As Omicron Spreads in ICE Detention, Advocates Call for Action

Immigrants in detention facilities throughout the United States are facing a rapid increase in COVID-19 infections as the Omicron variant spreads throughout the country and rips through congregate settings. Immigrants held in detention facilities run by Immigration and Customs Enforcement (ICE) have experienced an increased risk of COVID-19 throughout the pandemic, with an infection rate three times as high as the overall US infection rate, with most being held in congregate settings where social distancing is virtually impossible. The latest wave of Omicron reiterates a concern that has been long-standing for this population, that the only way to safeguard these individuals and save lives is to release people from detention. 

The COVID-19 pandemic has highlighted just how dangerous immigrant detention is, with more than 31,000 cases of COVID-19 reported in ICE detention. ICE and private detention operators have taken turns blaming each other for woeful conditions and lack of planning or oversight. Advocates and attorneys have spent the last two years demanding more releases in order to protect the health and safety of those in detention and have highlighted the lack of sanitation and safety in these facilities, as well as inadequate vaccine access. 

In California, advocates coordinated a campaign to demonstrate that ICE had refused to provide immigrants in detention with life-saving vaccines and had denied responsibility for the lives of those they detained. Despite coordinated efforts, many immigrants in other states were unable to obtain access to vaccines as federal and state authorities each did little to assert responsibility over-vaccination plans for those detained. In fact, ICE has apparently admitted that they have no official nationwide plan to roll out boosters to those who are medically vulnerable. 

To further complicate matters, it seems that ICE has relied primarily on the Johnson and Johnson vaccine, which is no longer recommended by the CDC, as the primary shot for most immigrants in detention. In addition to issues with efficacy, those who received the Johnson and Johnson shot are much more likely to immediately require a booster, further compounding the danger posed by ICE’s inaction.  

On January 26, two medical advisers for the Department of Homeland Security (DHS) came forward as whistleblowers against the spread of COVID-19 in ICE detention, releasing a letter calling on the Biden administration to take drastic steps to curtail the spread of COVID. “In our own inspections of ICE facilities, for example, we have seen and documented inconsistent enforcement of mask use in detention centers, inconsistent testing and surveillance, and a failure to develop facility-level infection control plans – all critical measures to control the spread of what we know is a highly transmissible, life-threatening illness,” the letter states.

California Advocates Demand Release and Closure of Facilities 

More than one year into the Biden presidency, advocates have expressed frustration and disappointment with the administration, which at one time campaigned on a platform that promised to end the use of for-profit detention facilities and Trump-era immigration practices. Despite these promises, the population of detained immigrants has grown 45 percent during the first year of Biden’s term. This fact is compounded by stunning estimates that the Omicron variant has led to a 520 percent increase in COVID-19 cases in detention.

The frustration over broken promises and the continued danger posed by the pandemic was particularly palpable in California during a recent battle to end a contract between ICE and the Yuba County Jail. For months, advocates, organizers, and attorneys led a campaign focused on releasing the last group of immigrants from detention in the notorious Yuba County Jail, a facility known for its dreary conditions and remote location.

Following the release of the last immigrant detainee in the facility on October 27, 2021, advocates hoped that the Biden administration would end the contract with the facility and worked with members of Congress to send a letter to the administration urging this resolution. The letter was signed by more than 20 members of Congress and called on the administration to end its contract with the facility over its abysmal conditions and record.

Despite the coordinated efforts of advocates and congress members and the momentum of freeing everyone from the facility, advocates were disappointed with the announcement that ICE was moving to repopulate the facility. 

“We’ve known for decades that Yuba County Jail has a horrific record of mental and medical care that has unfortunately resulted in tragic deaths and lots of pain for lots of families,” said Laura Duarte Bateman in an interview with the San Francisco Chronicle. Bateman works with the California Collaborative for Immigrant Justice, which organized last month’s protest against Yuba accepting new detainees.

The decision, partly made by the refusal of the Biden administration to end the contract for a facility that was no longer needed, underscores the sense of frustration and betrayal felt by advocates. Many have noted that the COVID-19 pandemic paved the way for thousands of people to be released from custody, underscoring how truly unnecessary immigration detention is. 

Notwithstanding this opportunity to change the course of detention, it appears the Biden administration is focused on keeping these structures intact, even at the expense of the lives of those detained.  

