ICE Detainees Have COVID, Aurora ‘illustrative example’ of Problems in California Injunction

As COVID hits detainees, many concerns for attorneys, clients and safety abound

An 8th Circuit Court of Appeals ruling held up a lower court’s award of $106 million in a decades-long case involving bad actors and a bank's involvement in a Ponzi-like scheme.

Immigrant rights advocates are asking a federal judge to force Immigration and Customs Enforcement to take proactive measures to prevent the spread of coronavirus through detention centers. And according to reports from ICE, the pandemic is already making its way inside such facilities.

ICE announced April 2 that six detainees across the nation have tested positive for COVID-19, though some of the detainees who tested positive “may no longer be in ICE custody.” The report came on the heels of the motion for an emergency injunction in a case concerning the agency’s medical care, and detainee release, which was filed in California on behalf of approximately 40,000 people in custody of the agency nationwide. 

In late March, a group of civil rights legal organizations, including the Denver-based Civil Rights Education and Enforcement Center, and law firm partners filed the emergency application for a preliminary injunction in U.S. District Court in California as part of an existing class action lawsuit, Fraihat v. ICE..

If ICE cannot “or will not” immediately take steps to ensure medically vulnerable people are protected from the virus, the motion argues, the court should order ICE to release those individuals in the interest of public health, according to a press release from CREEC, Disability Rights Advocates and the Southern Poverty Law Center. 

“Based on first-hand observations from attorneys serving clients inside detention centers and direct reports from people who are detained, the current conditions are medically dangerous and fail to meet standard public health recommendations for addressing the pandemic,” the joint release states.

In addition to the six detainees who have tested positive for COVID-19, in late March, two employees of the Aurora detention facility tested positive for the virus. Previously, an immigration judge was under quarantine for suspected symptoms. No detainees in Aurora have tested positive as of press time.

As of publication, no Aurora detainees have tested positive for COVID-19.

However, CREEC development director Julie Yates told Law Week that Aurora is an example of the problems expressed in the California lawsuit.

“The Aurora facility is an illustrative example of many of the problems we’re complaining about in our lawsuit over the course of many years. It’s a privately run for-profit facility making money on the backs of caging people,” Yates said. “As a result, we don’t have faith that this private company, and this agency that is pretty out of control, are going to take the steps they need to take to let people out and be safe.”

Yates said CREEC is concerned about COVID-19 because “we have watched ICE, for years now, bungle medical care more generally and bungle prior outbreaks with things like mumps.”

“Our clients will feel like sitting ducks,” she said, “and there is virtually nothing I can do to keep everybody safe who is in their custody.”

Sarah Plastino, an attorney with the Rocky Mountain Immigrant Advocacy Network, told Law Week that the coronavirus “racing through the facility would likely result in the death or serious illness of many immigrants and asylum seekers who should not be detained in the first place. The only acceptable solution is to immediately release all detained people and close the facility to protect detainees and workers alike.”

Plastino said the Aurora facility had closed down in-person contact, so many aspects of attorney-client relations and even immigraiton hearings were taking place by phone. She said other options, such as videoconferences, are challenged by technological constraints and privacy concerns.

ICE on March 18 released an updated statement on COVID-19 saying the organization wanted to ensure the welfare and safety of the general public, as well as officers and agents. As of the date of the release, ICE planned to “temporarily adjust its enforcement posture.”

“ICE Enforcement and Removal Operations will focus enforcement on public safety risks and individuals subject to mandatory detention based on criminal grounds. For those individuals who do not fall into those categories, ERO will exercise discretion to delay enforcement actions until after the crisis or utilize alternatives to detention, as appropriate,” the statement says.

On March 30, two Salvadoran nationals in ICE custody at different locations tested positive for COVID-19, ICE announced in a press release. “Consistent with CDC guidelines, those who have come in contact with the individuals have been cohorted and are being monitored for symptoms.” ICE also announced on its website that a Dominican national in custody in New Jersey, and a Guatemalan national in custody in Arizona tested positive for COVID-19. Per protocol, those detainees who have tested positive are housed separate from others, according to ICE. 

Homeland Security Investigations will continue, for “mission critical criminal investigations and enforcement operations” on a public and national safety determined basis. These include investigations on child exploitation, narcotics trafficking, human trafficking, human smuggling, gangs and continued participation on the Joint Terrorism Task Force.

Yates, however, said many detainees are not receiving basic information about the virus from ICE and are instead learning about it from news. 

The emergency application for the preliminary injunction calls ICE’s actions “alarmingly inadequate” and argues that ICE’s policies do not contemplate identifying persons with risk factors, “much less taking the significant steps necessary to reduce the risk of contagion, illness, complications, and death in its already broken medical care system.”

The plaintiffs seek a preliminary injunction requiring ICE to immediately identify all people with one or more risk factors and conduct a comprehensive evidence-based assessment of medically necessary precautions, which should be implemented to ensure health and safety of such persons. 

It also calls for ICE to “promptly (within 48 hours) effectuate the release of individuals with one or more Risk Factors if such medically necessary safeguards cannot be immediately (within 24 hours) provided to ensure health and safety, and absent an individualized finding of dangerousness to community; and (iv) modify its existing COVID-19 protocols to remediate all Protocol Deficiencies.”

The plaintiffs also seek the immediate appointment of a special master to oversee the proposed process.

On March 30, two Salvadoran nationals, 40-year-old and a 22-year-old, in ICE custody at different locations tested positive for COVID-19, ICE announced in a press release. “Consistent with CDC guidelines, those who have come in contact with the individuals have been cohorted and are being monitored for symptoms.” ICE also announced on its website that a 33-year-old Dominican national in custody in New Jersey, and a 45-year-old Guatemalan national in custody in Arizona tested positive for COVID-19.

Per protocol, those detainees who have tested positive are housed separate from others, according to ICE. For those asymptomatic, they 

In terms of the case in California, Yates said ICE was already being sued over providing inadequate care to people, and within that context, there is extreme worry about the care during a pandemic. 

“We’re starting from a place where there is not a lot of faith in ICE to do the right thing, and not a lot of reason to give them the benefit of the doubt when they say that they are,” Yates said. 

“We would encourage ICE to heed the urgent pleas of medical professionals that they should be released in order to let them shelter in place with their families and stay safe,” she said.

ICE had not returned a request for contact or questions by press time Friday.

This topic is part of an ongoing and ever-changing scenario. Some of the details in this report may have changed by the time you have read this article, please see future editions of Law Week Colorado, and lawweekcolorado.com, for further coverage on this ongoing story.

— Avery Martinez 

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