Federal Immigration Officials Must Take Immediate Action To Prevent Further Coronavirus Outbreaks at Detention Facilities

Inmates sit on their beds in a privately run 1,000 bed detention center, February 2006, in Otay Mesa, California.

As the vast majority of the nation continues to practice social distancing measures to reduce community spread of COVID-19, millions of incarcerated people in prisons, jails, and immigration detention centers across the country have been left increasingly vulnerable. Interim guidance issued by the Centers for Disease Control and Prevention (CDC) regarding the management of the novel coronavirus makes clear that while there are countless opportunities for the virus to be introduced in a correctional or detention facility, there are few ways to prevent its spread. Facilities frequently fail to provide necessary personal hygiene and sanitation options, and both the number of people detained and the correctional setting make social distancing and medical isolation all but impossible.

While some state and local jurisdictions have taken smart and safe measures to decrease their detained populations to reduce the risk of an outbreak, U.S. Immigration and Customs Enforcement (ICE) officials have failed to implement adequate measures to mitigate the spread of COVID-19. By adopting policies at a glacial pace and releasing detainees in a seemingly ad hoc manner, ICE continues to place detained people, facility staff, and the communities in which detention facilities sit at heightened and unnecessary risk of contracting the virus. In recent weeks, it has also become clear that by deporting people infected with the virus to Guatemala, Mexico, and Haiti—countries that are woefully unprepared to handle the introduction of additional coronavirus cases—ICE’s recklessness is jeopardizing the health and stability of countries in the Western Hemisphere and beyond. The agency’s refusal to put life and safety first is threatening the hard-fought progress that the nation—and the world—is making in the fight to contain COVID-19.

Last month, the Center for American Progress recommended that federal immigration officials implement a series of policies to prevent the spread of COVID-19 in detention facilities and their surrounding communities. Policies included focusing civil immigration enforcement and detention exclusively on significant threats to public safety, releasing vulnerable and low-risk detainees from custody, and issuing a formal public statement suspending immigration enforcement at or near health care facilities. At the time, not a single immigration detainee had yet tested positive for the virus. Since then, Department of Homeland Security (DHS) and ICE officials have not taken the necessary measures to fully implement and commit to CAP’s recommendations. As the number of detained people and facility staff infected with the virus continues to rise—and following the coronavirus-related deaths of two guards at an ICE facility in Louisiana—a forthcoming study that will be published in the Journal of Urban Health estimates that without significant public health interventions, 72 percent to nearly 100 percent of individuals in immigration detention are expected to be infected within a 90-day period, placing incredible strain on nearby hospitals and intensive care units. As the nationwide fight against COVID-19 has made clear, quick and early action is critical to contain the spread of the virus, and no one, including ICE, is exempt from that.

Current ICE practices are falling short

As of April 30, ICE reports 490 positive cases of COVID-19 among its detainee population, as well as 36 positive cases among ICE employees at detention facilities. Both of these numbers are deceptively low.

As an initial matter, ICE has tested a vanishingly small number of individuals in its facilities—just 1,030 detained people as of April 30—meaning that it has a dangerously high test-positivity rate of nearly 48 percent. As nearly 30,000 individuals remain in detention today, that means that ICE has tested less than 3.5 percent of the people in its custody. Because ICE cannot report positive cases of which it remains willfully ignorant, the paucity of tests is likely a major factor in the relatively small number of positive test results. Moreover, ICE appears to be underreporting even the number of positive cases of which it is aware. In March, ICE justified its failure to disclose that a person held at the Krome detention center had tested positive based on the fact that the person had been transferred to the hospital at the time that the test was performed. More recently, while ICE reports that only three detainees at New Jersey’s Essex County Correctional Facility have tested positive for the virus, the county recently began using in the jail an approved blood test to detect coronavirus antibodies; as of April 20, the county had tested 115 ICE detainees and had identified 89 who were positive for COVID-19 or had developed immunity based on previous exposure, perhaps during their period of detention. None of these data are incorporated into ICE’s own public disclosures, and ICE has ordered the county to no longer publicly disclose these results.

The agency’s official count of facility personnel who have tested positive for the virus also fails to include individuals who work inside facilities run by third-party contractors in roles such as security guards, doctors, nurses, and janitorial staff. Although ICE officials have stated that information about infections of contractor staff must come from contracting companies themselves, a federal court recently ordered the agency to disclose the number of contract personnel who had tested positive at three South Florida detention centers. Currently, more than 81 percent of people held in immigration detention are housed in facilities run by private contractors such as CoreCivic and the GEO Group. With contract employees at these facilities not included in official reporting, ICE is failing to recognize an entire segment of the population that is known to be carrying COVID-19 into detention facilities and back out into surrounding communities; the widow of one of the guards who recently died says she contracted the virus from her husband and that several relatives are exhibiting symptoms.

The agency’s failure to respond in an effective and transparent way to the coronavirus outbreak is consistent with its long history of underreporting medical emergencies and failing to comply with medical standards. In order to have an accurate understanding of COVID-19 community spread across detention facilities, ICE must include all privately contracted staff, as well as detainees who have been transported to medical centers, in its official reporting.

