During the beginning of March, our team of attorneys and advocates at Santa Fe Dreamers Project prepared to submit a complaint to several different federal agencies about the abusive and inhumane treatment of LGBTQI+ migrants as well as those living with HIV in a Louisiana ICE detention center called Winn Correctional Center. Because our staff works closely with detained transgender women nationwide, we had been closely following the experiences of a group of LGBTQI+ people detained at Winn for close to a year. Reports of conditions at Winn were as bad as any we had heard previously: bullying by officials; discrimination; assault by guards; a dearth of mental health services; abusive solitary confinement practices; and of course, widespread medical neglect. Medical neglect is not something that is remotely exclusive to LGBTQI+ detainees. Medical care in ICE detention has been a crisis as long as I have been practicing law on the US border. The stories that we hear are so ghoulish it often seems a little bit unbelievable: withholding critical medication; taking months to schedule an appointment; prescribing water and advil for dangerous, identified medical conditions; denying hospital visits; or shackling medically fragile individuals. One of the most horrific stories from the last couple of years was the death of Joana Medina. A young, transgender nurse detained in Otero County Detention Center in NM, she was HIV+ and as her health deteriorated in ICE detention, she begged for medical care and for her release on parole. It wasn’t until she was found unconscious in her cell that ICE transferred her to a hospital in El Paso, TX. There ICE signed her parole documents so that when she died shortly thereafter, the detention center was able to avoid the scrutiny and investigation that are triggered by detainee death. Stories just like Joana’s are what motivated our staff to shine a light on the conditions at Winn before another tragedy.
I realize our nation's cruelty might well be bottomless.
In the last couple of years, when describing the challenges of my job as a lawyer in immigration detention to friends and family, I have often said, I don’t know how it can get any worse. I said this in 2014 when Obama restarted the practice of detaining families. I said it when the Trump Administration began to separate children from their families. Everytime I believe we have hit rock bottom in terms of how we treat immigrants and refugees, we slip further and I realize our nation’s cruelty might well be bottomless. I mention this because in the middle of March as we were preparing to send our complaint letter about Winn, the global pandemic of COVID-19 ripped its way into life in the US. Before we understood the magnitude that this virus’ effect would have on the world, we had discussed it in national detention groups: how awful it would be if a highly infectious virus were to reach prisons and detention centers. Like everyone else in the US, we should have seen what was coming and been more prepared but we were not.
When COVID-19 hit the US like a meteor, we found ourselves pivoting overnight from speculation to an all out ground war with ICE to release at first the most vulnerable detainees, those with known comorbidity factors, and quickly to release every ICE detainee as it became clear that the agency was refusing to take even the most basic steps to make sanitation and social distancing possible in detention. Suddenly, the daily and documented medical abuses in ICE detention were no longer the rock bottom. We found ourselves facing a new and uncontemplated horror: ICE’s cold and reckless indifference to the lives of people in detention during an epidemic — a new bottom.
Suddenly, the daily and documented medical abuses in ICE detention were no longer the rock bottom.
The United States has the largest immigration detention system in the world. There are over 200 detention centers and when custody numbers are peaking there can be over sixty thousand people detained. One of the most critical things to understand in any discussion of ICE detention is that it is not a criminal detention. It is civil. No one in ICE custody is being charged with a crime. They are being held because they do not have the proper administrative paperwork, like a visa, to be present in the United States. A large percentage of people currently in ICE custody actually arrived at the United States via the completely lawful action of seeking asylum following all statutory prescribed protocol in US and international law to seek refuge from persecution. Their detention falls under broad discretionary authority of the executive branch to enforce our country’s immigration laws. But they are not being accused of a crime. This is a very important distinction because individuals who are accused of crimes in the United States have constitutional rights. They have the right to due process, to an attorney, to be free from arbitrary detention and cruel and unusual punishment, to name a few. This is not the case with immigrants locked up in the bizarre extra-constitutional spaces of immigration detention. In too many situations their rights are nothing but a theory based upon human rights advocates’ assertions that there have to be limits to how poorly we can treat other human beings under the color of US law.
