Detainees Are Safer in ICE Detention

Higher standards than the community as a whole

By Andrew R. Arthur on April 1, 2020
  • The ICE 2011 Performance-Based National Detention Standards provide specific guidance for the medical care and treatment of the agency's detainees.
  • Those detainees receive medical screening at intake and have access to 24-hour medical care thereafter.
  • In addition, detainees have access to needed pharmaceuticals while in ICE detention.
  • They also have access to language services to assist them in obtaining care.
  • Each ICE detention facility must have in place protocols to deal with communicable diseases.
  • Aliens who are released from ICE detention and thereafter contract the Wuhan virus will tax already burdened medical systems.

In response to the Wuhan virus situation, the question has been raised whether U.S. Immigration and Customs Enforcement (ICE) should release immigration detainees. Reference to the ICE 2011 Operations Manual ICE Performance-Based National Detention Standards (PBNDS), revised in December 2016, suggests that is the last thing that the agency should do.

Section 4.3 of the PBNDS is captioned "Medical Care", and is applicable to service processing centers, contract detention facilities, and state or local government facilities used by ICE Enforcement and Removal Operations (ERO) through intergovernmental service agreements to hold detainees for more than 72 hours. Under those standards: "Detainees shall have access to a continuum of health care services, including screening, prevention, health education, diagnosis and treatment."

Pursuant to that goal, facilities must provide detainees with "a comprehensive medical, dental and mental health intake screening as soon as possible, but no later than 12 hours after arrival at each detention facility." The administrator of that facility must provide ERO notice about "any detainee whose medical or mental health needs require special consideration in such matters as housing, transfer or transportation."

A qualified and licensed healthcare professional must conduct "a comprehensive health assessment, including a physical examination and mental health screening" within 14 days of intake. "Detainees shall be referred for evaluation, diagnosis, treatment and stabilization as medically indicated."

Those detainees who require communication assistance must receive it (including in Braille, as necessary), and "interpretation or assistance shall be provided to any detainee who speaks another language in which written material has not been translated or who is illiterate."

Newly admitted detainees must be told "orally or in a manner in which the detainee understands about how to access, appeal or communicate concerns about health services", and those who are detained must "be able to request health services on a daily basis and shall receive timely follow-up." (Emphasis added.) Those detainees must have access to 24-hour emergency medical, as well as mental-health care." (Emphasis added.)

That healthcare must be "provided by a sufficient number of appropriately trained and qualified personnel, whose duties are governed by thorough and detailed job descriptions and who are licensed, certified, credentialed and/or registered in compliance with applicable state and federal requirements."

If a detainee "is determined to require health care beyond facility resources," that detainee "shall be transferred in a timely manner to an appropriate facility." Significantly, in these medically cautious days: "Centers for Disease Control and Prevention (CDC) guidelines for the prevention and control of infectious and communicable diseases shall be followed."

As for needed pharmaceuticals:

Prescriptions and medications shall be ordered, dispensed and administered in a timely manner and as prescribed by a licensed health care professional. This shall be conducted in a manner that seeks to preserve the privacy and personal health information of detainees.

The major concern about the continued detention of aliens in ICE custody appears to have to do with the possibility that those detainees could contract the Wuhan virus. The PBNDS require specific protocols to deal with such communicable diseases:

Each facility shall have written plans that address the management of infectious and communicable diseases, including screening, prevention, education, identification, monitoring and surveillance, immunization (when applicable), treatment, followup, isolation (when indicated) and reporting to local, state and federal agencies.

Plans shall include:

a. coordination with local public health authorities;

b. ongoing education for staff and detainees;

c. control, treatment and prevention strategies;

d. protection of detainee confidentiality;

e. media relations, in coordination with the local Public Affairs Officer (PAO);

f. procedures for the identification, surveillance, immunization, follow-up and isolation of patients;

g. hand hygiene

h. management of infectious diseases and reporting them to local and/or state health departments in accordance with established guidelines and applicable laws.

