WaPo Misses Key Points on Wuhan Flu

To flatten the curve, don't clear the detention centers and don't close the courts

By Andrew R. Arthur on March 14, 2020
  • Migrants who enter the United States illegally have bypassed the visa screening system that ensures that, for example, they do not have any communicable diseases — like Wuhan flu. While there is no reason to believe that any one of those migrants has the flu, there is no reason to believe that they don't, either, because they have deliberately evaded that screening.
  • Limiting the spread of the flu in the United States is critical to "flattening the curve" of cases, and ensuring that our medical facilities have the resources that they need to treat those who are infected, and are not overwhelmed.
  • Reducing the number of migrants who enter illegally puts CBP in a better position to medically screen those it apprehends, and can send migrants who need to be quarantined because they have Wuhan flu or some other communicable disease to NCEZID border "Q stations".
  • To reduce the number of migrants, DHS needs to detain as many aliens who have entered illegally as possible, and the immigration courts need to adjudicate all removal cases as quickly as possible.
  • For that reason, the government should reject calls to limit immigration detention or close non-detained immigration courts.

On Thursday, the Washington Post ran an article captioned "Coronavirus could pose serious concern in ICE jails, immigration courts". It contains some interesting facts, but misses the ultimate points — again and again.

Let's begin with the headline. What is a "coronavirus"? Here is a definition from one online medical dictionary:

Coronavirus: a type of common virus that infects humans, typically leading to an upper respiratory infection (URI.) Seven different types of human coronavirus have been identified. Most people will be infected with at least one type of coronavirus in their lifetime. The viruses are spread through the air by coughing and sneezing, close personal contact, touching an object or surface contaminated with the virus and rarely, by fecal contamination. The illness caused by most coronaviruses usually lasts a short time and is characterized by runny nose, sore throat, feeling unwell, cough, and fever.

A rather generic term to describe any number of illnesses, so it is no wonder that the Post serially refers to it as "coronavirus", "novel coronavirus", "covid-19", and "COVID-19" (the last one in a quote). If the paper of record in our Nation's Capital cannot agree on a name, I am surprised that people blame the president for his characterization of it as a "foreign virus", which, as this European Centre for Disease Prevention and Control fact sheet shows, it more or less is.

This is not an idle point. The penultimate link is to Vox, which states:

This isn't the first time in history a leader has stoked fears among the public by linking outsiders to germs, of course. It's been part of many dark chapters in world history. Researchers have documented the repeated, often unfounded fears of connections between germs and immigrants throughout the 20th century. In a moment of crisis, it's particularly jarring and dangerous.

Vox makes a couple of valid points, but botches the important one. When there is no specific illness threat in the world, foreign nationals are no more likely to spread novel diseases to me than I am to them. There was a reason, however, that I was required to get shots from the House Office of the Attending Physician when I traveled abroad for Congress: There were threats in certain countries of illnesses to which I had not been exposed. Some concerns are "founded".

Of course, there are now cases of the Wuhan flu in the United States. How did it get here? CNN reported way back on February 13 that:

There are 15 confirmed cases of the novel coronavirus in the United States. The virus was most recently confirmed in evacuees from Wuhan, China, where the outbreak originated.

There are more US citizens traveling abroad who've been infected with coronavirus, including at least 24 Americans on a cruise ship in Japan.

If you go through the list of those affected in the United States in that article at that time, 12 had returned from China, two had contact with one of those travelers from China respectively, and there was little information about the 15th person. It is unknown whether the 15 are U.S. citizens or not, though that makes little difference because disease does not ask for your passport — but you can bring it from abroad, as that list shows.

The apparent theory behind the president's travel ban on certain foreign nationals from certain places — and the numerous closures that have states and localities (and even sports leagues and music festivals) have imposed — is that they want to "flatten the curve". As Forbes explains:

There's a good reason to "cancel everything." All these decisions by public officials and businesses are aimed at one goal: slowing down the spread of the virus to avoid overburdening a healthcare system that doesn't have the infrastructure to handle a sudden surge of tens of thousands of cases at once. Without mass closings, that surge is exactly what will happen, just as it has in Italy.

It's called "flattening the curve."

In other words, there is a good chance that even with the measures these parties have taken, you will still get sick, but you are more likely to live if we limit the number of those who do get sick at any given time.

Which returns me to the Washington Post article. It begins:

Immigrants held in U.S. detention centers have been particularly vulnerable to the spread of communicable diseases — including thousands who were put under quarantine last spring for mumps, measles, flu and other illnesses — and it is unclear whether the coronavirus could pose a serious concern for U.S. authorities and the tens of thousands of foreigners in their custody.

