By Suzanne Monyak

Law360 (June 2, 2020, 6:20 PM EDT) -- U.S. Immigration and Customs Enforcement does not routinely test detained immigrants for COVID-19 before transferring them to detention centers or even deporting them to other countries, an agency official confirmed to a Senate panel on Tuesday.

Testifying before the Senate Judiciary Committee, Henry Lucero, the executive associate director of ICE's removal and enforcement unit, acknowledged reports from Guatemala and other countries that the U.S. has deported individuals who tested positive for the disease after they arrived, but said that ICE never knowingly sent an ill immigrant abroad.

"We are aware of reports that after they are returned to their home countries, that some countries have tested individuals that were positive. But there were no known positives that were removed actively with COVID-19," Lucero said in response to a question posed by Sen. Dick Durbin, D-Ill.

Lucero told Durbin, the top Democrat on the committee's immigration body, that the agency does not test everyone it deports for COVID-19, but instead runs through a "removal checklist" that includes questions about symptoms and taking deportees' temperatures, while testing just a "subset" of people regardless of symptoms before removal.

The Centers for Disease Control and Prevention has found that individuals can spread the coronavirus while asymptomatic.

Lucero added that the U.S. has entered bilateral agreements with some countries to test all deportees, but said he did not know how many countries had those agreements.

"But it is not standard procedure, from what you have said, unless there is this agreement with another country, to test a person before we deport them from the United States to determine whether they are infected with COVID-19?" Durbin asked.

"Today that's accurate, yes sir," Lucero replied.

"Without testing those who have been deported, this is willful ignorance," Durbin hit back.

In response to questioning by Sen. Dianne Feinstein, D-Calif., the ranking member on the committee, Lucero also conceded that immigrants are only tested for coronavirus at intake, or when they are accepted into a detention center, if they are showing symptoms.

However, Lucero said the agency is ramping up its testing capacity, including by expanding routine testing at intake of 22 of the agency's more than 200 facilities this week. He said that the agency's "goal" is to test everyone who enters ICE custody.

"I'm very interested in seeing that everyone is tested," Feinstein said. "If you have to wait, you may be spreading the disease."

The U.S. Department of Homeland Security has come under fire for its handling of the coronavirus pandemic at detention centers, where individuals are held for civil offenses while they wait for their immigration court hearings.

Of the nearly 2,800 detainees tested for COVID-19 as of May 31, more than 750 tested positive, according to ICE. Two individuals, one detained in Georgia and one in California, have died of the virus.

ICE has also continued to transfer individuals between detention facilities, which critics say further spreads the disease.

Meanwhile, recent lawsuits have claimed that ICE has failed to provide free and available hygiene products, like soap, to detained immigrants across the U.S., including in Florida, Massachusetts and California. Federal judges have also ordered the agency to reduce its population and release immigrants who are medically vulnerable to protect them from contracting the virus.

Lucero refuted some of those claims at Tuesday's hearing, saying that all ICE facilities comply with CDC guidance and that soap is "given for free."

"We have seen no long-term issue of soap not being available," he said. "We are confident that it's not an issue."

He also said that ICE has reduced its capacity to 44% in facilities with dedicated to housing ICE detainees, and less than 75% across facilities where immigrants are held. According to Lucero, ICE had more than 55,000 immigrant adults detained last summer, but had reduced the population to around 26,000 by the end of May.

However, much of the population reduction is a result of fewer immigrants being taken into custody, Lucero said. The U.S. has closed its borders to nonessential travel with Canada and Mexico, and under the CDC's public health order, foreigners who approach or cross the border without documentation, even those claiming asylum, are swiftly sent back before ever entering ICE custody.

Dr. Ada Rivera of ICE's Health Services Corps, who also sat on Tuesday's panel, said her office provides ICE with a list twice weekly of all individuals in custody who have chronic care or high-risk conditions.

Lucero said that ICE's release decisions are made on a "case-by-case basis" based on the individual's criminal and immigration history and potential to be a danger or flight risk.

--Editing by Adam LoBelia.

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