In the midst of worldwide efforts to mitigate the COVID-19 pandemic, Immigration and Customs Enforcement (ICE) continues to detain noncitizens in dangerous conditions that create a high risk of infection. This Article explores the dire situation facing detained noncitizens as a result of the government’s decision to imprison tens of thousands of people in civil confinement during an unprecedented global pandemic.
The day after Carlos Escobar Mejia died from COVID-19 in Immigration and Customs Enforcement (ICE) custody, guards at the Adelanto Detention Center—located about 160 miles to the north of the facility where Mr. Escobar Mejia contracted the fatal disease—gathered to eat snow cones. As I arrived at the facility to meet with clients, I immediately noticed the snow cone truck: a brightly colored vehicle blasting repetitive singsongy music in the parking lot in front the largest ICE detention center in California, where over 1300 people are currently held in civil confinement. The scene was horrifying in its normalcy; guards stood in line and got Styrofoam cups full of flavored ice while cheerful music reminiscent of childhood summers played in the background. They came into the facility carrying their brimming cups of brightly colored ice, talking cheerfully about what flavor they got while my breath fogged up my googles as I struggled to complete the health questionnaire now required to enter the facility. Though the United States has led the world in COVID-19 cases for months, the health screening questionnaire stills asks whether the person completing it has traveled to China or South Korea in the last two weeks. I checked “no” to the travel questions as guards without masks walked by me in the lobby. It was nearly ninety degrees outside, and I came in the facility in the required PPE including goggles, gloves, and an N95 mask that I had steamed after my last two visits to the detention center. Though attorneys are now required to provide their own PPE in order to see clients, GEO guards are not required to use masks in the detention center even when working directly with detainees.
Studies have shown that the COVID-19 virus is spread through close contact and can live on surfaces for days. Those who are infected can be contagious while showing no symptoms. It is more than ten times deadlier than the flu and is thought to cause permanent damage to internal organs in its survivors. Though it is particularly deadly in the elderly and those with preexisting conditions, people of all ages have lost their lives to the virus. Physicians for Human Rights called the continued detention of noncitizens during the COVID-19 pandemic an “impending public health disaster” for both those in ICE custody and those who reside in communities surrounding detention centers, noting that even “optimistic” models estimate that “72 percent of people in facilities the size of the Adelanto, California ICE facility could be infected with coronavirus within 90 days of an outbreak, quickly overwhelming local hospital capacity.” Amnesty International, Doctors Without Borders/Médecins Sans Frontières USA, Human Rights First, Physicians for Human Rights, Refugees International, and the Women’s Refugee Commission also issued a powerful joint statement calling on ICE to “use their more than ample funding to safely and expeditiously process and parole those in its custody to avoid potential rapid transmission of the virus in the midst of this pandemic” because “public health experts universally agree that limiting detention, not expanding it, is one of the most important steps authorities can take to combat the spread of COVID-19.”
COVID-19 has already caused devasting impacts in ICE facilities throughout the nation. As of August 1, 2020, three noncitizens, Mr. Escobar Mejia, Santiago Baten-Oxlaj, and Onoval Perez-Montufa, have died due COVID-19 related complications while in ICE custody. Oscar Lopez Acosta, a noncitizen who was held in ICE custody during the pandemic despite being at high risk for health complications because of his history of diabetes, died of COVID-19 complications shortly after being released; he was released only a day after being told he had been exposed to COVID-19. In addition, Choung Won Ahn, a seventy-four-year-old noncitizen with preexisting medical conditions, died by suicide after ICE ignored pleas from him and his attorneys to release him for his safety during the pandemic. At Eloy, an ICE facility in Arizona, a guard has died and 127 of the 300 private prison employees working in the facility have been diagnosed with COVID-19. Four other guards at ICE facilities in Louisiana and New Jersey have also died from COVID-19. Yet, despite the increasing death toll, ICE continues to engage in behaviors known to increase the risk of infection among detained noncitizens, including transferring people in custody among their nationwide network of facilities. By late May, only 2781 of the 58,000 detainees who had passed through ICE custody during the COVID-19 pandemic had been tested, and of those tested over 50 percent were found to have COVID-19.
