*11.2. Prosecutorial Discretion*

As a matter of policy, ICE has always had prosecutorial discretion to release individuals with serious medical conditions and individuals who are vulnerable to medical

harm. The release of individuals with special vulnerabilities from immigration detention is authorized under a range of statutory and regulatory provisions, notably INA §§ 212(d)(5), 235(b), 236, and 241, and 8 C.F.R. §§ 1.1(q), 212.5, 235.5, and 236.(b), and even individuals held under mandatory detention pursuant to INA §§ 236(c). As a matter of practice, ICE is usually unwilling to do so, even when ordered by the Court.

In 2000 when NDS 2000 was issued, there was no ATD program to which detainees with special vulnerabilities and certain managemen<sup>t</sup> concerns could be referred. This is no longer the case. ICE has operated ATD programs since 2004 (ICE 2021d). In July 2021, ICE updated its policy on the arrest and detention of pregnant, postpartum, and nursing women (ICE 2021c). The new policy directs ICE and CBP to limit the arrest of pregnan<sup>t</sup> and nursing women, and it establishes new guidelines on how to treat them if they are detained. It addresses only two of many at-risk categories of detainees identified by the CDC and the Court who are at risk of serious illness or death from the coronavirus unless released.

### **12. CDC Guidance, Underlying Medical Conditions Associated with High Risk for Severe COVID-19**

The CDC identified a number of categories of people more likely to ge<sup>t</sup> severely ill from COVID-19 (CDC 2021a). With regard to adults, the CDC considered both at-risk adults of any age and older adults.

Adults of Any Age. Adults of any age with the following conditions can be more likely to ge<sup>t</sup> severely ill from COVID-19: cancer, chronic kidney disease, chronic lung diseases including COPD (chronic obstructive pulmonary disease), asthma (moderate-to-severe), interstitial lung disease, cystic fibrosis, and pulmonary hypertension, dementia or other neurological conditions, diabetes (type 1 or type 2), Down syndrome, heart conditions such as heart failure, coronary artery disease, cardiomyopathies or hypertension, HIV infection, immunocompromised state, liver disease, overweight and obesity, pregnancy, sickle cell disease or thalassemia, current and former smokers, recipients of a solid organ or blood stem cell transplant, stroke or cerebrovascular disease, and substance use disorders.

Older Adults. Older adults are more likely to ge<sup>t</sup> severely ill from COVID-19. More than 80% of COVID-19 deaths occur in people over age 65, and more than 95% of COVID-19 deaths occur in people older than 45. Additionally, people exposed to long-standing system health and social inequities including many racial and ethnic minority groups and people with disabilities are more likely to both ge<sup>t</sup> COVID-19 and have worse outcomes.
