Immigration policy impedes efforts to thwart COVID-19

U.S. immigration law and its enforcement as currently operated impede public health surveillance and interventions and are likely to thwart adequate measures against COVID-19. 

Business as usual in the immigration arena almost automatically casts vulnerable persons into conditions that would have appalled health workers a century ago and should alarm policymakers as well as health professionals today.

The Department of Homeland Security’s Inspector General has found detention facilities “dangerously” overcrowded and lacking adequate hygiene and medical attention. On Jan. 29, Doctors Without Borders reported, “Just steps from the U.S. border in Matamoros, there are thousands of asylum seekers now living in makeshift camps with limited access to shelter or basic health care.”

However unintended, the system is a jumble of recipes for contagion. Undocumented immigrants in the United States get inadequate or no health care. Many fear to report the illness. Many are likely to fear to cooperate in contact tracing, lest they bring family members and friends to the attention of immigration authorities.

Intensified incarceration, despite alternatives, and management failure have resulted in confinement in substandard federal facilities, private facilities, and municipal rent-a-jails. We have dense concentrations of persons and confusion over and direct or indirect exposures. These put at risk those who run the system, those who work in or alongside it, those who get caught up in it, and the general public as well. 

Foreign visitors, students, and special hires lawfully in the United States are not exempt from enforcement or disease. Many are unaware that their visas die if not especially extended when their schools or workplaces are closed even temporarily.

There is a concern in the immigration law community that individuals here on non-immigrant visas for employment or study could be subject to removal if the situations anticipated in their visas are interrupted, even for public health reasons.

Federal policymakers should consider whether harsh, arbitrary enforcement in non-egregious immigration cases is worth the cost. This is less quantitative than a qualitative task. The scale is obvious. 

Persons with U.S. immigration law vulnerabilities number in the millions, and individuals directly involved with enforcement number in the several thousand (migrants, visitors, federal officers, contractors, private and public detention personnel, and local police). Federal policy and practice would put many of these people into close quarters, notwithstanding their health status, and then deport them into places where health care is scarce at best and conditions foster disease spread.

To better grasp the nature and extent of the hazard that the immigration enforcement system poses to public health, it is important to see generally how it operates — namely as a conveyor belt, with increasing automaticity and momentum. Deadlines for compliance and filing are rigid and computer-run; agency responses to applications and petitions amount to slow, often erroneous, rejections by computer. Agency response to case inquiry or policy inquiry is dilatory. So more people are deemed in violation and subject to detention than otherwise might be justifiable. 

Many undocumented persons have a good, legal reason for relief from enforcement. They have legal defenses–valid asylum claims, for example; or they may be victims of domestic violence or human trafficking, or they qualify for waivers for hardships; or some other valid claim to remain in the United States. Or their violation is inadvertent–not knowing that their employment visa is valid only for a designated employer and designated time. But many are subject to arbitrary arrest, detention, and removal. Undocumented migrants with no more offenses than minor traffic violations may be detained. 

Until now, public health concerns have not entered the picture except in scandals — for example, the caged babies and refusal of necessary hygiene supplies. The government’s price of detention bonds has increased so dramatically as to make bonding-out all but impossible. Persons who are scheduled to report in are unable to get timely re-calendaring information from enforcement agencies or the Justice Department’s immigration courts. So their default position must be to show up lest they lose their immigration defenses.

The National Association of Immigration Judges has asked its members’ employer, the Justice Department’s Executive Office for Immigration Review, for guidance and resources on how to deal with COVID-19 and, as of March 9, had received almost none. Finally, at near midnight on March 17, 2020, after unprecedented outreach by the NAIJ and the union of ICE trial attorneys, along with the American Immigration Lawyers Association (AILA), the courts were closed for all non-detained cases. But detained cases continue, needlessly endangering far too many.

The law provides a bit of prosecutorial discretion for non-egregious cases. But current policy and practice actively discourage or, with recent Attorney General actions, effectively forbid it. U.S. citizens have been removed from the United States. “Born in East L.A.” is real and unfunny. An international law colleague, now in immigration enforcement at main Justice, urges litigation. But litigation is expensive and slow, and our clinic clients are poor, although that many have meritorious cases.

Immigration and Customs Enforcement (ICE) policy dated Sept. 25, 2018 regards as among “sensitive facilities” “Medical treatment and health care facilities, such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities…” in which arrests ordinarily or indiscriminately will not take place. That’s not a blanket assurance. On March 15, ICE posted: “ICE does not conduct enforcement operations at medical facilities, except under extraordinary circumstances.

An easily enforced, clear policy of confidentiality for seeking health care and for contract tracing is essential. But the privacy rule under the Health Insurance Portability and Accountability Act leaves the door open to law enforcement, and confidentiality of information in contact tracing cannot be assured. Immigrant communities are understandably wary.

Border control for the possible communicative disease is easier to justify, not by country of origin but by the individual’s health status. Yet it leaves open the question of how to prevent the spread of disease from someone who is shedding virus on either side of a port of entry or secured airport area. That will take diplomacy as well as regulatory foresight and forbearance.

The upshot is not that migrants are a vector but that the continuing, enhanced enforcement activities of the Department of Homeland Security and the Department of Justice are a propellant.

U.S. immigration law and its enforcement are intended in part to protect public health, not to thwart public health measures within the United States or worsen the spread of disease abroad. But the U.S. immigration system as currently targeted and operated poses substantial obstacles to effective public health measures, now notably against COVID-19, both here and abroad.

Gerald Schatz is a lawyer and taught bioethics law at Michigan State University. He is a volunteer attorney for Justice for Our Neighbors Michigan and is a member of the American Immigration Lawyers Association (AILA).