JURIST Guest Columnist Allyssa M.G. Scheyer, a third-year law student at the University of California, Irvine School of Law, writes about the unique struggles we are putting on undocumented immigrants in the time of COVID-19. . .
By now, the effects of COVID-19 on American life and society are widespread and deeply felt, almost regardless of one’s socioeconomic status. However, for undocumented immigrants in the United States, the COVID-19 crisis compounds issues that have existed for years, exposing immigrants to a barrage of political, social, and economic storm fronts that have disastrously collided at once. News outlets have reported on the real consequences of the near-national shut down across the country. However, many recent news articles that cover the effects of COVID-19 on immigrants run the risk of understating the uniquely devastating sociolegal effects that the virus has on undocumented immigrants and their families.
The COVID-19 Crisis is Adding Pressures to an Otherwise Overburdened System
COVID-19 is creating additional chaos for immigrants in detention or who work frontline jobs. Over the past three and a half years, the Trump administration has increased its efforts to detain as many undocumented immigrants as possible, eschewing the Obama-era approach to targeting violent undocumented immigrants. Undocumented immigrants and low-income immigrants historically have worked in a variety of important jobs, ranging from field farmworker to retail clerk to registered nurse. These jobs, many of which now don the “essential” label that allows businesses to continue operating, disproportionately employ low-income and undocumented individuals, exposing them to COVID-19 on a daily basis.
Immigrants in Detention
Even before the COVID-19 crisis, advocates and lawmakers expressed grave concerns about the availability and adequacy of healthcare provided in detention centers, which hold anywhere from 40-50,000 immigrants nationally. Though ICE and CBP generally delay or outright refuse to give responses to questions about healthcare and immigrant deaths in custody, in March, media sources were able to determine that ten immigrants have died in ICE custody since October 2019, before the COVID-19 crisis even arrived in the United States.
Detention center conditions, including overcrowding and the lack of adequate healthcare, create a tinderbox scenario for detained immigrants, who often wait days or weeks, or even months, in small, packed cells. Detainees almost always share toilets, sleeping mats, clothing, and food amongst themselves, and sleep in rooms on bunkbeds no larger than eight by ten feet. Current ICE detention guidelines allow COVID-19 to spread rapidly throughout its detainees, at times literally preventing any type of recommenced social distancing measures. Civil confinement should never result in the death of the individual, yet in ICE detention centers, death via COVID-19 will inevitably arrive.
Overcrowding is not the only problem immigrants face in ICE detention; access to adequate healthcare in ICE detention is spotty at best. Survivors of ICE detention have revealed ICE’s cruel and inhumane practices, like ignoring a pregnant woman’s pleas for help during birth and failing to transport immigrants to offsite hospitals in a timely manner, are routine in ICE detention centers. More recent experiences of detained immigrants, including an allegation that detention center guards used pepper spray on detainees asking for masks to prevent the spread of COVID-19 at Otay Mesa Detention Center in California, are evidence that ICE detention centers care little about the health of its occupants. There are already over 200 detainees who have contracted COVID-19 at ICE facilities nationwide. This number is sure to increase as the virus spreads rapidly through crowded cells and common eating areas.
In ICE detention centers, overcrowding and poor quality of healthcare are not the only problems detained immigrants face. ICE and CBP are blatantly opaque agencies that refuse to give an inch when protecting the secrecy of agency practices and rules from legal advocates. Battles for even the smallest amounts of information related to detention center conditions of treatment of detainees are frequently fought between government attorneys and immigrant advocates, resulting in surreal arguments that stretch the imagination (see ICE trial attorney Sarah Fabian arguing that soap and blankets are not necessary for “safe and sanitary” detention conditions). Congressional oversight of these agencies is often shallow—not because Congressional members have no interest, but because ICE and CBP refuse to answer most questions posed to them. Senators, including recent presidential candidates Bernie Sanders, Elizabeth Warren, and Kamala Harris, sent multiple letters to ICE, asking for more information about their efforts to prevent the spread of COVID-19 and pleading for the release of many detained immigrants. None of these letters has been answered by DHS. Lawsuits inevitably illuminate some information regarding detention conditions, but this information is generally limited in scope, as judges hesitate to give outsiders access to documents that could undermine national security. The lack of transparency within ICE and CBP prevents advocates from ensuring that rights of undocumented immigrants are respected.
