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As COVID-19 continues to spread around the world, tens of thousands of immigrants, many of whom came to this country seeking asylum, seem to have been forgotten by Immigration and Customs Enforcement (ICE) – the agency holding them captive with no way to protect themselves.

SPLC attorneys and others serving clients at detention centers across the country warn of a pending outbreak as ICE fails to meet the standards that public health officials have recommended to address the pandemic. The situation has left people in ICE custody – and their families – worried about their well-being and their health.

Trapped in remote ICE detention facilities, people are corralled in small confines, where it is impossible to practice social distancing, access to soap or hand sanitizer is limited and there are few to no gloves or masks available them or guards.

In response, the SPLC and co-counsel this week filed an emergency motion asking a federal court to issue a preliminary injunction that would require ICE to take immediate steps to protect the people in its custody. Co-counsel includes the Civil Rights Education and Enforcement, Disability Rights Advocates, along with pro bono counsel from Orrick, Herrington & Sutcliffe LLP and Willkie Farr & Gallagher LLP.

Across the country, corrections officials are releasing thousands of people from jails and prisons who pose no threat to public safety, particularly those most at risk because of age or health problems. ICE, however, has done nothing to reduce crowding in its facilities or to protect those who remain.

The SPLC’s motion argues that if ICE cannot or will not take the immediate steps necessary to protect detainees, especially those who are high-risk for illness – including providing timely access to qualified and necessary health care – it must release them for their own safety and the safety of detention facility staff and the public in general.

“Literally thousands of medical professionals have expressed concern over deep inadequacies in ICE’s COVID-19 protocols, which will have deadly consequences for detained individuals who cannot practice social distancing, do not have reliable access to soap and sanitizer, and already struggle to obtain minimally adequate health care in ICE’s endemically deficient system,” said Lisa Graybill, deputy legal director at the SPLC. “By law, these individuals need not be detained. It is immoral, unethical and unconstitutional for ICE to continue to detain people for whom it cannot or will not provide adequate care when there are multiple effective alternatives to detention.”

On Thursday, U.S. District Judge Jesus G. Bernal agreed to an expedited briefing schedule – due to “the grave risk of harm … and the fact that it is a global health crisis not of plaintiffs’ own making” – and set a hearing date for April 13.

‘Scared for my life’

The emergency motion, filed in the U.S. District Court for the Central District of California, is part of the SPLC’s class action lawsuit – Fraihat v. ICE – filed on August 19, 2019. The suit argues that ICE has systematically failed to provide adequate medical and mental health care, as well as disability accommodations, to tens of thousands of immigrants held in 158 detention centers scattered throughout the country.

Now, because of the coronavirus, the lack of care is even more glaring – and dangerous. This week, ICE said that 19 of its workers had confirmed cases of COVID-19. The agency also revealed that a 31-year-old Mexican national being held in a New Jersey jail had tested positive for the coronavirus. A federal judge on Thursday night ordered the release of 10 detainees in custody at three New Jersey jails where either detainees or staff had tested positive. (ICE pays counties across the country to house detainees in their local jails.)

Even as the death toll from COVID-19 rises across the country, ICE has not increased its medical staffing and refuses to identify individuals who face a high risk of contracting the virus.

“Several weeks ago, I asked an ICE official what the plan was for me because I am older and at risk for a bad COVID-19 infection,” said one plaintiff detained at Adelanto ICE Processing Center in Adelanto, California. “He laughed at me and told me I did not qualify for anything. Despite my various vulnerabilities to COVID-19, no member of the medical staff has evaluated me to determine whether any additional precautionary measures are necessary to protect me from the illness. I have not seen them evaluate anyone else who is at risk either. I am scared for my life.”

Attorneys for the plaintiffs in the SPLC case note that detention centers are not providing literature or any information regarding COVID-19 to detained individuals, leaving many in the dark about initial symptoms, what to do should symptoms persist and how to protect themselves from infection.

“The court agreed that our request for an expedited hearing is justified,” Graybill said. “There is nothing stopping ICE from acting immediately to improve its protocols and release medically vulnerable individuals, but assuming it continues to fail to do so, we look forward to presenting our arguments to Judge Bernal on April 13. We are hopeful he will order a remedy.”

Should the preliminary injunction be granted, ICE would be required to immediately assess individuals with medical conditions that make them at risk to contract COVID-19 and would be required to provide soap, hand sanitizer and other medical necessities to those in its custody. The preliminary injunction would also put in place protocols to transport people to the hospital for testing and allow those with COVID-19 symptoms to be treated. 

The Editors