After Filing Suit, Council Releases Records Describing ICE’s Response to the COVID-19 Pandemic

The American Immigration Council filed a lawsuit after Immigration and Customs Enforcement (ICE) failed to timely respond to the Council’s Freedom of Information Act (FOIA) request.

The request asked for information about ICE’s response to the COVID-19 pandemic in immigration jails and the measures it was taking to identify and treat detained individuals who are at risk of infection or who have become infected. The Council’s request also asked for up-to-date information about policies governing criteria for release, medical treatment, and communication access for those who remain detained.

Though ICE granted the Council’s request for expedited processing of the FOIA request, it failed to promptly produce documents within the time required by law. Because of the urgent nature of the request – information implicating the treatment of detained individuals during a historic pandemic – the Council filed a preliminary injunction in addition to a complaint to compel quick release of the COVID-19-related documents.

On June 11, the D.C. District Court granted the Council’s motion for a preliminary injunction and ordered ICE to produce documents by August of 2020.  Nonetheless, ICE’s response by the date ordered by the Court continued to be insufficient and the Council, along with Immigrant Legal Defense (ILD), continued to press for responsive documents. The Council and ILD are now releasing the documents obtained through this litigation. We anticipate further requests for information based on what we learned from the records that ICE produced.

Government Documents Received in Response to FOIA Litigation Provide an In-Depth Look at ICE’s Response to the COVID-19 Pandemic

The Council and ILD secured multiple document productions that provide a picture of ICE’s chaotic response to COVID-19 as well as widespread changes ICE was forced to implement in detention facilities following a court order in Fraihat v. ICE, a case challenging detention conditions and lack of medical treatment for individuals in ICE jails around the country. Following an injunction in Fraihat, ICE was forced to address various deficiencies in its response to COVID-19.

Records reveal confusion regarding ICE’s response to the COVID-19 outbreak and the agency’s decision to continue removing individuals from the United States during the pandemic. Correspondence from the Committee on Appropriations to DHS officials show confusion about ICE’s response to the COVID-19 outbreak and concern that the agency was responding slowly at the outset of the pandemic. Many of the emails where ICE discusses responses to Congressional staff are redacted.

• Correspondence from Congress in early March 2020 indicating concern that ICE had not shared plans for responding to COVID-19.
• Email chain discussing questions posed to ICE by the House Oversight and Government Reform Committee. Emails among DHS/ICE officials, including medical officials such as Dr. Duane Caneva—Chief Medical Officer at DHS under Trump—discuss the need to respond to the Chair of the Committee regarding numerous questions about COVID-19 response in detention facilities. The Committee asked for information about COVID-19 testing, methods for quarantining individuals, COVID-19 data collection, medical care, access to attorneys when the facility or an individual is subject to quarantine procedures, coordination with local governments, plans to prevent the spread of the virus, and suspension of the public charge rule to seek testing or treatment of COVID-19.  All of the answers to the questions posed to the agency in the email are redacted.
• ICE “get-backs” from March 20 call with House Committee on Oversight and Reform on ICE’s COVID-19 Preparations at Detention Facilities.
• Internal correspondence regarding a decision to remove individuals from the United States in March 2020.
• Internal agency email questioning how ICE’s request for additional funding to the tune of $211 million dollars to “bring on more beds”; $175 million for “quarantine costs”; and $152 million for additional 1,000 family beds is “related to responding to the virus.”

Records provide insight into ICE’s response to COVID-19 within its detention facilities.

• ICE Health Services Corps Intake Screening Algorithm and Risk Assessment Recommendations
• ICE Health Services Corps Feb 2020 Intake Screening Questions
• ICE Health Services Corps Feb 2020 Early Management Algorithm
• IHSC Interim Recommendations for Risk Assessment of Persons with Potential 2019 Novel Coronavirus (COVID-19) Exposure to Travel-, Community-, or Custody Settings
• Numerous memoranda and guidance regarding reducing the risk of transmitting COVID-19 in detention facilities, maintaining supplies of personal protective equipment, and other IHSC recommendations about risk assessment.

Documents describe the troubling impact of COVID-19 on ICE operations and staff.

• A chart describing “significant” operational impact in a number of ICE locations where ICE personnel were in quarantine due to illness or known contact with an infected individual; in many cases, the text describing the impact to operations was redacted by ICE.
• March 2020 guidance to Enforcement and Removal Operations (ERO) Directors regarding limiting public facing operations to mitigate the spread of COVID-19 consistent with CDC guidelines.
• Numerous Memoranda issued to ICE employees regarding travel, in-person gatherings, and telework.
• March 2020 Science Policy and Guidance Update and USG COVID-19 General Preparedness and Response Guidance
• March CDC COVID-19 Situation Report
• March 24, 2020 Memo to the ERO Office of the Executive Director re CDC Interim Guidance on Management of COVID-19 Correctional and Detention Facilities 
• ERO COVID-19 Pandemic Response Requirements 
• Guidance on Facility Postings of COVID-19 Flyer for Detention Facilities (CMD) 
• March 20, 2020 Memo on COVID-19 Action Plan to Detention Wardens/Superintendents via ICE Field Office Directors 
• March 13, 2020 Memo to ERO Assistant Directors regarding Temporary Suspension of Detention Facility Social Visitation in Response to COVID-19 

Records reveal internal disagreement among ICE and medical personnel about whether COVID-19 positive detained individuals should remain detained even when otherwise eligible for release.

