, standing at 133 as of this morning. Detainees at the facility have complained about a lack of protective equipment and general inaction by ICE and private detention contractor CoreCivic.
As we've explored before, ICE has extraordinary discretion to release essentially everyone in its custody, which is supposed to be administrative, non-punitive custody, even if it is often largely indistinguishable from criminal custody. Despite that, the agency has apparently released only about 900 detainees identified as medically vulnerable, or about 3 percent of its current detainee population. It has also released about 200 people pursuant to federal court orders, which we’ll get into in the next section.
How we got here
Otay Mesa’s first known coronavirus case, an employee who was reportedly responsible for handing out equipment to other officers in the facility, was announced on March 31. At the time, another Otay Mesa employee told NBC San Diego that CoreCivic, the prison contractor that owns and operates the facility, wasn’t doing enough to protect staff or detainees. By April 10, ICE and CoreCivic confirmed that 10 immigrant detainees at the facility had tested positive for Covid-19. When detainees demanded masks, they were told they’d get them if they signed waivers saying CoreCivic wouldn’t be held liable if they got sick and were threatened with pepper spray.
There are now 202 confirmed cases among Otay Mesa detainees — more than any other immigrant detention facility — according to the San Diego Union Tribune (including ICE detainees and other federal detainees in the custody of the U.S. Marshals).
In late April, the ACLU of San Diego filed a class action lawsuit ordering the release of Otay Mesa detainees whose medical histories make them particularly vulnerable to coronavirus. The lawsuit also called for a drastic reduction in the overall detained population at the facility in order to facilitate social and physical distancing. A federal judge told ICE on May 1 to immediately review the files of 131 immigrant detainees identified as medically vulnerable and consider them for release. Just two people had been released by May 4. Escobar, who died on May 6, was on the list of detainees being considered for release.
There have been similar lawsuits elsewhere in the country. Judges in Colorado, California, New York, Illinois, New Jersey, Pennsylvania, and a number of other states have ordered ICE to release certain immigrants from its custody. But not every effort has been successful: detainees in Florida, Georgia, Maryland, Louisiana, and other states have been unable to find relief through the courts. Some of the lawsuits have been dismissed due to lack of jurisdiction; in other cases, judges have instead ordered ICE to submit “detailed” plans showing how they will ensure detainees can practice social distancing. (For a full rundown of the ongoing Covid-19 litigation, we suggest this list compiled by Kim Langona for Crimmigration.)
Although ICE has released around 900 detainees it has identified as being medically vulnerable, those releases account for a tiny fraction of its overall population. The agency has largely been resistant to mass release, citing public safety concerns. On its website, ICE recently began tracking the number of immigrants released from detention after court orders — and listing “the most egregious crimes” those in custody had been charged with or convicted of. (Criminal “charges” don’t necessarily mean someone was convicted of a crime, and ICE detention is not criminal detention in any way.)
Despite ICE’s resistance to releasing immigrants in its custody, there is a growing acknowledgement that the conditions in immigrant detention centers endanger both the immigrants themselves and the surrounding community. Otay Mesa staff sued CoreCivic in late April, claiming the company had failed to take reasonable steps to protect them from the virus and had created a dangerous work environment. Guards at other facilities across the country, including the Stewart Detention Center in Georgia and the Adams County Correctional Center in Mississippi, have tested positive for the virus. Two guards at the Richwood Correctional Center in Louisiana died of the virus, Mother Jones reported in late April. Every positive coronavirus case in Pearsall, Texas was traced to the ICE detention center there.
What’s next?
Unfortunately, this will almost certainly not be the last Covid-19 death in ICE custody. With over 750 confirmed cases — likely an enormous undercount — the probability of more deaths is high, in particular as the virus continues to spread rapidly and organically inside detention centers that already have inefficient health responses.
That’s not to say that indiscriminate mass releases would necessarily prevent deaths if not planned well. In recent memory, the sudden releases of large numbers of migrants from Border Patrol facilities near the southern border without proper coordination with local authorities and assistance groups created a number of hazards in itself, which would be much multiplied in the midst of a pandemic.
The timing of release for individual sick detainees is also important. Release can prevent someone from catching the virus or developing severe symptoms in detention, but once they already require acute medical care, sudden release can be a way to cut off care, a strategy that ProPublica last year found sheriffs around the country employing. Large-scale releases of the sick would need to be coordinated in such a way that they ensured continuity of treatment.
