**13. Fraihat Risk Factors**

In March 2020, attorneys on behalf of Plaintiffs Fraihat et al., sought relief for detained people with certain risk factors including those who are older, pregnant, or who have underlying medical conditions and are at a heightened risk of serious illness, life-altering complications, and death from COVID-19 (Fraihat v. ICE 2020). Plaintiffs argued successfully that ICE's responses to COVID-19 and its inadequate healthcare system will not protect people with risk factors. In April 2020, the Court ordered ICE review for release every person in the class.

Since then, all immigration detention centers are required to evaluate every new admission within five days of admission, to identify the presence of factors that may place a detainee at higher risk for severe illness due to COVID-19-related risk factors or disabilities. Based on the *Fraihat* ruling and related CDC guidance, ERO's PRR now requires every facility identify all the detainees with these chronic health conditions— cancer, chronic kidney disease, chronic obstructive requires pulmonary disease, Down syndrome, weakened immune system, overweight and obesity, serious heart conditions, including heart failure, coronary artery disease and cardiomyopathies, sickle cell disease, type one and type two diabetes mellitus, asthma, cerebrovascular disease, cystic fibrosis, hypertension or high blood pressure, neurologic conditions, including dementia, liver disease, pulmonary fibrosis, smoking, and thalassemia (ICE ERO 2020b, 2020c, 2020d, 2020e, 2021).

According to ICE data, in CY2020 facility medical staff determined 14,728 detainees had one or more conditions that placed them at high risk for severe illness due to COVID-19 of which, ICE released 5801 detainees (39%) from custody, removed another 5432 high-risk detainees from the United States (37%), and continued to detain 3487 (24%) as of the end of CY2020 (GAO 2021).

ICE needs to do more, now. As of 30 March 2021, 528 high-risk detainees have tested positive for COVID-19 (GAO 2021). *Fraihat* demonstrates just how inadequate ICE's classification policy and practice are. Few, if any, of the detainees with conditions that placed them at high risk for severe illness due to COVID-19 were known to ICE, and it is unlikely that ICE would have exercised the discretion it already had to release any of them.

### **14. Is the Past Prologue? Summary, Conclusions, and Recommendations**

ICE does not handle infectious and communicable diseases well. Every year, detention facilities encounter detainees with measles, mumps, and chicken pox, and the prospect of significant consequences for some. Nevertheless, with each outbreak, impacted facilities do the same things the same ways. They lock down entire housing units, and occasionally the entire building, even when a simple screening for prior infection and/or verification of inoculation is all that it needed to return many of those detainees to general population. Some lockdowns have been so large and lasted so long that court runs have been cancelled, attorney visits forfeited, and access to outdoor recreation, the legal orientation program, and the law library were suspended. These outbreaks, always addressed the same way, occur so often that what were once questionable practices are widely accepted now as best practices for handling infectious and communicable diseases. It should not come as a surprise then, when IHSC and ERO directed the field offices and detention facilities in early 2020 to review their communicable disease and infection control plans in anticipation of the pandemic, it only served to fortify bad practices already entrenched systemwide. They thought they knew everything that they would need to know: 'it will pass'.

Although all detainees are always in the custody of ICE, their access to personal protective equipment, sanitation and hygiene supplies, testing and vaccine, adequate conditions for quarantine, as well as routine and emergency healthcare is dependent upon the facilities to which ICE has assigned them; and, as was demonstrated with respect to access to test kits and kit processing—the ability to test increases the ability to identity and address infected detainees—facilities' access to essential supplies, staff and space also varies considerably, and to the detriment of the individuals for whom ICE is responsible.

ICE's failures to take measures to mitigate the harm to which detainees continue to be exposed, and the heightened danger to which ICE has exposed at-risk detainees throughout the pandemic, must be addressed.

These are several of the ways that measurable improvements can be realized.

One, ICE is a federal enforcement agency. ICE should ensure all its policies and practices comply with immigration case law, are uniform and uniformly enforced, and every person in its custody receives equal treatment.

Two, to that end, ICE should operate a unified system, a system with one set of standards expressing the highest expectations and a continuum of control ranging from no supervision to detention, the premise being most require little or no supervision.

Three, ICE should decriminalize its policies and procedures, its facilities and ATD programs. ICE should discontinue use of jails and prisons, especially non-dedicated facilities where detainees are collocated and comingled with correctional populations, as well as correctional supervision strategies and correctional policies and procedures to the greatest extent practicable, as quickly as practicable.

Four, decisions as to detainees' placement along the continuum of control should be based on objective assessments of risk and a thorough identification of vulnerabilities. ICE should retain expert assistance and revise its classification process and also, add instruments to identify vulnerable persons and accurately identify security risk groups and members.

Five, upon the revision of risks and needs assessments, all detainees should undergo reclassification and low risk and at-risk detainees reconsidered for release under the least restrictive means. Also, there always should be sufficient personnel qualified to assess risk and identify vulnerabilities and make timely referrals at all facilities.

Six, mandatory detention should reflect real risk, and "in the custody of" should be expanded to include alternatives-to-detention programs. ICE should conduct a review of detainees' custody classification files currently held under mandatory detention provisions to identify anyone who may be detained erroneously under its provisions and arrange for their release. Depending upon the outcome of the review, additional training of Intake staff, and revision of custody classification detention standard and/or the INA § 236(c) and § 235(b) may be required as well.

Seven, detainee healthcare should meet or exceed the community standard of care at every location. Detainees' access to healthcare should not be conditioned on county or state policy. Every facility that ICE uses to detain individual in its custody must also be capable of complying fully with CDC Guidance. It is essential that IHSC establishes a universal standard for detainee healthcare for all facilities.

Eight, IHSC should conduct an immediate review of every facility to determine what levels and kinds of healthcare and which handicapping conditions cannot be accommodated. ICE must ensure anyone who cannot be accommodated at their current location is relocated or released immediately.

Nine, ICE is better positioned to act in the event of a pandemic than any of the detention facilities with which it contracts or the communities in which those facilities are located. For planning purposes, ICE should assume responsibility for the nation's immigration detention system's pandemic preparedness and response. It must ensure all detainees have timely access to requisite supplies and equipment, space for medical treatment and isolation, medicine, medical personnel, all necessary components of routine and emergency medical services, all of the time and at every location.

Ten, every facility that ICE uses for detention should be capable of complying fully with ICE's current detention standards, and upon revision thereof, one set of detention standards that complies with the case law. When that occurs, ICE should discontinue the use of any facility or facility provider that cannot meet these requirements. Until then, ICE should not issue any variances but for temporary conditions that can be readily and timely resolved.

**Funding:** This research received no external funding.

**Institutional Review Board Statement:** Not applicable.

**Informed Consent Statement:** Not applicable.

**Data Availability Statement:** Data available in a publicly accessible repository that does not issue DOIs. Publicly available datasets were analyzed in this study. This data can be found at: https: //www.ice.gov/doclib/detention/FY21-detentionstats.xlx, accessed on 21 September 2021.

**Conflicts of Interest:** The author declares no conflict of interest.
