By Suzanne Monyak

Law360 (March 11, 2020, 8:06 PM EDT) -- People held in immigration detention centers may be particularly vulnerable to the new coronavirus as it spreads across the U.S., and immigration attorneys are questioning if the federal government is prepared to safeguard detainees' health and access to counsel.

As the number of people diagnosed with the coronavirus, which causes the disease known as COVID-19, climbs each day, lawyers have raised concerns that U.S. Immigration and Customs Enforcement may not be prepared to handle a potential future outbreak of the virus at the agency's detention centers, where immigrants are trapped in communal spaces.

"It's a petri dish," said Hasan Shafiqullah, the attorney-in-charge of the Legal Aid Society's immigration law unit. "To subject people to that when they could be released back to their communities is unconscionable."

ICE said on Tuesday that no cases of the coronavirus have been detected in its facilities, and as of March 3, four detainees had "met criteria for testing." CoreCivic and The GEO Group Inc., both private contractors who operate immigration detention centers, also confirmed to Law360 that no coronavirus cases have been detected.

An ICE spokesperson said in a statement that the "health, welfare and safety" of people in its custody "is one of the agency's highest priorities" and that the agency has incorporated the Centers for Disease Control and Prevention's guidance on combating the virus.

ICE also said it has "comprehensive protocols" in place, including the use of masks and other protective gear, and that it has started screening new detainees and temporarily holding them in isolation for observation.

Amanda Gilchrist, director of public affairs for CoreCivic, which has been contracted to run ICE detention centers across the country, including centers in Eloy, Arizona, and Lumpkin, Georgia, said the company is committed to preventing the spread of disease.

"Each of our facilities also has a comprehensive emergency response plan in place, which includes processes to: detect and track diseases; collect, analyze, and report data on individuals exhibiting signs of illness; and to separate the sick from the well," she said in an email to Law360.

A spokesperson for GEO Group, which runs the ICE processing center in Adelanto, California, as well as the Karnes family detention center in Texas, also said the company has issued guidance to each of its facilities and updated its policies to include preventing COVID-19.

"We will continue to monitor and evaluate in conjunction with our government partners and local health agencies to ensure the health and safety of all those in our care," the spokesperson said in a statement to Law360.

But attorneys are worried that established protocols and detention standards may not be enough, pointing to past incidents in which they said ICE failed to manage other public health crises.

"We see time and again, ICE failing to meet its own standards in a variety of ways. It doesn't inspire confidence," said Katie Shepherd, national advocacy counsel at the American Immigration Council.

An Allegedly Poor Record For ICE

In a recent letter to ICE, advocacy groups reminded the agency of a mumps outbreak last year in New Jersey's Bergen County Jail, where immigrant detainees are housed. The groups — the Legal Aid Society, Bronx Defenders and Brooklyn Defender Services' New York Immigrant Family Unity Project — said that "very little information was shared initially" following that outbreak, while later "significant misinformation" was shared by ICE regarding when the quarantine would end.

"We request immediate answers from ICE about what measures are being taken to prevent a repeat of last summer," they wrote.

ICE's Aurora, Colorado, detention center, operated by GEO Group, has also taken heat for its handling of various outbreaks in the past, including mumps and chicken pox.

An administrative complaint filed in 2018 by the American Immigration Council and American Immigration Lawyers Association accused the government of a "longstanding and systemic failure to provide adequate medical and mental health care" at the Aurora facility.

The complaint detailed a number of alleged medical failures at the facility, including a detainee with post-traumatic stress disorder who was placed in solitary confinement, a pregnant woman with four American children who was shackled to a bed after being diagnosed with tuberculosis, and a Mexican man who suffered more than 100 seizures in custody after staff were allegedly inconsistent in giving him the medication he needed.

Rep. Jason Crow, D-Colo., whose district includes the detention center, wrote to former Homeland Security Secretary Kirstjen Nielsen last year raising "serious concerns" about the facility and requesting more information about the agency's handling of the outbreaks.

And according to the American Immigration Council and American Immigration Lawyers Association's complaint, the Aurora facility "appears to be the norm rather than the exception to these problematic trends." An ongoing proposed class action filed in federal court last year alleged that ICE had failed to provide adequate medical and mental health accommodations at more than 150 detention centers across the U.S. and called conditions at the facilities "deplorable."

Aaron Hall, a Colorado-based immigration attorney, noted that ICE recently revised detention standards to relax medical care requirements at its facilities.

Under the new standards, health facilities at detention centers can now be led by a health services administrator instead of a licensed physician, as previously required. ICE also scrapped a requirement that detainees be given health screenings under national correctional standards, according to an analysis of the changes by the American Civil Liberties Union.

"We're definitely concerned with the level of care, not just in this circumstance but in general," Hall said.

Counsel Access At Risk

A potential quarantine in the event of an outbreak could also hinder immigrants' access to counsel.

Shafiqullah of the Legal Aid Society questioned how attorneys could meet with clients ahead of their hearings confidentially if facilities are quarantined. Video teleconferencing technology, which has been increasingly used to screen detained immigrants into their court proceedings remotely, "is not an adequate solution," he said, pointing to technical issues and a lack of confidentiality when officers remain in the room with the immigrant.

In-person meetings are key because people can be hesitant to recount traumatic or sensitive information over the phone, which can be monitored, Shepherd said.

Shafiqullah also said that immigration judges shouldn't order people deported in absentia if they missed their hearing because either the immigrant or attorney is sick. He said that a message to this effect from the U.S. Department of Justice, which oversees the immigration courts, is "overdue."

The Justice Department's Executive Office for Immigration Review has yet to release guidance on court procedures in light of the COVID-19 pandemic, though the Seattle immigration court closed on Wednesday and said that filings due that day would be accepted if filed the next business day.

Shepherd warned that if more immigration courts cancel or postpone hearings, it could prolong detention for immigrants in custody, worsening a potential health crisis.

She and other attorneys called on ICE to consider releasing people, or other alternatives to detention, if they don't pose a danger or a flight risk.

But as advocates raise concerns about the welfare of detained people, the Trump administration has ramped up its immigration enforcement tactics, including by beefing up its presence in so-called "sanctuary" jurisdictions and vowing to end "catch-and-release," or the practice of releasing migrants into the U.S. while they wait for their immigration court hearings.

Rep. Carolyn B. Maloney, D-NY, who chairs the House's oversight panel, and Rep. Jamie Raskin, D-Md., shared those concerns, warning in a Wednesday letter to DHS that the Trump administration's "excessive use of detention" could cause overcrowding and put migrants at further risk of contracting the virus.

According to the lawmakers, the Trump administration's detainee population has grown by 40% as a result of its immigration policies. ICE's daily population in custody surpassed 50,000 in fiscal year 2019, a 20% increase from the year prior, according to data collected by ICE.

ICE has requested $79.4 million from Congress to fund a daily population of 60,000 adults in immigration detention for fiscal year 2021.

Shafiqullah called on ICE to scale down enforcement within U.S. communities.

"This is not the time for raids," he said. "Don't take [people] off the streets and put them into a situation where you're putting their health in jeopardy."

--Editing by Haylee Pearl.

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