On July 22, a federal court in Canada declared that sending refugees back to the United States violates those refugees’ fundamental rights: "The Court found that sending refugee claimants back to the U.S. violates their Charter right to liberty and security of the person because many of them are arbitrarily detained in the US in immigration detention centres or county jails, often in atrocious conditions and in clear contravention of international standards."
At stake in this ruling was a “safe third country” agreement between the United States and Canada, through which people entering Canada from the United States seeking asylum could be sent back to the United States as a “safe-third country.” The court declared that the United States was not, in fact, safe; and thus sending refugees back to the United States violated their rights. Canada’s government has 6-months to withdraw from the agreement with the United States.
It is not really news that the United States has become a country unsafe for immigrants, particularly those who end up in immigration detention centers. But it is definitely newsworthy that a Canadian court has spoken out. Will it matter in the long run?
The problems with these facilities have been well documented for years. They include the abuse of solitary confinement, often employed as punishment, including for periods extending past the three-day limit, beyond which the tactic has been declared a form of torture. People in detention have insufficient access to medical services, including mental health services. Such services are almost uniformly supplied through private contractors who have been repeatedly shown to be more concerned with the bottom line than providing adequate care. Facilities are unsanitary, often overcrowded, and thus, at high risk for the rapid transmission of communicable diseases. Beyond these conditions, which are consistent with those found throughout the United States’ carceral network of jails and prisons, is the simple fact that detention is an unnecessary, and typically arbitrary response to people who have, in most cases, violated no law. Seeking asylum, for example, is legal no matter how one arrives within the country.
The United States’ response to COVID-19 has only magnified these long-observed, structural deficiencies. Within Immigration and Customs Enforcement’s network of detention facilities, there has been little change in operations since the pandemic was declared. People are routinely transferred between facilities - a primary means of spreading the disease. Within facilities, overcrowding and inadequate sanitation remain a serious problem, and poor quality healthcare is an obvious hurdle to treatment. That ICE has simply continued with the same standards of “care” is not surprising, however, the result is a pandemic within ICE detention facilities.
According to official numbers, as of July 28 (they change daily), 3,868 people have tested positive for COVID-19 since February. Of these, 963 people are still in custody. The number of people currently in detention facilities is 22,067. That is an infection rate of 4.4%. However, a majority of people currently in custody have not been tested. More than 68,000 have been “booked-in” to an ICE facility since February - and at the beginning of February there were nearly 40,000 people already in custody. So, of the 100,000 people that have cycled in and out of these facilities since February, only 19,092 have been tested. Which is to say, an overall 4.4% infection rate among current detainees is incredibly high, and yet, certainly a serious undercount.
Of course, the distribution of COVID-19 is not even. There are facilities that are at crisis levels of infection. The worst is Farmville in Virginia, where 80% of the people being held have tested positive for COVID-19. Four people currently being held have sued ICE and the detention facility itself, noting
"[H]arrowing conditions inside the detention center, with large numbers of people exhibiting symptoms of COVID-19 yet not being provided the most basic medical care. The plaintiffs have also been served expired, uncooked, or undercooked food and food infested with bugs. They claim that ICE and ICA-Farmville’s actions not only violate the Consttution but also violate ICE’s own standards for providing medical treatment and food services to detained people."
To be clear, this is no act of nature beyond the control of authorities. “ICE transferred 74 people, 51 of whom had COVID-19, from facilities with known COVID-19 cases in Arizona and Florida into ICA-Farmville in June.” ICE’s carelessness is putting the lives of the people in Farmville at risk.
ICE’s lax standards have also impacted staff. At the Eloy Detention Center in Arizona, 128 people, or 41% of the total staff at the facility, tested positive three weeks ago. ICE doesn’t even report staff’s infections anymore on their website (there is a number  but it has not changed in weeks) and when they report, it is only ICE in-house staff - not private contractors working for ICE such as the people at Eloy.
Families and children held in ICE custody are also in crisis. COVID-19 is present in the two main ICE family detention facilities, Dilley and Karnes, both in Texas. A federal judge ordered ICE to release all of the children in its custody. However, the judge had no authority over the parents. ICE is refusing to release the parents and the parents have refused to be separated from the children. As a result, the judge was forced to declare the previous ruling unenforceable on Monday. The Trump administration is also engaged in summary expulsions at the U.S./Mexico border - over 69,000 people have been expelled since mid-March! This includes children and families, some of whom have been hidden away in hotels until they can be deported, and thus denied access to any due process.
Let’s face it, as the ruling in Canada underscores, the United States is a rogue state. While many other countries are engaged in various abuses against migrants, the United States really does stand out as exceptional, with the largest detention infrastructure in the world and a series of policies that have decimated the asylum process and destroyed tens of thousands of lives in the process. What to do about this? Join with us and other members of the Detention Watch Network in creating a resounding call to free everyone in detention – for public health and humanitarian reasons. On the legislative side, join us in calling on members of Congress to vote for the Immigration Enforcement Moratorium Act. Together we can continue to organize a voice of moral opposition to violent detention practices and save lives in the process.