For immigration lawyers, the beginning of the COVID-19 outbreak in the US was colored by the fact that we had no clear directives about the risks surrounding virus transmission. Our immediate plan was to identify the people with the highest known vulnerabilities: respiratory illness, immunosuppression, age and ask ICE to release them under a process called humanitarian parole. Humanitarian parole, part of US immigration law, is a mechanism that exists for when conditions exist where detention is not appropriate and releasing someone would be in the public interest. An epidemic that could potentially kill a medically vulnerable individual and would put workers at risk seemed to be the exact situation. When ICE refuses to release people on parole they generally cite “flight risk” as the reason, meaning that if ICE were to release them they might not show up in immigration court for their eventual removal hearings where they must fight for their right to stay in the US or face deportation. Flight risk, however, can be mitigated by simple GPS technology, ankle bracelets that ensure that if someone does not show up for court or ICE check ins, the government can locate them and arrest them. This technology is not without its issues but is an excellent solution to get people out of detention and out of the way of a virus rampaging a population. Yet when we submitted our parole requests, we received near categorical denial. ICE insisted to us that the situation was under control and that the threat of the virus did not justify releasing individual detainees much less the population en masse. Of course the calls coming to our offices from inside detention centers told us otherwise. People were pleading for their lives. They described a complete lack of sanitation, or forty to fifty people in a room, guards without masks, sick people everywhere. ICE seemed to be denying the existence of a public health crisis even as the rest of the country began to stay at home and face an unfathomable economic shutdown.
People were pleading for their lives.
One of the more insidious issues surrounding immigration detention is the fact that 70 percent of immigration detention centers are run by correctional corporations. The two US giants in this field are the Geo Group and Core Civic, formerly the Correctional Corporations of America. The profits from detaining immigrants is well documented. CoreCivic alone reaps 4 billion dollars of profit a year. Part of what guarantees this profit is local bed quotas that ensure a certain number of people are detained nightly per contract. If ICE doesn’t fill the beds, fines are paid due to breach of contract. This creates federal incentive to maximize tax payer dollars by keeping a certain percentage of detention beds filled on any given night. It is also well documented how poorly private contractors care for the people in their custody. Corporations win federal contracts by promising cost effective care but often achieve that by running facilities that are understaffed or staffed by detainees working for $1/day and by using equally negligent subcontractors, including medical providers. In fact, in 2016, after enough irrefutable proof that private prisons were significantly more violent than their government run counterparts, then-President Obama went so far as to announce a federal phase out of private contracts under the Department of Justice. However this phase out never applied to the Department of Homeland Security and it wouldn’t matter anyway because Jeff Sessions immediately retracted the order when Trump took office. An enormous number of politicians in Washington, DC and in states where corporate detention is prevalent, are connected to private prison lobbyists and accept donations. Any action or, in the time of COVID-19, lack of action, must pass through an analysis of profit loss for these corporations and the subsequent effect on the congresspeople they pay.
At the time of writing this report, ICE has failed to react in any appropriate, scientifically informed way to the COVID-19 pandemic. There are currently around thirty thousand people in ICE detention. ICE’s response to the growing national movement to release all detainees is by releasing hundreds, mainly at the order of federal judges. At the end of April, only 2 percent of ICE detainees had been tested for the virus yet over 60 percent tested positive. Experts estimate that by the time we reach the 90-day milestone, unless aggressive measures are made to mitigate exposure, that 100 percent of ICE detainees could be infected. There are outbreaks in detention across the United States and legal advocates are aggressively filing petitions in federal court pleading with judges to demand the release of detainees at a larger and more aggressive scale. The layers of crisis in ICE detention not only threaten the detained population but also the communities where the detention centers are located as outbreaks threaten to overwhelm ICUs in the rural communities where these facilities often exist. In New Mexico, for example, one of the three ICE detention centers is on the eastern edge of the Navajo Nation, a region that is experiencing tragic levels of COVID-19 cases. Yet workers are coming into a dangerous, unnecessary situation daily.
The reason that ICE detention doesn’t work is because people don’t migrate for reasons that are bad....They migrate to find work and educational opportunities.
Jail, prison, concentration camps, detention — this is punishment and punishment is a theory. ICE detention is designed under the theory of punishment that there is an amount of suffering that you can inflict on a human being that will teach them that migration is wrong. The reason that ICE detention doesn’t work is because people don’t migrate for reasons that are bad. They migrate to find work and educational opportunities that will be a ladder out of crippling generational poverty. They migrate because they simply cannot keep their bodies safe from war or gang violence, from flood and famine. And they migrate because of love, because of the human instinct to be with your family, your tribe, and your people even if you have been separated by borders. The Department of Homeland Security and ICE has tried detention, humiliation, abuse, even separating parents from their children and they have not succeeded in overcoming the forces of strength and goodness that cause migration and stem the tide of people coming to the US. Now we will see if sacrificing migrants’ bodies to a global pandemic will send the message strongly and decisively enough. Have we hit the bottom yet or will there be further to fall?
Allegra Love, Esq. is the Executive Director of the Santa Fe Dreamers Project, which provides free legal services to immigrants and refugees to promote economic empowerment, community development, family unity, and liberation from detention.