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ICE detainee with COVID-19 in Miami detention center will be released – with nowhere to go

Foreign nationals at the Krome detention center, where those with criminal records and deportation orders are often held, in Miami, Fla., in September 2015.

JOSE A. IGLESIAS/MIAMI HERALD/TNS

By MONIQUE O. MADAN | Miami Herald | Published: April 18, 2020

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MIAMI (Tribune News Service) — An immigration detainee who tested positive for the coronavirus while at Miami's Krome detention center is going to be released, according to court records.

The 27-year-old Mexican national, who has been in the custody of U.S. Immigration and Customs Enforcement for about three months, is one of two detainees and three security guards at Krome who officials say contracted the illness at the facility.

The man's attorney, like thousands of others across the country, scrambled when the pandemic was declared in early March to file a "humanitarian parole" request, explaining how his client would be in imminent danger of catching COVID-19 in a crowded jail without the opportunity to practice social distancing.

On Wednesday, nine days after the detainee tested positive for the coronavirus, the emergency request for release was granted and he's free to go, documents show. The only requirements: an address where he will be staying, along with an emergency contact and information for the person giving him a ride home. ICE will release him when it gets that information.

"But it's almost as if it's too late," said Matus Varga, a Miami immigration attorney. "Our client already caught the virus. Who is going to want to get in a car with someone who has COVID-19? Think about it."

The detainee's release has raised a question among legal experts, immigration advocates and critics about who bears the responsibility of making sure the man has a safe space in which to self-isolate, considering he got sick in detention.

The detainee – who asked not to be named – lives near Myakka City, about three hours northwest of Krome. The only family he has, a cousin, is not willing to risk spreading the virus to his wife and two children at home. The mother of the detainee's infant daughter is also afraid that the virus could spread to the baby.

"This is tough," the detainee's cousin told The Miami Herald. "You think I want to leave him in there like a prisoner? But I also have to be realistic. If I pick him up, I can get sick, and so could my wife and babies. It's like they decided to release him knowing he'd have no way out anyway."

According to ICE policy, "detainees shall receive continuity of care from the time of admission to time of transfer, release or removal. Detainees, who have received medical care, released from custody or removed shall receive a discharge plan, a summary of medical records, any medically necessary medication and referrals to community-based providers as medically appropriate."

But what does that mean for someone with the coronavirus who no longer has symptoms but is still contagious?

Former ICE director John Sandweg said the debate is "a byproduct of the administration's refusal to take common sense steps to limit the exposure to low risk and vulnerable detainees."

"While ICE doesn't necessarily have a legal responsibility to find alternate housing in this situation, the agency has an obligation to release the detainee to prevent exposure to staff and other detainees and a moral obligation to make arrangements to house the detainee in a safe location until he recovers," Sandweg said.

But that solution is "outrageous and irresponsible," says Ira Mehlman, a spokesman for the Federation for American Immigration Reform, an anti-immigrant lobbying organization.

"He already has a place to self-isolate, it's called Krome, and it has a medical facility," Mehlman said. "His release makes no sense. We are basically shutting down the country to prevent the spread of this disease and here we are releasing this guy? His presence is illegal in the first place and he is a threat to public health. ICE should not be releasing people if they have no way of safeguarding public health, which at the end becomes their responsibility."

ICE told the Herald that "the agency generally would not discretionarily release a diagnosed ... person until it's determined they are not likely to potentially expose any other persons."

Bryan D. Cox, public affairs director for ICE's southern region, said there's one caveat: if the detainee has "medical conditions that might place them at higher risk (in detention) for severe illness as a result of COVID-19. Any such decision for those persons would be made in coordination with state and local health officials."

According to the detainee, who has no other underlying condition, he has not been retested for the virus and is still in medical isolation at Krome. ICE told his legal team in an email that its client is "asymptomatic with stable vital signs and no fever. Additionally, (he) has not required any medications for COVID-19 status."

The Florida Department of Health said the state agency, which also has local satellite offices, "does not provide recommendations for medical releases" to ICE, according to spokeswoman Brenda L. Barnes.

State health officials do schedule a call to explain how to practice federal health protocols such as social distancing and proper hand washing.

"The nursing director and/or the epidemiology nurse ... would talk to the individual and provide education and guidance based upon the CDC materials," Barnes said. "FDOH would be informed of the housing for the individual for any necessary epidemiology follow up with a confirmed case."

