Even as the nation faces a coronavirus pandemic, the Trump administration isn’t backing off its threat to deport any unauthorized immigrants anywhere in the US.
Under pressure from lawmakers and advocates, US Immigration and Customs Enforcement had initially announced major changes to its enforcement priorities effective Wednesday night for as long as the coronavirus pandemic persists: The agency said it will only target immigrants who pose a public safety risk and who have committed serious crimes and would not carry out enforcement actions at health care facilities.
The move, which appeared to restore a policy in place during the Obama administration, would have reduced the population of immigrant detention centers, where the virus could potentially spread quickly with too many people in close quarters. It also would have allowed unauthorized immigrants to seek medical care without fearing they could be arrested.
But Ken Cuccinelli, the acting deputy secretary fo the Department of Homeland Security, walked back the policy change in a tweet on Thursday morning, claiming that the administration’s enforcement priorities had not changed:
(3/5) This means that @ICEgov will continue to prioritize arresting and removing criminal aliens and other aliens who pose a threat to public safety, just as it always has during President @realDonaldTrump‘s administration.
— Acting Deputy Secretary Ken Cuccinelli (@HomelandKen) March 19, 2020
Rep. Bennie G. Thompson, chair of the House Committee on Homeland Security, called on the administration Thursday to lay out an enforcement policy “publicly, formally, and clearly” stating that ICE will stop enforcement activities except when it applies to felons or those who pose a risk to national security.
“With such dangerous mixed messages, the Trump Administration is continuing to prioritize its draconian anti-immigrant policies over ensuring the health of our nation at a time when we all, collectively, face a global pandemic,” he said.
While the Trump administration has taken some measures to help insulate immigrants in its custody from the risk of contracting coronavirus in recent days, advocates say officials still haven’t gone far enough. Social contact in immigration courts and in detention centers still pose a serious risk for vulnerable populations that hasn’t been addressed.
The Department of Justice announced on Tuesday night that it would postpone all immigration court hearings for immigrants who aren’t in detention.
Hearings for detained immigrants, however, will continue in person for now — and it could force immigrants to choose between potentially exposing themselves to the coronavirus by proceeding with their cases, even if they’re particularly vulnerable to the virus, or facing potential deportation.
What ICE’s change in policy means
Trump has sought to use immigration raids as a means of intimidating immigrants and targeting sanctuary cities — which do not allow local law enforcement to share information with ICE or hand over immigrants in their custody — for refusing to cooperate with federal immigration authorities.
Under Trump, ICE has targeted immigrants ranging from those seeking student visas to those working at poultry farms in Mississippi. At one point, the agency levied hundred of thousands of dollars in fines against immigrants living in sanctuary churches. And just last month, the Trump administration was planning to send armed and highly trained law enforcement units to sanctuary cities across the country to support ICE in carrying out immigration raids.
Wednesday’s policy change appeared to represent a massive shift in the agency’s priorities — and in those of the president, who has rallied his base around restricting immigration — but Cuccinelli walked it back. Based on Cuccinelli’s statements, it’s now unclear whether any unauthorized immigrant will be shielded from enforcement actions during the current crisis, at health care facilities or otherwise.
ICE had been quite clear in its statement Wednesday: It said it would only prioritize immigrants who have committed serious crimes. That includes violent crimes, any two crimes that have a combined sentence of more than five years, and any drug offense, among others. The Obama administration had similar enforcement priorities, and at the time, the Migration Policy Institute estimated that only 13 percent of unauthorized immigrants or 1.39 million people met that criteria. (The policies were still heavily criticized by the advocacy community at the time for putting too many immigrants in detention.)
For the immigrants who haven’t committed such crimes, ICE said it would “exercise discretion to delay enforcement actions until after the crisis or utilize alternatives to detention.” It said that it would focus its enforcement efforts on human and drug trafficking at the border instead.
Those alternatives could include administering electronic ankle bracelets to monitor immigrants or entering them in something like the Family Case Management Program, an Obama-era program under which each immigrant is assigned a case manager who ensures that they show up for their ICE check-ins and court dates.
Under its own policies, ICE can’t carry out enforcement actions at “sensitive locations” such as churches and schools. On Wednesday, the agency also updated those policies under pressure from immigrant advocates to clarify that health care facilities — including hospitals, doctor offices, accredited health clinics, and emergency or urgent care facilities — are also sensitive locations where arrests won’t take place “except in the most extraordinary of circumstances.”