Now, of course, incarceration in the United States is not limited to aliens who are being detained by U.S. Immigration and Customs Enforcement (ICE). According to the Bureau of Justice Statistics in their most recent release, there were 1.5 million prisoners in the United States at the end of FY 2017. But the Post does not even address the threats posed to those 1.5 million individuals who are incarcerated, only those who are in ICE detention. Why would that be?

The paper suggests that this is a particularly vulnerable population:

The American Civil Liberties Union of Southern California and Human Rights Watch this week called on the Trump administration to develop a strategy to prevent and mitigate such an outbreak at facilities that have long been plagued by allegations of detainee abuse and inadequate medical care.

"People in detention are highly vulnerable to outbreaks of contagious illnesses. They are housed in close quarters and are often in poor health," the groups wrote in a letter to ICE officials overseeing an ICE processing center in Adelanto, Calif.

I am intimately familiar with prisons (I visited them when I worked for the House Judiciary Committee) and immigration detention (I worked for eight years at the York County Prison, which houses ICE detainees). Alien detainees in ICE custody are, from my experience, no more "housed in close quarters" than federal prisoners — in fact, they are usually more spread out. ICE detainees may have more freedom to move about, but immigration detention is not exactly overcrowded, as many state prisons are.

Why would those aliens in immigration detention, then, often be "in poor health", as the ACLU and Human Rights Watch assert? The Texas Tribune reported in July 2019:

What's also clear is that many migrants are already sick or injured when they cross the border — from severe dehydration, infections and other conditions — a point authorities are quick to make amid the withering criticism they have faced over the treatment of migrants in U.S. custody.

"There are a lot of people that are traveling to the United States that are already ill and infirm. Many times, we won't know about it — they're not showing any signs of it," [Rio Grande Valley Sector Chief Rodolfo] Karisch said at a press conference earlier this month. "We are seeing every infirmity that you can name, from mumps to [tuberculosis], scabies. You name it, our agents are seeing it."

Again, there is no more reason to believe that any foreign national is any more sick than any American (both citizen and legal immigrant), but there are a number of takeaways from the foregoing.

First, migrants who enter the United States illegally have deliberately bypassed the sophisticated visa application system that we have in place to screen foreign nationals: immigrants and nonimmigrants alike. One of those screens (in section 212(a)(1) of the Immigration and Nationality Act (INA)), bars aliens from entering the United States "who [are] determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance." Like the Wuhan flu. Again, I am not saying that all of the migrants crossing the border have it, that some do, or that none do. But they deliberately avoided proving that they do not when they entered illegally.

Second, as the Texas Tribune article explains in great detail, many migrants show up at the border in physical distress: "Cases of severe dehydration and overexertion among migrants are skyrocketing in deep South Texas as people push their bodies past the breaking point to get into the United States." Any parent (or busy adult) knows that when someone is worn down, they are more susceptible to illness, and those migrants are no different.

Therefore, if you take a population of individuals who are susceptible to illness, and you place them in a population with people who have communicable diseases, those diseases will spread. And, recently, Border Patrol has been apprehending large groups of people attempting to enter illegally at once. As AP reported in March 2019:

Most were families coming in ever-increasingly large groups — there were 70 groups of more than 100 people in the past few months, and they cross illegally in extremely rural locations with few agents and staff. There were only 13 large groups during the previous budget year, and only two the year before.

The larger the population, logically, the more likely that one or more migrants is going to show up with one of the diseases that the Texas Tribune described. (Remember the part about extremely rural locations for later.) That is the bad news.

Here is the good news: We have lines of defense to screen those migrants.

First, the National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), which is a part of the Centers for Disease Control, oversees 20 quarantine stations at the ports and along the border. NCEZID explains:

These "Q stations" are an important domestic "line of defense" against the spread of infectious diseases into and throughout the United States. NCEZID and its partners, such as US Customs and Border Protection [CBP] and local emergency medical services, evaluate travelers entering the United States for signs of serious contagious diseases.

NCEZID partners to protect the health of US communities along the US-Mexico border by working with state, local, and Mexican public health institutions to detect, notify, investigate, and respond to reports of illness and infectious disease among residents and travelers in US communities along the US-Mexico border.

Of course, Border Patrol has to triage and begin treatment on potentially infected individuals during the screens they perform on migrants it apprehends at the border, but when the numbers of illegal migrants swells, and migrants enter at "extremely rural locations" along the border (which, as noted, more did last fiscal year), that task becomes difficult if not impossible in every case.

