May 6 heralded another grim milestone in the United States: the first COVID-19-related death of an Immigration and Customs Enforcement (ICE) detainee, a 57-year-old man from El Salvador. Despite having high blood pressure and possibly diabetes, he had been denied release on bond by a judge. He continued to be held in Otay Mesa Detention Center in San Diego, which currently has the highest number of confirmed coronavirus cases of any immigration detention facility in the country. A second ICE detainee died from COVID-19 the following week in Ohio. And a third individual died this past weekend in a Georgia hospital after being transferred from a local detention center.
Immigration detention falls into a legal gray zone
People in immigration detention do not generally have the same due process protections of the criminal justice system. Their confinement in detention can also drag out for years due to backlogs in immigration and asylum processing. Because of this, the United Nations Refugee Agency (UNHCR) urges countries to consider immigration detention as a last resort.
There are many humane, practical, and cost-effective alternatives to detention that also demonstrate high rates of compliance with immigration proceedings. In contrast, both government internal watchdogs and human rights groups have documented dangerous conditions in immigration detention. This includes substandard and dangerously delayed medical care, as well as punitive misuse of isolation, and a lack of transparency and oversight.
In a pandemic, concerns about immigrant detention have new urgency
Rates of transmission increase greatly inside overcrowded facilities. This is true for homeless shelters, inpatient psychiatric facilities and immigration detention centers. These are places where it is nearly impossible to practice social distancing. People in detention usually live in large dorm rooms and share bathrooms, shower, and dining spaces. Public health experts have warned that immigration detention facilities are tinderboxes for infection.
Legal groups have brought lawsuits against the federal government to release detainees with underlying conditions or other risk factors. A few lawsuits have been successful. However, that success has translated into the release of only a reported 192 people. Yet there are about 30,000 people currently in ICE custody in more than 200 facilities around the country.
Immigrants detained in other countries have been far more fortunate
Other countries have made it their policy to protect the health of detained immigrants, facility staff and surrounding communities. They are releasing immigration detainees to environments where they can practice safe social distancing. This includes sheltering at home with friends and family, or in organized community shelters.
Within a month of declaring a state of emergency, Spain had released most of its immigration detainees on public health and humanitarian grounds. On May 7, the day after the first death in U.S. immigration detention, Spain released its last detained migrant. In Belgium, the pandemic pushed the Ministry of Public Health, Migration and Asylum to cut (albeit temporarily) its immigration detention capacity by 50 percent, to about 300 beds.
The U.K. has released more than 300 people from immigration detention for public health reasons. Although 900 people are still detained, the government has announced that there will be a full review to consider the individual cases of everyone who is still detained. According to the Global Immigration Detention Platform many other countries–including France, Netherlands, Indonesia, Peru, and Thailand–have released significant numbers of immigration detainees.
Not releasing immigrant detainees during COVID-19 places them at grave risk
The U.S. has the largest immigration detention system in the world. So, the pandemic has the potential to affect tens of thousands of detained immigrants, the vast majority of whom have no criminal conviction. Continuing to hold tens of thousands of people for an indefinite length of time where they are at grave risk of infection is reckless and inhumane.
Physicians for Human Rights has made these arguments before courts around the country. Medical experts joined with leading constitutional lawyers in submitting an amicus brief related to another large California detention center a week before the first death. The brief warned of an “impending public health disaster” if immigration detainees are not released.
The continued detention of immigrants is a dangerous gamble that flies in the face of new epidemiological modeling. Under the best of scenarios, an estimated 72 percent of individuals detained could be infected within 90 days of an outbreak. This would tax the facilities’ medical services and likely outstrip inpatient and intensive care unit capacity in the local area.
The hazards of immigration detention are a global problem
Advocates remain concerned about migrant detainees in Australia, the Gulf States, Thailand, and Tunisia, to name a few. But the actions of Belgium, the UK, Spain, and others show us that there is a way forward. Countries should abandon excessively cruel policies and instead choose safer paths guided by public health and human rights. Releasing immigrant detainees during COVID-19 is such a path.
Ranit Mishori
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