After Filing Suit, Council Releases Records Describing ICE’s Response to the COVID-19 Pandemic


The American Immigration Council filed a lawsuit after Immigration and Customs Enforcement (ICE) failed to timely respond to the Council’s Freedom of Information Act (FOIA) request.

The request asked for information about ICE’s response to the COVID-19 pandemic in immigration jails and the measures it was taking to identify and treat detained individuals who are at risk of infection or who have become infected. The Council’s request also asked for up-to-date information about policies governing criteria for release, medical treatment, and communication access for those who remain detained.

Though ICE granted the Council’s request for expedited processing of the FOIA request, it failed to promptly produce documents within the time required by law. Because of the urgent nature of the request – information implicating the treatment of detained individuals during a historic pandemic – the Council filed a preliminary injunction in addition to a complaint to compel quick release of the COVID-19-related documents.

On June 11, the D.C. District Court granted the Council’s motion for a preliminary injunction and ordered ICE to produce documents by August of 2020.  Nonetheless, ICE’s response by the date ordered by the Court continued to be insufficient and the Council, along with Immigrant Legal Defense (ILD), continued to press for responsive documents. The Council and ILD are now releasing the documents obtained through this litigation. We anticipate further requests for information based on what we learned from the records that ICE produced.

Government Documents Received in Response to FOIA Litigation Provide an In-Depth Look at ICE’s Response to the COVID-19 Pandemic

The Council and ILD secured multiple document productions that provide a picture of ICE’s chaotic response to COVID-19 as well as widespread changes ICE was forced to implement in detention facilities following a court order in Fraihat v. ICE, a case challenging detention conditions and lack of medical treatment for individuals in ICE jails around the country. Following an injunction in Fraihat, ICE was forced to address various deficiencies in its response to COVID-19.

Records reveal confusion regarding ICE’s response to the COVID-19 outbreak and the agency’s decision to continue removing individuals from the United States during the pandemic. Correspondence from the Committee on Appropriations to DHS officials show confusion about ICE’s response to the COVID-19 outbreak and concern that the agency was responding slowly at the outset of the pandemic. Many of the emails where ICE discusses responses to Congressional staff are redacted.

Records provide insight into ICE’s response to COVID-19 within its detention facilities.

Documents describe the troubling impact of COVID-19 on ICE operations and staff.

Records reveal internal disagreement among ICE and medical personnel about whether COVID-19 positive detained individuals should remain detained even when otherwise eligible for release.

Records provided in response to the FOIA include ERO IHSC policies and guidance that predate the COVID-19 pandemic.

Records show ICE’s expansive overhaul of its own COVID-19 response following the court’s injunction in Fraihat v. ICE.

In Fraihat, a federal judge issued an order on April 20, 2020 requiring ICE to, among other things, establish a process to identify and track people in ICE custody with relevant “Risk Factors,” conduct custody redeterminations for any detained people with Risk Factors, update internal ICE protocols for responding to the pandemic, and ensure that the order be implemented at every detention facility in the United States. The need for this massive overhaul highlights ICE’s failure to safeguard vulnerable populations in immigration jails in response to COVID-19 prior to the Fraihat court’s decision.

Outline of the process for on-site COVID-19 inspections in compliance with Fraihat 

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