Respectfully, the PBNDS was ahead of the societal curve on these issues.

I could go on (section 4.3 of the PBNDS runs some 41 pages), but you get the general idea.

Now, consider the situation if one, more, or all of these detainees were to be released. They would be mixed in with the general population of the American people, and therefore susceptible to infection. Where would they go for treatment?

Some may have primary care physicians, but, especially for those who are recently arrived, they likely do not. For those who do not have a doctor, and develop symptoms of the Wuhan virus (or have other medical issues), they could potentially go to an "ambulatory care provider" or "urgent care center" (a so-called "doc in the box"), but those providers generally (from my experience) require payment up front, which many of those aliens may not have.

Consequently, they would end up utilizing the local emergency room, at a time when many hospitals are already operating beyond full capacity. There is a reason why the U.S. Army is setting up hospitals in New York and Washington State.

Interestingly, while on the subject of New York State, Judge Analisa Torres of the U.S. District Court for the Southern District of New York on March 26 ordered the release of 10 ICE detainees from the Hudson County Jail, Bergen County Jail, and the Essex County Jail — each of which is in New Jersey, and each of which has reported cases of the Wuhan virus.

The judge states: "Each Petitioner suffers from chronic medical conditions, and faces an imminent risk of death or serious injury in immigration detention if exposed to COVID-19." What kind of chronic medical conditions? They range from "obesity, respiratory problems, a history of gastrointestinal problems, and colorectal bleeding" to "pulmonary issues and a history of hospitalization for severe pneumonia" to "severe heart disease, and ... a history of hospitalization for congestive heart failure, severe aortic valvular insufficiency, and acute systolic failure, requiring immediate heart valve replacement surgery", to asthma and diabetes (and pre-diabetes).

One "is asthmatic and has chronic obstructive pulmonary disease ('COPD'), which require inhalers and other medical treatment." The lead petitioner is 54 "and has a lengthy history of smoking", but does not appear to have any other underlying medical conditions.

The government argued:

ICE and the detention facilities in which Petitioners are housed are taking certain measures to prevent the spread of the virus: screening detainees upon intake for risk factors, isolating detainees who report symptoms, ... providing soap and hand sanitizer to inmates, and increasing the frequency and intensity of cleaning jail facilities.

Those seem like reasonable steps, and well beyond what the general population of New Jersey (or the U.S. population as a whole) is likely doing.

They are not enough for Judge Torres, however: "These measures are patently insufficient to protect Petitioners. At today's hearing, Respondents [the government] could not represent that the detention facilities were in a position to allow inmates to remain six feet apart from one another, as recommended by the" CDC.

She continued:

Nor could Respondents provide the Court with any information about steps taken to protect high-risk detainees like Petitioners. And though Respondents represented that the detention facilities are below their full capacity, the appropriate capacity of a jail during a pandemic obviously differs enormously from its appropriate capacity under ordinary circumstances. Confining vulnerable individuals such as Petitioners without enforcement of requisite social distancing and without specific measures to protect their delicate health "pose[s] an unreasonable risk of serious damage to [their] future health," ... and demonstrates deliberate indifference.

There's quite a bit to unpack here. First, under Judge Torres's order, no alien with a "lengthy history of smoking" could be detained in any facility in which there had been reported case of the Wuhan virus. Second, what is the realistic possibility that any of the 10 detainees, once released from custody, are going to maintain the CDC recommendation that they keep six feet apart from any other individual?

Third, and most importantly, to return to the point above, where will those individuals go to seek treatment if they, in fact, contract the Wuhan virus? Some 1,900 cases have been reported in Essex County at last report, where there have been 36 total deaths. There are 1,606 reported cases in Hudson County, which is planning a hospital solely for Wuhan virus victims. Bergen County had a whopping 2,607 cases of Wuhan virus, and 41 fatalities as of Monday. Respectfully, immigration detention seems safer for those detainees than the public as a whole, and treatment is significantly more available — without taxing an already overly burdened system.