By Eunice Cho, ACLU Senior Staff Attorney

Even before the COVID-19 pandemic, Immigration and Customs Enforcement’s (ICE) detention system was marked by its lack of transparency, accountability, and oversight. In recent months, things have grown worse, as COVID-19 has spread rampantly throughout the system. At a time when even closer scrutiny of the immigration detention system is needed, the usual channels of accountability and oversight have ended: ICE has banned oversight tours by Congress and stakeholder groups at all detention facilities nationwide, enacted heightened barriers to attorney access, and discontinued all social and family visits.

In light of this lack of transparency and growing concerns about ICE’s COVID-19 response, the ACLU is filing a Freedom of Information Act (FOIA) request to obtain records about what the agency has known about the catastrophic impacts of COVID-19 in the detention system and surrounding communities, and its plans and policies to address the outbreak — including decisions about deportations, testing, and training. This FOIA request builds upon the ACLU’s prior set of public records requests with the Trump administration and states across the country about COVID-19 in jails and prisons. 

We already know that COVID-19 in the immigration detention system is an unquestionable public health disaster. To address this, the ACLU and its affiliates nationwide have filed over 50 cases in the last two months to compel ICE to release people from immigration detention facilities, resulting in the release of more than 400 detainees to date. But without further action by ICE, the situation is certain to grow even worse. In the last six weeks alone, at least five people — including two detainees and three officers — have died after contracting COVID-19. Unless immediate steps are taken to release people to practice social distancing in their own homes, we will see numbers of confirmed cases and deaths grow rapidly.  

In the face of this increasingly deadly crisis, a response to our FOIA request is critical. ICE has already failed to provide timely, complete, and accurate information to the public about its response to COVID-19 in detention centers — even in sworn statements to federal courts. In the course of our litigation against ICE, we’ve unfortunately found that the government’s accounts of what is happening in detention cannot always be trusted.

For example, in a case that the ACLU brought with the National Immigration Project of the National Lawyers Guild, the Capital Area Immigrants’ Rights Coalition, and the ACLU of Maryland, a federal district court judge noted that ICE’s Deputy Assistant Director for Healthcare Compliance Jennifer Moon had sworn in a declaration under penalty of perjury that the government had tested all detainees in Maryland detention facilities with COVID-19 symptoms. After a review of ICE’s own records, the court concluded that “this statement, which the court relied upon in deciding [a prior] motion, proved to be demonstrably false.”

Indeed, the court concluded that “Respondents’ withholding of this information and failure to correct the record on this point … raises significant doubt whether the [detention center] will reveal suspected cases when they arise as to facilitate proper testing and responsive measures to protect the detainee population, or whether it will conceal suspected cases in the future and take no action, at substantial risk to the detainee population.” The court’s concern for ICE’s lack of COVID-19 testing is well-placed: Detainees have reported that people who are critically ill with COVID-19 symptoms have been denied testing and medical attention by detention officials.

In another case brought by the ACLU of Ohio, a federal judge similarly called into question the accuracy of ICE’s reported COVID-19 screening as the agency sought to downplay the threat of COVID-19 in the Morrow County Jail.

“ICE has provided the Court with 40 snapshots of temperature measurements …  Not only do none of these temperature readings indicate a fever, none was higher than 98.1 degrees. Eight were below 96 degrees, including one below 95 degrees, which is the clinical benchmark for hypothermia and requires immediate medical attention,” the court noted. “Respondents have no explanation for these low, and seemingly inaccurate, temperature readings, but they might be attributable to ICE’s usage of thermometers that expired in 2016,” the court concluded.

ICE’s untimely and incomplete information also extends to its public website about COVID-19, which includes a section on confirmed cases of the virus in immigration detention. Daily analysis of ICE’s information reveals several reasons for deep concern. Although ICE has reported the number of people who have tested positive for COVID-19 at specific facilities, it has not provided information as to how many people at each facility have been tested — critical information to understand how widespread the virus is.
It also appears that there may be serious irregularities with ICE’s data. For example, ICE has posted data where the additional number of confirmed cases of COVID-19 in detention is greater than the additional number of people tested — a mathematical impossibility.  

ICE’s information about the number of COVID-19 cases among detention staff and employees similarly paints a misleading picture. Although the government publicly reports the number of ICE employees who have tested positive, this does not include what ICE calls “third party contractors.” This approach likely excludes a large majority of detention officials in close contact with immigrants, because 80 percent of immigrant detainees are held at facilities owned or operated by private prison companies. ICE has also blocked local governments from releasing COVID-19 data about immigrant detainees who are housed in their jails and prisons, as it has done in New Jersey.

The Department of Homeland Security’s Office of the Inspector General recently announced that it is planning a review of ICE’s efforts to prevent and mitigate the spread of COVID-19 in its facilities. This is a positive step. In the meantime, ICE must also provide immediate, accurate, and comprehensive reports about COVID-19 in detention to the public. These reports should be specified by facilities, and include facility-specific data and information about third-party contractors, detainees who have been hospitalized since the COVID-19 pandemic began, and all deaths. ICE should stop blocking local governments from releasing COVID-19 data about immigrant detainees who are housed in their jails and prisons.

Immigration detention should not be a death sentence. At the end of the day, the only way to prevent a humanitarian disaster is to release people, including those who are medically vulnerable to the virus. If ICE fails to do so, it will be responsible for the lives lost.

By Ruthie Epstein, ACLU Deputy Director, Immigration Policy & Shaw Drake, ACLU Policy Counsel

Are you fleeing violence? Yes. 
 
Did you tell Border Patrol? Of course! 
 
What did they say? That there is no more asylum. 
 