• CDC specifically asked for ICE and CBP “clearance” prior to releasing CDC guidance regarding correctional facilities and detention centers. Much of the email correspondence and other records in the FOIA production with this email are redacted; 31 pages are fully redacted.
• Email correspondence revealing medical staff determined an individual in ICE custody would not be released if she tested positive for COVID-19 even though she had paid bond.

Records provided in response to the FOIA include ERO IHSC policies and guidance that predate the COVID-19 pandemic.

• IHSC Occupational Health Guide: Respiratory Protection Program
• Infectious Disease Public Health Actions Guide: Contact and Outbreak Investigations
• Infectious Disease Public Health Actions Guide: Isolation and Management of Detainees Exposed to Infectious Organisms
• Infectious Disease Public Health Actions Guide: Surveillance and Reporting
• IHSC Occupational Health Guide: Workforce Health
• ICE ERO Environmental Health Directive
• IHSC Environmental Health Guide
• Infectious Disease Public Health Actions
• IHSC Occupational Health Guide: Bloodborne Pathogens and Other Potentially Infectious Materials
• IHSC Occupational Health Guide: Personal Protective Equipment Program

Records show ICE’s expansive overhaul of its own COVID-19 response following the court’s injunction in Fraihat v. ICE.

In Fraihat, a federal judge issued an order on April 20, 2020 requiring ICE to, among other things, establish a process to identify and track people in ICE custody with relevant “Risk Factors,” conduct custody redeterminations for any detained people with Risk Factors, update internal ICE protocols for responding to the pandemic, and ensure that the order be implemented at every detention facility in the United States. The need for this massive overhaul highlights ICE’s failure to safeguard vulnerable populations in immigration jails in response to COVID-19 prior to the Fraihat court’s decision.

• December 17, 2020 guidance regarding conducting in-person check in ICE detention facilities per Fraihat
• December 17, 2020 email: "Process for Conducting In-Person COVID Checks in ICE Detention Facilities per court order Fraihat litigation"

Outline of the process for on-site COVID-19 inspections in compliance with Fraihat 

• Template for Detention Oversight Unit (DOU) COVID-19 Facility Checklist 
• Inspection Checklist: General Fraihat Requirements (All Facilities Housing ICE Detainees) 
• Inspection Checklist: Facility Procedures and LOPS For COVID-19 Facility Management 
• Inspection Checklist: Infection Control 
• Inspections Checklist: Procedures Addressing Staff Exposure and Sick Leave or Quarantine Due to COVID-19 
• Inspection Checklist: Does the Facility Have Sufficient Hygiene, Cleaning and Sanitizing Supplies? 
• Inspections Checklist: Does the Facility Allow All Required Preventative Measure Consistent with the Fraihat Order? 
• Inspections Checklist: PRR Management 
• Email exchanges regarding updated instructions and tasking compliance with Fraihat injunction 
• Clarification memo on guidance to the field regarding detained docket review pursuant to Fraihat 
  • Guidance regarding custody re-determinations for Fraihat subclass members 
  • Reference to spreadsheet identifying Fraihat cases subject to custody re-determination 
  • Medical reviews 
  • Detention Conditions 
  • Guidance regarding transfers of Fraihat subclass members 
  • Email from ERO Assistant Directors to Field Office Directors, Deputy Field Office Directors and all IHSC personnel regarding testing of new arrivals to detention, June 12, 2020 
  • Email to all IHSC staff: Interim Reference Sheet for Monitoring Potential and Known Detainees with Coronavirus Disease 2019 (COVID-19), June 24, 2020 
  • Interim Reference Sheet for the Monitoring of Potential and Known Detainees with the Novel Coronavirus-19 (COVID-19), Version 1, June 24, 2020 
  • ICE IHSC Interim Reference Sheet on COVID-19, Version 12.2, September 18, 2020 
  • Key Changes 
  • Appendix A: Intake Screening Questions, May 21, 2020 
  • Email releasing Interim Reference Sheet on COVID 19: Fraihat and COVID-19 Management, Version 1.0 (IHSC), December 2, 2020 
  • ICE IHSC Interim Reference Sheet on COVID-19: Fraihat and COVID-19 Management, Version 1.0, December 2, 2020 
    • Notes that Title 42 individuals are exempt from Fraihat testing and monitoring requirements 
    • Detainee Intake 
    • Detainee Transfer 
    • Detainee Release 
    • Detainee Removal 
    • ICE IHSC Interim Reference Sheet on COVID-19: Fraihat and COVID-19 Management (Supplement), Version 1.0 December 2, 2020 
    • Email regarding updated COVID-19 test guidance for IHSC-staffed facilities, November 2, 2020 
    • ICE IHSC Interim Reference Sheet on COVID-19, Version 12.5, February 8, 2021 
      • Key Changes 
      • Appendix A: Intake Screening Questions, December 17, 2020 
      • Email noting correction and updated to the COVID-19 Interim Reference Sheet, February 15, 2020 
      • Email regarding testing High-Risk Individuals per court order in Fraihat, October 30, 2020 
      • Email regarding performing twice daily temperature and COVID-19 and symptom screening for high-risk individuals, December 14, 2020