**1. Introduction**

At the end of September 2020, the average daily population of detained immigrants in the United States (U.S.) was down to 19,068 because of COVID-19 mitigation efforts (U.S. Immigration and Customs Enforcement 2021; U.S. Immigration and Customs Enforcement). However, the 2019 average daily population was 50,165 (U.S. Immigration and Customs Enforcement 2020a). While there were fewer numbers of detainees in 2020, their length of stay in detention facilities went from an average of one month in 2019 to double that in 2020 (U.S. Immigration and Customs Enforcement 2020a, 2021), as it go<sup>t</sup> harder to execute deportation orders and to apply for release from detention.

At the time of writing, U.S. ICE confirmed 15,056 COVID-19 cases among detainees since ICE began testing in February 2020.<sup>1</sup> Just over 10% of its detained population are positive for COVID-19 and are being actively monitored or are under isolation.<sup>2</sup> ICE has reported a total of nine deaths from COVID-19, but the accuracy of this number is disputed.<sup>3</sup> From the start, reports of insufficient sanitization supplies, staff without masks, and failures to facilitate social distancing hit the news. In response, angry and frightened detainees launched hunger strikes, and civil society organizations filed lawsuits advocating for the safety and human rights of detainees.

Described by one scholar as the "American Gulag" (Dow 2004), immigration detention centers have raised serious concerns for many years, particularly since the 1980s when the U.S. faced large numbers of migrants arriving from Cuba and Haiti. For the first time, U.S. detention capacity was stretched to its limits, and migrants were forced to reside in crude camps outdoors, particularly in Florida (Wilsher 2012). This period marked the start of the modern detention estate and the expansion of detention capacity in the United States (Wilsher 2012). The U.S. immigration detention system is now the largest in the world (Global Detention Project 2021). Though it began modestly, it has grown into a system that detains roughly 400,000 people annually (Jefferis 2020). This vast empire has unsurprisingly been the target of much criticism. Scholars and civil society organizations have raised concerns over every aspect of the detention framework, including the method by which a detention order is made;<sup>4</sup> the availability and quality of opportunities to be released from detention;<sup>5</sup> and the constitutional legitimacy of detaining noncitizens.<sup>6</sup> Beyond these,

**Citation:** Stefanelli, Justine N.. 2021. Detained during a Pandemic: Human Rights behind Locked Doors. *Social Sciences* 10: 276. https://doi.org/ 10.3390/socsci10070276

Academic Editor: Nigel Parton

Received: 23 June 2021 Accepted: 16 July 2021 Published: 20 July 2021

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perhaps the greatest area of concern has been the conditions in detention centers<sup>7</sup> and the effect of such conditions on the mental and physical health of those detained.<sup>8</sup> These concerns only increased as the pandemic spread among immigration detention centers.

The pandemic hit immigration detention facilities hard. Pre-existing problems in detention centers, such as overcrowding, shared space, and lack of access to healthcare and legal representation were exacerbated by the pandemic and the slow and inadequate response of the U.S. Government to early concerns raised by human rights watchdogs. As two commentators put it in the early days of the pandemic, "Because the transmission of SARS-CoV-2 is predominantly from person to person through droplets, a pillar of infection prevention is social distancing and disinfection, which is antithetical to closed detention settings" (Meyer et al. 2020).

Although one year on the situation has improved, it is important to reflect on the U.S. Government's response to the pandemic's impact in detention centers in light of international and domestic law obligations concerning immigration detention and to identify some lessons learned to avoid a similar crisis in the future.

Following this introduction, Section 2 will introduce the nature and function of immigration detention in the United States and review the domestic and international standards applicable to the detention of noncitizens in the United States. It will also delve into criticisms of detention, particularly regarding healthcare, to more explicitly illustrate how the pandemic made a poor situation worse for immigration detainees.<sup>9</sup> Section 3 will review the response of ICE to the pandemic and demonstrate how detainees' access to healthcare was particularly compromised by ICE's insufficient reaction to the pandemic. Section 4 will look at the specific issue of access to justice and what happened in the immigration courts following the onset of the pandemic. Section 5 will identify what steps should and could have been taken to mitigate the impact of the COVID-19 pandemic and any similar situations that may arise in the future. Section 6 concludes that the U.S. immigration detention system must be reviewed using a human rights-based approach, to prevent what happened following the COVID-19 pandemic from happening again.
