United States: Covid-19 and Detention

New Immigration Detention Beds Operated by Private Prison Companies Diagram, (Human Rights Watch, American Civil Liberties Union, and National Immigrant Justice Centre, “Justice-Free Zones: U.S. Immigration Detention Under the Trump Administration,” April 2020, https://www.hrw.org/sites/default/files/supporting_resources/justice_free_zones_immigrant_detention.pdf)

New U.S. President Joseph Biden issued a series of immigration-related executive orders that roll back signature–and highly controversial–programs of the Trump administration. At the same time, reports have surfaced about how guards at privately operated immigration detention centres–which greatly expanded under Trump–threatened detainees with exposure to COVID-19 if they resisted being deported, adding fuel to criticism of the Biden administration’s failure to include immigration detention centres in an executive order ending private management of federal prisons.

Among the targets of Biden’s executive orders was the Trump administration’s controversial children separation policy. One order established an Interagency Task Force on the Reunification of Families tasked with reuniting children separated from their families at the U.S.-Mexico border; another order revoked the Trump administration’s executive order justifying the child separation policy.

The Biden administration has also sought to end some of the roadblocks put up by the Trump administration that prevented people from Central America from seeking asylum in the United States. Biden ordered the development of a strategy to address irregular migration and amend the existing asylum system, including by ensuring that Central American refugees and asylum seekers have access to legal avenues to migrate to the United States. He also directed the State Department and the Department of Homeland Security (DHS) to review mechanisms for better identifying and processing individuals from the so-called Northern Triangle, who may be eligible for refugee resettlement.

The order also addressed “the underlying factors leading to migration in the region and ensure coherence of United States Government positions” and directs the Secretary of Homeland Security to “promptly review and determine whether to terminate or modify the program known as the Migrant Protection Protocols (MPP).” The administration subsequently announced that it had stopped enrolling people in the MPP, which required asylum seekers to wait for their court hearings in Mexico. Reuters reported that, in total, under the MPP, 65,000 asylum seekers were sent back to Mexico to wait out their asylum claims, many languishing in degrading and dangerous situations just across the border.

In a separate though related development, President Biden signed an executive order curtailing privatization of federal prisons. The order provides that the “Attorney General shall not renew the Justice Department of Justice contracts with privately operated criminal detention facilities.” During a White House press briefing, Susan Rice, the president’s domestic policy adviser, stated that the new policy only applies to Justice Department contracts with private prisons and not immigration detention centres operated on behalf of Immigration and Customs Enforcement (ICE). Rice said that the order “addresses the Department of Justice prisons in the first instance, it is silent on what may or may not transpire with ICE facilities.”

The failure to include ICE facilities has been widely criticised. During the final three years of the Trump administration, the use of private prisons to detain migrants increased significantly, including at least 24 facilities and adding more than 17,000 beds. A report published by the American Civil Liberties Union, Human Rights Watch, and the National Immigrant Justice Centre, found that private prison companies house 91 percent of all people detained in immigration detention centres opened under the Trump administration. Of the immigration detention beds added under Trump, CoreCivic holds 28 percent, GEO Group holds 20 percent, LaSalle corrections holds 37 percent, and Management and Training Corporation holds 6 percent. By comparison, the county jails operate a mere 9 percent.

Commenting on the Biden administration’s failure to include privately operated ICE facilities in its privatization order, Jelena Aparac, Chair-Rapporteur of the UN Working Group on the use of mercenaries, said: “Ending the reliance on privately run prisons for federal prisoners is an encouraging step, but further action is needed. Given the magnitude of mass incarceration in the U.S., this decision will benefit only the very small percentage of federal prisoners who are held in private prisons and specifically excludes vulnerable people held in migrant and asylum centres who are at particular risk of serious human rights violations.”

A 6 February report in The Intercept highlights the inhuman conditions that migrants can face in privately operated immigration detention centres. It describes the mistreatment of migrants held at the Pine Prairie ICE Processing Centre in Louisiana, operated by the private prison company GEO Group. Three Cameroonian asylum-seekers were reportedly threatened with exposure to COVID-19 if they resisted transfer orders. The guard threatened to move the migrants to the Bravo-Alpha detention unit, where detainees who have tested positive to COVID-19 are held. One detainee said that “they were forcing us out of the dorm, pushing and dragging us. … They threatened to call the SWAT team. They said they were going to put all of us into Bravo-Alpha, which is for quarantine, where they keep everyone with coronavirus.” After being threatened, the migrants were placed in a van with other detainees and transferred to a centre in Alexandria, prior to their scheduled deportation flight. However, their deportation flight was put on hold after a coalition of NGOs submitted an affidavit to the DHS Office of Inspector General detailing violent tactics employed by officials to pressure detainees to submit to deportation.

Some observers have expressed concerns that President Biden’s executive orders have not adequately addressed abuses in the U.S. deportation system. DHS issued a memorandum ordering a 100-day moratorium on deportations and revoked a Trump administration policy directing federal authorities to prioritise the arrest and deportation of undocumented migrants (PBS 20 January 2021). The memorandum sought to prevent the deportation of migrants for low-level criminal charges. Advocates have nonetheless raised concerns as the memorandum was weakened by a court. On 25 January, a federal judge in Texas, barred the U.S. government from enforcing the deportation ban for 14 days as the judge considered that the Biden administration had failed “to provide any concrete, reasonable justification for a 100-day pause on deportations.” Yet, according to the Associated Press, while the order barred enforcement of the moratorium for 14 days, it does not require deportations to resume at their previous pace. This order was subsequently extended on 9 February for an additional 14 days.

On 1 February, the Associated Press reported that ICE had deported 15 people to Jamaica on 28 January and 269 people to Guatemala and Honduras on 29 January. According to the report, some of the people on board those deportation flights may have been expelled under a public health order invoked by former President Trump during the COVID-19 crisis (for more information, see 21 November and 10 November USA updates on this platform).

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