Originally Published in The Washington Post
Maria Sacchetti - March 12, 2021
The Biden administration says it wants to make every adult in the United States eligible for vaccination by May — and immigration agents have said they would not interfere with efforts to vaccinate undocumented immigrants outside of detention. But lawyers for immigrants who are detained say there is no urgency to vaccinate those in federal custody against a deadly pathogen that can spread fast in confined spaces.
“ICE has no plan to provide vaccines on a systemwide basis,” said Melissa Riess, a staff attorney for Disability Rights Advocates in California, one of several nonprofits that filed a federal lawsuit in California seeking the release of detainees with high-risk health conditions. “That’s having horrendous consequences. It seems like they’re doing nothing.”
The California case is one of dozens of legal battles riveted on the immigration agency’s treatment of civil immigration detainees during the pandemic. The coronavirus has ripped through many of ICE’s detention facilities, infecting nearly 10,000 detainees and killing nine. At least 370 detainees are currently positive for the virus, according to agency records.
Prisons and detention centers — like nursing homes, college dorms and other communal living settings — are places where the virus has spread rapidly because their shared spaces can make it difficult to stay apart. The Centers for Disease Control and Prevention has recommended vaccinations for people in prisons and jails, but the limited supply so far has led to debates at the state and local levels over who should get them first.
Unlike ICE, the Bureau of Prisons has a program to vaccinate federal inmates imprisoned for criminal cases, and vaccine doses are shipped directly from manufacturers to the prisons. Since staffers come and go, they get the shots first, followed by prisoners. Approximately 14,700 of the 152,000 inmates have gotten the injections so far — a small but growing share that the BOP updates each weekday online.
No similar system exists at ICE, and a Business Insider investigation last monthfound that the agency had no vaccination plan.
Dr. Ada Rivera, a top medical official at ICE, said in the federal lawsuit in California last month that officials told the Department of Homeland Security earlier in the pandemic that they needed thousands of vaccine doses for detainees, and DHS officials relayed that information to those running Operation Warp Speed. But ICE has not received any vaccine doses directly and is relying on state and local health departments to deliver them, an ICE spokeswoman said. Most have not provided any doses.
“Immigration and Customs Enforcement is firmly committed to the health and welfare of all those in its custody,” spokeswoman Danielle Bennett said. “A limited number of ICE detainees have begun to receive the coronavirus vaccine based on availability and priorities for vaccinating individuals in the state where they are currently detained.”
DHS declined to comment, and the Department of Health and Human Services did not respond to requests for comment.
ICE runs a network of more than 200 public and privately run facilities and county jails, which at one point during the Trump administration held an average of more than 50,000 people a day, a record high. The agency is now detaining fewer than 14,000 people a day, its lowest average in decades, in keeping with CDC recommendations and court orders. Unlike convicted criminals in federal BOP prisons, immigrants are held for the civil purpose of attempting to carry out their deportations.
Records show that the virus has spread through ICE facilities over the last year, with hundreds infected in states such as Texas, Georgia, Arizona and Virginia.
Eloy Detention Center, in the Arizona desert, is monitoring 47 active coronavirus infections, according to ICE. The South Texas ICE Processing Center outside San Antonio has 38 active cases, while a facility in Batavia, N.Y., has 51 cases.
In Batavia, a small federal detention facility near the Canadian border, detainees said in interviews that they can hear sick immigrants coughing in their bunks. Some moan with headaches.
“I’m trying to stay alive. Right now this place is infested with the virus,” Aldwin Brathwaite, 59, a grandfather from Trinidad and Tobago who came to the United States in 1979 with a green card, said in a phone interview this week.
Brathwaite said he has cancer and has been detained since January 2019, longer than he spent in state prison for felony identity theft and other nonviolent crimes. ICE did not respond to his claims. He remains negative for the virus, his lawyer said.
“Honestly, I’m scared,” he added. “I don’t want to be the first one to die here.”
Elvin Minaya Rodriguez, 38, said he is facing deportation to the Dominican Republic because he has a state drug conviction, which he is appealing. He said he is married to a U.S. citizen, has a green card, and has spent two years in detention trying to keep it.
“The virus got me,” he said in Spanish from detention, where he recovered. “I thought I was going to die.”
Without a vaccination, he fears he will catch the virus again. He said he has high blood pressure.
ICE officials say they are taking precautions inside the centers, testing immigrants for the coronavirus and quarantining them upon arrival, and isolating and caring for those who test positive.
“Detainees who test positive for COVID-19 receive appropriate medical care to manage the disease,” ICE said in a statement.
But lawyers say immigration officials are still holding too many immigrants at high risk of the disease, making the lack of vaccinations even more pressing.
U.S. District Judge Jesus Bernal ruled Wednesday that he would appoint a special monitor to oversee ICE’s compliance with his order last year to consider releasing detainees with serious medical conditions or disabilities, calling ICE’s latest efforts “exceedingly slow.”
“This is particularly concerning as the public health emergency rages on,” he wrote.
Other lawsuits are fighting for detainees’ health in county jails or federal facilities.
In western New York, lawyers have begged a federal judge for weeks to make sure 85 detainees with medical conditions at the Batavia detention center get vaccinated.
Judge Lawrence J. Vilardo in New York has warned officials that “this is life-threatening stuff,” and he told lawyers at a hearing Thursday to vaccinate detainees.
“Guys, this is not rocket science,” said Vilardo, who criticized the agency last week for doing “zero” to get vaccine doses. “We can get this done.”
Government lawyers said they would abide the court’s orders, but in court filings they suggested that the immigrants sue the New York state government to secure vaccine doses instead.
“If we had unlimited resources, we would vaccinate everybody,” Justice Department lawyer Adam Khalil said during the hearing Thursday. “Unfortunately, that’s not the case.”
He said detainees were also spreading the virus by not wearing masks or social distancing.
“You have to take some self-responsibility,” Khalil said.
John Peng, a lawyer with Prisoners’ Legal Services of New York who is representing the immigrants at the Batavia facility with the New York Civil Liberties Union, said ICE should ensure that the detainees are protected.
“This is ICE’s responsibility,” he said in an interview. “The government is choosing to detain someone.”
Maria Sacchetti covers immigration for the Washington Post, including U.S. Immigration and Customs Enforcement and the court system. She previously reported for the Boston Globe, where her work led to the release of several immigrants from jail. She lived for several years in Latin America and is fluent in Spanish.