Biden Administration Keeps Trump’s “Remain In Mexico” Policy Alive

The Biden administration has continued to frustrate immigration advocates with its border policies, with the latest reports indicating that the administration is looking to expand the controversial Migrant Protection Program (MPP). The MPP, or “Remain in Mexico” policy, is a program developed by the Trump administration that has been used to keep tens of thousands of migrants arriving at the southern border in Mexico while their cases are adjudicated in the United States. On December 2, 2021, Mexico and the United States announced a new deal to restart the controversial program, despite Biden campaigning on a promise to end the policy that many advocates have claimed violates international laws. 

During the Trump administration, the program became a lightning rod for criticism as the policy was used to send more than 60,000 asylum-seeking migrants back to Mexico, as opposed to allowing them into the United States to seek asylum. Many of those sent back to Mexico were forced to live in tents and received little protection from the government. Human Rights First documented more than 1,500 “violent attacks” against migrants who were returned to Mexico under the program. 

The Biden administration has claimed it has no choice but to restart the program following a series of lawsuits by opponents to keep it in place. Under the Biden presidency, the Department of Homeland Security (DHS) had sought to repeal the program by issuing a memorandum on June 1, 2021, however that process was overturned by a federal court in Texas, leading to a second DHS memo in October. On December 14, 2021, the Fifth Circuit Court of Appeals denied the legal basis of that second memo. The ruling by three Republican-appointed judges is the result of a legal battle between republican states that have sued the Biden administration to maintain Trump-era border policies. 

In response to the news of the program restarting, Texas Congressman Joaquin Castro tweeted, “I strongly disagree with the reinstatement of the ‘Remain in Mexico’ program, which contributed to a humanitarian crisis at the border. Those previously subjected to the program, including women and young children, were living in horrendous conditions for months on end.”

By restarting the program, with its core intact, the administration has drawn the ire of advocates, Democratic Congressmen, and even asylum officers charged with screening migrants at the border. “While the administration has taken measures intended to mitigate some of the most egregious elements of MPP’s prior iteration, a program that requires asylum seekers to remain in one of the most dangerous parts of the world while their cases are pending in US immigration courts cannot guarantee their protection from persecution and torture, as required by US law,” the union for asylum officers wrote in an open letter on December 2, 2021.

Many advocates believe that the program violates the principle of non-refoulement. According to the United Nations Office of the High Commissar for Human Rights,  “Under international human rights law, the principle of non-refoulement guarantees that no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm. This principle applies to all migrants at all times, irrespective of migration status.”

Advocates have also slammed the administration for expanding the program, which was previously reserved for Spanish speakers, to anyone seeking to enter from the Western Hemisphere. Advocates argue that this expansion is not the result of a court order but a choice by the Biden administration to expand the program. 

“The Biden administration was not ordered by the court to expand Remain in Mexico to new populations,” Ursela Ojeda, senior policy adviser for migrant rights and justice at the Women’s Refugee Commission, was quoted as saying in an article by Vox. “They are going well above and beyond good faith compliance that’s required of them [by the court] to make this policy more cruel and more deadly.”

The disappointing news involving the Biden administration and its posture towards Trump-era policies also included recent news that Justice Department officials had pulled out of settlement talks with the families who had been forcibly separated by the Trump administration at the border. “There’s no explanation for not settling these cases other than the Biden administration is unwilling to use literally any political capital to help the young children deliberately abused by our government,” said Lee Gelernt, deputy director for the ACLU’s Immigrants’ Rights Project, in an article by NBC News.

The announcement of the expansion of MPP, coupled with the Biden administration's continued use of Title 42 as its primary border management tool, has left many immigration advocates wondering what if any, humanitarian changes will be made by a President who ran on a platform of inclusion and compassion. 

9th Circuit Rules Against AB 32, Advocates Vow to Fight On

The 9th Circuit has issued a devastating ruling against a California law, AB 32, that banned the use of for-profit facilities to detain immigrants. The ruling was issued on October 5, 2021, by a panel that included two Trump-appointed judges forming the majority, with a third democratically appointed judge writing the dissent. The ruling may mean that California cannot enforce AB 32 against civil detention facilities used by U.S. Immigration and Customs Enforcement (ICE) to detain immigrants. However, California may still appeal the decision. 

The ruling is the latest chapter in an ongoing battle between advocates and private prison corporations in California over what a state can and cannot do concerning the regulation of private detention facilities. Immigrant Legal Defense joined Immigrant Defense Advocates, the California Collaborative for Immigrant Justice, and the Center for Gender and Refugee Studies in filing an amicus brief in the case focused on the unclean hands of the GEO Group.

