Civil Immigration Detention and COVID-19: Why ICE Should Be Releasing People

Background

Over 450 people are currently jailed in the Aurora ICE GEO Detention Center. ICE detainees are held in civil, not criminal, detention. This means that none of them are being held on charges of criminal activity. Many have never been arrested by the police at all. Others have. But those with past arrests fit into two categories:

• Arrested but not convicted: For these people to have made it into civil immigration custody, law enforcement or the criminal court judge necessarily must have decided that they are not a danger to the community in order to release them on their own recognizance or on payment of a bond.
• Convicted of an offense: For these people to have made it into civil immigration custody, they must have already served any time in jail per the sentence of the criminal court judge. After they fully serve their custodial sentence, ICE takes them into immigration custody.

The fact that a person is taken into immigration custody does not mean that they are “illegal” or that they don’t have immigration status. Rather, it means is that ICE believes that they are deportable—i.e., that the government has legal cause to strip them of immigration status and deport them, or that they do not have immigration status and can therefore be deported.

While in “civil” custody, actually just a jail indistinguishable from the jails that hold people in criminal custody (often they are literally the same facilities), immigrants typically go to a series of immigration court hearings held within the detention center to contest ICE charges of deportability or to apply to the immigration judge for relief from removal. The court hearings regularly take 3-6 months to complete, and sometimes much longer if there is an appeal.

If a detainee bonds out of immigration custody or is otherwise released, they continue to be required to go to immigration court, but at the non-detained court in downtown Denver instead of within the Aurora detention center. For those who are released, ICE routinely uses its Alternatives to Detention (ATD) program, which can include regular check-ins and electronic monitoring. Should anyone miss a court hearing on the non-detained docket, they get ordered removed in absentia and will be arrested and deported by ICE without the right to further court hearings.

COVID-19

ICE is currently jailing over 35,000 people in civil custody. Locking a person a cell for months-on-end for reasons having nothing to do with dangerousness to others is something we as a country have long needed to reevaluate. But with the spread of COVID-19, the practice has become more indefensible than ever.

Detainees in Aurora ICE report that they are held in large numbers in tight quarters. Shared bathroom areas are not disinfected between users. Though there are now 6 confirmed cases of COVID-19 among staff who have worked at Aurora ICE GEO, guards continue to circulate through the facility without masks. One doctor is on-site for over 450 detainees. Some of the detainees are seniors or have preexisting medical issues which make them particularly vulnerable to serious complications or death if they get COVID-19. The detention center has been described as a tinderbox where the virus will inevitably spread like wildfire. Indeed, confirmed cases in detention centers are jumping on a daily basis, with 283 confirmed cases across 28 separate facilities as of April 23, 2020. But these numbers certainly underrepresent the scope of the crisis, as ICE concedes that only 425 detainees have even been tested. Once an outbreak starts within a facility, it will quickly spread, ultimately taxing resources at our local hospitals and putting the entire community at further danger.

The crucial social distancing recommended by the CDC and mandated by state and local authorities is simply impossible. Through our detention policies, civil immigration charges have been converted into potential death sentences.

ICE has the legal authority to release detainees and existing robust Alternative to Detention programs that for years have proven effective at ensuring attendance at future court dates. It should use its authority to release detainees to continue their immigration cases in a non-detained setting.

Joseph & Hall believes that the heightened danger of contracting COVID-19 in a congregate detention center is as clear as it is unjustifiable.  We are working tirelessly to seek the release of clients in custody at Aurora ICE GEO through bonds and requests to ICE for humanitarian release. Where those efforts fall on deaf ears, we are seeking federal court orders mandating immediate release. Civil detention was always an affront to this country’s core commitment to individual liberty. It is now a matter of life and death.

Further Reading:

Truthout Article on Civil Detention

ICE Accountability Reports on Aurora ICE GEO Detention from Representative Jason Crow

ICE Guidance on COVID-19