Immigrants Working on the Frontline of the COVID-19 Crisis
Detained immigrants are, in a way, obviously vulnerable to the transmission of COVID-19 due to inadequate healthcare and extreme overcrowding. However, undocumented, un-detained immigrants are also uniquely vulnerable to the effects of the COVID-19 crisis. One estimate places about six million undocumented workers at the frontlines of the crisis, acting as farm employees, grocery store clerks, and delivery truck drivers, and more. These workers, deemed “essential” in many cases, work long hours and are in contact with many other individuals often unable to implement the recommended social distancing practices. Undocumented frontline workers have so far received no financial support from the federal government. Some states, such as California, created special funds dedicated to supporting undocumented immigrants during the COVID-19 crisis, but most states have not. Undocumented workers, like other low-income workers across the United States, must weigh the possibility of COVID-19 transmission against empty refrigerators and mounting utility bills every single day.
Protections for low-income, frontline workers are minimal at best, and are often absent in places where personal protective equipment (PPE) is most needed. Undocumented immigrants are less likely to have access to healthcare benefits and social safety nets than other low-income Americans, and are more likely to work in sectors where furloughs and layoffs have occurred at exponential rates. Whether Americans realize it or not, labor from undocumented immigrants supports nearly all sectors of modern life. Failing to protect these frontline workers from COVID-19 and its economic repercussions will have devastating effects across the nation.
The Consequences of COVID-19 Will Be Deadly for Many Immigrants
People across the United States are dying from COVID-19 at a rapid rate, despite steps taken to mitigate the spread of the virus. However, undocumented immigrants (approximately 11 million strong) remain uniquely vulnerable to COVID-19 transmission. We continue to hold people, the majority of whom have never convicted of a crime, in overcrowded civil detention in a time where crowds almost certainly mean illness and death. Due process rights are seemingly falling by the wayside when detained immigrants need them most, another casualty of COVID-19. Immigrants who have the ability to pay bond, and leave overcrowded detention cells behind, are unable to have hearings when judges close courtrooms. Bond hearings are abruptly canceled or indefinitely postponed, because immigration judges refuse to endanger themselves and court staff by holding immigration proceedings in confined courtrooms. Detainees are so desperate for any semblance of protection from COVID-19 that some have begun hunger strikes to protest the inhumane, dangerous conditions inside detention centers.
Social safety nets, ranging from existing Medicare programs to newer, COVID-19 specific relief, is often unavailable to undocumented immigrants, leaving this vulnerable population even more at risk of economic disaster than other low-income groups. Despite widespread government and community criticism, many employers of frontline laborers continue to fail to provide PPE, or even hand soap on site. Undocumented immigrants fear COVID-19, but also ICE and CBP, who are certainly not slowing their operations to track and apprehend undocumented immigrants during this crisis. Some undocumented immigrants described an intense fear of seeking healthcare for COVID-19, noting that ICE has detained immigrants at doctors’ offices and emergency rooms around the country. Congressional calls for the rapid, widescale release of immigrants from detention centers have been largely ignored, although in recent days, reports of limited releases from detention centers have begun to surface. It is certainly, then, possible to release immigrants from detention. It is also morally and ethically imperative to release individuals accused of civil violations from the overcrowded detention centers where COVID-19 outbreaks will certainly erupt. It is only a matter of time, and a short one at that, until ICE reluctantly admits that detained immigrants have died from COVID-19. Individual lawsuits that result in the release of handfuls of immigrants at a time are a piecemeal solution that will save few lives. The exact number of immigrants who died preventable deaths from COVID-19 in ICE custody will likely be exponential unless immediate action is taken to release detainees.
Allyssa M.G. Scheyer is a third-year law student at the University of California, Irvine School of Law, and a graduate of Occidental College. She is a future immigration attorney.
Suggested citation: Allyssa M.G. Scheyer, We Are Killing Them: The Heavy Toll COVID-19 Takes on Undocumented Immigrants, JURIST – Student Commentary, April 22, 2020, https://www.jurist.org/commentary/2020/04/allyssa-scheyer-covid19-undocumented-immigrants/
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