The pandemic shows that now is the time to end immigration detention
Immigration detention is rarely justified and now poses a greater risk to the public given the spread of COVID-19 in ICE facilities.
The director of the American Friends Services Committee in San Diego, Pedro Ríos, speaks during a press conference outside the Otay Mesa detention center in San Diego, California. The Otay Mesa detention center was the site of the first big outbreak at U.S. Immigration and Customs Enforcement’s 221 detention centers. EFE / Manuel Ocaño
In its first report on confirmed cases of COVID-19 in correctional and detention facilities in the United States, the Centers for Disease Control and Prevention (CDC) documented horrifying numbers: 4,893 cases among detained or imprisoned persons, and 2,778 cases among staff members, with a total of 103 deaths in both categories as of that date.
But these numbers do not even reflect actual totals, as only 69% of jurisdictions nationwide reported, actual testing practices are not universal, and not all jurisdictions provided information from private prisons and immigration detention facilities. Information obtained from Immigration and Customs Enforcement (ICE) shows over 3,596 confirmed cases among immigrant detainees and 153 ICE employees in the over 200 ICE jails and detention centers by July, 2020—but only about 10% of the detained immigrant population has been tested.
The United States incarcerates about 2.3 million people, more than any other industrialized country in the world, with approximately 50,000-500,000 people in immigration detention each year—the majority simply awaiting immigration hearings. Because the justifications for this detention are weak on health, legal and moral grounds, it is imperative to put an end to immigration detention once and for all.
ICE has long been subject to severe criticism from legal and medical professionals, and the Department of Homeland Security, for its failure to provide adequate healthcare to detainees. ICE has also been charged in a range of lawsuits with civil rights violations of immigrants in detention. Due to systemic disregard for proper medical care, 207 immigrants have died in ICE custody since 2003, and in 2020 alone,10 people have died in ICE detention facilities. The CDC and state health services have documented outbreaks of multiple contagious diseases that ICE neither prevented nor adequately treated. Thousands of medical professionals have issued predictions that COVID-19 will spread throughout detention centers and jails if conditions do not change.
Of the reported cases nationwide, just less than 1 in 6 are in Texas facilities, the majority of which are run by private for-profit prison corporations. The largest, including the GEO Group and Immigration Centers of America, are making millions from the federal government, and lobby heavily to keep their facilities funded (GEO spent over $1.5 million on lobbying in 2019 alone).
ICE detention centers have operated at triple and quadruple capacity, with detainees forced to sleep in open rooms with bunk beds packed together, making social distancing utterly impossible. Detained immigrants and asylum-seekers have complained that they have not been provided with masks, gloves, sanitizers, or even hot water so they can prevent virus spread. Immigrant child detainees are at much greater risk than adults, and by March, more than fifty immigrant children and over a dozen staff members working in children’s detention centers tested positive for the virus.
Americans concerned about ending the virus spread need to be demanding an end to immigration detention as so many other countries are now doing.
In the absence of a rational federal policy to release all detainees who are not criminals or pose no danger to the public, the only way to address the pandemic among immigrant detainees is through individual or consolidated lawsuits. Litigation has included class actions, demanding release of all or high-risk individuals in particular detention facilities; groups of children and parents; or classes of vulnerable individuals such as the ones in Florida, Washington, DC, California and Texas. (A chart collating COVID-19-related detention litigation can be found here). In one of the most significant recent decisions, Judge Dolly Gee ordered the release of over 100 children and parents held in three ICE detention centers in Texas and Pennsylvania, claiming that the facilities “are ‘on fire’” due to the spread of the virus.
The vast majority of immigrant detainees are not criminals, but increasingly harsh policies since the 1990s have criminalized civil immigration violations. The corresponding rise in immigration detention can be tracked over the last two decades: from approximately 105,000 in 1990 to approximately 500,000 in 2019. Yet, empirical studies have shown that the overwhelming majority of immigrants who file claims against deportation appear at their hearings upon release.
The case for detaining immigrant children is even weaker or completely unjustified, and woefully out of step with the global consensus. This was starkly evident during the negotiations over the New York Declaration and the Global Compacts for Refugees and Migrants. The position of the overwhelming majority of states was for language in the Declaration—and in the Global Compacts—that detention of children should be prohibited. The US Administration insisted that the language should be changed to “detention for the purposes of determining migration status is seldom, if ever, in the best interest of the child,” and succeeded in including the weaker language in the Declaration. That is particularly ironic considering that following the voting on the Declaration, the US pulled out of both Global Compacts, joining only Hungary in voting against the Compact on Refugees.
Experts around the world have called on all states to end immigration detention, as it now poses a greater risk to the public given the spread of the virus. The UN has stepped up the pressure to conform more closely to the letter and spirit of the Global Compact for Migration, to which the vast majority of countries have committed themselves. The UN Network on Migration’s Working Group on Alternatives to Immigration Detention has developed policy guidelines for states to use immigration detention as only a last resort. The most relevant demands the UN is making of states is to stop all new detentions of migrants, introduce a moratorium on immigration detention, and to release all detained migrants in favor of community-based, non-custodial alternatives.
The case for detaining immigrant children is even weaker or completely unjustified, and woefully out of step with the global consensus.
The US can and should follow the best practices many countries have now instituted. Spain, for example, has committed to ending immigration detention and most of its immigration detention centers are now empty. Spain is housing new arrivals in community-based facilities with access to local health and social services. Norway has also been releasing immigrants from detention in favor of community housing and monitoring. In Zambia, the Ministry of Home Affairs has ordered the release of all individuals in immigration detention. A number of countries have also announced no-arrest policies for persons who need virus testing or health care, while others have committed to full access to health care for all, including migrants and undocumented persons. Portugal is the first country to offer health care to all non-citizens, regardless of status, during the pandemic.
As in the US, in some countries, courts have taken the lead in ordering releases from detention. In the UK, courts have ordered the release of hundreds of migrants, are requiring individual justification for additional detentions, and are ordering an end to detaining persons pending deportation. Mexican courts, too, have ordered the government to release all vulnerable migrants at risk of the virus and to transfer all unaccompanied minors from detention to community-based shelters.
However, litigating the right to release is costly, time-consuming, not assured of success, and fails to address the systemic issues that affect all detainees. Americans concerned about ending the virus spread need to be demanding an end to immigration detention as so many other countries are now doing. Indeed, the demand is growing amongst communities affected by the massive detention policies around the country. They can build on the international “best practices” of other countries, and the UN policy guidelines that highlight the urgent need to end mass detention and illustrate sensible alternatives being implemented elsewhere.
There is no legal or moral case to detain the vast majority of immigrant adults, let alone immigrant children. Ongoing immigration detention is an unreasonable risk not only to immigrants, but to the health of all of us.
Susan M. Akram is a Clinical Professor at the Boston University School of Law.