It’s Impossible to “Distance” in ICE Detention. Doctors Say Free All Detainees.

René Escobedo González has a cough. He’s got a fever and trouble breathing. Eight of the 24 other people in his cell do as well. Locked in Immigration and Customs Enforcement (ICE) detention in the Jefferson County Jail in Texas, the men have asked for medical evaluation — but instead of a COVID-19 test, Escobedo González says they’ve been given a “pill for pain and sleep.” On a call with Truthout, he said the people inside are terrified, and completely unprepared to weather a deadly global pandemic.

“They haven’t given anyone any tests,” he says. “They just give us a pill.”

Doctors have warned that harsh conditions across the nation’s archipelago of ICE detention centers have made it impossible for people to practice social distancing, gain access to medical care or adequately prepare for a pandemic. Fearing potentially thousands of deaths, over 3,000 medical professionals signed an open letter to ICE calling for the agency to release its detainees.

However, the agency has summarily refused to release anyone like Escobedo González — which is to say, anyone with a criminal record.

ICE’s argument (a common one in the Trump era) is that ICE needs to jail immigrants to keep communities “safe.” In an op-ed for Fox News, Trump’s former acting ICE Director Tom Homan wrote that coronavirus isn’t a good enough reason to release detainees. “It would endanger public safety by releasing detainees with violent criminal records into our communities,” he wrote.

It’s hard to see how that “public safety” argument applies to Escobedo González. In his entire life, Escobedo González has only been accused of breaking one law: illegally crossing the border. After coming to the U.S. decades ago when he was 15 and raising two U.S.-citizen children, Escobedo González went to Mexico to attend to his sick mother last year. When he tried to cross back, he was stopped by the Border Patrol. When he crossed again this January, he got arrested by ICE as he was making his way back to his children in Florida.

Now, Escobedo González is worried that he could die in ICE detention, and his family’s battle to get him out is proving difficult, as his border crossing means he technically has a criminal record.

“Record” is the key word here, denoting past crimes. No one in ICE detention — not a single person — is doing time there for a criminal conviction.

Experts in immigration law say that this is one of the fundamental misunderstandings people in the U.S. have about ICE detention: Despite the administration’s rhetoric, ICE does not actually have the authority to detain people in the name of public safety. The agency can only detain people for allegedly violating immigration laws.

“It’s something that I find hard to communicate with people,” Sophia Gurulé, a lawyer who serves as immigration policy counsel for The Bronx Defenders. “The only reason [someone is] even in ICE custody is because they weren’t born in the United States. It’s about immigration laws. It’s not about criminal laws.”

The U.S. public tends to think that ICE detention is like jail or prison: a place where people go if they’ve been charged with or convicted for a crime. But ICE doesn’t enforce criminal laws. In reality, ICE only has the authority to jail detain people who committed a civil violation — namely, violating immigration laws.

There are two detention systems at play here, immigration detention (ICE and Customs and Border Protection (CBP) detention) and criminal justice detention (jails and prisons). If you are charged with a crime, like robbery or assault, you could go to jail; if you’re convicted of that crime, you could go to prison. But immigration detention only exists for people who may have run afoul of the country’s immigration laws. This means ICE has no authority to enforce criminal laws. The agency can’t arrest or detain people for hurting people, stealing or selling drugs. It can only arrest people who may have committed immigration offenses.

This means that when immigrants (documented or undocumented) commit a criminal offense, they go through the same system as U.S. citizens: They get arrested by police, stand trial by jury or get talked into plea deals, and are sent to prison if they’re convicted. There are only two ways they then end up in ICE detention after that. First, after someone has finished their prison sentence and has been released, ICE may then re-arrest them for their immigration offense. The other possibility is, if someone has been released before their trial on bond or parole, ICE can arrest that person then.

“In either of two cases, there has been a decision by the criminal justice judge that either they’ve served enough of their sentence, or they’re not so much of a ‘danger’ that they can’t be freed,” says Aaron Hall, an immigration attorney based in Colorado.

That leaves advocates frustrated when the administration frames ICE detention, especially during the pandemic, as a matter of so-called “public safety” — and especially at a time when many advocates are challenging the very idea that jails and prisons themselves serve public safety.

“There’s all this talk about giving people second chances — if you commit a crime, that doesn’t make you a bad person. But that hasn’t translated into the immigration system,” says Madhuri Grewal, federal immigration policy counsel for the American Civil Liberties Union (ACLU). “There’s no second chance.”

This framework has real consequences. Hall, like many immigration attorneys, has filed motions for humanitarian release for his most vulnerable clients. One of Hall’s clients in detention in Aurora, Colorado, has a medical condition that puts him at the highest risk of dying from COVID-19. But when Hall filed a motion for humanitarian release, ICE immediately turned him down: “ICE is only considering the possibility of release of non-criminal subjects,” the response read.

