San Francisco DA Joins Calls to Release ICE Detainees During Pandemic

San Francisco District Attorney Chesa Boudin called on Gov. Gavin Newsom Thursday to use his executive authority to shut down federal immigration detention centers in California to protect public health during the coronavirus pandemic.

The call came amid a growing outcry by medical experts, immigrant advocates and a former director of U.S. Immigration and Customs Enforcement (ICE) over the potential danger of COVID-19 in ICE detention facilities. And it followed a lawsuit filed by 13 medically vulnerable detained immigrants in California, calling on ICE to release them.

Also Thursday, U.S. Sen. Dianne Feinstein released a letter she sent to Attorney General William Barr, calling for the U.S. Department of Justice to suspend all immigration court hearings during the pandemic.

Boudin said San Francisco has safely reduced its jail population by 25 percent over the past three weeks. And he said releasing some of the 38,000 people currently detained by ICE nationwide should be easier because immigration custody is a form of civil, not criminal, detention.

“When someone dies in immigration detention, their blood will be on our hands,” he said.

Boudin said he believes Newsom could use an executive order to ban the use of private detention centers. Four ICE facilities in California are operated by private prison companies.

He also called on the governor to order state prisons to stop handing over inmates to ICE, adding that California prisons hold approximately 11,000 people who, under current policy, will be handed over to ICE after they have served their criminal sentences.

“That’s a huge pipeline of people whose lives are being jeopardized during the coronavirus pandemic,” said Boudin.

Newsom’s press secretary Vicky Waters would not comment on whether the governor would consider such steps, but she said in a statement: “The federal government has exclusive authority over immigration law, but as we continue to grapple with the COVID-19 outbreak, we want everyone in the state to know that their health and welfare is our top priority.”

Meanwhile, advocates in California and across the country voiced concern that an outbreak of COVID-19 inside any of the nation’s 138 ICE detention facilities could affect not just the immigrants and staff inside, but also the families and communities that ICE employees return to at the end of their shifts, and the hospitals where patients from ICE facilities would be taken for care.

As of Thursday evening, ICE reported two confirmed cases of COVID-19 among people held in detention in Newark and Hackensack, New Jersey. Three employees at ICE detention facilities also had confirmed cases — in Elizabeth, New Jersey, Aurora, Colorado and Houston, Texas.

“Crowded detention facilities are ideal incubators for disease, threatening the health not just of the detained, but of surrounding communities,” said Sandro Galea, dean of the Boston University School of Public Health. “To safeguard public health, nonviolent detainees should be released and allowed to self-isolate.”

That proposal was echoed by John Sandweg, a former acting director of ICE who served under President Barack Obama.

“The design of these facilities requires inmates to remain in close contact with one another — the opposite of the social distancing now recommended for stopping the spread of the lethal coronavirus,” Sandweg wrote in a column in The Atlantic earlier this week.

“By releasing from custody the thousands of detainees who pose no threat to public safety and do not constitute an unmanageable flight risk, ICE can reduce the overcrowding of its detention centers, and thus make them safer,” he said.

Infectious diseases have surged through ICE detention centers in the past, including an outbreak of mumps last year that sickened more than 900 inmates and staff at 57 facilities, according to the Associated Press.

Detention Watch Network, an advocacy group for immigrants in ICE custody, called for the immediate release of all detained immigrants.

Fearing coronavirus infection, 13 detained immigrants in California filed suit against ICE last week in federal district court in San Francisco. The detainees are held in Yuba County Jail, in Marysville, and the Mesa Verde ICE Processing Facility, a private prison in Bakersfield operated by the GEO Group.

The plaintiffs called on ICE to release them because of their advanced age and underlying medical conditions — which they believe puts them at risk of death if they contract COVID-19. They said they are being held in crowded and unsanitary conditions where they are denied the ability to protect themselves.

One plaintiff, Sofia Bahena Ortuno, a 64-year-old farmworker and grandmother who said she suffers from hypothyroidism and diabetes, was released the same day the lawsuit was filed, according to her lawyers.

The lawsuit was filed by the American Civil Liberties Union, along with the Lawyers Committee for Civil Rights, the San Francisco Public Defender’s Office and Lakin & Wille, LLP. In recent days the ACLU has also brought suit on behalf of ICE detainees in Washington state, Massachusetts, Maryland and Pennsylvania.

ICE officials would not comment on the lawsuit or speak on the record about the fear among detainees and their advocates of COVID-19 outbreaks in detention. An ICE spokesman directed KQED to the agency's coronavirus webpage.

The website states that “ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to ICE Health Service Corps (IHSC) staff for the screening and management of potential exposure among detainees.”

ICE has suspended visits by friends and family members and “is actively working with state and local health partners to determine if any detainee requires additional testing or monitoring to combat the spread of the virus,” the website said.

Also on Thursday, lawyers representing children in immigration custody asked a federal judge in Los Angeles for an order requiring the government to release every child to a guardian within seven days or explain why it didn’t to a court-appointed monitor. The lawyers also asked the judge to require that children and families be held in “non-congregate” settings or else provide detained children and parents the ability to keep six feet of distance from others and to freely wash their hands with soap and water.

Meanwhile, Feinstein called on the U.S. Department of Justice and its Executive Office of Immigration Review (EOIR), to temporarily close the nation’s immigration courts for hearings.

“Critical matters, such as bond hearings for adult detainees and emergency hearings for children, should be handled telephonically,” wrote Feinstein. “The benefit of reducing the risk to public health outweighs pressing forward with non-critical matters during this pandemic.”

Her letter follows a similar call by the nation’s immigration judges, the ICE lawyers union and the American Immigration Lawyers Association.

Last week, the agency announced that it was suspending hearings through April 10 for people who are not in ICE detention. And on Monday, EOIR announced that hearings through April 23 would be postponed for asylum seekers forced to wait in Mexico under the U.S. government’s Migrant Protection Protocols.

On Thursday evening, the agency issued a statement saying EOIR’s current operations are in line with most other federal courts.

“Recognizing that cases of detained individuals may implicate unique constitutional concerns and raise particular issues of public safety, personal liberty, and due process, few federal courts have closed completely,” the statement said. “EOIR is similarly continuing to receive filings and to hold hearings for detained aliens while monitoring and minimizing risks presented by COVID-19.”

The agency said even though immigration courts are open, they are not conducting work that involves the presence of the general public. And EOIR is encouraging the use of video and telephone appearances at hearings and electronic filing or U.S. mail delivery of documents.

On Thursday, 55 of the nation’s 69 immigration courts remained open in this manner.