The Homeland Security Advisory Council's CBP Families and Children Care Panel explained in its April 2019 "Final Emergency Interim Report":

A substantial number of families and children are entering our country in remote areas of the border versus the POEs, enduring dangerous and terrifying crossings in remote desert areas, across rivers, over fences, and through razor wire. These children increasingly require significant personal and medical care that exceeds the ability and capacity of CBP even with their current patchwork of contracted assistance. Despite CBP's creative and humane attempts to care for these children during their confinement, CBP facilities, both at USBP stations and POEs, are grossly inadequate.

In response, on December 30, 2019, CBP issued Directive No. 2210-004, captioned "Enhanced Medical Support Efforts". Pursuant to that directive, Border Patrol agents and CBO officers first "observe and identify potential medical issues for all persons in custody upon initial encounter." Migrants are specifically asked whether they have any health issues, and those "identified with medical issues of concern will receive a health interview or medical assessment or be referred to the local health system for evaluation."

Health interviews are conducted for those younger than 18, and, subject to resource availability, medical assessments are completed for those who are younger than 12, who state that they have health problems, or who have "a known or reported medical concern". Contracted health providers will perform those assessments where they are available, or those identified may be sent to local health care providers. As a last resort, "CBP EMS Personnel may conduct medical assessments under the medical direction of the CBP" chief medical officer.

There are two key factors in this regime. First is proximity to medical assistance. Where a migrant deliberately enters the United States in an "extremely rural location" (as more are), the likelihood that such an assessment will be performed by a medical professional drops. Second is the migrant flow. The lower the number of migrants apprehended, the better able CBP will be to provide the needed assessments (and get those migrants to NCEZID to begin with).

With respect to the flow, Acting CBP Commissioner Mark Morgan explained in November 2019:

During the month of May alone, a total of nearly 133,000 people crossed the border illegally between the ports of entry. In just one 24-hour period, we recorded more than 5,800 illegal border crossings, and on another single day, we had nearly 20,000 persons in custody.

There were just fewer than 19,700 Border Patrol agents in FY 2019, most assigned to the Southwest border, but they work in shifts, 50 hours per week per agent on average. Assuming that there are 16,000 agents assigned to the Southwest border, at any given time there are about 4,762 on duty along that 1,954-mile border. Properly screening 20,000 people in that scenario is next to impossible, so keeping the flow down is essential to ensuring that the proper medical assessments occur, and treatment is given — including quarantine.

Aliens are then sent to ICE custody. As the Post reports:

ICE officials said the agency has 20 detention facilities run by its Health Service Corps, including 16 that are equipped with airborne infection isolation rooms [also known as "negative airflow"], where officials said they plan to house detainees deemed at risk for covid-19 or displaying symptoms. Officials said ICE detention staff also have received guidance on the use of protective equipment.

What is ICE's capacity to handle infected migrants? That article continues:

During a surge of border apprehensions last spring, ICE placed between 4,000 and 6,000 detainees in quarantine as a result of mumps, measles, flu and other communicable disease outbreaks, ICE's acting director, Matthew Albence, told lawmakers during a congressional hearing Wednesday.

"We have extensive experience with regard to keeping them isolated so that doesn't spread, and we also have extensive medical experience," Albence said, citing the agency's medical staff and Public Health Service Corps personnel.

That article details complaints, however, that government investigators, immigration advocates, and attorneys have made about the quality of healthcare in ICE detention. Those include "serious patterns of neglect at several ICE facilities across the country", particularly "denied or ignored requests for medical care, limited dissemination of vaccinations for the flu and other infectious diseases, poorly enforced or mismanaged quarantines, and overcrowding."

Some of that relates to oversight by the agency and Congress, as well as to congressional funding to ensure that adequate care is available, but the quality of care is also dependent on the number of aliens that ICE has to house at any given time. The lower the number of aliens who are apprehended, the more resources the agency has to provide medical care to those who need it.

Which brings me to the next point in that article:

Advocacy groups and Democratic lawmakers have urged ICE to reduce the number of people in its custody by releasing particularly vulnerable people — many of ICE's detainees are asylum seekers with no previous criminal record — to minimize the crowded conditions that facilitate the spread of the disease and ensure that people with underlying conditions get access to care.

Respectfully, that is exactly the wrong response. Wuhan flu doesn't care whether you have a criminal record, and illegal immigration does not exist in a vacuum: The more migrants who enter illegally who are subsequently released to live and work in the United States, the more will come. You don't have to believe me, however. The CBP Families and Children Care Panel explained in its aforementioned "Final Emergency Interim Report": "By far, the major 'pull factor' [in illegal migration] is the current practice of releasing with a [Notice to Appear (NTA)] most illegal migrants who bring a child with them." In other words, the more migrants you release, the more migrants you will get.

