By Aly Madan
FROM THE BORDER: TRAVELING TO DILLEY
In February of 2020, I went to Dilley, a small town in Texas, to help women and children detained at the border. The trip was made possible through Northeastern University School of Law’s clinics. I, alongside a handful of my peers and our professor, went to volunteer with Proyecto Dilley, an Immigration Justice Campaign project that serves individuals seeking asylum. Their staff and volunteers work out of a cramped room in the “South Texas Family Residential Center,” which is a fancy name for what is, in actuality, a jail. Proyecto Dilley helps those seeking asylum prepare for one of the first steps of the asylum process: the credible fear interview. The organization also helps in the resulting court hearing and provides “know your rights” trainings about the asylum process to those who are detained.
Prior to this trip, I had learned the technical requirements of asylum law and had some client-facing experience through classes, the Immigrant Justice Clinic, and volunteer work. However, even with this background, I still felt the enormous weight of this responsibility. My actions could lead directly to the prolonged detention or deportation of a family. I walked into the jail, dusted off my Spanish, and used every legal tool and resource available to help these women advocate for themselves and their children.
The week was emotional, exhausting, and incredibly powerful. These women and children, like so many who come to the United States, are strong, brave, and inspiring. They had made the arduous journey in hopes of finding safety. Now, they were here—stuck in a jail and separated from other family members—and still continuing to fight. Even those with the strongest cases were rejected at alarmingly high rates. Seeing these inequities up close was disheartening, but it also reinvigorated my desire to fix these broken systems.
As much as people say that America is a “nation of immigrants,” it has historically treated immigrants poorly. The ruthless anti-immigrant sentiment of the previous administration and its supporters has led to irreparable harm. Every few weeks for the past four years, the government released new policies that added barriers to the already complicated, expensive, and traumatizing process of not just getting into this country but surviving in this country. Immigrants and immigrant communities remain under relentless attack, and it is no exaggeration to say these policies have led to fear, confusion, and even death.
IMMIGRANT DETENTION CENTERS HAVE GROSSLY MISHANDLED THE COVID-19 PANDEMIC
As an immigrant myself and coming from a family of immigrants, the topic of immigration has always been of interest to me. After volunteering with Proyecto Dilley, I returned to the Immigrant Justice Clinic in the following summer and winter quarters to continue my advocacy efforts. Both times, in addition to their immigration cases, our clients were now also struggling with the fallout from COVID-19. Clients needed access to resources like healthcare and health insurance, unemployment and pandemic assistance, stimulus checks, affordable housing, and educational opportunities in order to mitigate the destructive effects of the pandemic on their lives.
The government was using the pandemic to illegally expel immigrants and deport people summarily, denying them their rights to seek asylum or relief. The Trump administration made it harder to get green cards, work permits, and citizenship, and limited access to financial or other resources. During crises like these, the inequities in our systems further burden immigrants, particularly those without documentation or whose applications for benefits or status are pending.
The COVID-19 pandemic has created untold tragedies in our most vulnerable communities. We have seen higher rates of illness and death among communities of color, immigrants, the elderly, people with disabilities, and people who cannot maintain physical distance from others, like those who are homeless or incarcerated. As of February 1, 2021, almost 440,000 people have died from COVID-19 in the United States. The disproportionate impact of the pandemic on those who are in jails, prisons, and immigrant detention facilities is appalling. According to the American Medical Association, individuals detained by Immigration and Customs Enforcement (“ICE”) are 13 times more likely to test positive for COVID-19.
Since immigration and deportation are considered “civil” in nature, rather than criminal, immigrants do not receive the same constitutional protections afforded to defendants in criminal cases. Immigrants are detained in a combination of ICE facilities, state and local jails, and private detention centers run by corporations like CoreCivic and GEO Group. Many people who are in immigrant detention came to the United States in order to flee violence or seek a safer, better life for themselves and their families. And many remain in detention solely because they cannot afford bond. Detention is used as a tool to deter and punish immigrants while also serving as a significant source of income for both for-profit prison corporations and municipalities that partner with ICE. Countless stories, lawsuits, and whistleblower reports of the abuse suffered by detained immigrants have come out of these facilities, and there is a tremendous lack of oversight, transparency, accountability, and justice for those detained.
