There's about to be a coronavirus crisis in US immigration centers — and it won't just harm the detainees

As someone who has represented clients in immigration jails in New England, I know the best solution now is mass release

The crowded conditions inside immigration detention centers are the opposite of social distancing (REUTERS/Lucy Nicholson)

New Jersey recently decided to release 1,000 individuals from its jails in light of the risk of the coronavirus spreading. Gurbir Grewal, the state attorney general and a former prosecutor, noted, “I take no pleasure in temporarily suspending county jail sentences. But when this pandemic ends, I need to be able to look my daughters in the eyes and say that I did everything I could to protect the lives of New Jersey’s residents, including those currently incarcerated.”

Grewal has shown courage. But the decision to release people serving jail sentences raises difficult policy issues. Even if one believes (as do I) that criminal justice systems in the US rely far too much on detention and incarceration, there are potentially significant social costs on both sides of the equation.

Luckily, not all decisions are so difficult. The US operates the largest immigration detention system in the world, with an estimated 37,000 people in detention per day. Many detained have no criminal history. The US could significantly reduce the spread of COVID-19 without having to choose between public health and public safety. It could release thousands of people detained on immigration violations from jails and detention centers across the county.

Releasing immigration detainees is a common-sense measure that does not require one to engage in larger policy debates about our immigration system as a whole. Regardless of one’s views on immigration policy, holding thousands of people in tight quarters during a pandemic for civil law violations is insane.

The clients I represented in immigration jails in New England were often convinced that their detention was just a misunderstanding. “You see, I don’t belong here. I did not commit a crime,” they would tell me, looking down at their orange jumpsuits. The majority of my clients were more sad and puzzled than angry. They just didn’t understand. It was the US, after all. They still clung to the US as a basically decent country, committed to rational decision-making and the rule of law.

Noncitizens in the United States can be legally detained for immigration violations on two grounds: flight risk and dangerousness. Flight risk refers to the risk that they will not show up for deportation hearings or report for deportation once they have a final order of removal. Dangerousness refers primarily to the threat they pose to the community given their past crimes, the punishment for which they have often already completed. (There is little or no empirical evidence to suggest that immigration detention has the deterrent effect that the government sometimes cites, erroneously, as a justification). Under US law, detention and deportation are civil matters, not intended as punishment, which explains why there is no constitutional right to government-appointed counsel in immigration proceedings.

Even if one thinks that a small minority of people in immigration detention would pose too much of a danger to the community if released, the government should immediately release all other immigration detainees now, in order to reduce overcrowding and ensure that individuals remaining in detention receive the medical resources they deserve. The government simply cannot put people in a situation in which they are not physically free to protect themselves (via social distancing, rigorous hygiene practices, and prompt medical attention) from a potentially deadly virus.

This is not a choice between protecting US citizens and protecting immigrants. We are all on the same side of the equation. The majority of immigration detainees must be released to protect US citizens as well as themselves, for several reasons. First, guards in immigration facilities and their families and friends must be protected, as must immigration lawyers. Second, many immigration detainees are the parents and spouses of US citizens. Third, many people currently in immigration detention who are awaiting court proceedings eventually become US citizens, as they win immigration status in court and eventually become eligible to naturalize.

A global perspective is helpful here. Michael Flynn, Director of the Global Detention Project, says, “The United States could learn from the example of other countries who are facing challenging questions about how to safeguard the health and well-being of immigration detainees in the face of this pandemic. Spain, for example, announced in mid-March that it was releasing several people from detention because of the inability to deport them. In the UK, the Home Office just released nearly one third of its immigration detainees because of the failure of authorities to protect them from contracting COVID-19. These examples point to larger questions regarding the viability and logic of immigration detention. In particular, in a situation where borders are being closed and cross-border transportation is generally blocked, the rationale for continuing to hold people in detention for removal purposes is completely lost.

Moreover, the social costs of release are low. It is important to understand who immigration detainees in the United States actually are. An increasing number are women and girls. Many are children. (Indeed, as of January 2020, one child had already been detained for seven months). Many immigrants detained, especially those arrested in recent months, do not have a criminal record. Immigration detainees with criminal records have often already served their punishment in the criminal justice system and are often put into immigration proceedings for relatively minor crimes, or for crimes whose severity should not warrant separation from their US citizen children.

In more optimistic moments in the crisis, people allow themselves to imagine the positive effects of the pandemic. Sometimes it takes a crisis to force people to abandon decisions that are irrational. Perhaps, as the popular cartoon shows, we will learn that many of those in-person meetings could have been emails after all. Maybe we will learn to factor in the environmental costs when we decide to jet across the country for a quick business meeting. Maybe we will finally realize that we are all in this together.

My personal post-pandemic wish is more mundane, modest even: my wish is that this pandemic will force the United States to finally stop the cruel practice of locking up mothers, fathers and children for no good reason at all.

Alexandra Dufresne is a lawyer for children and refugees. She is a former immigration detention attorney and taught immigration and refugee law at Yale University from 2006 to 2015. She currently teaches law at several institutions of higher learning in Switzerland