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April 26, 2021

The Pandemic Changed Everything. Let’s Not Return to the Pre-Pandemic Status Quo in Immigration Detention and Courts.

Photo by Jon Tyson on Unsplash.

Photo by Jon Tyson on Unsplash.

Last year, on Friday the 13th of March, I made the 30-minute drive from the Immigration Justice Project’s office to the Otay Mesa Detention Center for an immigration court hearing. When I arrived, I was informed that the hearing had been canceled. This was just four days after San Diego County’s first documented case of coronavirus, one day after five additional local cases were announced, and two days after the World Health Organization had declared a pandemic. Nobody had seen the immigration judge all week, the guards at the front desk told me.

In the world-changing year since that Friday the 13th, we have all collectively experienced the stress and fear of increasing coronavirus case numbers, and we have mourned the millions of lives lost to this disease. At the same time, we have heard messages of universal human connection from sources ranging from United Nations Secretary-General António Guterres, to K-Pop sensation BTS, to Graceland. We have seen the development of “the fastest vaccine in history.”

Unfortunately but unsurprisingly, we have also learned of the pandemic’s disproportionate impact on people of color and on the world’s least developed countries. And for those of us at IJP and our sister projects in Texas, we have served as first-hand witnesses to the ways in which the global pandemic has affected the people we represent and serve, most of whom are in Immigration and Customs Enforcement (ICE) custody.

Debunking the Myth of “Detention” in the Time of Coronavirus

The Otay Mesa Detention Center (OMDC) is managed by CoreCivic, a private prison company. Many attorneys in the community still refer to the facility as CCA, because CoreCivic is a doing-business-as (DBA) name for the Corrections Corporation of America. CCA was not just a clever name: CoreCivic manages OMDC pursuant to a contract with the federal government that provides for both pre-trial criminal incarceration of people in the custody of the US Marshals Service as well as the civil “detention” of immigrants and asylum seekers in the custody of Immigration and Customs Enforcement (ICE). OMDC is a jail, it operates like a jail, and it was affected by the COVID-19 pandemic just like a jail.

The first OMDC staff member tested positive for COVID-19 in late March of last year. By April 14, 19 people imprisoned at OMDC and 8 staff members had tested positive. It took two weeks after the first positive test for the facility to begin providing masks to people in its custody, and when guards finally did offer masks, they required any person receiving a mask to sign a form protecting CoreCivic from liability. Many of the brave individuals trapped inside OMDC protested ICE and CoreCivic’s failure to protect them from this dangerous disease. But things got worse before they got better, and by the end of April, there were 98 confirmed cases of coronavirus inside the jail.

Less than a week later, the first person to die of coronavirus while in Immigration and Customs Enforcement custody—Carlos Escobar Mejia, known by his family as “Netio”—passed away at an area hospital on May 6, 2020. Despite his documented serious health conditions, Mr. Escobar Mejia was denied release less than two weeks before he left OMDC in an ambulance, never to return. His death was like pouring fuel on the growing fire of anger and fear inside the jail. IJP began receiving countless calls from OMDC each day, the voices on the other end of the line desperate and terrified, the plea too frequently the same: “I don’t want to die in here.”

We were able to advocate for and facilitate the release of many of those callers, and we are grateful to all the pro bono attorneys across the country who helped us serve OMDC in an hour of unthinkable need. The ACLU’s successful effort to obtain a federal court order mandating the release of medically vulnerable people at OMDC undoubtedly saved many additional lives, as did similar efforts by immigrant advocates across the country. The pandemic revealed what we have known for years: there is nothing “civil” about a place where a person can be locked away for years without bond, where individual ICE officers frequently are the final say on a person’s liberty, and where people have to go on hunger strike or sign away their rights to receive potentially life-saving protection.

Disorder in the Courts

Last March, we later learned, the immigration judges and staff of the immigration court inside the Otay Mesa Detention Center picked up and left one day, leaving canceled hearings and confusion in the wake of their departure. Over one year later, they still have not returned. The Otay Mesa Immigration Court is technically open for business, but all hearings occur by video tele-conference, or VTC, between the immigration judge and the immigrant or asylum seeker facing removal. For months, attorneys could only appear by telephone. Although we were eventually permitted back into OMDC for socially distanced visits with clients, we spent almost half of last year without any meaningful opportunity to communicate confidentially without our clients. The psychological and medical experts who often help us demonstrate and explain our clients’ histories of trauma and torture were similarly unable to meet with people inside. Many attorneys, interpreters, and experts were uncomfortable physically entering the facility until much later in the year. This left us and our clients to face excruciating decisions about what evidence to forego and how to present our cases. All the while, the immigration judges sit at the court in downtown San Diego, watching the people whose fates they control on a monitor and hearing arguments for those people’s removal come through a speakerphone from a government attorney’s home.

Those people at OMDC who have been fortunate enough to have their cases adjudicated, after months of suspended proceedings and terrifying uncertainty, are tired. They are tired of waking up each day in a jail, not because they are serving a sentence or awaiting a criminal trial, but because they have asked this country for protection or because the U.S. is their home. They are tired of trying to survive without the social visitation that allowed them to see their families. They are tired of waiting for their cases to be decided, of learning that their hearings have been canceled, and of receiving bad news at the end of that long wait. The depression that has affected many Americans this year has hit our clients even harder, and many want to give up.

We are tired too. But we cannot give up. Just six months before the pandemic shut down the Otay Mesa Immigration Court, there was a confirmed outbreak at ICE detention facilities in Texas of almost 900 cases of mumps—more cases than are reported in the U.S. in a typical year. Nine months after the first confirmed coronavirus case at OMDC, the California Attorney General reported that “insufficient space for medical and mental health services and protective custody housing negatively impact the standard of care provided at Otay Mesa.”

A full year into the COVID-19 pandemic, the Department of Homeland Security Office of the Inspector General issued a report documenting its August-to-November 2020 inspection of an ICE facility in Eloy, Arizona, and finding that the inspectors “identified violations of ICE detention standards that threatened the health, safety, and rights of detainees.”

While many in the nation and the world express hope for things to “get back to normal,” this year has taught us that we cannot go back and has reinforced our belief that the system in which we work is not normal. We do not hope to go back to how things were before. We hope to draw from what we have seen and learned in the last year—from the outpouring of concern and support the legal community showed for the people at OMDC, to the journalists dedicated to shining the light on the neglect inside the jail, to the government officials who reported on ICE’s failures to protect the people in its care. Just as it took an invisible virus to show many among us how to be healthier, perhaps that same virus can show the immigration system how to be more just and humane.

About the Author

LAUREN CUSITELLO is the first-ever Legal Director of the ABA Immigration Justice Project, where she leads a team of attorneys dedicated to providing free legal services to immigrants and asylum seekers in the San Diego border region. Lauren began her career as an Assistant Public Defender at the Miami-Dade County Public Defender in Miami, Florida, and later served as an Assistant Federal Defender at the Office of the Federal Defender for the Eastern District of California and a Trial Attorney at Federal Defenders of San Diego. Lauren is often asked to train both criminal defense and immigration attorneys about the intersection of criminal and immigration law, and she is one of the instructors for AILA University’s online Removal Defense Course module about the Criminal Grounds of Removability.