Originally Published in The Washington Post
Antonio Olivo and Nick Miro - September 11, 2020
U.S. Immigration and Customs Enforcement said the agency moved the detainees on “ICE Air” charter flights to avoid overcrowding at detention facilities in Arizona and Florida, a precaution they said was taken because of the pandemic.
But a Department of Homeland Security official with direct knowledge of the operation, and a former ICE official who learned about it from other personnel, said the primary reason for the June 2 transfers was to skirt rules that bar ICE employees from traveling on the charter flights unless detainees are also aboard.
The transfers took place over the objections of ICE officials in the Washington field office, according to testimony at a Farmville town council meeting in August, and at a time when immigration jails elsewhere in the country had plenty of beds available because of a dramatic decrease in border crossings and in-country arrests.
“They needed to justify the movement of SRT,” said the DHS official, referring to the special response teams. The official and the former ICE official spoke on the condition of anonymity to discuss sensitive internal decisions. They and another DHS official briefed on the operation characterized the tactical teams’ travel on ICE Air as a misuse of the charter flights.
At a hearing in a federal lawsuit filed on behalf of four detainees who were already at Farmville, an ICE attorney told a judge that one reason for the transfer was that “ICE has an air regulation whereby in order to move agents of ICE, they have to be moved from one location to another with detainees on the same airplane.”
The lawsuit, filed in U.S. District Court in Alexandria, focuses on the exposure to the coronavirus for the detainees, three of whom contracted the infection.
Asked about the primary purpose of the charter flights, ICE officials said the goal was to move detainees into facilities with more space for social distancing.
“ICE transfers detainees due to the operational demands of the detention network. The June 2 transfer of detainees to Farmville was made as part of a national effort to spread detainees across the detention network to facilitate social distancing and mitigate the spread of COVID-19,” Henry Lucero, who oversees ICE enforcement operations, said in a statement.
ICE statistics show the facilities the detainees came from were not near capacity on June 1, when the transfers were arranged. CCA Florence, a jail in Arizona with beds for roughly 550 detainees, was about 35 percent full that day, records show. The facility that appeared most crowded, Eloy Detention Center in Arizona, was about 70 percent full. Farmville was 57 percent full, according to ICE.
“During COVID-19, the agency has taken steps to protect detainees in its custody and promote social distancing whenever possible,” spokeswoman Danielle Bennett said in a separate statement. “This has resulted in the transfer of detainees from facilities with larger detention populations to facilities with fewer detainees. This was the reason for the transfers to Farmville.”
ICE officials did not respond to requests for examples of other detainee transfers this year from Arizona or Florida to Farmville, which is the agency’s closest major facility to Washington.
But publicly available flight data show the June 2 flights were highly unusual. There is no other record this year of ICE transferring detainees from Phoenix to Virginia or Miami to Virginia, according to records compiled by Witness at the Border, an immigrant advocacy group that monitors ICE Air activity.
On June 1, after two nights of mass protests outside the White House, a top DHS official said in a memo obtained by The Washington Post that special response teams were being sent to the District from Arizona, Florida and Texas, with plans to arrive the following day.
The move was part of a wider deployment of Border Patrol agents, U.S. Marshals, ICE tactical teams and other federal forces in downtown Washington and around the White House. ICE teams stationed closer to the nation’s capital were already in place at the protests; the additional units were flown in as reinforcements, U.S. officials said.
The teams were not responsible for guarding detainees on the flights, a role handled by private contractors and ICE enforcement officers.
Lucero was a key player in the decision to move the heavily armed teams on ICE Air flights, three officials said. He formerly ran the agency’s Phoenix field office, and has a close relationship to the Phoenix tactical officers, who are considered among the agency’s best-trained, the officials said.
The special response teams, based in several ICE field offices, are typically used to control riots in detention facilities, among other duties. They usually deploy locally, using ground transport. In cases where they have to fly, the teams normally use commercial airlines, which can be expensive and inconvenient because of the weapons and equipment the agents travel with.
The use of the teams was part of the Trump administration’s effort to “dominate” racial equity demonstrations nationwide. ICE special-response teams deployed to civil unrest and protests this summer in Washington, Buffalo, New York, Houston, Dallas, San Diego, San Francisco and Los Angeles, according to a GAO report published Thursday. More recently, federal agents have been sent to Kenosha, Wisc., and Portland, Ore.
D.C. Mayor Muriel E. Bowser (D) did not request special-response teams to deal with protests in the nation’s capital, which were generally peaceful. City officials have criticized the federal response to the demonstrations — including the decision to have police in riot gear forcefully scatter a crowd to clear the way for a photo op by President Trump on June 1 in front of St. John’s Church near the White House — as excessive overreach.
