[Pnews] Health and Human Rights Violations in U.S. Immigration Detention during the COVID-19 Pandemic

Prisoner News ppnews at freedomarchives.org
Thu Jan 14 11:33:39 EST 2021

 Praying for Hand Soap and Masks Health and Human Rights Violations in U.S.
Immigration Detention during the COVID-19 Pandemic
January 12, 2021 -

Executive Summary

Physical and psychological abuse and inadequate medical care have long been
documented in U.S. Immigration and Customs Enforcement (ICE) facilities,
where previous infectious disease outbreaks were poorly contained. In 2020,
as the COVID-19 pandemic spread across the United States, it became clear
that ICE’s continued negligence, coupled with the vast expansion of U.S.
immigration detention, would likely lead to a public health disaster.

Given the lack of transparent data and the severe health risks in
congregate settings caused by the pandemic, Physicians for Human Rights
(PHR) staff and Harvard Medical School faculty and students sought to
document conditions experienced by people recently released from U.S.
immigration detention. From July 13 to October 3, 2020, the research team
conducted 50 interviews of immigrants formerly detained by ICE using a
standardized questionnaire covering 1) Demographics; 2) COVID-19 education;
3) Hygiene and sanitation measures; 4) COVID-19 testing and medical
management; and 5) Protests and retaliation. The 50 participants were
detained at 22 different ICE detention facilities – representing nine
county facilities and 13 private facilities – in 12 different states.
Overall, 52 percent of interviewees reported at least one comorbidity that
placed them at an absolute high risk of severe COVID-19 if they contracted
the virus. All study participants were 18 years of age or older, in the
United States at the time of the interview, and had been held in ICE
detention with a release date on or after March 15, 2020.

ICE practices did not comply with Centers for Disease Control and
Prevention guidance … creating unacceptable health risks which violated the
constitutional and human rights of detainees.

Information reported by the interviewees uncovered significant shortcomings
in ICE’s response to the virus. Staff efforts to inform people about
COVID-19 were limited and inconsistent. The vast majority of respondents
(85 percent) first heard about COVID-19 in detention by watching the news
on television, while ICE staff in some facilities attempted to downplay the
significance of COVID-19 and actively prevented people from learning about
the virus from the news by asking them to change the television channel.

Nearly all immigrants interviewed were unable to maintain social distance
throughout the detention center. Eighty percent reported never being able
to maintain a six-foot distance from others in their eating area. Some 96
percent reported that they were less than six feet from their nearest
neighbor when sleeping. The average distance reported between beds was 2.87
feet. Twenty-seven people reported that when new individuals entered the
detention center after March 15, they were not quarantined for two weeks
before entering the general unit.

Forty-two percent of participants reported not having access to soap at
some point during their detention. When soap or hand sanitizer was not
available, some participants reported resorting to using shampoo to wash
their hands, and one even used toothpaste. Thirty-six percent of
participants reported relying on purchasing soap from the commissary.
Several people relied on donations from outside organizations, while others
had to forgo other basic necessities to purchase soap. Eighteen percent of
participants reported most commonly using water alone to wash their hands.
Eighty-two percent of people reported not having access to hand sanitizer
anywhere in the detention facility. Twenty-six percent of participants
reported never observing disinfection of frequently touched surfaces in
common areas (e.g. doorknobs, light switches, countertops, recreation
equipment). The overwhelming majority (83 percent) reported that detainees
disinfected the common areas themselves.

Twenty-one out of 50 people interviewed (42 percent) experienced symptoms
of COVID-19 during the pandemic, such as fever, cough, muscle aches, and
loss of smell. Three out of these 21 (14 percent) never officially reported
their symptoms due to fear of being sent to solitary confinement or other
punishment, or anticipation of denial of medical care. Out of all
respondents who reported symptoms, only 17 percent (three people) were
appropriately isolated from the general population and tested for COVID-19,
one of whom tested positive. The remaining 83 percent (15 people) reported
their symptoms to facility staff members but did not get tested for
COVID-19 and were not isolated.

