A coalition of LGBTQ and immigration activists filed a class action lawsuit last week demanding the immediate release of all transgender detainees in U.S. Immigration and Customs Enforcement detention, alleging that because of the rapid spread of the coronavirus in these facilities, “ICE’s failures have made detention centers death traps for transgender people in civil immigration detention.”
The federal suit, filed Thursday in the U.S. District Court for the District of Columbia by the Transgender Law Center, Ballard Spahr LLP and the Rapid Defense Network, alleges that conditions inside ICE facilities are woefully inadequate to stop the spread of COVID-19, the disease caused by the coronavirus, and that detainees cannot practice social distancing. It claims that transgender prisoners in civil immigration detention constitute a “class” and seeks a class action injunction ordering their immediate release.
They constitute a class, the suit claims, in part because “as a group they are more likely to have underlying medical conditions making them vulnerable, such as infection with HIV, diabetes and high blood pressure.”
Ballard Spahr partner Leslie E. John said class action is a good strategy to secure relief for a constantly shifting at-risk group, like those who move in and out of civil immigration detention.
“I think you can show that there are common failures in these ICE detention centers that make it an efficient way for the court to deal with it as a class action,” John said. The suit estimates that there are somewhere 60 to several hundred transgender people currently in ICE detention and says that community organizations are prepared to receive them in the case of a mass release.
Sworn statements from over a dozen petitioners, whose names were redacted for privacy reasons, were included in court documents: C.G.B., a trans woman, said she was alarmed when a new detainee placed in her bunk bed began “coughing uncontrollably” and was later “returned to the general population.” C.G.B. said she was tested for COVID-19 after displaying symptoms but her results were never given to her.
“She is being held in a pod with a dozen other detainees suffering from COVID-19 symptoms, two of whom have confirmed cases of the disease,” the lawsuit alleges.
Many of the declarations allege that there are few, if any, social distancing procedures in place at ICE detention centers.
Several HIV-positive detainees at the Nevada Southern Detention Center — including K.M., a Haitian transgender woman who has been detained there since March 2019 — allege that staff at the facility sometimes do not provide them with medically necessary HIV medication, causing missed doses.
“We have known for years and years and years that transgender people are not getting the medically necessary care they need in immigration detention, so that wasn’t a surprise,” Lynly Egyes, the Transgender Law Center’s legal director, said of the claims out of the Nevada center.
Egyes said she and her organization started hearing reports from detainees about inadequate COVID-19 prevention measures over the past two months and connected with the Sante Fe Dreamers Project, a group in New Mexico whose social workers and attorneys investigated the claims inside several facilities scattered throughout the Southwest.
The declarations, many collected by Santa Fe Dreamers, paint a picture of crowded, unsanitary facilities where it is largely impossible to practice any form of social distancing. Detainees cannot frequently wash hands, detention staff do not wear masks and people who are visibly ill are housed close to those who are not, according to the declarations.
In an email sent to NBC News, ICE said it could not comment on pending litigation but said the issue of medical decisions and humanitarian releases are an ongoing issue.
“Due to the unprecedented nature of COVID-19, U.S. Immigration and Customs Enforcement is reviewing cases of individuals in detention deemed to be at higher risk for severe illness as a result of COVID-19,” ICE said in an email. “Decisions to release individuals in ICE custody occur every day on a case-by-case basis.”
NBC News did not receive a response to a request for comment from the Department of Justice.
ICE’s own statistics show that the coronavirus is spreading rapidly throughout its detention facilities. The first infection was reported on March 19, and by late April there were over 400 confirmed COVID-19 cases in dozens of immigration detention centers across the country.
R. Andrew Free, an immigration attorney based in Tennessee, said he is alarmed by estimates of the rate of infection of COVID-19 in ICE’s crowded facilities. Free cited a forthcoming study in the Journal of Urban Health that modeled the virus’ r naught (a measure of how many people each single contagious person infects) in ICE facilities under “optimistic” and “pessimistic” scenarios of 2.5 and 7 people infected respectively, and forecast that nearly three quarters of ICE detainees would be infected with the coronavirus within 90 days under the most optimistic scenario possible. The pessimistic scenarios forecast 100 percent infection rates in ICE centers well before three months.
Traci Green, the lead author of the forthcoming study and a researcher at Brandeis University, said that the data show ICE detention facilities, in terms of social distancing, are “even worse than prison or jail, and they’re not equipped for COVID-19.”
“It’s pretty stunning to see without doing anything, nearly every facility will have a pretty high infection rate,” Green added, calling these “totally unnecessary hospitalizations” that will likely overwhelm surrounding hospitals. The study, reviewed by NBC News before publication, predicted that COVID-19 outbreaks at nine ICE detention centers would fill all the ICU beds at hospitals in a 50-mile radius.
Free said he and other immigration attorneys will be looking carefully at whatever filings the federal government submits in response to the Transgender Law Center suit by the Friday deadline, because of an alleged pattern of mismatching COVID-19 data from ICE.
Gregory Copeland, co-legal director of Rapid Defense Network, a legal services group that provides pro bono representation to people facing deportation, said this suit could help watchdogs. “One of the benefits of these types of litigation is it creates, at a minimum, some kind of oversight of ICE and the government and what they’re doing," he said.
In January, just before the coronavirus outbreak began, a group of 45 Democratic lawmakers sent a letter calling on ICE to release all transgender detainees after a string of deaths of trans people held in immigration detention.
“This already vulnerable population faces a heightened and unique set of injustices while in immigration detention,” the letter stated. “Transgender migrants and asylum seekers are particularly vulnerable to sexual harassment, solitary confinement, physical assault and medical neglect.”
At least two transgender migrants have died in ICE custody in the past two years. Roxsana Hernandez Rodriguez, a Honduran, died of complications from untreated HIV in 2018. Rodriguez did not receive antiretroviral therapy while in ICE custody, despite guidelines mandating that all detainees receive the minimum standard of care, which for HIV infection is antiretroviral therapy. Last year, another HIV-positive transgender migrant, Johana Medina León from El Salvador, died shortly after being released from ICE custody, where she had requested medical assistance.
After reports of serious health care lapses, all transgender detainees that had been at ICE’s dedicated transgender facility in Cibola, New Mexico, were transferred to other locations in January.