On Dec. 16, the Federal Bureau of Prisons (BOP) began vaccinating its staff against coronavirus infection, and vaccination of federal prisoners is expected to start very soon. But so far, the federal government has remained silent regarding nearly 16,000 immigrants detained by Immigration and Customs Enforcement (ICE), the staff who work at immigration detention facilities, and ICE officers themselves.
As of Dec. 23, 8,247 detained immigrants have tested positive for COVID-19, a number that may fail to capture asymptomatic individuals. A study in JAMA found that the COVID-19 rates in immigration detention between April and August 2020 were 13 times higher than the U.S. average. ICE has reported eight COVID deaths among immigrants in its custody, but an unknown number of others may have contracted the virus in detention and then died after being released or deported.
The number of ICE employees who have tested positive is also unknown, as ICE stopped publicly reporting it months ago. And ICE never reported positive cases among contract workers who actually operate the immigration detention facilities day to day.
About 70% of detained immigrants are in privately operated facilities, often in remote areas where transparency and accountability are notoriously elusive. Despite being in civil administrative detention, the conditions immigrants endure are akin to criminal incarceration. Social distancing is impossible and healthcare often inadequate. Additionally, most detained immigrants belong to racial and ethnic groups at increased risk of contracting COVID-19, facing higher morbidity and mortality rates post-infection.
Prioritizing vaccine distribution to detained immigrants while providing federal oversight of the process is crucial to reducing outbreaks that can spread not only to surrounding communities, but also to other states and countries. For countries like Haiti with fragile health systems, the spread of COVID-19 through deportation flights can be catastrophic, wreaking havoc and perpetuating the pandemic.
Leaving decisions about vaccinating this vulnerable population to the states risks inconsistent, unfair processes that may be influenced by widely divergent attitudes towards immigrants. While states often look to federal guidance from the CDC’s Advisory Committee on Immunization Practices, they are free to depart from it without providing justification.
Because ICE is a federal agency, it makes sense for the federal government to step in, as BOP has done for federal prisoners, establishing a clear, comprehensive procedure to ensure vaccination of all immigrants in ICE custody who provide informed consent, regardless of their location or language. Detained immigrants who speak neither English nor Spanish are particularly at risk of medical neglect, so intentional safeguards are needed to mitigate communication barriers.
The federal government should also create a reporting mechanism so that detained immigrants and staff can bring problems with implementation, structural or otherwise, to the government’s attention. For example, the Department of Homeland Security’s inspector general or Office of Civil Rights and Civil Liberties could receive complaints from detained immigrants regarding the vaccination process instead of continued reliance on self-regulation from parties with little incentive to change.
Additionally, there should be an enforcement mechanism if detention facility operators deviate from the established protocols, such as financial sanctions or termination for contractors that fail to comply with the protocol. If ICE itself is noncompliant, then another federal agency may need to intervene.
The most recent version of ICE’s COVID-19 Pandemic Response Requirements (PRR), issued on Oct. 27, makes no mention of COVID-19 vaccines, much less the equipment and personnel needed to administer them. If the PRR is updated in the coming weeks or months to address vaccines, the established protocol should be set forth clearly.
One of the key weaknesses of the PRR thus far has been the loopholes created by exceptions and excessive discretion. For example, although the PRR attempts to limit transfers between detention facilities, these exceptions swallow the rule. The PRR states that transfers “are discontinued unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, release or removal, or to prevent overcrowding.” Worse yet, the PRR allows “transfers for any other reason,” as long as there is “justification and pre-approval from the local ICE Field Office Director,” which gives broad discretion to approve transfers.
Consequently, transfers remain commonplace during the pandemic. For instance, one client’s journey navigating the asylum process became a dizzying odyssey. After seeking asylum at a port of entry in Texas, he was transferred to Alabama, then Louisiana, then back to Texas, then to Louisiana again, and then back to Alabama before finally being released based on a medical condition that placed him at high risk of serious illness from COVID-19.
Another client, who was in multiple high-risk categories based on his age and medical conditions, was transferred from Prairieland Detention Center in Alvarado, Texas, to the Bluebonnet Detention Center in Anson, Texas, where there were already 300 confirmed cases. He contracted COVID-19 at Bluebonnet and was hospitalized. Although the transfer to Bluebonnet was allegedly for purposes of removal, he was transferred back to Prairieland once again before being deported.
Such examples underscore the arbitrary, reckless nature of transfers, which contributes to COVID-19 infections and highlight the importance of providing bright-line rules to reign in discretion when it comes to the next crucial stage of vaccination.
Justifications abound for vaccinating immigration detainees, ICE employees, and facility staff in the same manner as federal prisoners and BOP staff: the legal and ethical principle of justice, sound public health policy, the economic toll of recurrent hospital admissions, and families haunted by illness and deaths devoid of closure, among other reasons.
But perhaps the most compelling reason for prioritizing this population is the opportunity to acknowledge their existence in the first place, dismantling the repugnant practice of determining whether detainees are “deserving” of basic standards of care — understanding clinical prognosis is tied to social precarity and structural vulnerability while collectively rejecting a decision-making process infected by nationalist propaganda and xenophobia.
As we wait to take our place in the vaccination queue, no doubt reflecting upon the last year and making resolutions for the new, let’s resist becoming immune to the anti-immigrant rhetoric that some human beings are “less deserving” of care, or silently cast as icons of contagion.
Bryn S. Esplin, JD, HEC-C, CPPS, is a bioethicist and assistant professor of medical ethics at the University of North Texas College of Osteopathic Medicine. She is also a certified patient safety specialist.
Fatma Marouf, JD, MPH, is professor of law and director of the Immigrant Rights Clinic at Texas A&M University School of Law.
Last Updated January 15, 2021