As COVID-19 continues to devastate the country, we have witnessed the failure of Immigration Customs & Enforcement (ICE) to prevent the transmission of the coronavirus in our local jails. 

It is hard to imagine a government agency less equipped to address the COVID-19 pandemic than ICE. Even under “normal” circumstances before the pandemic,  ICE proved itself incapable of safeguarding the people in its custody, with dozens of people dying in their custody with no apparent political consequences. This is an agency that continues to incarcerate children and parents for the sole fact that they were born outside the country. Just a month before the outbreak in New York, ICE shot a man in the face in Brooklyn while effectuating a civil arrest; an egregious, violent escalation that resulted in no accountability or remorse by the agency.  Even as the COVID-19 pandemic was on the rise in New York, and despite knowing the health risks inherent to any carceral setting, ICE continued to make civil arrests and shuttle people throughout jail facilities in upstate New York and New Jersey. The first person to test positive in ICE custody nationwide was incarcerated in an ICE jail across the Hudson River.

ICE continues to insist that only 16 people have tested positive for COVID-19 in their local facilities in New Jersey. However, we are certain that this number does not reflect reality . Our clients locked in those jails—long-time residents and newly arrived asylum-seekers—have painted an entirely different picture for us. In fact, they report hunger strikes in the Hudson County Correctional Center, Essex County Correctional Facility, and Elizabeth Detention Center due to lack of soap, hand sanitizer, disinfectant cleaning materials, and other basic necessities needed to survive during this global pandemic. Recently we learned from a client that he found a portion of a rat’s bloodied body in his tray of food. 

Despite exhibiting obvious COVID-19 symptoms, including shortness of breath, cough and fever, our clients report being locked in their cells for 23 and a half hours a day, without access to proper medical care, including adequate testing. Other clients have missed their court appearances at the Varick Street Immigration Court because the ICE officers who are supposed to facilitate their video presence from the jails are calling out sick themselves. After immigration judges also started calling out sick, our clients incarcerated in the tri-state area began having their cases adjudicated by judges randomly assigned from various parts of  the country, causing confusion regarding court filings and exacerbating the backlog in court appearances.

Our clients’ accounts are credible, and as many federal district courts have found, ICE cannot safeguard our clients against the global pandemic that has taken thousands of lives in New Jersey and New York in the past month alone. 

While we are encouraged that federal district courts are once again acting as an important check on an administration whose disdain for immigrant communities knows no bounds, we also recognize that this is a burden that should not solely fall on the judiciary. ICE’s woefully inadequate response to COVID-19 endangers the public safety and welfare of all people living in the United States. More must be done to ensure the immediate safety of people both detained in and employed by these jails as well as the neighboring communities who are also directly at risk by ICE’s inaction. 

Thanks to prolonged pressure from advocates, ICE has finally started releasing individuals from their custody, but only slowly and on a “case-by-case” basis, and without managing even the most basic protections. In recent weeks, ICE has released people from their custody without engaging in meaningful discharge planning including giving notice to counsel, allowing people to make phone calls, or providing a way to travel home. People with serious medical conditions or mental health issues have been released, sometimes in the middle of the night, at times disappearing for hours, even days.  

The safe release of all people in ICE custody is the only reasonable solution to a global health crisis wreaking havoc in its jails. While ICE continues to identify an extremely limited group of people for release—focusing only on people who they deem as  “low risk” to their community—their process misses the point entirely.  There is no one in ICE custody who is at low risk of contracting COVID-19: the virus has taken the lives of both the young and old, people with and without pre-existing conditions. We also know that even in normal circumstances these jails are debilitating for any “healthy” person in custody, due to the lack of adequate food, nutrition, and medical care. 

Immigration enforcement is a civil matter, and should not entail an entirely preventable death sentence in ICE custody. Despite ICE’s efforts to paint incarcerated immigrants as “criminals”, it is not within ICE’s purview to enforce alleged violations of criminal law. Individuals who may have violated state criminal laws have their cases adjudicated by local criminal courts—not ICE. The ongoing civil arrest and incarceration of additional immigrants across the United States not only endangers the people in their facilities, both incarcerated people and local staff members alike—in one ICE jail in New Jersey alone there are at least 41 staff members who have tested positive for COVID-19—but also the immigration courtrooms that are encumbered with the impossible task of proceeding “business-as-usual” despite unprecedented times. All immigration courtrooms must close, but to ensure the safety and due process of all people who are processed through these courts, the people who are in ICE custody must first be released. 

For the safety of us all, for the safety of all courtroom staff, immigration attorneys, and ICE’s own prosecutors, the solution is clear: free all people from ICE custody. Ensure their safe release to their families, where they can continue with their immigration court cases while self-isolating in the safety of their own homes like the rest of us are doing right now. 

Sarah Deri Oshiro is the managing director of the immigration practice at Bronx Defenders. Hasan Shafiqullah is the attorney-in-charge of the Immigration Law Unit at The Legal Aid Society. Andrea Sáenz is the supervising attorney for the immigration practice at Brooklyn Defender Services.