Barnes noted that FDOH "would not be the agency to arrange for housing," but that in extreme cases "coordination for this" could be forwarded to local advocate groups depending on the area in Florida.

Whether or not ICE bears the responsibility to accommodate housing for the detainee outside of Krome is "squishy," said Keren Zwick, director of litigation at the National Immigrant Justice Center. She added that accommodating a safe release was "complicated and difficult pre-coronavirus, and will be even more difficult now as sick detainees start getting released."

"ICE would have to take reasonable steps to reasonably ensure the safety of people who leave their custody," Zwick said. "The same way they provide medication for someone who is ill, would have to be the same way they should provide someone a safe place to self-isolate outside of Krome, which doesn't have the ability to truly isolate people even in medical care because the facilities have a proven terrible track record."

A recent report by the Southern Poverty Law Center and Americans for Immigrant Justice said there are "rampant medical deficiencies and other abuses" throughout South Florida ICE detention facilities, including Krome.

Citing CDC detention setting guidelines, Homer Venters – an epidemiologist and the former chief medical officer and assistant commissioner of Correctional Health Services for the New York City Health and Hospital System – said "there is an obligation by ICE to consider the safe release of anyone leaving their custody, and this obligation holds true during COVID-19."

The CDC guidelines say that upon release, ICE must discuss the release with health officials "to ensure safe medical transport and continued shelter and medical care," as well as make "direct linkages to community resources to ensure proper medical isolation and access to medical care." Before the release of a detainee with COVID-19 symptoms to a community-based facility, ICE must "contact the facility's staff ... or contact local public health to explore alternate housing options."

Venters said the Mexican national's case is an example "of the discrepancy between CDC guidelines for COVID-19 response in detention settings and ICE practices and policies. ICE should follow these guidelines and their failure to do so will increase the risk for serious illness and death among detained people and also hamper ongoing community efforts to combat COVID-19."

Jessica Schneider, director of the detention program at Americans for Immigrant Justice, said ICE coordinates with state and local health officials in regards to people "who have severe, ongoing medical or mental health issues."

"But this is not that. This is a new space and a new problem that will only grow," she said. "We don't know what this coordination will entail within the context of a pandemic. Coordinating release for someone who has a highly infectious virus will likely look very different."

Immigrant advocates across the country say the problem could have been avoided if ICE had agreed to release non-criminal detainees from custody to prevent the spread of the coronavirus. Dozens of lawsuits around the country have been filed in federal court seeking the release of detainees, including one in Miami.

"This has created a troubling situation for sick people who are eligible for release but now can no longer safely reunify with their family because their relatives are immunocompromised or elderly," Schneider said. "Unfortunately, because ICE failed to act preemptively and release people quickly before they became sick they have now created a seemingly impossible situation for those who want nothing more than to go home and get well."

During a Miami federal court hearing Friday, Dexter Lee, an attorney for the Department of Justice representing ICE, told Magistrate Judge Jonathan Goodman, who is considering whether to grant release to South Florida detainees, that the agency is concerned that the burden of releasing detainees "will disproportionately fall on the shoulders of ICE" because the agency is responsible for making sure they have a safe place to go.

As of Thursday, ICE says about 200 detainees at Krome had been exposed to the coronavirus and segregated, but only 20 have been tested. Hundreds more detainees across South Florida have reported feeling sick but remain untested. The practice of segregating affected idetainees all together, which ICE calls "cohorting," is actually spreading the coronavirus "like wildfire" among detainees and staff, health scholars have said in sworn statements before federal court judges.

ICE "directly contradicts CDC guidance in several ways, including, most critically, that ICE officials describe cohorting as the planned response to a known COVID-19 exposure, not a practice of last resort," wrote Joseph Shin, an assistant professor of medicine at Weill Cornell Medicine, a founding member of the Cornell Center for Health Equity.

In recent weeks, detainees were so scared of catching the illness from new incoming detainees that fistfights erupted among guards and detainees, who were left bloodied and with black eyes in solitary confinement.

Alex Piquero, a professor of criminology at the University of Texas, Dallas and soon-to-be chair of the University of Miami's Department of Sociology, told the Herald that "if it can be shown that (the Mexcian national) contracted the virus while in custody and not prior to it, then the agency should find a way to find him suitable housing for the period of time needed to quarantine before having the confirmatory negative tests thereafter."

"Whether that isolation location is in a hospital or at another detention facility I believe is somewhat secondary to the matter so long as the individual is receiving the care needed," he said, "However these facilities are designed to keep people in, but not viruses out."

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