Outbreaks of COVID-19 in ICE facilities across the country

The rapid spread of COVID-19 across detention facilities nationwide has resulted in significant outbreaks that place detainees, staff, and surrounding communities at imminent risk:

The proliferation of confirmed coronavirus infections at detention facilities around the country comes as no surprise. Not only was this result foretold more than two months ago, but prisons and jails around the country are also experiencing an explosive growth in such cases. According to multiple reports, when immigration detainees are exposed to a detainee who subsequently tests positive for the coronavirus, ICE confines the exposed people in a single housing unit for a period of two weeks, a process called “cohorting.” According to CDC guidance, cohorting is “the practice of isolating multiple laboratory-confirmed COVID-19 cases together as a group, or quarantining close contacts of a particular case together as a group.” Put simply, detainees who are known to have encountered COVID-19 are confined together for weeks, only increasing the likelihood that they too contract the disease. CDC guidelines warn against the use of cohorting in detention facilities and prisons, describing it as appropriate only “if there are no other available options” and only if additional precautions are taken to limit the risk of spread within the cohorted population. Given ICE’s long history of overcrowding, poor sanitation, and failure to provide necessary medical care, cohorting practices go against all recommendations in mitigating the spread of COVID-19 and simply make a bad problem worse.

In response to increasing pressure to reduce detention facility populations to preserve public health and safety, ICE has taken a number of half measures. In an April 15 update to its website, ICE confirmed it had released nearly 700 detainees who were at high risk of severe illness due to COVID-19. Acting Director Matthew Albence later confirmed to members of the U.S. House Committee on Oversight and Reform that the agency would not be releasing any more detainees, stating that releasing immigrants from custody to protect them from COVID-19 could signal that the administration is “not enforcing our immigration laws.” In order to prevent further spread of the coronavirus throughout its nationwide network of detention facilities and into the broader community, ICE must release detainees in larger numbers and at faster rates.

Public pressure and court actions

As the number of confirmed cases continues to climb across detention facilities, elected officials, advocates, and detainees themselves have built significant pressure against ICE to take necessary action. Senate and House leaders have authored multiple letters to acting DHS Secretary Chad Wolf and acting ICE Director Albence calling for increased oversight and the release of at-risk detainees, and Sen. Cory Booker (D-NJ) and Rep. Pramila Jayapal (D-WA) developed legislation, the FIRST Act, to force the agency to review its detained population and consider releases. California Attorney General Xavier Becerra called for comprehensive testing of staff and detained people in facilities in the state, a limit on the transfer and transport of detainees, access to personal protective equipment for detainees and staff, reductions in detainee populations, and improved sanitation.

Within facilities, detainees are staging demonstrations and participating in hunger strikes over continued concerns for their safety and inability to access sanitation supplies. Of the individuals released from ICE custody, many are at-risk detainees who secured release only through litigation in federal court. The American Civil Liberties Union and partner organizations continue litigation efforts in multiple states to secure the release of those most vulnerable to serious health consequences associated with COVID-19. On April 20, a federal judge in California granted class certification and entered a preliminary injunction requiring ICE to identify and track all detainees at high risk of developing serious health consequences from a coronavirus infection, make timely determinations regarding the custody of these individuals, and enforce compliance with ICE’s COVID-19 Pandemic Response Requirements. And on April 30, a federal judge overseeing a lawsuit at the Otay Mesa facility issued an order finding that conditions at the facility for medically vulnerable detainees “are unconstitutional under the Fifth Amendment because the conditions of their confinement place [them] at substantial risk of serious illness or death.” The court ordered ICE to immediately conduct a review and release all medically vulnerable detainees suitable for release. Given the urgent need for ICE to adopt policies promoting public health during the ongoing pandemic, it is unacceptable that releases are being secured largely through litigation and advocacy, rather than through sound agency policy.

Conclusion

ICE officials have failed to implement necessary measures to prevent outbreaks of COVID-19 across detention facilities. As a result, they have left tens of thousands of people vulnerable and at high risk of coming into contact with the virus. Beyond jeopardizing the health and safety of people in confinement, the failure to prevent and address the spread of the coronavirus in custodial settings has dramatic implications for public health and community spread. The forthcoming Journal of Urban Health study says plainly that if “more limited measures on the part of ICE prove ineffective, then the successful social distancing strategies implemented in a community may be undone by the large number of detainee infectious disease cases that its hospitals must care for.” These problems will only be more devastating if ICE continues to deport individuals who became infected with COVID-19 while in government custody. By recklessly exporting the coronavirus to countries that are even less equipped than the United States to handle the serious health consequences of an outbreak, federal immigration detention and removal efforts are jeopardizing the health and stability of the region and the world at large.

Sofia Carratala is the special assistant for Immigration Policy at the Center for American Progress. Tom Jawetz is the vice president of Immigration Policy at the Center.

To find the latest CAP resources on the coronavirus, visit our coronavirus resource page.