Some courts have begun to acknowledge the danger to both ICE detainees and the general public. In late March, the Central District of California ordered the release of individual detainees at Adelanto, reasoning:
This is an unprecedented time in our nation’s history, filled with uncertainty, fear, and anxiety. But in the time of a crisis, our response to those at particularly high risk must be with compassion and not apathy. The government cannot act with a callous disregard for the safety of our fellow human beings.
The Ninth Circuit also ordered, sua sponte and without further explanation, the release of an immigrant petitioner “[i]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers.” Yet, despite court orders in individual petitions and the urging of medical professionals, ICE has chosen not to engage in any largescale release of noncitizens in its custody and continues to detain even those who are particularly vulnerable, such as the elderly and those with serious medical conditions.
Many attorneys who represent people in detention throughout the country have stopped in-person legal visits with clients because ICE clearly cannot ensure a safe environment during a pandemic, given that it fails to take even the most basic social distancing measures. But the anxiety attorneys experience during legal visits is nothing compared to the terror detained noncitizens face while trapped in an environment that is ideal for the spread of a virus. The over 20,000 people currently in ICE custody cannot socially distance themselves from one another or from facility staff, who are the most likely vectors to introduce COVID-19 into detainee populations. Detainees cannot avoid shared high-touch surfaces like phones, sinks, showers, toilets, and water cooler knobs. They do not have access to hand sanitizer or even hand soap unless they can afford it. In order to earn money to pay for the basic necessities that ICE does not provide, the only option noncitizens in custody have is to work for the facility kitchen, laundry, or cleaning crew for which they earn one dollar a day for work done in close proximity to other detainees. A full day’s work is not enough to buy a bar of soap at detention center commissaries.
By now, the stories in the media are abundant even though the country is not listening. Detained noncitizens have risked their own personal safety to speak out about the pandemic conditions in facilities throughout the country through letters, phone calls, video calls, and organized hunger strikes. They share with us that people are collapsing from illness before being taken to receive medical attention, forced to reside in crowded dormitories where they sleep less than arm’s length apart from one another, and pepper sprayed when they refuse to sign agreements indemnifying private prison companies in the event of their death. At Adelanto, detained noncitizens have told us that they have resorted to cleaning their cells with shampoo because they do not have access to soap or other cleaning products. They have reported that there is no soap in their shared restroom facilities, no hand sanitizer for detainee use, mold growing on dormitory walls, a pattern of unanswered requests for medical attention, and constant fear.
Furthermore, our clients have recounted that throughout the pandemic guards have increasingly utilized oppressive and violent tactics that exacerbate preexisting conditions and create additional health risks for noncitizens in detention. On June 12, 2020, some of the noncitizens detained at Adelanto engaged in a peaceful protest by refusing to return to their cells when a lockdown was called because of a protest outside of the detention center. GEO guards responded armed with pepper-ball rifles, tear gas canisters, and shields. The guards deployed these crowd clearing chemical agents—referred to by ICE as “non-lethal force”—inside a confined space that housed detained noncitizens with health issues including asthma. Four detainees had to be hospitalized as a result of this assault. GEO’s use of tear gas during the COVID-19 pandemic is particularly cruel because the chemical agent has been found to increase susceptibility to viruses, deplete anti-viral defenses, cause injury and inflammation to the lining of airways, and increase the likelihood of respiratory illnesses.
Even before the COVID-19 pandemic, the conditions in facilities run by ICE and Customs and Border Patrol (CBP) were notoriously abysmal. In 2019, an attorney for the U.S. Department of Justice infamously stated before the Ninth Circuit that the administration believes noncitizen children held in immigration custody should not be entitled to soap, toothbrushes, or beds. Our office has documented cases of immigrants being served rotten food, told to drink dirty water, kept in rooms so crowded that there is not even space to lie down, forced to share one toilet with as many as seventy people, made to wear the same clothes for weeks, given only a mylar emergency blanket to keep warm in the winter, and denied access to basic sanitary necessities including soap and towels. ICE is also notorious for denying immigrants in its custody access to medical care even under standard operating conditions. Between October of 2019 and mid-March 2020, at least nine immigrants died in ICE custody under “normal,” nonpandemic conditions. Quarantines routinely occur in detention centers where waves of contagious disease sweep through populations held in overcrowded, unsanitary facilities without access to regular medical care. It is not uncommon for Adelanto to undergo quarantines for measles, mumps, and chickenpox. Several such quarantines occur each year.