In 2019, California made headlines when it passed AB 32, a landmark bill that banned private prisons and detention facilities. The law was hailed as an important step toward the abolition of an industry that has profited for decades from the incarceration and detention of communities of color. Since then, various states, including Washington and Maryland, have followed suit, passing bills to curtail private incarceration. 

For immigration advocates, the bill was an exciting and important step toward ending the for-profit detention of immigrants. The vast majority of immigrants in California are held in for-profit detention facilities, with seven of the eight facilities used to detain immigrants run by private corporations. Nationally, approximately 80% of immigrants are held in for-profit facilities, and advocates have long argued that these corporations perpetuate policies that drive the exorbitant rates of detention for immigrants.

The court found that the provision of AB 32 that applied to civil detention is unconstitutional because it oversteps the state's roles and impacts the field of immigration, a domain exclusively reserved for the federal government. “California is not simply exercising its traditional police powers,” wrote 9th Circuit Judge Kenneth K. Lee, a Trump appointee, “but rather impeding federal immigration policy.” Advocates and the state of California have maintained that the bill was not about immigration but instead ending the operation of an industry that places profits over human lives. 

The decision did not necessarily surprise many advocates, given that two of the three judges hearing the case were appointed by Trump. What was confounding for many was the multitude of factual errors in the majority’s written opinion. These inaccuracies raise questions about whether the judges fully understand the nature of ICE detention.

For example, the majority states, “The United States Immigration and Customs Enforcement (ICE) relies exclusively on private detention centers in California.” ICE, however, does not rely exclusively on private detention centers in California. In fact, ICE has an intergovernmental services agreement with Yuba County Jail that runs through 2099 and allows for the detention of hundreds of immigrants at that facility.

On page 20, the majority writes: “Here, AB 32 does not just ‘touch’ upon the area of immigration detention; it bulldozes over the federal government’s ability to detain immigrants by trying to ban all the current immigration detention facilities in California.” This characterization of AB 32 is wrong, as it is not a complete ban, given the existence of the Yuba facility. It is also important to note that AB 32 does not prevent ICE from building its own facilities and detaining individuals in California. It is unclear that the bill even prevents ICE from using contractors in those facilities so long as those contractors do not own and operate the facility. The court ignores these basic facts and instead characterizes California as overstepping its bounds. 

The majority’s flawed understanding of ICE’s detention system was demonstrated later in the decision when they stated, “To avoid spending large sums of money on government-owned buildings that may remain vacant if immigration wanes, ICE relies only on privately operated detention facilities, including in California.” ICE does not rely only on privately run detention across the country or in California. ICE owns numerous facilities across the country but also, at times, houses detainees in other federal facilities operated by the U.S. Federal Bureau of Prisons, in addition to using local jails and intergovernmental services agreements, as previously mentioned. 

This mischaracterization by the majority is troubling because it is an egregious error of fact and because it distorts ICE’s reliance on private operators. Even worse, this distortion is then used as a basis for their legal ruling in favor of the federal government and private companies. The majority paints private operators as indispensable to ICE when they are not. 

What is missing from the opinion is any meaningful analysis of the horrid conditions that exist in privately owned and operated detention facilities and the extensive findings by various federal investigators that ICE’s detention oversight system is ineffective. Such an examination would provide clarity as to why a bill like AB 32 was designed to target both private prisons and civil detention facilities used by ICE. 

The COVID-19 pandemic has exposed just how horrific conditions in ICE detention are and how little oversight the agency provides in facilities that are run by for-profit corporations. The decision to end the use of such facilities by a state like California should have been analyzed as a step towards protecting the health and safety of those in detention rather than encroaching on immigration enforcement. 

In an interview with the L.A. Times, Jackie Gonzalez, policy director for Immigrant Defense Advocates, called the court’s ruling an overreach. “AB 32 was very clearly a bill aimed at protecting the health, safety, and welfare of individuals subjected to the abuses of private prison corporations,” she said. “Since its enactment, California has closed every private prison and immigration authorities, and the federal government has gone to pains to circumvent the law and expand detention.”

The issue of states' rights and immigration law is part of a complex and ever-growing area of law, with liberal states like California and Washington pushing pro-immigrant policies and states like Texas and Arizona seeking to weaponize state policies against immigrant communities. How these issues are settled is often ultimately dependent on political considerations, including those by judges with certain ideological leanings. 

