**5. Lessons Learned**

From the start of the pandemic, people and organizations working in immigration and human rights law identified a number of ways to prevent or mitigate the spread of COVID-19 (or any other virus on this scale) in immigration detention facilities, including the immediate release of all detainees (Detention Watch Network 2020a, p. 5; Vera Institute of Justice 2020; García Hernández and Moctezuma García 2020). While it may not be feasible to empty all of the detention centers, releasing detainees who do not pose a risk of harm or flight is reasonable and effective. Fewer detainees in facilities means that those who remain detained can more easily socially distance themselves from one another. Some even called for a commitment from DHS not to re-detain those who were released because of COVID-19 "absent a compelling, individualized reason to do so" (American Civil Liberties Union 2020, p. 8). ICE should have temporarily stopped all enforcement operations so that new people were not detained and added to the facilities' populations (Detention Watch Network 2020a, pp. 4–5; Vera Institute of Justice 2020, p. 4). To stop the spread of disease between facilities and the community, ICE should have also halted all detainee transfers. Within detention centers and immigration courts, clear and honest information about the virus should have been provided to detainees in a language they could understand, and hygiene products should have been made freely and widely available. Steps should also have been taken to ensure that detainees have access to vaccines under the same conditions as the general public, taking into account detainees who pose a higher risk for contracting the virus (American Civil Liberties Union 2020, p. 8). Finally, the immigration courts should have suspended all types of proceedings, not just those for non-detained immigrants, and ICE should have immediately halted the execution of all deportation orders.

ICE's inadequate and delayed response to the pandemic worsened its impact in detention centers. The fallout made it clear that there is work to be done beyond the need to respond quickly and intelligently when a pandemic strikes. Several systemic issues must be addressed so that if and when another pandemic strikes, an already-strained system is not put under further pressure.

First, detention should be used as a last resort, imposed only after an individual assessment has concluded that the person poses a risk of harm or flight. Those who do not pose such risks should be released, and an alternative to detention should be applied. The UN Working Group on Arbitrary Detention has explained that "[a]lternatives to detention can take various forms: reporting at regular intervals to the authorities; release on bail; or stay in open centers or at a designated place. Such measures are already successfully applied in a number of countries. They must however not become alternatives to release" (United Nations Working Group on Arbitrary Detention 2010, para. 65). To that end, the ACLU has recommended that the DHS "[e]stablish a nationwide program of communitybased alternatives to detention run by nonprofit organizations providing case managemen<sup>t</sup> services" (American Civil Liberties Union 2020, p. 8). Second, where people are detained, it is essential for them to have effective access to legal representation. Although immigrants do not have the right to court-appointed lawyers like criminal defendants do, communities should "continue to invest in and grow publicly funded legal representation programs" (Vera Institute of Justice 2020, p. 3). Although some programs currently exist, they are by no means sufficient to provide resources for the thousands of people detained without legal representation.<sup>36</sup> Third, while in detention, access to healthcare should be improved. In particular, it makes sense to ensure that immigration detention healthcare systems are connected with general healthcare and emergency planning systems and that there is information sharing between the health and justice departments (Kinner et al. 2020). Fourth, in recognition that under normal circumstances ICE violates its own standards without consequence (Hamilton YEAR, p. 120), it is vital that independent oversight mechanisms with enforcement power are put in place to ensure that any breaches of the rules are corrected and punished and that detainees can effectively report wrongdoing to an independent body or agency. This is especially important considering that more than two-thirds of detainees are housed in private detention centers (Amnesty International 2020, p. 29). Relatedly, the U.S. should take seriously its commitments to the ICCPR and the UNCAT, for example by implementing recommendations from the Human Rights Committee and the Committee Against Torture and ensuring that detainees can enforce the standards in U.S. courts. A review of the ICE detentions standards should be conducted against the international legal framework, including the superior standards set forth in the Nelson Mandela Rules, and the rules should be consolidated insofar as possible to avoid inconsistent implementation. Fifth, immigration detention facilities should engage in pandemic response strategy development. To assist in this process, ICE should be factored into the broader public health response planning so that it is not left to develop strategies in isolation (Kinner et al. 2020). On a more granular level, each facility should have protocols in place for screening visitors, supplying PPE, social distancing, cleaning and disinfection, and restricting movement—including limiting staff and visitors to essential personnel (Kinner et al. 2020). Sixth, the U.S. Government should put an end to the use of private immigration detention facilities. In January 2021, the Biden Administration ordered the U.S. Department of Justice to take steps to end its reliance on private prisons for federal prisoners,<sup>37</sup> and human rights experts have since called for an extension of that mandate to immigration detention facilities (Scaffidi 2021). Bringing all immigration detention centers under the direct control of ICE, combined with revamping the standards applicable in those centers, are essential steps on the journey toward achieving a human rights-compliant immigration detention system.

Beyond policy, it may be possible to achieve binding legislative change for detention centers. There are currently two bills before Congress that seek to improve the immigration detention framework. The New Way Forward Act was introduced to Congress in January 2021 and aims to reform the enforcement of U.S. immigration law (U.S. Congress 2021a). In particular, it seeks to end the use of mandatory detention of those who have committed certain crimes considered "aggravated felonies",<sup>38</sup> thereby extensively reducing the number of immigrants placed in detention. It also provides for automatic review by the Secretary of Homeland Security of the decision to detain an immigrant within 48 h of the person being taken into custody Noferi (2016). That same provision also imposes a rebuttable presumption that the immigrant should be released. Essentially, if enacted, the Act would reduce the use of detention and improve the quality of detention, where it is imposed.

The Dignity for Detained Immigrants Act was introduced to Congress in April 2021 and sets minimum standards for the protection of immigrants in DHS custody (U.S. Congress 2021b). The bill includes provisions on oversight and transparency for detention facilities, including a process to deal with a failure to comply with the standards set forth in the bill; it provides a cause of action for detainees in facilities out of compliance with the standards; and it addresses broader concerns such as the pervasive use of private detention facilities and procedures for detaining noncitizens.

Though it may be difficult to achieve consensus on the sort of legislative change described above, it should not be difficult to put in place plans and procedures to ensure that detainees are taken care of both within and outside the context of a pandemic. At a bare minimum, detention centers should meet detainees' basic human rights requirements. Detainees should have been informed accurately about the virus and provided with free PPE and hygienic supplies, and all detention facility staff should have been wearing masks. DHS's failure to act quickly and intelligently and the U.S.'s failure to meet its international human rights obligations meant that detainees were without the information and resources necessary to avoid contracting COVID-19.
