Executive Director
Center for Migration Studies
https://cmsny.org/publications/immigrant-detention-covid/
This essay was last updated on May 2.
In late March, I argued in an earlier version of this paper that the US Department of Homeland Security (DHS) should immediately embark on an aggressive program of release, supervised release and alternative-to-detention (ATD) programs for immigrant detainees in response to the Coronavirus Disease 2019 (COVID-19) pandemic.[1] Since that time, the number of immigrants in Immigration and Customs Enforcement (ICE) detention has fallen by nearly 8,400, but not nearly as fast or dramatically as necessary, given the perilous conditions in which nearly 30,000 immigrant detainees remain and how rapidly the virus has swept through immigrant detention facilities throughout the country and beyond.
The Size of the Crisis
On March 17, Immigration and Customs Enforcement (ICE) reported that there were no “confirmed” cases of COVID-19 in its detention centers, a meaningless claim given the paucity of testing and the certainty of “unconfirmed” cases, as affirmed by ensuing lawsuits.[2] A month later, ICE reported 124 confirmed cases. Six weeks later, as of May 1, this number had more than quadrupled to 522 cases in 34 facilities, as well as 39 confirmed cases among ICE employees in those facilities (ICE 2020b).[3]
Yet ICE’s figures point to only the tip of the iceberg. By mid-April, ICE had tested only 300-400 detainees for COVID-19 infection (Misra 2020). By May 1, it had tested 1,073 detainees, a very low percentage of those in its custody during the course of the pandemic (ICE 2020b). Moreover, ICE figures do not count former detainees who contracted COVID-19 in its custody,[4] a large number of whom were deported prior to being tested (Dickerson and Semple 2020). Nor do they count the infected staff of ICE contractors, including employees of the private corporations that own and operate its largest detention centers and that administer many state and local ICE contract facilities.[5] On April 2, for example, ICE reported no confirmed cases of infected detainees, but one suspected case, at the massive Stewart Detention Center in Lumpkin, Georgia (Stewart). CoreCivic, one of ICE’s largest private detention contractors, operates Stewart.[6] By April 10, ICE “knew of” 30 suspected and five confirmed cases at Stewart.[7] As of April 28, 42 CoreCivic employees and one ICE employee at Stewart had tested positive for COVID-19 (Stokes 2020). 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).
ICE has confirmed that “a number of non-ICE employees (contractors) in facilities that hold ICE detainees have contracted COVID-19, and some of them died from COVID-19” (Tanvi 2020). However, it has been “unable to determine how many non-ICE personnel in state and local jails have contracted COVID-19 or died from COVID-19” (ibid.). Finally, it reports 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.).
As of March 21, 38,058 immigrants were in ICE custody. By April 25, this number had dropped to 29,675 including 15,855 persons apprehended by ICE and Homeland Security Investigations, and 13,820 referred by Customs and Border Protection (CBP) (ICE 2020a). 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).
As of April 25, ICE still unconscionably held 5,261 persons who had established “persecution” and “torture” claims, and who should not be detained in any circumstances, much less the present. It also continues to detain persons approved for release. In a particularly disturbing report, detainees in New York cannot post bond because of the closure of ICE’s New York City office (Katz 2020). Finally, it continues to detain families and minors. 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.[8]
On March 28, a federal district judge issued a temporary restraining order that required the administration to “make and record continuous efforts” to release the more than 5,000 minors in ICE family detention facilities and Office of Refugee Resettlement (ORR) shelter-like facilities for unaccompanied minors.[9] 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 continue “to make every effort to promptly and safely release” children with “suitable custodians.”[10]
ICE Policies and Procedures
ICE can decrease its detention population in two main ways, by admitting fewer immigrants into its system and by more generous and, in the circumstances, appropriate release standards. It has failed to move decisively enough in either direction.
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Read Don’s complete article at the link.
Thanks Don!
In this regime, the Gulag is all about using the “facade” of euphemistically-named “civil immigration detention” as a way of punishing those who have the audacity to assert their legal rights, to limit their Fifth Amendment and statutory rights to counsel, to inhibit their ability to understand the applicable legal criteria and prepare their cases, to coerce them into abandoning claims for relief and waiving appeals, and to send “deterrent messages” to others.
What it doesn’t have much connection with these days is insuring appearance and protecting the public. Relatively few detained individuals have criminal records that present a realistic threat. Also, all reputable studies show that when individuals are represented by counsel, community alternatives to detention are used, and individuals actually understand the requirements, the appearance rate for those with asylum or other claims for relief approach 100%.
So, the Gulag is largely an expensive and dangerous fraud. That’s not to say that other Administrations haven’t misused detention of non-criminals. It been more or less increasing over the past four decades — ever since the Mariel Boatlift. But, this regime has gone “above and beyond” in the intentionally cruel, unnecessary, and coercive expansion and abuse of the Gulag.
The BIA has abandoned any attempt to bring integrity and uniformity to the bond system. Instead, they have adopted a “screw the individual, kiss up to Barr, Miller, & the White Nationalist politicos who run this dysfunctional system.”
The response from the Article IIIs has been mixed.
Hopefully, the extensive U.S. District Court detention litigation across the country will finally “open the eyes” of the Article III Judiciary to the callous disregard of human life and welfare and the abusive, racially driven, punitive intent fueling the regime’s “Gulag expansion.”
PWS
05-03-20