California Attorney General Rob Bonta, who authored AB 32 during his time in the California legislature, issued a statement vowing to continue to fight. “We will continue the fight to ensure the dignities and rights of everyone in California are protected,” he said. “As a Filipino American who was brought to this country as an infant, this fight is personal to me. While the road ahead may feel a little longer today, our work continues, and we will keep pushing forward.” The California Attorney General can challenge the ruling by seeking an appeal or rehearing in the coming weeks.

The ruling by the 9th Circuit is certainly disappointing, however the push to abolish the use of for-profit detention facilities, and in fact immigration detention as a whole remains alive and well both in California and across the country. 

Border Images Spark Outrage, Condemnation of Biden Policies

Images from the southern border have sparked outrage over the Biden administration's stance on immigration, with many critics accusing the President of breaking campaign promises and carrying over Trump-era enforcement policies. The images included U.S. Customs and Border Patrol (CBP) officers mounted on horseback chasing Haitian migrants near the Rio Grande in Texas were described as “horrific” by democratic lawmakers and led to a wave of condemnation and outcry.

One of the photographs depicted a mounted officer wielding the reins of his horse and using it to strike migrants in a whipping fashion. Vice President Kamala Harris quickly denounced the images as “horrible” and “deeply troubling,” noting that they invoked images of slavery and called for a full investigation. 

More than 10,000 migrants had been camped in the Rio Grande area, including many asylum seekers from Haiti. The administration has moved swiftly to deport many asylum seekers back to Haiti, where political instability and natural disasters have driven many to seek safety abroad. Following the deportations, the U.S. special envoy to Haiti, Daniel Foote, resigned, calling the deportations inhumane.

“The people of Haiti, mired in poverty, hostage to the terror, kidnappings, robberies, and massacres of armed gangs and suffering under a corrupt government with gang alliances, simply cannot support the forced infusion of thousands of returned migrants lacking food, shelter, and money without additional, avoidable human tragedy,” Foote said in his resignation letter.

The images have led many advocates to decry not only the use of mounted officers but also the systematic discrimination faced by black migrants coming to the United States. Haitian Bridge Alliance, a leading organization advocating on behalf of Haitian migrants, wrote a letter to the administration condemning not only the images but the continued deportation of Haitian migrants. 

“No Haitian should be subjected to expedited removal or reinstatement of removal given the lives at stake and the Biden administration’s own assessment of the dangerous conditions in Haiti.”

The letter included a list of immediate demands to address the crisis and was co-signed by dozens of other organizations. 

The treatment of Haitians at the border is just one of many issues that advocates pointed to in their criticism of the Biden administration, many of them believing that the President has not done enough to keep campaign promises to move towards a more humane immigration process. Chief among these complaints is the ongoing use of private detention facilities, as well as the continuing inhumane treatment of all migrants at the southern border. 

Meanwhile, the Biden administration's use of a Trump-era policy to exclude migrants at the border remains a source of contention and legal battles. On September 16th, a federal judge ruled that the administration had to stop using the controversial Title 42 public health order to remove migrants with children from the U.S.-Mexico Border quickly. The Judge granted a preliminary injunction in a lawsuit filed by the ACLU, ruling that they were likely to succeed in their challenge to the use of the program. 

Title 42 led to at least 16,000 expulsions in the month of August alone, and many have cited the law as a disappointing continuation of the Trump-era policies by the Biden administration. The program allows border agents to expel migrants without allowing them to present a legal claim.

Advocates have argued that Title 42 was an illegal move by the Trump administration to deny migrants the right to seek lawful asylum in the United States. “President Biden should have ended this cruel and lawless policy long ago, and the court was correct to reject it today,” said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project.

The judge in the case seemingly agreed, noting that the law seemed “likely unlawful” and also unnecessary “in view of the wide availability of testing, vaccines, and other minimization measures.”

The ruling was quickly appealed, resulting in a federal appellate court temporarily granting the Biden administration permission to continue using the law as a basis for expulsions. 

Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, said he was disappointed by the ruling. “Nothing stops the Biden administration from immediately repealing this horrific Trump-era policy,” he said. “If the administration is making the political calculation that if it acts inhumanely now, it can act more humanely later, that calculation is misguided and of little solace to the families that are being sent to Haiti or brutalized in Mexico right now.”

In September, former CDC officials wrote an open letter to the Biden administration condemning Title 42 as “scientifically baseless and politically motivated.” 