The guidance on the need for social distancing and sanitary living conditions is clear; so is the fact that ICE can provide neither to immigrants in its custody. The idea that an agency that does not believe in providing soap, toothbrushes, or beds to immigrants could be tasked with their care during a pandemic must be rejected outright. This moment, however, is also an opportunity for us to examine why we would continue the practice of detaining noncitizens in civil confinement at all. Much like the proverbial frog in boiling water, we have slowly grown accustomed to the rising temperature of militarized immigration enforcement to the point that we have failed to realize that it has become deadly. We have arrived at a point at which noncitizens in civil detention are losing their lives from COVID-19. Yet, there are no signs that ICE intends to release those in its custody, including those who are elderly and medically vulnerable, like Mr. Escobar Mejia, whom ICE continued to detain during the pandemic despite the fact that was he was fifty-seven-years-old and had a history of diabetes, high blood pressure, heart problems, and an amputated foot.
Mass incarceration of noncitizens in civil confinement is a relatively new practice in the United States and provides no discernable benefit to our country to offset its excessive humanitarian and monetary costs. Between 1954 and 1983, there were only about thirty people in immigration detention on any given day. Now, the United States has become the largest detention regime in the world with up to 50,000 people in detention and thousands more effectively considered in “detention” in refugee camps in Mexico. The detention of immigrants does not make our country “safer”; immigrants commit fewer crimes on average than citizens do. Noncitizens in detention have not been ordered detained by a judge and are not serving a “sentence.” Nor is detention necessary for the completion of an immigration case. Recent studies have found that as many as 99 percent of asylum seekers show up for their court hearings, especially when they are represented by counsel. And yet, detaining immigrants has now become a billion-dollar industry in the United States that is entirely funded with taxpayer money, with companies like the GEO Group and CoreCivic holding multimillion-dollar contracts with the federal government solely for the purpose of detaining tens of thousands of noncitizens.
The COVID-19 crisis calls us to look beyond business as usual and ask ourselves which practices are necessary and beneficial to our society, and which are not. Thousands of noncitizens are currently trapped in an unnecessary government-created danger in ICE custody. No political rhetoric, dog whistles, or false narratives about national security will mask the severity of the human rights violations committed by the U.S. Department of Homeland Security during this pandemic. If this administration chooses not to free the immigrants held in our crowded detention centers as a pandemic continues to overtake this country, it will be wholly responsible for their deaths. The COVID-19 pandemic has laid bare several realities that the United States has been reluctant to admit, including systemic racism in our health care system, severe food insecurity in low-income communities, and the exploitation of workers who are essential to our societal wellbeing. But it also has illuminated the dangers and abuses of life for noncitizens in civil confinement. Simply paroling detained noncitizens throughout the duration of this pandemic is not enough; we must abolish immigration detention and build an immigration system that respects the humanity of noncitizens.
. GEO Group (GEO) is a for-profit private prison company contracted by ICE to detain noncitizens in removal proceedings. GEO receives more taxpayer dollars for immigration detention than any other ICE contractor. In Fiscal Year 2017, GEO received $184 million. Detention By the Numbers, Freedom for Immigrants, https://www.freedomforimmigrants.org/detention-statistics [https://perma.cc/W6VY-5LDT] (last visited June 29, 2020). In December of 2019, GEO executed a fifteen-year contract with ICE worth a combined $3.7 billion for Adelanto and Mesa Verde, two detention facilities in California. Rebecca Plevin, ICE Signs Long-Term Contracts Worth Billions for Private Detention Centers, Dodging New State Law, Desert Sun (Dec. 20, 2019), https://www.desertsun.com/story/news/2019/12/20/ice-signs-long-term-contracts-private-detention-centers-two-weeks-ahead-state-law/2713910001/ [https://perma.cc/53DU-SBFP]. This fifteen-year contract was executed about a year after the U.S. Department of Homeland Security’s internal watchdog recommended an investigation into GEO’s mismanagement of Adelanto based on the facility’s history of medical neglect, multiple suicide attempts among detainees, and excessive use of solitary confinement. Joel Rose, DHS Watchdog Finds ‘Significant’ Health and Safety Risks for Immigrants at ICE Center, NPR (Oct. 2, 2018), https://www.npr.org/2018/10/02/653802676/dhs-watchdog-trump-administration-wasnt-ready-for-family-separation [https://perma.cc/4NK5-GJ75].