The federal cases seem to be proceeding slowly but surely, and will probably lead to more detainees ordered released in the coming days and weeks. Beyond ordering the release of particular plaintiffs, federal judges have on several occasions now ordered ICE to conduct generalized reviews of immigrants in custody to determine who should be released.
Under the Radar
More than 20,000 migrants “expelled” into Mexico so far
U.S. border officers have turned away more than 20,000 migrants at the southern border since late March, new data show. The “expulsions,” as they’re called, are the result of a March 20 order from the Centers for Disease Control and Prevention that effectively closed the border to all unauthorized migrants, including asylum seekers.
Rather than being told to come back later — i.e., metered — or being processed in the U.S., then sent back to Mexico to await their court hearings, migrants are now being turned away altogether. Per 42 U.S.C. § 264, the CDC can suspend admissions of people who are capable of spreading “infectious disease” in the U.S. The order is set to expire on May 20, but it’s likely it’ll be extended. According to CBS News reporter Camilo Montoya-Galvez, Customs and Border Protection head Mark Morgan cited a growing number of coronavirus cases in Mexico when discussing the order on May 7.
ProPublica obtained an internal Border Patrol guidance instructing officers to turn asylum seekers away unless they affirmatively state they’ll be tortured if they return to their home country. The guidance requires migrants to convince both a Border Patrol agent and the chief patrol agent of the sector they’re in of their fear of persecution. It’s likely that in practice, very few are successful in doing so. Notably, the order applies to unaccompanied migrant children, who have until now been largely exempt from the administration’s punitive border policies.
Justice Department tweaks hiring for Board of Immigration Appeals
The Board of Immigration Appeals, which acts as a sort of appellate court to the system of immigration courts that exists wholly within the Justice Department, has been one of many administrative bodies that the Trump administration has wrestled into an enforcer of its restrictionist immigration goals. The body has seen the appointment of a number of hardline judges, and has issued a number of precedential decisions recently which restrict avenues for relief for people in removal proceedings.
Documents obtained by the American Immigration Council and the American Immigration Lawyers Association and reported by CQ Roll Call’s Tanvi Misra show that the Justice Department relaxed some of its hiring guidelines and favored judges with histories of immigration hawkishness to fill new slots in the BIA. The Department of Justice is also attempting to have a number of judges operate at both the trial and appellate levels, meaning they could potentially be hearing appeals on decisions that they themselves had issued.
Next Destination
Republican Senators ask for more visa restrictions amid pandemic
Senators Ted Cruz, Tom Cotton, Chuck Grassley, and Josh Hawley wrote a letter to President Trump on Thursday asking for additional visa restrictions. They urged the president to “suspend all new guest worker visas for sixty days, and to suspend certain categories of new guest worker visas for at least one year, or until employment has returned to normal levels.”
As we wrote last month, the recent “immigration ban” targeting certain immigrant visas had an economic justification. The administration said the proclamation was necessary to protect American workers from rising unemployment, even though it didn’t reduce the number of non-immigrant employment visas. Because of this, restrictionist groups like the Federation for American Immigration Reform and the Center for Immigration Studies were disappointed with the order — but White House adviser Stephen Miller assured them that it was a first step rather than a standalone measure.
The letter from the senators could trigger subsequent restrictions. “Given the extreme lack of available jobs for American job-seekers as portions of our economy begin to reopen, it defies common sense to admit additional foreign guest workers to compete for such limited employment,” it reads. Exceptions to these restrictions, it says, should be “rare, limited to time-sensitive industries such as agriculture, and issued only on a case-by-case basis when the employer can demonstrate that they have been unable to find Americans to take the jobs.”
Instead of temporary workers, the letter posits, graduating high school and college seniors could be enlisted to work in resorts or landscaping “before those positions are given to imported foreign labor under the H-2B program,” or hired by technology companies in lieu of H-1B workers. The letter also urges the U.S. to suspend the Optional Training Program for international students.
As we wrote last week, subsequent immigration bans would certainly be issued via executive authority. In fact, four sitting legislators — one of whom is the President pro tempore of the Senate — are encouraging the president to make these changes via executive action rather than writing a bill that would do so, presumably because such legislation is unlikely to gain traction.