Federal Judge Orders ICE to Consider Releasing High-Risk Detainees During Pandemic

Detainees in a U.S. Immigration and Customs Enforcement detention facility in Washington state. (AP Photo/Ted S. Warren)

(CN) — A California judge ordered the U.S. Immigration and Customs Enforcement agency to begin to consider releasing all detainees who are at a high risk of severe illness or death if they contract Covid-19.    

U.S. District Judge Jesus G. Bernal, a Barack Obama appointee, agreed Monday to grant a preliminary injunction against ICE, ordering it to immediately begin revisiting custody decisions for detainees with health conditions that could lead to complications or death if they fall ill with the coronavirus. 

Bernal’s order comes after several advocacy groups, including the Civil Rights Education and Enforcement Center and Disability Rights Advocates, filed for the emergency injunction in late March.

While the underlying complaint, filed last year, related to allegations of poor access to medical and mental health care at federal detention facilities, new and crucial concerns about ICE and the Department of Homeland Security’s response to the coronavirus outbreak have been raised.

Advocacy groups claim that people in ICE detention are being subjected to overcrowded cells and are not receiving the kind of proper medical checks needed to combat the spread of Covid-19. 

Bernal said in the 39-page order that the risk of infectious diseases and viruses spreading is higher in detention and jails because they are densely populated. Given the severity of Covid-19, Bernal said that calls to request ICE take increased precautionary measures are justified.

“Even in the early days of the pandemic, and with few exceptions, courts did not hesitate to find irreparable harm as a result of potential COVID-19 exposure in prison and detention, including in facilities where there had not been a confirmed case,” the order states. “At this stage of the pandemic, the threat is even clearer.”

Bernal directed ICE to take a series of immediate steps: The agency must begin tracking detainees with high risk factors and should start making “timely custody determinations” for those individuals. The judge said ICE should also consider the willingness of those with risk factors to be released and should properly share post-release planning information with detainees.

The judge also ordered ICE to provide more training to detention center staff members so that they can identify and monitor detainees who may have high risk factors. The agency can also choose to delegate such identifying tasks to individuals with medical training.

The order states that these measures are to remain in place until the threat of Covid-19 to those in ICE custody has largely subsided.

Tim Fox, co-executive director of the Civil Rights Education and Enforcement Center, said that Monday’s ruling is a step in the right direction to protect those in detention during the pandemic.

“This decision is an important step in ensuring humane and lawful treatment of the thousands of people being held in detention,” Fox said in an email Monday evening. “We are honored to be part of this amazing team and we are so grateful to all of the organizations working with immigrants and their families.”

ICE and the Department of Homeland Security, however, are not the only detention facility operators currently grappling with decisions as to how to manage detainees during a global pandemic.

Numerous states around the country have already taken action aimed to help control the spread of coronavirus in jails, prisons and other detention centers, though many in such facilities are already suffering from rapid spread. The Marion Correctional Institution, a state prison in Ohio, reportedly has at least 1,828 confirmed cases among inmates — roughly three-quarters of its entire inmate population.

The potential danger has led some states to turn to early release programs in order to help combat the spread of Covid-19. Late last month, California announced it would be offering early release to around 3,500 inmates in custody to help reduce overcrowding.

An ICE representative did not immediately respond to a request for comment Monday evening.

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