. Study Suggests New Coronavirus May Remain on Surfaces for Days, Nat’l Insts. Health (Mar. 24, 2020), https://www.nih.gov/news-events/nih-research-matters/study-suggests-new-coronavirus-may-remain-surfaces-days [https://perma.cc/RJM4-B3UZ].
. Bill Chappell, WHO Says COVID-19 Immunity Is an Unknown; Disease ‘10 Times Deadlier’ Than 2009 Flu, NPR (Apr. 13, 2020), https://www.npr.org/sections/coronavirus-live-updates/2020/04/13/833534116/who-says-covid-19-immunity-is-an-unknown-disease-10-times-deadlier-than-2009-flu [https://perma.cc/CX2Q-MGVQ].
. See, e.g., Lauren Coronado, Scientists Uncover Long Term Effects of COVID-19, Virus Attacks Vital Organs, NBC San Diego (July 2, 2020), https://www.nbcsandiego.com/news/local/scientists-uncover-long-term-effects-of-covid-19-virus-attacks-vital-organs/2358577 [https://perma.cc/H62A-SCQM].
. Press Release, Physicians for Hum. Rts., “Impending Public Health Disaster”: Leading U.S. Medical and Constitutional Law Experts File Milestone Amicus Brief to Release Detained Immigrants From ICE Detention Facility (Apr. 29, 2020), https://phr.org/news/impending-public-health-disaster-leading-u-s-medical-and-constitutional-law-experts-file-milestone-amicus-brief-to-release-detained-immigrants-from-ice-detention-facility [https://perma.cc/ AQ8E-DQVC].
. Responding to the Coronavirus Crisis While Protecting Asylum Seekers, Drs. Without Borders (Mar. 20, 2020), https://www.doctorswithoutborders.org/what-we-do/news-stories/story/responding-coronavirus-crisis-while-protecting-asylum-seekers [https://perma.cc/S65Y-NVZZ].
. Thomas J. Rachko, Jr., Second Covid-19 Death in US Immigration Detention, Hum. Rts. Watch (June 4, 2020), https://www.hrw.org/news/2020/06/04/second-covid-19-death-us-immigration-detention [https://perma.cc/LHK5-2MBF]; see also Camilo Montoya-Galvez, Third Immigrant Detained by ICE Dies After Contracting the Coronavirus, CBS News (July 13, 2020), https://www.cbsnews.com/news/third-immigrant-dies-in-ice-custody-after-contracting-the-coronavirus/ [https://perma.cc/KE7G-RGM9].
. Noah Lanard, A Honduran Man Has Died of COVID-19 After Leaving an ICE Jail Plagued By the Virus, Mother Jones (May 14, 2020), https://www.motherjones.com/politics/2020/05/a-honduran-man-has-died-of-covid-19-after-leaving-an-ice-jail-plagued-by-the-virus [https://perma.cc/P388-X8DW].
. Press Release, ACLU S. Cal., Immigrant, 74, Dies By Suicide in Mesa Verde Detention Facility (May 18, 2020), https://www.aclusocal.org/en/press-releases/immigrant-74-dies-suicide-mesa-verde-detention-facility [https://perma.cc/6BKP-EP96] (quoting Priya Patel, Immigrants’ Rights Attorney with Centro Legal de la Raza, the organization that represented Mr. Ahn: “We are devastated and angered by Mr. Ahn’s death. They knew that he was medically vulnerable. They knew that he had a history of mental illness. His life was in their hands.”).