The June 2 deployment to the District took place amid heightened concerns that immigration detention centers and prisons had become deadly incubators for covid-19, the disease caused by the novel coronavirus. There had been 5,670 cases of the virus reported inside ICE facilities as of Thursday.
ICE says it has expanded safeguards inside all its facilities — including pre-transfer medical screenings and temperature checks, and quarantining new transfers before they’re moved in with the general population.
The detainees sent to Farmville were kept apart from the rest of the detainee population for 14 days, Bennett said. But at the end of that period, the number of cases at the facility exploded, with 339 inmates having tested positive by early July. That was more cases reported than at any other immigration jail until early this month, when officials said there were 366 at La Palma Correctional Center in Arizona.
Typically on ICE Air flights, agency personnel and detainees sit in different sections of the plane. ICE has said no agents who traveled on the planes appear to have been infected.
Last month, the director of Immigration Centers of America (ICA), the company that operates the Farmville detention center, said local ICE officials resisted the plan to transfer the 74 detainees into his facility because there wasn’t enough room to properly quarantine them at a county jail about 100 miles away that is normally reserved for that purpose.
“This transfer that took place on June 2 was ordered by ICE headquarters,” Jeffrey Crawford, the director, told Farmville’s town council on Aug. 12. “I do know that the local field office pushed back and attempted to refuse the transfer, and they were overridden by officials in Washington.”
Crawford said ICE officials told him that the arriving detainees were not sick. In an affidavit filed in connection with the lawsuit, which names Crawford, ICA, ICE and government officials as defendants, he said one detainee arrived with symptoms of covid-19 and tested positive. The rest of the group was then tested; 51 had the virus, according to the affidavit.
“We were assured before they came that these folks were healthy,” Crawford told the town council, according to a video recording of the meeting. “We were told that one of the facilities where the detainees were coming from had no instances of covid-19. In hindsight, we believe we’ve discovered information that that is not accurate. But that is what we were told at the time.”
Crawford did not respond to a request for comment made through his attorney.
Hundreds more detainees eventually tested positive, including James Thomas Hill, 72, a Canadian national who was not part of the transfer group. Hill died on Aug. 5, several weeks after being hospitalized with covid-19.
The outbreak sparked concerns that the virus would spread into the surrounding community and prompted state officials to ask the Centers for Disease Control and Prevention to intervene.
An attorney representing some of the detainees in the federal lawsuit called the possibility that ICE transported immigrants in its custody as a means to respond to protests in Washington “chilling.”
“It was in June, when it was already perfectly clear — including in CDC guidelines — that transfers are risky and should only be undertaken when absolutely necessary,” said Sirine Shebaya, a lawyer with the National Immigration Project of the National Lawyers Guild.
The number of detainees in ICE custody has decreased significantly during the pandemic, the result of fewer interior arrests and emergency expulsion policies at the border. The average daily detainee population was 24,208 in June, ICE statistics show, compared with 39,319 in February.
Last month, a CDC inspection found that some of Farmville’s staff members were still not properly wearing protective masks, while others continued working after showing symptoms of covid-19.
That prompted U.S. District Judge Leonie M. Brinkema, who is overseeing the lawsuit, to order a new health inspection at the site. Two reports from that Aug. 20 inspection — one for each side in the lawsuit — showed that physical distancing measures had been implemented.
But a health expert for the defendants found some detainees were not wearing the masks they’d been given, while the plaintiffs’ expert found that at least eight detainees who had tested positive for the virus still had symptoms after being released from isolation.
During an Aug. 11 hearing, Yuri S. Fuchs, an ICE lawyer, told Brinkema the reason for the June 2 transfer was “twofold.”
First, ICE has a policy of shifting detainees between facilities to prevent overcrowding, Fuchs said. The second reason, he told the judge, was the federal requirement to have detainees aboard any ICE Air flights used to transport agents.
“I’m sorry, explain that second one to me,” Brinkema said.
“That’s an ICE Air regulation that requires detainees and staff to be on the same flight, so they’re being moved around,” Fuchs said.
“I think what you’re saying then is when you move inmates, or detainees, you have to have ICE people with them,” Brinkema said. “That’s got to be what that means.”
Fuchs replied: “Yes.”
This story has been updated with new information showing that according to publicly available flight data, ICE Air had no other flights so far this year transferring detainees to Virginia from Phoenix or Miami.