Within its first two and a half years, the Trump administration expanded the nation’s immigrant detention infrastructure by fifty percent. As many as 500,000 immigrants are detained annually, and in 2019, ICE had an annual budget of over 3 billion dollars for detention alone. There were approximately 17,000 individuals in detention as of November 2020, and these numbers appear to be rising again due to the COVID-19 pandemic. The growing backlog of immigration cases has contributed to people remaining in detention longer.People are also dying in immigrant detention at higher rates than ever before. Under the Trump administration, 40 people died in immigrant detention. In 2020 alone, almost twice as many people died in detention as in the previous two years.
The COVID-19 pandemic is raging within all types of carceral facilities. Prisons, jails, and detention centers are crowded, poorly sanitized and ventilated, and individuals cannot remain physically distant or safe. There is inconsistent testing, inadequate access to healthcare, and a flow of new people coming and going into these already vulnerable spaces. Many people who are incarcerated suffer comorbidities that put them at higher risk of complications or death from COVID-19. People who are incarcerated contract COVID-19 four times more often than the general public and die from it more than twice as often.
Complaints stemming from COVID-19 allege inadequate access to counsel, general safety issues, and improper medical care. In addition, people who are detained have raised complaints regarding the use of toxic chemicals and disinfectants meant to sanitize, but which actually make people sicker. Credible stories have also emerged of medical abuse and neglect, which have led to unsanitary conditions, serious medical issues, and death.
The heightened public health risks associated with COVID-19 do not just remain within the walls of these detention centers. The people at risk of contracting COVID-19 are not only those who are incarcerated but also any staff, volunteers, visitors, and vendors who pass through the doors of these facilities, as well as others who come in contact with them. As of December 15, 2020, over 250,000 people who were incarcerated in federal and state prisons had tested positive for COVID-19, and there had been over 1,700 deaths. In the same timeframe, almost 70,000 prison staff members had tested positive, and there had been roughly 115 deaths. These are likely massive underestimations due to inconsistent testing and reporting. Furthermore, the frequent transfers of people between facilities led to additional outbreaks. This data also does not account for people who were exposed to COVID-19 while detained and who may have succumbed to the illness or spread it after their release.
By the time we are clear of this pandemic, there will likely be many more people who are harmed by the lack of proper health precautions and the complete disregard for human life demonstrated by these facilities. The variety of claims, stories, and abuses coming to light during the pandemic demonstrate the need for stronger accountability for these facilities in order to ensure the wellbeing and safety of those who are detained.
TO THE COURTROOM: ONGOING DECARCERATION EFFORTS ARE NOT ENOUGH
People in immigrant detention need support and dedicated efforts made on their behalf to protect them from the ravages of COVID-19. With the pandemic ongoing and lives still at stake, there is not enough time to wait for the Biden administration to clean up the existing messes or for a return to the status quo. If these facilities are not held liable for their failure to contain COVID-19, there will never be justice.
We have seen two significant trends in these facilities’ failures to address the pandemic. First, immigration detention facilities have been major sites of COVID-19 outbreaks. Second, despite knowing the risks, many facilities chose not to take ameliorative efforts to protect those inside. This has led to a series of injunctive lawsuits against major facilities seeking the release of individuals or groups of people at elevated risk of contracting coronavirus.
Much litigation has been aimed at decarceration due to COVID-19. Hundreds of cases, potentially impacting thousands of individuals detained around the country, have been raised with varying levels of success. Many forms of relief were sought, including releases, transfers, visitation, improved conditions, bond or parole hearings, or temporary restraining orders.
These early actions understandably focused on protecting the health and safety of people who were detained. Of a subset of 420 decarceration-based lawsuits tracked from March to July 2020, only four sought any form of monetary relief. Focusing on getting people out was the logical first step, and it was successful in the beginning. However, the number of people that were being released decreased as the pandemic progressed, and jail populations leveled off or increased again after the first few months of the pandemic. This indifference for people who are incarcerated has continued through to the current debates over prioritizing incarcerated individuals for the vaccine, further demonstrating the necessity of pursuing stronger legal remedies.
TO THE COURTROOM: DAMAGES LITIGATION IS A POTENTIAL PATH FORWARD
This pandemic has created a unique opportunity to press for much needed reform in our nation’s immigrant detention facilities. Immigrant detention is immoral, and it is expensive. The institutions and for-profit interests that are in the business of incarceration will not be convinced through moral or ethical appeals, nor solely through targeted court orders. They will only change their practices if they are financially impacted. We must disincentivize immigrant detention by increasing the legal and financial liability of detention facilities and their stakeholders. By strategically targeting these facilities for their failed response to the COVID-19 pandemic, we can exert pressure on this horrific system of immigrant detention.