. Julia Ainsley & Jacob Soboroff, Nearly Half the Employees at an Arizona ICE Detention Center Have Tested Positive for COVID-19, NBC News (July 8, 2020), https://www.nbcnews.com/politics/immigration/nearly-half-employees-arizona-ice-detention-center-have-tested-positive-n1233101?utm_source=AILA+Mailing&utm_campaign= c275558c1e-AILA8-07-08-2020&utm_medium=email&utm_term=0_3c0e619096-c275 558c1e-292020753 [https://perma.cc/7LQE-FXSD].
. Noah Lanard, A Fourth Guard at an ICE Detention Center Has Died of COVID-19, Mother Jones (June 10, 2020), https://www.motherjones.com/politics/2020/06/a-fourth-guard-at-an-ice-detention-center-has-died-of-covid-19 [https://perma.cc/3DDQ-WWXF].
. See Lisa Riordan Seville & Hannah Rappleye, ICE Keeps Transferring Detainees Around the Country, Leading to COVID-19 Outbreaks, NBC News (May 31, 2020), https://www.nbcnews.com/politics/immigration/ice-keeps-transferring-detainees-around-country-leading-covid-19-outbreaks-n1212856 [https://perma.cc/UH7T-H2QR].
. See Nina Siulc, Vera’s New Prevalence Model Suggests COVID-19 Is Spreading Through ICE Detention at Much Higher Rates Than Publicized, Vera Inst. Just. (June 4, 2020), https://www.vera.org/blog/covid-19-1/veras-new-prevalence-model-suggests-covid-19-is-spreading-through-ice-detention-at-much-higher-rates-than-publicized [https://perma.cc/3BFX-WYR4].
. Castillo v. Barr, No. CV 20-00605 TJH, 2020 WL 1502864, at *6 (C.D. Cal. Mar. 27, 2020); see also Hernandez v. Wolf, No. 5:20-cv-00617-TJH-KS, slip op. at 13–14 (C.D. Cal. Apr. 1, 2020).
. Xochihua-Jaimes v. Barr, 962 F.3d 1065, 1066 (9th Cir. 2020).
. As of August 1, 2020, ICE reports that it is detaining 21,546 people. Detention Management, U.S. Immigr. & Customs Enf’t (Aug. 1, 2020), https://www.ice.gov/detention-management [https://perma.cc/S5CU-JXAE] (follow the “Detention Statistics” hyperlink; then select “Currently Detained Population by Arresting Agency”). This number is substantially lower than ICE’s pre-pandemic numbers because the U.S. Department of Homeland Security has engaged in the immediate expulsion of noncitizens who arrived at the Southern Border of the U.S. after March 20, 2020, when a regulation promulgated by the Centers for Disease Control (“CDC”) effectively closed the border to asylum seekers. See 42 U.S.C. § 265; Foreign Quarantine, 85 Fed. Reg. 16,559 (Mar. 20, 2020) (to be codified at 42 C.F.R. pt. 71). Since the regulation took effect, the U.S. Department of Homeland security has engaged in the mass expulsion of refugees without any due process. By early May, over 20,000 noncitizens had been denied access to the U.S. asylum system and expelled without the chance to present their cases. Camilo Montoya-Galvez, 20,000 Migrants Have Been Expelled Along Border Under Coronavirus Directive, CBS News (May 7, 2020), https://www.cbsnews.com/news/coronavirus-20000-migrants-expelled-border-cdc-order/ [https://perma.cc/N5RP-TNSW]. This mass expulsion of refugees has created a decrease in ICE’s detained noncitizen population. About one year ago, ICE’s population was 55,185. See Isabela Dias, ICE Is Detaining More People Than Ever—And for Longer, Pac. Standard (Aug. 1, 2019), https://psmag.com/news/ice-is-detaining-more-people-than-ever-and-for-longer [https://perma.cc/7K68-52V4]. The population of detained noncitizens has fluctuated throughout the pandemic. According to a report by Vera, by late May 58,000 people had passed through ICE detention since the start of the COVID pandemic. Nina Siulc, Vera’s New Prevalence Model Suggests COVID-19 Is Spreading Through ICE Detention at Much Higher Rates Than Publicized, Vera Inst. Just. (June 4, 2020), https://www.vera.org/blog/covid-19-1/veras-new-prevalence-model-suggests-covid-19-is-spreading-through-ice-detention-at-much-higher-rates-than-publicized [https://perma.cc/69AJ-BNLE].