A press release on the letter noted that the Biden administration was continuing Trump’s policy of weaponizing public health against migrants. “Since the Trump administration first exploited the COVID-19 pandemic to implement this xenophobic policy in March 2020, public health experts have repeatedly objected to the policy’s specious public health justifications and recommended rational science-based measures to safely process asylum seekers and migrants at the border while promoting public health and upholding U.S. and international obligations to refugees.”

A senior State Department official joined the chorus of criticism on the use of Title 42. Harold Koh, the sole political appointee on the State Department’s legal team, penned a scathing resignation memo in which he called the use of Title 42 “illegal,” “inhumane,” and “not worthy of this Administration that I so strongly support.”

“I believe this Administration’s current implementation of the Title 42 authority continues to violate our legal obligation not to expel or return (“refouler”) individuals who fear persecution, death, or torture, especially migrants fleeing from Haiti,” the memo states. 

Koh joined advocates in arguing that the administration could do better, noting that “lawful, more humane alternatives plainly exist.”

Texas Court Halts Biden Administration's New ICE Enforcement Priorities

A court in Texas has issued a devastating decision to the Biden administration's plan to limit immigration enforcement and slow down deportations. The ruling, issued by Judge Drew Tipton of the U.S. District Court for the Southern District of Texas, blocks the Biden administration from limiting U.S. Immigration and Customs Enforcement's (ICE) arrests to specific categories in an effort to shift the agency's enforcement priorities. Specifically, the court issued a nationwide preliminary injunction halting the enforcement of two memos issued by the Biden administration that aimed to limit the scope of ICE’s enforcement priorities and reduce arrests. 

Shortly after taking office, DHS and ICE officials issued two memos to field staff. The memos ordered agency staff to prioritize the arrest of individuals deemed national security threats, those who constitute a border security threat, or those convicted of offenses considered aggravated felonies or who have been convicted of an offense involving active gang membership who pose a risk to public safety. In addition, the memos created stricter oversight standards for agents wanting to arrest individuals who fall outside these priorities. 

The ruling by the Trump-appointed judge placed a nationwide preliminary injunction on the two memos. Judge Tipton had previously issued rulings preventing the Biden administration from enforcing a 100-day deportation moratorium. 

The legal challenge was filed in April by Texas Attorney General Ken Paxton and Louisiana Attorney General Jeff Landry in the U.S. District Court in the Southern District of Texas, located in the conservative 5th Circuit.

In the ruling, Tipton stated that Texas and Louisiana had shown "substantial likelihood that the policy concerning the detention of certain aliens set forth in the Memoranda is arbitrary and capricious under the Administrative Procedure Act and the Memoranda fail to comply with the APA's notice and comment requirement."

The decision is the latest in a series of court battles between presidential administrations and states with opposing viewpoints on immigration, affecting both Democratic and Republican administrations alike. This includes laws passed by California to limit the enforcement of the Trump administration’s inhumane border policies, as well as legal challenges brought by the state of Texas to end Obama-era programs like DACA. 

The ruling now casts uncertainty over the direction of immigration enforcement under Biden. The administration recently nominated Sheriff Ed Gonzalez, previously critical of the Trump administration's immigration policies, as Harris County sheriff in Texas to head up ICE. While this move may indicate the Biden Administration’s desire to reform ICE, advocates remain concerned that Gonzalez may not be able to deliver change to an agency riddled with challenges given the spread of COVID-19 in detention facilities and increased apprehensions at the border. 

Judge Tipton also ordered the Biden administration to file additional documents by September 3rd, providing the court with "specificity what guidance, protocols, or standards control the detention of these aliens in light of the fact that the Memoranda have been enjoined." In addition, Tipton ordered the administration to provide the court with monthly data reports on immigrants who were not detained.

The Biden administration has since appealed the ruling, but whether it will issue new priorities to DHS remains to be seen.

The ruling was slammed by advocates, with Jeremy McKinney, the president-elect of the American Immigration Lawyers Association (AILA), telling reporters, “This Texas judge is single-handedly forcing the federal government to re-examine how it will enforce immigration law.”

McKinney went on to demand that advocates pressure the agency and the administration to exercise discretion in how DHS operates. “Even after (Thursday’s) decision, immigration attorneys and advocates should press the agency to exercise discretion in appropriate cases and implement robust policies on prosecutorial discretion. Enforcement must be done fairly and humanely and every advocate must continue to fight for their clients whether they are deprived of their liberty in a jail cell or free.”