Commentary

The COVID tinderbox that is ICE detention is exploding

January saw a 500% percent jump in coronavirus cases, according to reports

February 9, 2022 4:15 am

Families seeking asylum are taken into custody by U.S. Border Patrol agents at the U.S.-Mexico border on Dec. 7, 2021 in Yuma, Arizona. (Photo by John Moore / Getty Images)

Everyone  has a story of how the fast-moving COVID pandemic and all the attending fear and anxiety affected their lives during March of 2020. It’s hard to think about now. 

In all the disorientation, a few things were made clear to our community: cover your face, wash your hands and maintain distance. Things seemed out of control, but we had those few principles that we could follow with our own bodies, even if it felt ridiculous, inconvenient, financially catastrophic, or emotionally painful.

So many times, I have tried to imagine how frightening it must have been to be a person in a jail or detention center. People inside were hearing the news about a deadly pandemic but didn’t have the 24/7 news access that most of us had through our phones and the internet. And the few things that we knew to do to protect ourselves, they couldn’t automatically do. 

That entire spring I spoke with people inside of immigrant detention centers, and they would consistently report lack of access to PPE, soap or hand sanitizer. At one of the detention centers I worked in, detainees were reportedly tear gassed when they engaged in a hunger strike for better conditions. When I go there now, there is a perplexing poster in the visitation room that I have read 20 times. It suggests that the mask mandate went into effect there in July 2020 — four months after the pandemic began. 

The scariest thing about jails and detention centers is the inability to social distance. I have spent a lot of time on the phone interviewing people at various detention centers to support lawsuits. People told me there were 50 people housed in their unit. I remember one person describing reaching out at night and being able to touch the face of the person sleeping next to them. 

People were so scared and sad and angry. Sometimes it felt like I was talking to people who were inside a slowly burning building who were begging me to let them out, as if I was standing right outside with the key.

The first case of COVID-19 was reported in ICE detention on March 24, 2020. At this point, it’s impossible to know how many people were infected inside of detention centers nationwide due to lack of testing and reporting. 

I read a report by the Vera institute about the first year of the pandemic. They were able to find data points for 10,000 cases and sixteen deaths across 127 facilities. Vera admits the data isn’t awesome due to a lack of reporting: “An epidemiological model published by our team estimated that as of mid-May 2020, the actual number of COVID-19 cases among people in detention may have been up to 15 times higher than what ICE was reporting.”

Public health officials were immediately and consistently clear that ICE detention was a bad idea. Yet during the first year of the pandemic, ICE and the CEOs of the private prison corporations insisted that the situation was under control and that there was no reason for alarm. At the same time, detainees and whistleblowing employees reported lack of precautions, PPE, testing, and education. Government reports confirmed this

Advocates won a lawsuit that we now refer to as the Fraihat order, which forces ICE to reconsider custody of people with certain comorbidities, although they do not have to release someone if they have, say, even a slight criminal record. (I suppose the logic there is that someone with a misdemeanor on their record deserves to die from a preventable viral infection.) 

In the fall of 2020, six months after drafting that first letter to ICE about the dangers of COVID, we began to see success petitioning for people’s release under the Fraihat order. 

For most people in ICE custody, detention is not required. Its sole stated purpose is to hold people so they show up at an administrative removal hearing. There are myriad alternatives to detention programs that work. It’s optional. 

You know what feels less optional? Schools. Businesses. Churches. Yet at various points during the pandemic, these institutions have been closed by controversial mandates. But detention centers have stayed open and, unbelievably, expanded in number, with very little outcry from the public. 

ICE detention numbers did drop significantly during the Trump administration in 2020. Some of this was related to people being let out due to pandemic danger, but it’s important to remember Trump closed the border in March of 2020 under the Title 42 public health order and created the ability to expel arriving migrants without a trace of due process. They didn’t need to hold people in detention for removal hearings because they were just denying people any opportunity to assert their right to stay. 

By the time President Trump left office, in the brutal first winter of the pandemic before vaccines were widespread, there were still around 10,000 people in detention, but it was a remarkable reduction from the highs of 60,000 during that administration. 

And then came President Biden, with his complimentary promises to stymie the pandemic, restore humanity to our immigration policies and end the use of private detention. Letting individuals out of ICE detention would have positively impacted each of those promises. Yet the Biden administration instead went in the opposite direction and doubled the detention population, expanding the use of private prison contracts and maintaining our country’s immigration detention system as a COVID tinderbox. 

The tinderbox exploded in recent weeks. According to the most recent TRAC report, ICE booked 33,856 individuals into detention in December 2021 as omicron bore down on the nation. Over 75% of those people had absolutely no criminal record, and many of those who did simply had minor infractions. 

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Over the last several weeks, COVID cases have been growing exponentially. CBS news reported a 500% surge of cases in January, and there is nothing to say that testing or reporting has improved at all, so people are likely sick at much higher rates. According to the same CBS report, nearly 40% of ICE detainees have also refused vaccination, which creates an even more dangerous situation. 

What’s the solution? It’s the same one advocates have been proposing since before the lockdown: release every single detained individual to the safety of a friend or relative’s home or a shelter today. The government should not ask for bonds, because no one should have to pay a ransom to be released from a life-threatening situation. 

According to TRAC, the government has 157,761 people in an alternative to detention program. Why not enroll another 20,000 to 30,000 people and call it good? 

Dollar-a-day wage schemes in immigrant detention sound a lot like slavery

One of the most troublesome things about institutional shutdowns, like closing schools, is that the alternatives suck and potentially harm the health and safety of kids. In the case of shutting down detention centers, the alternatives are good and benefit the health and safety of detainees. 

What’s even more wild is that the Justice Department went to court last week to defend the government’s utterly inhumane use of Title 42. The No. 1 argument was that processing migrants at the border would require them to hold them in congregate settings, and it could be dangerous. Yet the U.S. continues to lean on detention. 

But we all know quite well at this point that good, sound public health policies do not always win the day. If they were to release all detainees, the Biden administration would experience considerable political rage from the right claiming officials had opened the borders. But would that really matter or cause any actual fallout, electorally speaking? 

Peruse Fox News on any given day, and you will see that despite the fact that the Biden administration has maintained most of Trump and Stephen Miller’s anti-immigrant policies — even expanded some — the dominant narrative from the right is that Biden has opened borders. 

If the political response from your enemies is going to be the same either way, why not choose the humane thing over pandering? 

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Allegra Love
Allegra Love

Allegra Love is an immigration attorney from Santa Fe. She is a graduate of Dartmouth College and the University of New Mexico School of Law. She is the founder of and former director of Santa Fe Dreamers Project, a legal services organization serving immigrants and refugees. Currently she works with the El Paso Immigration Collaborative to represent detained asylum-seekers in the Southwest and in the national movement to abolish immigration detention in the United States.

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