**3. The Pandemic Strikes**

It is important to emphasize that closed environments, such as detention centers, are particularly vulnerable to the spread of disease. In addition to overcrowding, the communal nature of detention centers means that people are unable to socially distance—bathrooms and sinks are shared, as are mealtimes, and staff come and go from the outside world (Amon 2020). In fact, it was reported in November 2020 that COVID-19 infection rates in detention centers were 13 times higher than the national infection rate (Driesbach 2020).<sup>26</sup>

As indicated in Section 1 above, ICE issues statistics regarding the impact of COVID-19 on detention centers. To supplement reports from a system that has sometimes been called a "black box", a number of other organizations also began tracking the effect of COVID-19 in detention centers from the start of the pandemic (Cho 2020). In April 2020, the organization Freedom for Immigrants (FFI) began issuing regular analyses and updates on the impact of COVID-19 on those in ICE custody. In its first update, just over a month after the World Health Organization declared COVID-19 a pandemic (World Health Organization 2020), FFI reported on the dire circumstances in detention facilities, including "crowded and unsanitary conditions, continued transfers of people between facilities with known or suspected outbreaks, and a lack of or insufficient quantities of soap and personal protective equipment (PPE), for the people in custody as well as staff and guards" (Freedom for Immigrants 2020, p. 1). The update also included detainees' concerns "that ICE was either failing to provide or deliberately blocking information about the spread of COVID-19 inside detention" (Freedom for Immigrants 2020, p. 1). The FFI updates continued in this vein, noting that the observations in their reports "remained consistent—at every stage of the pandemic, ICE failed to implement even basic public health protocols to mitigate against the spread of COVID-19" (Freedom for Immigrants 2021, p. 1). Reports surfaced of detainees' lack of access to soap and hand sanitizer, or in some instances, being required to purchase these items in detention center commissaries (Zwick 2020).

In recognition of the vulnerability of detainees, the Centers for Disease Control issued "Interim Guidance on Management of COVID-19 in Correctional and Detention Facilities" in March 2020.<sup>27</sup> ICE detention facilities are required to comply with CDC guidelines on environmental health (U.S. Immigration and Customs Enforcement 2011, sct. V.A). The CDC recommended that ICE "provide a no-cost supply of soap" to detained persons, in quantities sufficient to allow for multiple hand washings; provide alcohol-based sanitizer with at least 50% alcohol; implement social distancing strategies; and provide clear information about the existence of COVID-19 cases within detention centers and the need to maintain good hygiene and distance from other detainees. Despite this, ICE continued to operate its detention centers largely unchanged.

Although ICE announced in March 2020 that it would be focusing its immigration enforcement efforts on "public-safety risks and individuals subject to mandatory detention based on criminal grounds",<sup>28</sup> ICE continued to transfer detainees between ICE facilities, and between ICE facilities and prisons, even when ICE facilities were dealing with known outbreaks (American Civil Liberties Union 2021, p. 6). In April, ICE ordered its officers to reassess the need to detain those over 60 years of age and anyone with immune-systemcompromising illnesses (Hsu 2020). This led to the release of approximately 700 people (Flynn 2020). That same month (and for several more thereafter), judges around the U.S. were ordering detention centers to reduce their populations (Brennan Center for Justice 2021). Staff at some facilities were told not to wear masks to prevent the spread of panic among detainees and, reportedly, some centers offered masks to detainees who were willing to sign a waiver releasing one of the private detention centers from liability, should they become ill (Detention Watch Network 2020b). Some facilities began using quarantines to isolate and stop the spread of infection, but it appears that their use was not uniform and sometimes included quarantines of groups of people (Zwick 2020). ICE also continued deporting detainees, sometimes without testing them for COVID-19 (ibid). Later, when travel bans were imposed, an inability to remove even those who tested negative for COVID-19 only served to worsen the problem of overcrowding in centers (Chishti and

Pierce 2020). Detainees at a privately-run detention center in Georgia reported that they were routinely denied COVID-19-related medical care and punished harshly for asking for such treatment (Del Valle and Olivares 2020; Olivares 2020). In late 2020, it became evident that communities with ICE facilities were experiencing more serious outbreaks and a faster rate of infection than communities without detention centers (Detention Watch Network 2020b, p. 26).

A related problem was ICE's failure to halt *all* enforcement operations at the start of the pandemic. As indicated above, ICE refocused its enforcement operations on safety risks, but because it did not stop completely, new people were detained, thus exacerbating conditions in detention centers. As the Brennan Center recommended, "ICE and CBP should release all individuals who are not a 'credible threat' to public safety on parole/bond, including all people without a criminal record or with only a minor violation as their most serious criminal conviction. This would encompass most of the detained population" (Brennan Center for Justice 2021).

In addition to an ICE-led decision to release, ICE has the discretion to gran<sup>t</sup> parole to noncitizens in certain circumstances. In particular, the governing statute gives ICE the discretion to temporarily parole individuals "on a case-by-case basis for urgen<sup>t</sup> humanitarian reasons or significant public benefit".<sup>29</sup> It must be requested by the detainee. Guidance on humanitarian parole provides examples of the types of people in detention that should be considered for release, including people who have "serious medical conditions" and people "whose continued detention is not in the public interest".<sup>30</sup> In addition, it must normally be demonstrated that the immigrant applicant for parole does not pose a flight or security risk.<sup>31</sup> Several organizations called on attorneys to apply for humanitarian parole, especially for high-risk detainees (Meyer et al. 2020; Immigration Justice Campaign 2020). However, because most detainees have no legal representation (discussed below), this option remained largely unknown to them.<sup>32</sup>

In response to these circumstances, a number of detainees launched hunger strikes, and several civil society organizations filed lawsuits on behalf of detainees to secure their release, many of which are ongoing at the time of writing.<sup>33</sup>