. See, e.g., Joe Atmonavage, ICE Detainees Go on Hunger Strike in N.J Amid Coronavirus Fears, Lawyers Say, NJ.com (Mar. 19, 2020), https://www.nj.com/coronavirus/2020/03/we-would-rather-die-on-the-outside-than-in-here-ice-detainees-go-on-hunger-strike-in-nj-amid-coronavirus-fears-lawyers-say.html [https://perma.cc/94YG-SRF9]; Andrea Castillo, Advocates Say Hundreds of Immigrants Detained in California Are on Hunger Strike. ICE Says Only Two, L.A. Times (Apr. 19, 2020), https://www.latimes.com/california/story/2020-04-19/advocates-say-hundreds-of-immigrants-detained-in-california-are-on-hunger-strike-ice-says-just-two-are [https://perma.cc/6BH8-KLX6
. See Kate Morrissey, Detainees at Otay Mesa Detention Center Were Offered Masks, But Only if They Signed Contracts, San Diego Union-Trib. (Apr. 10, 2020), https://www.sandiegouniontribune.com/news/immigration/story/2020-04-10/otay-mesa-detention-center-gets-masks-but-asks-detainees-to-sign-contract-first [https://perma.cc/FS6S-R6V6].
. Gabriel Thompson, Immigrant Detainees Accuse Guards of Chemical Attacks, Cap. & Main (June 25, 2020), https://capitalandmain.com/immigrant-detainees-accuse-guards-of-chemical-attacks-0625 [https://perma.cc/5PZM-J6QD].
. Id. Mohammed Alsayed Ali Abdelsalam, a thirty-two-year-old noncitizen who suffers from asthma, struggled to breathe throughout the GEO attack and ultimately lost consciousness after he was hit in the head with a projectile. Id. Other detainees recounted witnessing him lying unconscious on the floor. Id. Davit Ghahramanyan, another detainee, recalled “his face and back burning” from the pepper-ball rounds. Id.
. See Will Stone, Tear-Gassing Protesters During an Infectious Outbreak Called ‘A Recipe for Disaster’, NPR (June 5, 2020), https://www.npr.org/sections/health-shots/2020/06/ 05/870144402/tear-gassing-protesters-during-an-infectious-outbreak-called-a-recipe-for-disast [https://perma.cc/ES97-Z3TP].
. See Trump Administration Says Detained Children Not Entitled to Soap, Toothbrushes & Beds, Democracy Now! (June 21, 2019), https://www.democracynow.org/2019/6/21/headlines/trump_administration_says_detained_children_not_entitled_to_soap_toothbrushes_beds [https://perma.cc/MH7P-ZHYD].
. Hamed Aleaziz, An Immigrant Has Killed Himself in an ICE Family Detention Facility, BuzzFeed News (Mar. 19, 2020), https://www.buzzfeednews.com/article/hamedaleaziz/immigrant-man-suicide-ice-detention [https://perma.cc/5Q5D-BBW3].
. Sam Levin, He Lived in the US for 40 Years. Then He Became the First to Die From Covid-19 in Immigration Jail, Guardian (May 12, 2020), https://www.theguardian.com/us-news/2020/may/12/first-ice-detainee-dies-coronavirus-immigration-carlos-ernesto-escobar-mejia [https://perma.cc/6MNG-45RM].
. Detention By the Numbers, supra note 1.
. Christopher Ingraham, Two Charts Demolish the Notion That Immigrants Here Illegally Commit More Crime, Wash. Post (June 19, 2018), https://www.washingtonpost.com/ news/wonk/wp/2018/06/19/two-charts-demolish-the-notion-that-immigrants-here-illegally-commit-more-crime [https://perma.cc/S3MR-2ED5].
. See, e.g., Nicole Narea, Trump Says Most Asylum Seekers Don’t Show Up for Their Court Hearings. A New Study Says 99% Do., Vox (Jan. 10, 2020), https://www.vox.com/ 2020/1/10/21059924/trump-asylum-seekers-show-up-court-hearing [https://perma.cc/346F-V7XJ].Vol68-Kurichety