Keeping the number of aliens who enter illegally as low as possible is critical to ensuring that migrants receive proper health screenings at the border and medical care in detention, and detention, in turn, is essential to keeping the number of new migrants who enter the United States low. This is the "virtuous circle" of detention, which is the opposite of "catch and release".

The bad ideas in that article do not end there. The Post reports:

On Thursday, the union that represents immigration judges across the country called on the Justice Department to suspend hearings in a wide swath of cases out of fear that such proceedings could help spread the coronavirus.

In a letter to the director of the Justice Department's Executive Office for Immigration Review, Judge Ashley Tabaddor said that all of the "non-detained master calendar dockets" — essentially hearings for people not in federal custody — "must be completely suspended because they present a continuing and unacceptable risk in the current environment."

Tabaddor, the head of the National Association of Immigration Judges, said the dockets typically bring 50 or more respondents into each courtroom, many of whom have recently traveled internationally, plus attorneys and other family members. She said that the union had been informed Wednesday that one attorney in a March 10 hearing reported having flu-like symptoms and was concerned about a coronavirus infection.

She may want to talk to Vox.

While Judge Tabaddor's proposal might at first blush sound reasonable, in reality it is anything but. First, when I was an immigration judge, I had no fears of infection because no one was allowed to get anywhere near me. The CDC advises those at risk to: "Take everyday precautions to keep space between yourself and others." That was never a problem for me — my bailiff made sure of it.

That article reports that some judges have allowed attorneys to remain in their courtrooms while their clients wait outside for their cases, a reasonable solution, but one that has crowded waiting rooms at the courts.

These issues should be limited to master calendar hearings, which are like arraignments in criminal courts. The number of individuals (respondents, witnesses, and family members) at merits cases is typically limited.

Resolving the number of respondents at master calendar hearings is a simple management issue of assigning respondents specific times to appear. Currently, appearance times for master calendar hearings generally run something like 8:30 AM for the morning docket and 1:00 PM for the afternoon docket. There is nothing that stops the immigration courts from, for example, setting smaller blocks of cases for 9:00 AM, 9:30 AM, 10:00 AM, 10:30 AM, and 11:00 AM appearances. Respondents will know when to come, and won't have to wait as long.

And courts can reduce the number of visitors who show up with respondents. Support is good, but you really don't need to bring your whole family to a master calendar hearing, especially if all that you are doing is filing an application.

Given the large number of "family units" (FMU) in removal proceedings, immigration judges can simply provide that one member of the FMU appear for those master calendar hearings. You don't need a husband, wife, and three kids to show up to request a continuance, or for anything other than a merits hearing.

More important, however, is the fact that completing removal proceedings as quickly as possible is a critical element in reducing the number of aliens who will subsequently attempt to enter the United States illegally.

Again, the aforementioned "Final Emergency Interim Report" explained that when (in that instance) FMUs were released with just an NTA, "long delays in the adjudication of asylum claims, mean[t] that these migrants are guaranteed several years of living (and in most cases working) in the U.S." It concluded:

A consequence of this broken system, driven by grossly inadequate detention space for family units and a shortage of transportation resources, is a massive increase in illegal crossings of our borders, almost entirely driven by the increase in FMU migration from Central America.

In other words, the delays in the court system are themselves an incentive to other migrants to enter illegally. Cancelling court cases, as the immigration judges' union requests, will simple exacerbate those delays. (And I will note that the union itself complained about the deleterious effects of such delays on their dockets when courts were closed, as they now request, during the government shutdown in December 2018 and January 2019 — but that was then, this is now.)

In summary, migrants who enter the United States illegally have bypassed the visa screening system that ensures that, for example, they do not have any communicable diseases — like Wuhan flu. While there is no reason to believe that any of those migrants has the flu, there is no reason to believe that they don't, either, because they have deliberately evaded that screening. Limiting the spread of the flu in the United States is critical to "flattening the curve" of cases, and ensuring that our medical facilities have the resources that they need to treat those who are infected. Reducing the number of migrants who enter illegally puts CBP in a better position to medically screen those it apprehends, and can send migrants who need to be quarantined to NCEZID border "Q stations". To reduce the number of migrants, DHS needs to detain aliens who have entered illegally, and the immigration courts need to adjudicate their cases as quickly as possible. For that reason, the government should reject calls to limit detention or close non-detained immigration courts.