For those who believed President Biden’s pledge to end prolonged detention and the use of for-profit prisons, his first year in office has been deeply disappointing. Instead of shrinking the immigration detention system, President Biden has expanded it. Immigration and Customs Enforcement (ICE) data showed a 20-year low in the detention population at the beginning of President Biden’s term with around 14,000 people in custody. Currently, there are approximately 22,000 people in detention. This increase transpired even with regular expulsion flights to places like Haiti and Guatemala during his first year, using a public health order known as “Title 42.”  

Shockingly, ICE is also undermining the President’s Exec. Order No. 14006, which banned the renewal of contracts with end dates for privately operated Department of Justice (DOJ) prisons. With the Moshannon Valley Correctional Center, ICE reinitiated a contract for this private facility shortly after DOJ terminated their own contract and now has an additional 1,875 beds at its disposal. ICE is also planning to add 1,800 “beds” to the Folkston ICE Processing Center in Georgia and there are rumors of other private DOJ jails in consideration for immigration detention.  AILA and other partners are calling for the Inspectors General of the Department of Justice and Department of Homeland Security to conduct a review and bring to light how ICE’s maneuverings to trade out criminal detainees for immigrant detainees.  

Immigration detention is deadly, even without the presence of COVID-19. However, the fact is that those in detention have been at heightened risk because of COVID-19 throughout the pandemic and now the highly transmissible Omicron variant has rapidly spread throughout the United States.  While the number of ICE custody deaths in 2021 decreased compared to the reported deaths in 2020, it does not change the fact that people in detention are at the mercy of ICE and its inadequate medical system. While awaiting an interview with an asylum officer, Pablo Sanchez-Gotopo, a 40-year-old Venezuelan man died in October of last year from acute respiratory failure, including COVID-19. It was also reported that he had other serious health conditions, including acute kidney failure, anemia, and HIV/AIDS. Given the severity of his health conditions, presence of family in the U.S. and the fact that he was seeking protection in the U.S., under ICE’s own enforcement guidance, he should have been considered eligible for release from custody where he would have been far safer. Instead, he spent his last day gasping for breath like so many other victims of this terrible virus.  

Immigrants in detention never stood a chance against COVID-19. As the rest of the world stocked up on masks, personal protective equipment, and isolated at home, people detained by ICE were sometimes left exposed without basic protections. When they spoke out against the poor conditions, some facility personnel subjected them to violence and abusive treatment. A federal court ordered ICE to identify medically vulnerable people in its custody who could die from COVID-19 related complications and consider them for release. Gallingly, the Biden administration appealed the federal court decision. 

The Biden Administration needs to act now to protect immigrant lives. Take for example, the most recent inspection reports from the Aurora ICE Processing Center in Aurora, CO. The report shows the number of sick call requests climbed higher each month from 260 in January to 475 at the end of September. Last year, the Aurora facility was under scrutiny for its poor handling of the pandemic but the administration did little to correct the problem. In fact, since the discovery of the Omicron variant in November, there has been no update to ICE’s nationwide COVID-19 policy. President Biden has the tools to fix this situation.  DHS has broad authority to screen and release individuals in its custody. Under the new DHS enforcement guidance, ICE officers should review each person’s case, weighing all positive and negative factors, to determine if release would be appropriate.

Congress should use its power to control Department of Homeland Security (DHS)’s purse strings and restrict ICE’s funding to maintain or increase its detention capacity. A February 2021 U.S. Government Accountability Office (GAO) report found that in most recent contracts, ICE “has not documented its need for new space or followed other portions of its own process for obtaining it.” Instead, ICE has been busy signing contracts with minimum guarantees to line the pockets of private corporations and localities looking for revenue. With no significant changes to speak of under this administration, it is up to Congress to put up some guardrails. To date, the House and Senate Appropriations Committees have released DHS appropriations bills that would reduce fiscal year 2021 funding but still authorize ICE to detain 28,500 immigrants on any given day, amounting to a continuation of costly and inhumane detention policies under the Biden administration. 

Last year, President Biden told a protestor at a Georgia rally to give him “5 days” in response to a demand to end detention. It has been over a year since he took office. We cannot wait another day.