One week ago, immigrants’ rights groups filed an emergency motion seeking the release of noncitizens nationwide who are detained and vulnerable to the disease. Lawyers in the Justice Department’s Office of Immigration Litigation responded by complaining that they did not receive seven days’ notice of the motion and asking that a hearing be set no sooner than April 27.
The lack of urgency in the government’s response to the danger facing immigration detainees has been a constant in the emergency habeas actions challenging the continued detention of detainees with medical conditions that make COVID-19 a possible death sentence. So far, four courts have ordered individual petitioners released, and one court has ordered the government to make efforts to release children nationwide; one has denied a request for release. The petitioners have made simple and strong constitutional arguments. For example, they have argued that their high risk of serious illness or death outweighs any government interest in their continued civil detention. And some have argued that they have a procedural due process right to a prompt bond hearing that takes into account the particular risk that COVID-19 poses to their health.
If anything, the specific arguments for the release of medically vulnerable detainees understate the broader case for the release of immigration detainees. The Constitution requires that civil detention “bear [a] reasonable relation to the purpose for which the individual [was] committed.” Immigration detention has only two permissible purposes: to reduce danger to the community and to ensure that noncitizens do not flee. Moreover, when immigration judges decide whether to grant release on bond, they weigh these two factors—but if they decide that a noncitizen poses a danger to the community, they are required to deny bond and do not even consider flight risk.
If an immigration judge does not consider flight risk when releasemight pose a danger to the community, the government should not consider flight risk now, when continued detention will cause preventable deaths. The current danger requires mass release. Deaths in New York are doubling every two days, and deaths in California are doubling every four days. Both states have shelter-in-place policies enforcing social distancing and limiting the spread of the disease. By contrast, immigration detainees are packed tightly together in small facilities. If a Westport cocktail party could start a COVID-19 hotspot, the virus will spread faster still in immigration detention facilities.
The first immigration detainee tested positive for the virus early last week, and three employees at detention centers have tested positive. And by last Thursday, at least one detainee at each of three county jails near New York had tested positive. With continuing “catastrophic shortages” in testing, there is every reason to think that many cases remain undetected and that the virus is spreading quickly among detainees. And even if there are only a few cases among detainees today, exponential growth—made even more extreme by crowding—means that a few can become thousands in a few weeks.
Continued immigration-detention-as-normal will also endanger the broader community. Employees who work at the facilities will almost certainly carry the virus to their homes and communities. And every preventable case will require masks, gloves, and ventilators that could have been used elsewhere.
Of course, these dangers face not only immigration detention facilities, but also jails and prisons. Immigration detention is special because COVID-19 negates one of its reasons for existence (the prevention of danger), which means that courts should not reach the other reason (flight risk).
The government is continuing to detain noncitizens when detention poses the danger to the community that it aims to prevent. That matters now, as each day exponentially increases the number of infections among detainees. But it will also matter later, when the crisis has passed. If the danger to the community posed by a pandemic does not lead the government to release immigration detainees now, courts should be skeptical later when the government claims that concern for the same community motivates its decisions to detain immigrants—especially if the purported danger arises from the questionable possibility that released noncitizens might commit crimes. Courts should remember that the federal government continued to imprison immigrants when it knew that doing so would cause deaths–both inside and outside detention.