Despite her pleas for protection, a 19-year old Salvadoran woman was summarily deported by Customs and Border Protection (CBP) to Ciudad Juarez, Mexico, according to a local advocate who interviewed her immediately afterward. The U.S. has a legal obligation not to return migrants to danger. CBP, instead, placed her directly in harm’s way again.
 
Yesterday, the Trump administration issued an indefinite extension of the order enabling that deportation, and more than 20,000 others, including more than 900 children, in the past two months. Under the order, agents quickly deport all migrants at the border who do not have prior permission to enter the United States, without allowing them the opportunity to seek protection from persecution that U.S. law guarantees.
 
The original 30-day order was issued by the Centers for Disease Control and Prevention (CDC) on March 20 and extended on April 20. The latest order functionally ends asylum at the border. 
 
According to leaked internal CBP guidance, only those who “make an affirmative, spontaneous, and reasonably believable claim that they fear being tortured in the country they are being sent back to” will be screened for eligibility for protection in the United States. So far, only two asylum seekers have been allowed to claim protection under this procedure. CBP has prevented the remaining 99.99 percent of migrants from even applying for asylum or other forms of humanitarian protection. 
 
The impact of the CDC order is devastating. The agency is not only placing adults and families in immediate harm, either in Mexico or in the very country from which they fled, but is doing the same thing to hundreds of unaccompanied children. 
 
Co-opting the COVID-19 pandemic to end asylum at the border is the culmination of Trump’s sustained war against those fleeing persecution. Over the past three years, the administration has employed various cruel schemes to dismantle protections, and to unilaterally abandon the welcoming tradition upon which they were built. The United States has historically promoted its global leadership on the protection of migrants and refugees and its robust laws to protect the persecuted. But the arch of U.S. efforts to protect those in need, which began with its key role in negotiating post-World War II international law and norms, has been twisted into the downward spiral of this government’s direct abuse of the most vulnerable.  
 
The New York Times reported that Stephen Miller, the president’s chief advisor on immigration, has tried to use the threat of “disease” as an excuse to close the border since at least 2018. With this latest order, he put that plan into practice. But nobody is fooled by this transparent attempt to use a public health crisis as cover. 
 
Public health experts have objected — strongly. Forty leading epidemiologists, public health experts, and former CDC officials wrote to HHS Secretary Azar and CDC Director Redfield criticizing the order’s “specious public health rationale” and calling for an end to the policy. The letter states that “the current administration is using the imprimatur of the Centers for Disease Control and Prevention (CDC) to circumvent laws and treaty protections designed to save lives and enable the mass expulsion of asylum seekers and unaccompanied children.” 
 
Congress is also taking note of the administration’s power grab under the guise of public health. The chairmen of three important House committees and members of the Senate Judiciary Committee demanded justifications for the suspension of protections for asylum seekers and unaccompanied children that are mandated by U.S. and international law. The House chairmen and Senator Menendez, ranking member of the Senate Foreign Relations Committee, publicly rejected the Department of State’s legal opinion, which they called “deeply flawed.” 
 
Trump officials may pretend otherwise, but it is absolutely possible to protect public health and preserve access to asylum and other humanitarian protection for people fleeing persecution or danger at the same time. Experts have developed recommendations to safely process asylum seekers, children, and other migrants at the border to help ensure that people in desperate need of protection can get it. 
 
Our country is undoubtedly facing a grave public health crisis. We reject the administration’s attempt to take advantage of the crisis to advance its anti-immigrant agenda and discard our legal obligations. The government must reverse the assault on asylum and rebuild a system that fairly and safely restores our proud tradition of protecting people fleeing persecution — if not under this president, then certainly under the next. 

By Ruth Anna Buffalo, ACLU Representative, North Dakota & Kimberly Craven, Legal Director at the ACLU of SD, ND & WY

Andrea Circle Bear wasn’t given a death sentence.
 
She plead guilty last year to maintaining a drug-involved premises. She was sentenced to 26 months in federal prison.
 
But shortly after being transferred from a jail in South Dakota to a federal prison in Texas, Circle Bear died of COVID-19 while in custody, just 28 days after giving birth via C-section while on a ventilator. The 30-year-old member of the Cheyenne River Sioux Tribe in South Dakota was the first federally incarcerated woman to die from COVID-19. 
 
Just how did a pregnant woman serving time for a drug offense get sent to a crowded federal women’s prison more than 1,000 miles away from her home?
 
A judge could have suspended her sentence and asked her to report to prison after giving birth. The Bureau of Prisons could have let her serve her sentence in home confinement.
 
But it’s not always that simple — in the criminal legal system generally, but especially in Indian Country.
 
For context, Indian Country is made up of 574 federally recognized tribes whose citizens live on 326 distinct Indian reservations spread across the United States. This federal recognition means that reservation lands are under federal jurisdiction supported by the Major Crimes Act, a U.S. statute that places certain crimes under federal jurisdiction if they are committed by a Native American on their homeland.
 
The result of this federal jurisdiction is that Native Americans, like Circle Bear, often face federal charges. Lesser crimes are under tribal jurisdiction. These court cases are prosecuted by federal prosecutors, held in federal courts, and presided over by federal judges, and, when and if they are found guilty, they are sentenced to federal penitentiaries. The result is that a disproportionate number of Native Americans are incarcerated in federal prisons. Native Americans make up less than 1 percent of the country’s population, but 2.3 percent of the BOP’s incarcerated population.
 
Circle Bear’s death is a startling wakeup call that shows the true cost of the U.S.’ obsession with mass incarceration during the COVID-19 pandemic.
 
That’s why the ACLU has put out a call for governors around the country, President Trump, and the BOP to release all pregnant people from prisons and jails who have less than a year remaining on their sentence. Doing so will mitigate the tragedy we’re facing and will benefit public health around the country, but it can’t change the fact that Circle Bear will never get to watch her newborn baby grow up.