Federal judges have begun to order release of high health risk illegal immigrants from ICE custody amid the coronavirus crisis, saying the agency is showing “callous disregard” by keeping them in group facilities where they are at risk of infection.
One judge in New York ordered 10 people released immediately on Thursday, and a judge in California ordered two others set free late Friday. Broader cases are still pending in other courts that could spur release of thousands more people.
The Trump administration has opposed the releases, arguing there’s no major danger and assuring the courts that U.S. Immigration and Customs Enforcement has plenty of experience working with migrants who have highly contagious diseases.
Judges have not been convinced.
“This is an unprecedented time in our nation’s history, filled with uncertainty, fear, and anxiety. But in the time of a crisis, our response to those at particularly high risk must be with compassion and not apathy,” wrote Judge Terry Hatter Jr., in the Central District of California. “The government cannot act with a callous disregard for the safety of our fellow human beings.”
He ordered release of two people from an ICE contract facility in Adelanto, California: One was a 58-year-old with kidney stones, arthritis and a hernia. The other is a 23-year-old who is recovering from a facial fracture.
Judge Hatter, a Carter appointee, said the Adelanto facility has been dinged by the Homeland Security inspector general for health and safety risks in the past, and COVID-19 heightens those risks.
He said the government cannot ensure that no one at the facility has, or will contract, the virus.
In New York, Judge Analisa Torres ordered release of 10 migrants from an ICE facility in New Jersey after the agency acknowledged two coronavirus case facilities in the state.
ICE had indicated it was already working to release some of the migrants, but Judge Torres ordered it sped up, saying she wanted no mistakes or oversights.
The Trump administration, in one court filing in California, argued mass releases aren’t well-thought out, particularly when it comes to children.
“ICE and ORR are taking extraordinary actions to protect children in their custody from harm,” the government said, referring to the two different agencies in Homeland Security and the Health Department responsible for juveniles at different points in the process.
Those actions include following CDC guidelines, the government said.
But judges in several cases said it seems impossible to imagine that a 6-foot social distancing recommendation can be maintained in confinement, so conditions are inherently risky.
Judge Torres said ICE was showing “deliberate indifference” to migrants’ medical situation.
One federal judge in Washington earlier this month rejected a request for coronavirus-related releases, though he suggested he is willing to reconsider.
Other cases are still pending from Maryland to California.
In one major test, a federal judge ruled that illegal immigrant children must be released more quickly to get them out of harm’s way. But Judge Dolly M. Gee, an Obama appointee to the court in the Central District of California, said she wouldn’t order an immediate release, saying that could produce chaos as the government searched for sponsors to take custody.
Instead, she ordered Homeland Security and the Health Department, which each have authority over some juveniles, to explain why it’s taking them too long to release some of the minors.
Amnesty International said it wants the children released now, saying even measures to care for them in custody, such as quarantine, can be traumatic for juveniles.
“This treatment of children should make every single person in the United States sick to their stomach. At a time when protecting public health rests on access to care for all, inaction by ICE endangers not only these children’s health but also jeopardizes the public,” said Denise Bell, a researcher for Amnesty International USA.
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