Immigration lawyers are taking new, aggressive steps demanding the release of dozens of elderly and medically compromised New York immigrants held in Immigration and Customs Enforcement detention, saying they’re at risk of death from coronavirus at the four area county jails where they’re held.  

Attorneys at Brooklyn Defender Services, one of the legal providers for the city-funded New York Immigrant Family Unity Project, filed more than a dozen requests with ICE in recent days asking that bond be offered so the detainees can be released pending their hearings on alleged immigration violations. In addition, attorneys are filing habeas corpus petitions in federal court, demanding that certain detainees are let out. 

“I am very hopeful that if ICE is going to turn a blind eye to this situation, that they’re not going to take this seriously, that the federal courts are going to force them to respond and do something,” said Andrea Saenz, the attorney-in-charge for NYIFUP at Brooklyn Defender Services.  

Saenz is prioritizing efforts to release clients deemed high-risk: Those older than 60, and those with diabetes, HIV, mental illness, or respiratory problems. “These are folks who have a variety of conditions that might be treated normally and okay on the outside, [but] they’re not being treated well in jail to start with, and if they get sick they’re going to be in a lot of trouble and we’re really worried about them,” she said.

Exacerbating the issue for these detainees is that jails are now implementing social distancing, so detainees who might normally be able to roam a large room are locked in cells for much of the day. At the county jail in Bergen County, N.J., for example, the sheriff’s office has implemented a “rotational out-of-cell schedule,” where detainees get two hours inside their cells and two hours outside, according to Derek Sands, the sheriff’s chief of staff. 

That’s a problem, according to Saenz. “Remember this is supposed to be civil detention, it’s not supposed to be jail or prison, even though these are literally county jails that ICE contracts with,” she said. In the cells, detainees have to use the bathroom in front of a cell mate. “It feels like lock-down, it feels like solitary...People are really terrified, and called us to say, ‘Please tell people what is happening to us.’” 

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Saenz said that her clients allege that Bergen and Hudson jails offer limited soap to detainees; one bar is provided to detainees but additional soap must be purchased from the commissary, she said. Jail officials at both facilities deny this. At Bergen, Sands said that Lysol, disinfectant wipes, alcohol-free hand sanitizer, and soap dispensers are in every housing unit, and soap bars are distributed to inmates and detainees twice weekly. 

To prevent the spread of coronavirus, jails are also banning visits involving contact between detainees and their lawyers or loved ones, implementing medical screening for new detainees and inmates, and suspending religious services conducted by outside clergy. At the Essex County Correctional Facility, where hundreds of New Jersey and a handful of New York immigrants are held, officials have identified a potential quarantine area, stockpiled food and supplies, and hired three workers to do cleaning and sanitizing, according to a list that officials provided to Gothamist/WNYC about preparations. 

ICE says no detainees have tested positive for COVID-19 nationwide. An officer at the Elizabeth Contract Detention Facility in New Jersey is awaiting results after possible contraction. 

But experts say the virus will inevitably spread to jails and detention centers, where those with poor medical histories live in confined spaces.  “It’s really a recipe for disaster unless we can get people released,” Saenz said.

An added concern: ICE arrests continue around the country. As recently as Monday, an immigrant was arrested in Suffolk County, and there were 13 reported ICE arrests or sightings of ICE activity in the New York area over the last 10 days, according to the Immigrant Defense Project. That means more people are expected to be admitted to detention centers. 

“In the very least I would think [the Department of Homeland Security] would shift its resources to save people’s lives during this pandemic,” Saenz said. 

The three-pronged approach to releasing detainees begins with asking ICE to release detainees on bond, which the agency has the discretion to do. If that fails, lawyers will ask for bond hearings before immigration judges -- though attorneys and government workers are calling for those courts to be temporarily closed, given the crowds there. The attorneys’ final effort involves petitioning federal district court with habeas corpus claims, saying that clients’ detention is illegal because it puts their lives at risk. So far, a handful of those claims have been filed.

“ICE has complete power to release them under safe conditions and they’re choosing not to do that, and so we’re asking the federal courts to step in to get our clients released safely,” Saenz said. Detainees could be released with ankle bracelets or mandatory check-in appointments at ICE offices, to ensure they show up to court dates. (ICE has postponed check-in appointments for immigrants in New York until April.)

On Tuesday, twenty New York City Council members added their voices to the calls to release detained immigrants. In a letter to ICE, they said agents risk spreading COVID-19 while conducting arrests and bringing immigrants to courts and detention facilities. The letter also cited precedent, saying ICE has suspended operations during other emergencies, such as a hurricane, wildfire and the Flint, Michigan water crisis. 

Immigration detention on such a mass scale is a relatively new phenomenon that began with a 1996 immigration law signed by President Bill Clinton. There were fewer than 7,500 detention beds in 1995; today, under President Trump’s strict policies on immigration enforcement, as many as 50,000 immigrants have been detained at a given time. 

Detainees are held while they’re awaiting court hearings on their deportation cases or waiting for travel documents so they can be deported. They’ve long complained about poor medical care at the facilities. At the Bergen County Jail last year, there was a mumps outbreak.

In a separate legal effort to force ICE to release detainees, two groups are seeking an expeditious ruling on a class-action lawsuit filed last month alleging that the Trump Administration has quietly implemented a “no release policy.” While ICE used to release those arrested on immigration violations if they posed no risk, or had disabilities, now detention is essentially the only option made available to officers, according to the lawsuit filed last month by the New York Civil Liberties Union and the Bronx Defenders legal service. On Tuesday, the groups announced that it was seeking an injunction to order ICE to immediately release immigrants from jails in New York and New Jersey based on the arguments in the suit. 

“People harmed by ICE’s illegal no-release policy need urgent relief,” said NYCLU attorney Bobby Hodgson. “ICE improperly manipulated the detention process to imprison almost everyone they arrest, and right now that decision is putting many people in harm’s way as COVID-19 spreads.”

ICE had no comment on the legal efforts demanding release. “The field office will respond directly to the requestors,” a spokesperson said.

Matt Katz reports on air at WNYC about immigration, refugees, hate, and national security. You can follow him on Twitter at @mattkatz00.