United States: Covid-19 and Detention

The Words 'Help We Matter 2' Are Seen on a Window at the Cook County Department of Corrections in April 2020, (K. Krzaczynski, Getty Images, "Why Isn't Routine COVID-19 Testing Happening in Prisons and Immigrant Detention Centres?" Stat News, 27 October 2020, https://www.statnews.com/2020/10/27/covid-19-testing-congregate-housing-settings-wide-disparities/)

There is a growing body of evidence revealing how the Trump administration, acting through the U.S. Immigration and Custom Enforcement and the Customs and Border Protection agencies, has exploited the COVID-19 pandemic to prevent access to asylum procedures, ramp up summary deportations of children and other vulnerable individuals, and decrease transparency with respect to measures in detention centres to protect detainees. As a result, say observers, there is the likelihood that children have been deported in violation of laws and international agreements into harmful situations, there is an alarming up-tic of infections in detention centres, and the situations in countries of origin are growing increasingly dire.

Throughout the pandemic, the Trump administration has continued issuing deportation orders despite the risk of spreading COVID-19, with an important targeted demographic being children. Internal emails allegedly written by U.S. border control officials, which were obtained by the New York Times, report that as many as 200 unaccompanied children from countries like Guatemala, Honduras, and El Salvador were summarily deported to Mexico in violation of both U.S. laws and international agreements. In particular, the expulsions appear to violate a diplomatic agreement between the U.S. and Mexico, which provides that only Mexican children and others who have adult supervision can be returned to Mexico after attempting to cross the border (see also the 2 November Mexico update on this platform).

On 30 October, The Hill reported that “Apart from violating policy and an international agreement, summary expulsions of unaccompanied minors would imply that U.S. authorities have sent children alone into Mexico’s border cities, where kidnapping and human trafficking are major criminal concerns. The reported expulsions of unaccompanied minors come as the Trump administration has tweaked U.S. border policy to quickly expel migrants caught at the border.”

Deportations from the U.S. have continued in part on the basis of Title 42 Section 265 of the U.S. Federal Code, a provision that enables the executive to prohibit the entrance of people and/or goods based on a determination that this would represent a “serious danger of the introduction” of a disease. The Trump administration has used this provision to adopt a policy that for reasons of public health, undocumented persons that cross the U.S. border may be deported from the country without the need to initiate deportation proceedings, as provided by U.S. immigration law (see 2 November Mexico update on this platform). Also, in June 2019, the United States and Mexico signed an agreement to collaborate on efforts to control the movements of asylum seekers and other migrants to the U.S. border, expanding the implementation of the “Quédate en México” programme (officially known as Migrant Protection Protocols). Between June 2019 and August 2020, nearly 66,000 people were returned to Mexico as part of this agreement.

Importantly, the Title 42 provision can be used to prevent people who arrive at the border from applying for asylum. An expert from the American Immigration Council told the Guardian (10 November 2020), “Under the Title 42 expulsion process the government has argued that public health laws override all normal immigration laws, and allows them to deport children without ever giving them their right to seek protection,” he said. “The Trump administration has taken what are generalized quarantine powers and interpreted into the powers the authority to expel people and override normal immigration law, which is why we say this is an unlawful policy.”

This has allowed the U.S. to rapidly deport people to numerous other countries, in addition to Mexico, including “a sharp rise in the deportations of Cameroonian and other African asylum seekers, many of whom are alleged to have forced to sign or fingerprint their deportation orders.” But unaccompanied minors have been a key target, and not only for removal to Mexico. Experts in Guatemala told the Guardian that since new U.S. migration controls were announced in March, the country has deported more than 1,400 unaccompanied minors to the country, with 407 children expelled in October. “In comparison, in the whole of 2019, the U.S. deported 385 unaccompanied minors to Guatemala.”

On 4 May, the Guatemalan Foreign Ministry reported that deportees from the United States accounted for more than 15 percent of all COVID-19 infections in the country (see 9 June United States and 10 June Guatemala updates on this platform).

In June, Human Rights Watch reported that U.S. Immigration and Customs Enforcement (ICE) carried out 232 deportation flights to Latin America and Carribean countries between 3 February and 24 April 2020 (see 9 June United States and 10 June Guatemala updates on this platform). According to a report published by a group of NGOs, from March to the end of July 2020, more than 105,000 people were expelled from the United States. In addition, the report found that since the start of the pandemic, only 59 people had been referred to asylum officials to assess non-refoulement claims out of 40,000 expulsions. Of the 59, only two were subsequently allowed to apply for asylum in the U.S. (see 2 November Mexico update on this platform).

The situation in U.S. detention centres has also grown increasingly dire. A research note published in the Journal of the American Medical Association reported on findings made by researchers based on data from 92 detention centres in the United States. It found that the rate of infection was many times higher than that of the U.S. population as a whole during the period April-August 2020. Infection rates also far outpaced those of U.S. federal and state prisons. The authors argue that because of lack of transparency by ICE, the numbers of infections may be much higher in detention centres. “We have an incomplete picture of what’s happening with testing,” said study author and Harvard Medical School student Dr. Parsa Erfani in an interview with USA Today. “(But) it’s hard to stand by and just look the other way.”

According to the JAMA paper, “By August 2020, ICE’s mean daily detained population decreased 45% to 21 591 from the prepandemic February population of 39 319. On August 31, ICE reported 5379 cumulative COVID-19 cases and 6 related deaths among its detainees. Cases were reported in 92 of 135 facilities, with 20 facilities accounting for 71% of cases.

“The monthly case rate per 100 000 detainees increased from 1527 in April to 6683 in August (Figure). The monthly test rate per 100 000 detainees increased from 3224 in April to 46 874 in July, but decreased to 36 140 in August (Table). The test positivity rate among detainees decreased from 47% in April to 11% in July but increased to 18% in August. Detainee testing rates in July increased 1354% from April, while case rates increased 247%. In August, the testing rate decreased 23% from July, while the case rate and test positivity rate increased by 26% and 64%, respectively.

“From April to August 2020, the mean monthly case rate ratio for detainees, compared with the US population, was 13.4 (95% CI, 8.0-18.9), ranging from 5.7 to 21.8 per month. The mean monthly test rate ratio for detainees, compared with the US population, was 4.6 (95% CI, 2.5-6.7), ranging from 2.0 to 6.9 per month.”

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