In recent months, U.S. Immigration and Customs Enforcement (ICE) has reported higher-than-ever rates of COVID-19 among people in its custody. Since February, the COVID-19 positivity rate among those held by ICE has doubled. Today, according to our tracking of the outbreaks, the positivity rate among people in ICE detention is more than 50 times the positivity rate of the U.S. population at large.
What is underlying this surge?
For one, ICE is finally testing its detained population more widely, so it’s possible that what appears to the outside as a surge is actually just a clearer picture of what’s been happening all along. Since the start of the pandemic, the agency has been severely under-testing, in some cases deliberately, and thus obscuring the true extent of COVID-19 spread among both detained people and staff. In May 2020, the agency was only testing roughly one in five detained individuals; a year later, testing has improved fourfold.
But it’s likely that the apparent surge in COVID-19 infections is driven at least in part by skyrocketing numbers of people being held in ICE detention. Even while the positivity rate has continued to grow, the agency is returning to pre-pandemic detention levels, nearly doubling the number of people in its custody to over 27,000 in just a few months. In doing so, ICE has dramatically increased population density inside its facilities, with the primary source of the increase being growing transfers from Border Patrol custody. On top of this, more transmissible variants may be contributing to the rapid spread.
With a large and still growing number of people held in close quarters in its detention centers, ICE is inviting continued deadly outbreaks. Our research has made clear that people living or working in carceral settings are far more likely to become infected with COVID-19 than those in outside communities.
Meanwhile, ICE is only now, several months into the pandemic, beginning to offer COVID-19 vaccines to those in its custody. For months, the federal agency had refused to offer vaccines to people they detain, leaving it up to each state government to vaccinate those in ICE custody. Predictably, this has led to low vaccination rates: In May, only 20% of detained immigrants had received at least one dose of vaccine, compared to 60% of all U.S. adults. And even now, despite ICE’s most recent offering of 10,000 vaccines, it is unclear how the agency intends to ensure a fair distribution and equal access to vaccines.
As case numbers have risen again in the midst of skyrocketing detentions and more transmissible variants, ICE must show that it is serious about protecting the health and safety of those in its custody. The most effective way to reduce the threat of COVID-19 to people in ICE detention is to broadly decarcerate in order to reduce population density inside. Increasing the detained population at this junction is only adding gasoline to the fire.
At the same time, ICE must reduce inter-facility transfers and implement basic public health measures such as masking, physical distancing, isolation and quarantine protocol, and basic hygiene provision. ICE also must continue to offer single-dose COVID-19 vaccines — while these may be less effective against certain variants compared to two-dose mRNA vaccines, there is insufficient follow-up, tracking, and record-keeping in detention to warrant use of two-dose vaccines. To overcome the distrust held by detained individuals following years of medical neglect, coercion, and substandard care, ICE must partner with outside organizations to provide information about the vaccines in objective, and culturally and linguistically appropriate, manners.
Finally, the agency must report to the public truthfully and transparently about the state of COVID-19 in its facilities. Congress should pass the COVID-19 in Immigration Detention Data Transparency Act to require ICE and other immigration authorities to collect and publicly report certain critical COVID-19-related health data to the public and to Congress. This is information, however, that ICE can and must make public regardless of Congressional action.
Since the start of the pandemic, the agency has left no doubt as to its inability to manage COVID-19 in its facilities. Not only have case numbers been sky high, but the agency has continually failed to accurately and transparently report the true toll of the virus among those in its custody. While it’s too late for those who have died in its custody, the agency must do what it can now to prevent even more needless suffering.
Theresa Cheng, MD, JD, is a 2021-2023 Skadden Fellow at Bay Area Legal Aid and a University of California San Francisco clinical instructor/physician in emergency medicine. She is also the Immigrant Team Lead of the UCLA Law COVID Behind Bars Project and is on the board of directors of Border Kindness.