Janelle Thompson, Associate Member, University of Cincinnati Law Review
COVID-19, commonly referred to as coronavirus, has thrown the world into a global pandemic for most of 2020. Health experts advise that social distancing is required to limit the spread of the virus but applying this guidance in ICE detention centers presents a difficult situation. As of September 27, 2020, there was 6,154 total confirmed COVID19 cases for detainees alone. 567 of those detainees that tested positive are currently still held in detention centers. This post will examine the role of ICE in detaining noncitizens and explore the efforts to address the health crisis in ICE detention centers.
Part II of this blog provides background on ICE, with a focus on the subagency responsible for detainment and detention management. Part III focuses on the safety guidelines ICE put forth in an attempt to manage COVID-19 in its detention centers. Part IV presents a look at the current health situation in detention facilities across the country. Part V introduces possible responses to the health crisis including the Immigration Enforcement Moratorium Act and a recent judicial order in Flores v. Barr. Part VI concludes with guidance for the courts based on the principles described in Flores.
II. ICE Background
The U.S. Immigration and Customs Enforcement (“ICE”) was created in 2003 through a merger of the former U.S. Customs Service and the Immigration and Naturalization Service.  ICE now has more than 20,000 law enforcement and support personnel in more than 400 offices in the United States and around the world. The agency has an annual budget of approximately $8 billion, primarily devoted to three operational units — Homeland Security Investigations (“HSI”), Enforcement and Removal Operations (“ERO”), and Office of the Principal Legal Advisor (“OPLA”).
The ERO’s mission is to “identify, arrest, and remove aliens who present a danger to national security or are a risk to public safety, as well as those who enter the United States illegally or otherwise undermine the integrity of our immigration laws and our border control efforts.” The ERO has discretion in detaining non-U.S. citizens who are apprehended based on the subjective judgment of enforcement officers regarding individuals “determined to need custodial supervision.” Detainees are held in every U.S. state, with the majority of detainees kept in private prisons operated by federal contractors. However, ICE detainees are also held in jails, hospitals, and even hotels.
III. ICE’s Released Guidelines for COVID-19
ICE released stringent guidelines for its officers and its detainees to handle the pandemic. Officers now have personal protective equipment and are able to work from home if feasible. For the detainees, ICE temporarily suspended social visitation in all detention facilities.  The ERO also launched an effort to determine the population of detainees who are more at risk to catch the virus. Of this medical risk population, ICE released over 900 individuals after evaluating their immigration history, criminal record, potential threat to public safety, flight risk, and national security concerns.  ICE’s detained population has steadily dropped by more than 7,000 individuals since March 1, 2020. The decline is a result of the decrease in book-ins when compared to this time last year combined with the continued practice of sending noncitizens back to their countries of origin. 
In June, ICE implemented a new plan to address new detainee arrivals. According to the reported guidelines, ICE tests all new detainees who arrive at ICE-owned facilities for COVID-19 during the intake screening process. ICE then houses all the new arrivals separately from the general population for 14 days after their arrival and monitors them for symptoms. Detainees displaying virus symptoms are isolated from the general populations for observation based on CDC guidance. New detainee arrivals who tested negative and remain symptom-free can join the general detained population after the 14-day intake period. 
IV. The Health Situation in ICE Detention Centers
Although ICE has released strict guidelines, many immigration activists report that the situation in detention centers is worsening. 20% of detainees are testing positive, with a significant possibility of ICE underreporting cases. And even with ICE’s inability to control the spread of the virus, the agency is still deporting hundreds of people to 15 countries in Latin America and the Caribbean. 11 of those countries have confirmed that deportees returned have returned with the virus.
Former ICE detainees are reporting unsafe and unsanitary conditions, including holding detainees in rooms filled with over 100 people.  The detainees alleged that they may be given soap and masks, but ICE agents may choose not wear masks and subjectively select people to isolate based who they think is difficult to manage. Many detainees, including asylum seekers, are left without access to their lawyers and families during the containment process. 
Immigration advocates report that in many centers, COVID-19 medical treatment is essentially the same solitary confinement used for punitive disciplinary measures.  The possibility of medical confinement results in a troubling trend of detainees being scared to report symptoms in fear of being placed in medical solitary.
V: Response Efforts
The Immigration Enforcement Moratorium Act (“Act”) was introduced on June 18, 2020, to temporarily suspend certain immigration enforcement activities during disease-related emergencies.  The Act would suspend several key ICE activities: (a) removals of noncitizens from the United States; (b) arrests and apprehensions by ICE or Customs and Border Protection of noncitizens who are physically present in the United States; (c) required meetings with ERO (commonly known as “ICE check-ins”); (d) service of Notices to Appear; and (e) referrals for prosecution under section 275 or 276 of the Immigration and Nationality Act (8 U.S.C. § 1325 and 1326).
Judicial orders provide another approach to addressing the health crisis in ICE detention centers. For example, U.S. District Court Judge Dolly Gee ordered the release of immigrant children who have been held in ICE Family Residential Centers for more than 20 days. Her decision in Flores came after hearing reports from federal court monitors concerning the worsening health conditions in ICE centers and unnecessary delays in granting sponsors approval to have youth in their homes.  In her ruling, she noted that the efforts to release the children should be taken with all deliberate speed. In the meantime, she urged ICE facilities to enforce the basics such as social distancing, masking, and enhanced testing. 
Human rights coalitions and immigration activists are accusing ICE of not following its own guidelines to provide safe and sanitary conditions for detainees in detention centers. The COVID-19 pandemic has exacerbated concerns surrounding ICE practices and procedures. The Immigration Enforcement Moratorium Act widens the discussion to examine the role of ICE and its power during emergency situations. As more immigration lawyers demand to have detainees released from custody, courts can look to the Flores ruling for guidance.
 Flores v. Barr, 392 F.Supp.3d 1144 (C.D. Cal. 2020).
 Fact Sheet: Immigration and Customs Enforcement (ICE), Nat’l Immigration Forum (July 10, 2018), https://immigrationforum.org/article/fact-sheet-immigration-and-customs-enforcement-ice/.
 Int’l Rescue Committee, COVID-19 escalating in ICE detention centers as states hit highest daily records (Aug. 3,2020), https://www.rescue.org/press-release/covid-19-escalating-ice-detention-centers-states-hit-highest-daily-records-and-ice.
 Carmen Acosta, Psychological Torture: Ice Responds to COVID-19 with Solitary Confinement (Aug. 4, 2020),theintercept.com/2020/08/24/ice-detention-coronavirus-solitary-confinement/.
 Immigration Enforcement Moratorium Act, H.R. 4011, 116th Cong. (2020).
 Flores v. Barr, 392 F.Supp.3d 1144, 1151 (C.D. Cal. 2020). “In light of the foregoing, the Court finds that Defendants are in breach of the Flores Agreement by denying unaccompanied immigrant children the right to a bond hearing. Plaintiffs’ motion to enforce Paragraph 24A of the Flores Agreement is GRANTED. Defendant Office of Refugee Resettlement of the Department of Health and Human Services shall forthwith comply with Paragraph 24A of the Flores Agreement.”
 Id. at 3.