The Continued Detention of Migrants in U.S. Detention Centers During the COVID Pandemic

Post by Ingrid Eagly and Steven Shafer. Ingrid is a law professor at the University of California, Los Angeles, and Steven is Managing Attorney for the Esperanza Immigrant Rights Project in Los Angeles.This post is part of our themed series on border control and Covid-19.

In the face of the devastation of the coronavirus in carceral settings, President Trump and members of his administration have doubled down on immigrant detention. As the coronavirus rages through detention centers, the Department of Homeland Security has refused to exercise discretion to release persons held in detention. Detention, the administration maintains, is necessary so that immigrants don’t skip their court hearings.

The evidence tells a different story. Releasing immigrants is not just a humane response to the ravages of COVID-19. It is the appropriate response based on the empirical data: immigrants come to court.

In a new study we published this month in the University of Pennsylvania Law Review, we analyzed 11 years of immigration court data made available to the public by the Executive Office of Immigration Review (EOIR), the government agency that runs the U.S. immigration courts. We wanted to find out if statements by President Trump that immigrants “never show up” for court are true. Indeed, they are not.

Our review of the government’s own data reveal that, since 2008, 83% of all immigrants in nondetained deportation cases have attended all of their court hearings. In addition, over the  11 years of our study, 95% individuals who sought relief such as asylum attended all of their court hearings.

These high rates of compliance with immigration court hearings should be also evaluated against the backdrop of a pervasive failures to provide proper notice about court dates. In our study we found that 15% of in absentia orders issued were later successfully rescinded because of notice problems. This important measurement reveals serious problems with the system for providing notice about immigration court hearings.

Unfortunately, the lack of practical notice about the time, date and location of court hearings has become more pronounced during the pandemic. The Department of Justice has taken to Twitter to announce its court closures. This ad hoc system for changing court dates has made extremely it hard for individuals to figure out when and where to go to court, particularly if they do not follow Twitter, have internet access or understand English.

As the virus has spread, the administration has persisted in its policy of keeping people locked up in crowded immigration prisons that are a tinderbox for the spread of contagion. The result is disastrous. Two immigrants have now died from complications with the virus while in ICE custody. Three persons held in ICE custody have now died from complications with the virus, as have four guards.

Carlos Ernesto Escobar Mejia was the first person to be killed by the virus while in ICE custody, after attorneys for the government opposed his release. The immigration judge denied his bond, finding that wheelchair-bound amputee who had attended all of his immigration court hearings for the past eight years was a “flight risk.” Had he been released on bond, he would still be alive today.

With only limited testing being conducted, experts estimate that the true number of COVID-19 cases is much higher than the official count of 2,742 positive cases as of July 3, 2020, including 280 confirmed cases at the Bluebonnet Detention Facility in Texas. Despite the risk of infection, detention centers still have not put in place proper social distancing measures and fail to provide persons in their care with proper protective gear.

This is not a humane response. As United States District Court Judge Terry J. Hatter Jr. wrote in a decision releasing two men from ICE detention, “This is an unprecedented time in our nation’s history, filled with uncertainty, fear, and anxiety. But in the time of a crisis, our response to those at particularly high risk must be with compassion and not apathy. The Government cannot act with a callous disregard for the safety of our fellow human beings.”

Our findings point to more humane and empirically sound policy solutions. Given the high likelihood that immigrants will attend their court proceedings, more individuals should be released from the dangerous conditions of detention.

If the agency needs additional assurance that someone will appear in the future, they can rely on cost-effective alternatives to detention, including community-based programs. The immigration courts could also learn from the proven success of state court systems in providing reminder calls with the accurate time and date of the next court hearing.

In this time of crisis, the government should stop relying on the myth that people won’t come to court. Immigrants do not need to be detained in order to attend future court hearings. Now is the time to act to save lives.

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How to cite this blog post (Harvard style) 

Eagly, I. and Shafer, S. (2020). The Continued Detention of Migrants in U.S. Detention Centers During the COVID Pandemic. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/07/continued [date]