Marcio Jose Sanchez/AP Photo
Protesters drive past the Edward R. Roybal Federal Building, March 31, 2020, in Los Angeles, as part of a car-based protest to demand the release of immigrants in California detention centers.
Across the United States, activists are calling on states and municipalities to reduce prison and jail populations to stop the spread of COVID-19. That extends to the large numbers of immigrants detained by Immigration and Customs Enforcement (ICE). Last week, a Mexican national detained in New Jersey became the first ICE detainee to test positive for the novel coronavirus.
A man whom the U.S. deported to Guatemala tested positive for COVID-19, indicating that he contracted the virus while in the United States. The chartered flight back to Guatemala had 140 on board and originated in Mesa, Arizona. ProPublica reported that ICE detainees are still being flown around the country, exposing them to the virus and potentially increasing its spread.
Detainees at Adelanto in California and Pine Prairie in Louisiana fear suspected cases of coronavirus inside detention centers, with parts of the facilities already under quarantine. The Adelanto quarantine was later confirmed by The Nation. ICE spokesperson Bryan Cox told the Prospect in an email that there are no confirmed cases in Pine Prairie, despite detainees’ increasing worries.
The growing likelihood of community spread inside detention centers, and ICE’s continued detention center practices that increase the risk of infections, spurred the American Civil Liberties Union to act. Over the last three weeks, the ACLU has filed half a dozen lawsuits around the country asking federal courts to rule that ICE can no longer hold immigration detainees in such unsafe conditions. The Prospect spoke with Eunice Hyunhye Cho, senior staff attorney at the ACLU National Prison Project, on Monday to learn about the ACLU’s legal strategy, what’s at stake for immigrants, and how activists can put pressure on local governments.
This interview has been edited for clarity and brevity.
The American Prospect: I understand that the ACLU has filed five or six cases around the country against ICE for the release of people in detention. Can you walk me through these lawsuits?
Eunice Cho: Sure. We have filed six cases as of [Monday] around the country. That includes cases in Washington, Maryland, Pennsylvania, Massachusetts, and we actually filed in New Jersey just an hour ago. And in Southern California later today. We have a number of other cases on the way, too. We’re bringing lawsuits on behalf of people who are at risk of contracting serious illness or death as a result of infection by COVID-19. The novel coronavirus has no vaccine. There’s no cure, there’s no treatment. The only way to avoid getting sick is to practice social distancing and hygiene in the same way we are. The risks of COVID-19 for particularly vulnerable individuals show that the death rate is incredibly high. One out of seven people who are in these high-risk categories have died as a result of COVID-19. So the risk is incredibly imminent to people in immigration detention.
TAP: Is that why the ACLU began its legal strategy by filing first on behalf of people who are in these high-risk categories and then moving toward a broader release strategy?
Cho: I think what our public-health experts really expressed was that immigration detention facilities pose a unique risk to people’s health, not just for those in detention, but also the people who work in the detention center and in the community surrounding an immigration detention center. Not to mention that the public-health impact is greatest with respect to people who are at serious risk of illness and death—like immigrant detainees. Not only because they themselves are at high risk but because if they get sick, they will require more intensive treatment, with an impact on the local health care infrastructure.
Picture what happened with the cruise ships and picture what happened in nursing homes where it was like a bomb exploded. The infection was so rapid in such an enclosed environment with people who are especially vulnerable, and it led to a spike in terms of people who got seriously ill and needed especially intensive treatment in intensive care units with ventilators and that sort of thing. Picture that happening in an immigration detention center where it would be virtually the same thing.
TAP: ICE and some detention facilities have taken basic and limited steps to stop and prevent the spread of the virus inside facilities. What effect, if any, will measures like this have?
Cho: As our medical experts have pointed out, ICE’s own protocols around controlling the spread of COVID-19 actually exacerbate the problem. For example, ICE only tests based on travel contacts instead of community spread. So at this point that is no longer a useful standard to measure whether or not somebody has had exposure to COVID-19. The ICE protocols don’t follow the CDC guidelines for long-term care facilities. They don’t ensure things like access to hand sanitizer or masks for people. They don’t provide any guidance on how to deal with surge capacity. They don’t have any guidance on when to test detained people. And there’s very little public information as to how ICE leadership is going to disseminate criteria for testing and it does not appear that epidemiologists are working with ICE. There’s no criteria for hospital transfer and ICE says that they will use isolation rooms, but there’s not enough isolation rooms to handle this situation in an immigration detention facility.
ICE has also said publicly in its court filings that they would transfer people between facilities in order to try to control the spread of COVID-19. But it doesn’t take a rocket scientist or public-health expert to understand the threat in transferring people from facility to facility. You’re spreading the risks further. As every single public-health expert we’ve talked to has said, the only thing that ICE should be doing at this point is releasing people and making sure that people who are at the highest risk of death are not exposed to COVID-19 and that for people left in detention there are actually fewer people so that they can actually practice social distancing.
We’re hearing reports from detention centers around the country of people who are going on hunger strike because they’re afraid of COVID-19, people asking for basic things like soap and hand sanitizer and rather than being given those basic necessities they are instead being teargassed and put into segregation for disciplinary issues. This is not how ICE should be dealing with a public-health crisis. It really raises questions about if ICE can deal with this crisis and I think it’s clear that they can’t.
TAP: Advocates across the nation have been calling for people to be released from ICE detention and from jails. Does ICE have the authority to release people in its custody administratively or do they always have to go before a judge?