“Frankly I wasn’t surprised. But still, when someone fits the CDC criteria for particularly susceptible, and ICE’s response is that they’re not releasing anyone with ‘criminal records,’ it’s hard for me to understand why,” Hall says. He says that no reasonable person would consider his client a danger to anyone else (many of the roughly 40 percent of people in ICE detention with criminal records have committed crimes as low-level as jumping a subway turnstile).

Gurulé says that proponents of ICE mass-scale detention — especially during a pandemic — rely on the perception that undocumented immigrants are inherently dangerous; and more than that, on the perception that detained people are dangerous.

“This is what the carceral thinking does to people,” Gurulé says. “They think: If you’re in prison … you must have done something wrong, and we need to assess whether or not you’re a danger. But when in reality that’s not what this is.”

For Gurulé, it’s been aggravating to hear politicians talk about releasing only “low-risk” ICE detainees. Besides conflating ICE detention with criminal detention, there’s a deeper problem: Do people who have committed any crime really deserve to die gasping for air in a cell?

“I’m representing people right now who have serious medical needs, but when I listen to people — even people who are trying to be on the right side — talking about, Oh, we can’t release high risk people, I think: ‘You all would hate my clients,’” Gurulé says. “And they’re going to die in detention if you keep up that kind of rhetoric.”

Gurulé argues that people in ICE detention with “violent” criminal records should still be freed to prevent them from dying of COVID-19. She also feels the same way about people serving criminal sentences in prison — they too should be freed in the face of the pandemic. As someone with a personal prison abolitionist perspective, arguing for mass decarceration, Gurulé sees imprisonment itself as a kind of violence. She says that decades of dehumanizing incarcerated people has meant that they’ve been erased from our current conversations about “the community’s health.”

“When people don’t view people who are inside these cages as part of our community, they’re not seeing the whole picture, and they’re not actually acting in public welfare,” she says.

That’s part of why many organizers are rallying under a simple demand: Free every single person in ICE detention. In California, the Immigrant Defenders Law Center (ILDC), has organized the #FreeThemAll campaign.

“The #FreeThemAll campaign that we’re working on is rooted in the fact that ICE detention is discretionary,” says Lindsay Toczylowski, the executive director of the IDLC. “The power for ICE to release every single person in their custody is already there.”

This is a key point. Precisely because ICE detention is civil detention, not criminal detention, ICE has the full power to decide who to and who not to detain. This same “prosecutorial direction” is what allowed President Barack Obama to order ICE not to arrest Dreamers, as part of the executive order that created the Deferred Action for Childhood Arrivals program. Even people labeled under the so-called “mandatory detention” category — which can be triggered by a law as superficial as jumping a subway turnstile — can still be released. The term mandatory detention simply means that an immigration judge can’t hold a bond hearing for the detainee, but ICE, as prosecutor, still has the broad discretion to choose not to detain them.

“The demand to #FreeThemAll is rooted in the call to end immigration detention, which has become even clearer and more urgent with the COVID-19 pandemic. This moment exposes the arbitrary and inhumane nature of the U.S. immigration detention system,” says Silky Shah, executive director Detention Watch Network, one of the major organizations acting as a watchdog on ICE detention.

Politicians like Alexandria Ocasio-Cortez and organizations as high-profile as the ACLU have thrown their support behind the #FreeThemAll movement.

“At the ACLU, we have now taken the broadest position that ICE — and CBP — should actually release all people,” says Andrea Flores, the deputy director of policy for the ACLU’s equality division. “Obviously there are people with different backgrounds in detention, but we don’t believe it’s ICE’s job to be addressing these public safety concerns.”

As the pandemic intensifies, jails and prisons across the country have released thousands of people to avoid the sort of outbreak that is currently plaguing New York’s infamous Riker’s Island. Still, advocates point out, the number of releases is not nearly high enough.

Meanwhile, ICE has largely proceeded with business as usual. Judges have ordered the release of a handful of ICE detainees, with one judge declaring it would be “unconscionable and possibly barbaric” to keep medically vulnerable detainees in jail where they can’t self-quarantine. However, ICE has largely kept up its detention system unchanged in the face of the global pandemic. There are indications the agency has made some releases to decrease detention center populations, but there are still over 35,000 people locked up — Escobedo González among them.

As activists and doctors push the “Free Them All” message, Gurulé says she hopes the movement can avoid falling into the “good immigrant, bad immigrant narrative.” She says that criminal status, like immigration status, does not predicate a right to deprive people of their well-being.

“I don’t know why society thinks that people who have been arrested, or even done harm, deserve to die in this painful, tragic way,” she says. “It just doesn’t make sense to me.”