“Individuals should not avoid seeking medical care because they fear civil immigration enforcement,” the agency said in a statement.
But based on Cuccinelli’s comments, it’s not clear whether ICE will continue carrying out enforcement actions at health care facilities.
More than 800 public health and legal experts had urged ICE to confirm that health care facilities wouldn’t be targeted for enforcement actions earlier this month. They voiced concern that the prospect of being arrested at a medical facility might dissuade immigrants from seeking the care they need, which, amid the pandemic, could pose a threat to overall public health.
Immigrants in detention are still in limbo
It’s also not clear what will happen to immigrants who are already in immigration detention, who number about 38,000 in more than 130 private and state-run detention facilities nationwide. ICE hasn’t announced any plans to release immigrants, many of whom don’t fit the new enforcement priorities ICE has laid out — as of November, almost 70 percent of ICE detainees had no previous criminal convictions.
Lawmakers and advocates have been calling for their release, especially for detainees who are older or have underlying health conditions that make them more susceptible to the virus: According to the Centers for Disease Control and Prevention, that includes people with blood disorders, chronic kidney disease, chronic liver disease, compromised immune systems, current or recent pregnancy, endocrine disorders, metabolic disorders, heart disease, lung disease, and neurological and neurodevelopmental conditions.
“In this unprecedented time, ICE must proactively consider aggressive measures to reduce the spread of COVID-19, including a reduction int he overall number of detainees in ICE custody,” Rep. Jerrold Nadler, the chair of the House Judiciary Committee, wrote in a March 13 letter to the agency.
The American Civil Liberties Union and the Northwest Immigrant Rights Project have already sued ICE to seek the release of vulnerable detainees at one detention center in Tacoma, Washington, which is just outside Seattle, the epicenter of the US’s first large Covid-19 outbreak.
Rex Chen, director of immigration for Legal Services NYC, one of the organizations offering legal aid to immigrants in detention, told Vox that some detention centers have been taking steps to implement social distancing in the detention centers. They’re starting to isolate detainees more, are no longer allowing social visits, and are instituting no-contact lawyers’ visits in some places.
But ICE hasn’t issued uniform guidance on the precautions detention centers nationwide should be taking, and it’s evident that at least some of them aren’t doing enough to protect immigrants, as well as detention center staff, from exposure to the virus.
One officer at the Bergen County Jail in Hackensack, New Jersey, where some immigrant detainees are in custody, has reportedly tested positive for Covid-19. (The sheriff’s office, however, has found that no immigrants came into contact with them and are not exhibiting symptoms.) And at one ICE facility in Miramar, Florida, officials are continuing to detain immigrants in large numbers and require those who aren’t detained to wait in long lines to physically check-in:
Many immigration courts are also still requiring immigrants to show up in person for their court dates. While the Justice Department has decided to postpone hearings for non-detained immigrants, those in detention are still required to appear in person. That’s in contrast to many other city, state, and federal courts that have closed for the time being on account of the coronavirus, including the Supreme Court, which has suspended oral arguments.
It’s possible the virus has already started to spread while the immigration courts have remained open: One attorney in Atlanta immigration court tested positive for the virus, and a Denver immigration judge is self-quarantining at the recommendation of their doctor, who suspects that they, too, have the virus.
Immigration attorneys, immigration judges, and ICE attorneys have called on the agency to close the immigration courts entirely, for the safety of the immigrants and others who are involved in the proceedings.
“The scientific, evidence-based opinion of public health experts can only lead to one conclusion for us all who are connected with the immigration court system, and that is to immediately and temporarily close all of the immigration courts nationwide,” Judge Ashley Tabaddor, president of the National Association of Immigration Judges, the immigration judges’ union, said in a press call.
Chen said it’s possible that the immigration courts wouldn’t have to close entirely — they could conduct proceedings over video teleconference, which isn’t ideal but might be preferable for detainees who would otherwise have to wait longer for a hearing that could secure their release.
Under normal circumstances, teleconferencing can be problematic. In theory, teleconferencing would seem to make proceedings more efficient and increase access to justice, allowing attorneys and judges to participate even though they may be hundreds of miles away. But in practice, advocates argue that teleconferencing has inhibited full and fair proceedings: Technical difficulties, remote translation services, and the inability to read nonverbal communication over teleconference may adversely affect outcomes for immigrants.
“Unfortunately, only giving detainees and their lawyers the option to appear by video violates what we feel is required by due process,” Chen said. “Those issues still exist in these conditions. But giving them the option could make sense.”