Cho: ICE has complete discretion to decide whether or not they hold someone in custody. This has been true since the beginning of ICE. In fact, every single administration up to the Trump administration, which rescinded prior guidelines, has had guidelines that discuss releasing people from custody for medical vulnerability. ICE has the discretion; they do not have to go before a judge. They’re deciding not to [release people] and that’s why we’re going to court to try to get the federal court to order that people be released.
TAP: What authority do states and localities have to compel the release of civil immigration detainees? So, for example, Ohio’s governor has used emergency executive powers to effectively postpone the election date. What I’ve heard advocates say is, why can’t the governor apply that power to ICE detainees held in state and county facilities?
Cho: The issue is a little bit of a complex interplay between federal and state law—the way that the immigration detention system is set up. There are several ways ICE has built its detention infrastructure over the last 30 years—through contracts directly with private-prison companies but also, a large majority of the facilities that ICE is contracted with are on the basis of what’s called an intergovernmental service agreement. This is when ICE actually contracts with a local state, county, or city to use bed space in local jails or prisons. Because people are still under federal custody, the state government does not have the final call about whether or not someone is released from custody or not. What the state government or locality may have the power to do—and this has happened in some cases—is say, “We cannot accept ICE detainees at this point due to the public-health crisis that is ongoing due to COVID-19.” There have been facilities in Illinois that have refused to allow ICE detainees and ICE has had to move detainees out of those facilities. To the extent that a large number of state contractors with ICE decide that they cannot hold people in detention given this public-health crisis, that may force ICE’s hand with respect to available bed space.
TAP: So would you say that local municipalities exercising their discretion about whether or not they will take ICE detainees could be part of a successful strategy to limit the number of people in detention?
Cho: I think that’s a possibility. I have not put much thought or energy into it just because I’ve been focusing on the litigation.
TAP: What legal liability does ICE have if detainees in their care get sick and/or die while in ICE detention?
Cho: I think that’s a very important question. Certainly, ICE at this point cannot and could never really demonstrate that they are not aware of the serious risks that COVID-19 poses to people in their custody in immigration detention. There have been too many lawsuits and too many whistleblowers within the agency that have raised the fact that ICE should and could very easily release people who are at risk of very serious illness or death as a result of COVID-19. Unfortunately, this administration has presided over a record rate of deaths, even before COVID-19, in immigration detention. There have been several lawsuits filed on behalf of family members who died in immigration detention as a result of lack of medical care and the dangers that are posed by ICE treatment of people that are in custody. To the extent that ICE is clearly aware of the danger that COVID-19 poses to people and clearly aware of the harm that it can cause detainees and the fact that the steps it’s taking are clearly inadequate to protect people who are in their custody, ICE could very well be liable for injury and death that happen as a result of COVID-19. What we’re hoping to do is actually avoid that tragic situation in the first place and encourage ICE to do the right thing and to release people from custody.
TAP: Is there similar liability for states that have contracted with ICE or is the liability still with ICE?
Cho: I think it depends on how it breaks down but there is absolutely a chance for liability at the state level.
TAP: As we’ve seen on Rikers Island, there’s this staggering exponential growth of cases in a facility like that. If it’s already evident that the virus is spreading, how does it help to release people into the community where they may infect others? Especially if they don’t have a place to quarantine? How do you address that?
Cho: This is a question that we discussed at length with our public-health experts: What do you do in a situation where there is known COVID-19 exposure? The important thing is what, from a public-health standpoint, you want to do is prevent the situation from worsening. Because every day that people spend in that congregant environment the more likely it is that everyone will get sick. To stop the transmission in that congregant environment, you have to put people in places where they’re practicing social distancing so that the people that are sick can (1) get treated and (2) stop infecting other people. And the people who are not infected can avoid the risk of getting infected. That is virtually impossible to do in a setting like a jail, a nursing home, or cruise ship. What the recommendation has been is to do what had been done for people on the cruise ships, which is to place people in a setting whether it’s with their families, with sponsors who have already volunteered to take people in, to take folks in and commit to going into the social-distancing, kind of quarantine-like practices for 14 days or however long the local public-health agency recommends so that the risk both for exposure and to spread can be controlled.
It may very well be impossible for everyone in the detention center to do that, but we can’t let the perfect be the enemy of the good. We need to be able to be flexible and allow people to exercise creative solutions to be able to do that. That is much easier to do once you’re out of the detention setting rather than inside the detention setting.
TAP: What is the timeline for the lawsuits that the ACLU has filed? And what is the plan for future lawsuits?
Cho: Well, we filed this because the government’s position was that it does not have the authority to detain people if there’s a court order ordering their release. That was actually the line in the press release that made me think we should start filing these lawsuits. Our goal is to clarify and make very clear by court order that it is unconstitutional for the government to hold people given the imminent risk of harm that is posed to people by COVID-19 held in these environments.
There’s ample case law that establishes that exposure and risk from this kind of serious communicable disease actually constitutes punishment that is unconstitutional. It violates the Eighth Amendment’s bar on cruel and unusual punishment—and remember these are immigrant detainees who are being held in civil detention and are actually held to a higher standard. Several courts around the country have already recognized this and what we need is to have more courts holding ICE accountable in different detention centers and forcing ICE to recognize that it is much better to release people at this point and they should not be engaging in this type of unconstitutional activity.