If a facility that detains immigrants can be held liable for damages, it will increase their operating costs, as well as the costs for other industry actors. In order to avoid liability, facilities might work to implement stronger health and safety measures. Alternatively, if the cost of incarceration increases, it could force facilities to decarcerate or lower their populations. There are a few different potential litigation avenues, and they vary as to whether they would be brought in state or federal court and whether they would be initiated against ICE, private corporations, or state and county jails.
One potential litigation strategy could be through constitutional challenges, like a Bivens action. This type of claim is often difficult and is not allowable against certain employees of private detention facilities. In addition, there are concerns about the future of Bivens actions due to the Supreme Court’s narrow application of the remedy in recent cases. However, one does not need to exhaust all administrative remedies before pursuing a Bivens action, which makes it workable in the interim.
Under this approach, the person in detention could bring an Eighth Amendment claim stating that a detention facility showed “deliberate indifference,” which would be a violation of the detained person’s constitutional right against cruel and unusual punishment. Other claims arise under the Fifth Amendment, which the Supreme Court has confirmed protects individuals in ICE custody and establishes a right to be safe while in government custody.
An alternative litigation approach could be through statutory challenges. For example, there might be a violation of the Americans with Disabilities Act (“ADA”) or the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability in government programs and services. Certain sections of the ADA are not applicable to private detention facilities; however, there are differences within jurisdictions that make this approach feasible.
State law or Section 1983 claims can also be brought on behalf of people who are detained, as well as the surrounding community. These claims would be brought against facilities that generally operate as state houses of corrections but also have an immigration detention wing. By targeting these state and county jails, municipalities may discover the income they receive for detaining immigrants is not worth the liability or effort required to respond to these lawsuits, and they may end their partnerships with ICE.
Pursuing damages litigation is complex and time-consuming, and recourse is limited, particularly against for-profit prison corporations. The existing mechanisms for oversight, regulation, and accountability of private immigrant detention facilities are wholly inadequate. However, there are some glimmers of hope. First, a recent Executive Order ended future Department of Justice contracts with private criminal detention facilities. While this rule does not currently benefit those in immigrant detention, there are hopes that future efforts will expand to cover these facilities. In addition, states like California have passed legislation that creates accountability for private prisons that detain immigrants, which could serve as a model for other jurisdictions.
When the next pandemic or crisis hits, these facilities must be made to remember that they will be liable—legally and financially—for any harms caused to the people detained within their walls. This increase in liability or financial risk could be a powerful deterrent. In addition, it will be critical to remind legislators and community members that the harms associated with the rampant spread of COVID-19 in detention centers impact them as well. Targeted litigation against municipalities could spread awareness and create enough public outcry to convince local leaders to end their partnerships with ICE. Supporting litigation efforts through outreach, legislation, policy, and advocacy encourages coalition-building and ensures more widespread support.
BACK TO THE BORDER: REFLECTING ON DILLEY
Within jails, prisons, and detention centers, people are getting sick and dying at shockingly high rates. Thinking back to my time with Proyecto Dilley, I am not surprised in the slightest. Almost everyone who passed through the jail was sick; it’s essentially unavoidable when surrounded by so many people. Even I got sick with cold and flu-like symptoms during my week there. Dilley is one of the “nicer” facilities, and it is made up primarily of trailers. The spaces are crowded; there were only a few meeting rooms, and there were no windows or ventilation. Everyone was touching the same phones, clipboards, and security bins, and there were only a handful of crayons and coloring books shared between the children. There were different guards, staff, and volunteers coming through every few days, and people were regularly transferred around the country. After leaving, I looked up my clients to see whether they had been successful in their cases, released, or deported. It was devastating to see how, months later, many of them were still detained, even as the pandemic raged on.
The health, safety, and lives of all immigrants subject to detention are at risk. We cannot wait for the next pandemic to address the injustices we see today. By creating legal and financial liability for detention facilities, we can work to dismantle the systems and infrastructure of immigrant detention, with the end goal of abolishing it completely. For now, I hope we can ensure justice is served for those who were harmed by the COVID-19 pandemic while in immigrant detention and strengthen the rights of immigrants who may be subject to detention in the future.
Aly Madan is a third-year student at Northeastern University School of Law. She graduated from Johns Hopkins University in 2013 with a B.A. in International Studies. Aly is passionate about immigrants’ rights, racial justice, and electoral reform. She plans to pursue a career in civil rights law here in Boston.