Interviewees reported facing prolonged wait times before being able to see
a medical professional, with an average wait time of 100 hours
(approximately four days). One person reported having had to wait a total
of 25 days for an appointment. Importantly, two people were never seen by a
medical professional at all, even after reporting their symptoms to staff

While 88 percent of all participants (44 people) had at least one
comorbidity placing them at possible increased risk of severe COVID-19, 56
percent (28 people) reported these risk factors to detention staff, but
only four of them were told that they were at high risk of having a serious
illness with COVID-19. None of those four were given the option to have an
individual room.

Forty-three study participants (86 percent) stated that they reported
and/or protested about issues related to COVID-19, including verbally
complaining to staff about unsanitary conditions or lack of personal
protective equipment, filing formal grievances, going on hunger strikes,
reporting conditions to lawyers, reporting conditions to the media, and
sending messages to family members with the hope they would be publicized.
Of these 43 who protested, 56 percent (24 people) reported experiencing
acts of intimidation and retaliation after their complaints, including
verbal abuse by detention facility staff, being pepper sprayed, being
placed in solitary confinement, and experiencing threats or actions of
limiting food, communication, or commissary access.

The government cannot put people in danger or act with deliberate
indifference to a foreseeable or obvious threat, and is required to provide
for the reasonable health and safety of people in detention.

As civil detainees, people in immigration detention are entitled to due
process under the Fifth Amendment of the U.S. Constitution and cannot be
held in punitive conditions. The government cannot put people in danger or
act with deliberate indifference to a foreseeable or obvious threat, and is
required to provide for the reasonable health and safety of people in
detention. The UN Standard Minimum Rules for the Treatment of Prisoners,
which apply in all detention settings, confirm that health care for people
who are detained is the responsibility of the state, and that health care
also must follow public health principles in regard to management of
infectious disease, including treatment and clinical isolation.

In fact, international law limits the use of immigration detention and
prohibits criminalizing border crossing for asylum seekers. Article 31(2)
of the UN Refugee Convention permits states to restrict refugee freedom of
movement only when necessary, otherwise it may amount to a “penalty,” which
is prohibited under the Convention. The UN High Commissioner for Refugees’
(UNHCR) Executive Committee considers detention of asylum seekers as
meeting the necessity test only when the government detains people to
verify their identity or issue documents, to make a preliminary assessment
of their asylum claim, or based on an individualized security assessment.
International standards consider immigration detention as a last resort and
require periodic hearings for all types of detention in order to prevent
arbitrary detention.

International bodies and U.S. federal courts have applied these standards
to the context of the pandemic. The World Health Organization, the UN High
Commissioner for Human Rights, and UNHCR stated in March 2020 that, given
the risk of severe illness and death from COVID-19, people in immigration
detention should be released “without delay.” U.S. federal courts have
variously ordered ICE to locate and release people at high risk of severe
illness or death due to the coronavirus, to give masks and sanitizer to
detainees, to ensure availability of testing, and to take a range of
precautionary measures, such as isolating people who test positive,
temporarily halting intake, enforcing social distancing and mask wearing,
and providing appropriate sanitary and hygiene supplies.

The harsh and punitive conditions reported in this study show that ICE
practices did not comply with Centers for Disease Control and Prevention
guidance or with ICE’s own Pandemic Response Requirements, creating
unacceptable health risks which violated the constitutional and human
rights of detainees. International law requires governments to use
immigration detention only as a last resort, and the U.S. constitution
prohibits punitive conditions in civil detention, requiring the government
to ensure safe and healthy conditions. As an urgent matter, the U.S.
government should release all people from immigration detention to allow
them to safely shelter in the community, absent a substantiated individual
determination that the person represents a public security risk. Safely
releasing people from immigration detention is in accordance with
international human rights and U.S. constitutional standards and represents
the best way to prevent further outbreaks of COVID-19.
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