ICE detainees go ‘missing’ amid coronavirus
For the past six months Donald Brown has been held in U.S. immigration custody, first
For the past six months Donald Brown has been held in U.S. immigration custody, first at a detention center in Miami-Dade, then at a facility in Glades County, just west of Lake Okeechobee.
But no matter where he was, the 62-year-old Jamaican national unremittingly called his family at least three times a day to check in. His efforts to stay in touch grew as COVID cases continued to balloon in jails and prisons nationwide.
But on June 1, the calls stopped. Brown went missing.
Brown’s family members and his attorney called U.S. Immigration and Customs Enforcement dozens of times to no avail. ICE’s online detainee locator was blank. His daughter thought he might be dead.
“We started calling the morgue and funeral homes,” she said. “He always calls, so either he’s dead or he’s been kidnapped.”
Last week the Miami Herald reported on Brown’s story after he went missing for 12 days. The day after the story ran, his daughter, Jarquette Cumberbatch, said her father “suddenly reappeared” at a Broward area hospital. She said she received a three-minute call from him in a hospital bed, where she said guards were “breathing down his neck.”
“He didn’t know where he was. He was scared. He told me there were guards listening to his conversation and that he called to say hi and that he had the virus,” Cumberbatch said of her conversation. “Then the line went blank. You know, I didn’t even recognize his voice. He sounded so different; he was weak.”
ICE told the Herald on Monday that Brown has since been discharged from the hospital and transferred to the Krome Processing Center in Southwest Miami-Dade, pending immigration proceedings before an immigration judge on June 22. His family and attorney have not heard from him since.
Immigration lawyers and advocates say Brown is just one of a growing number of detainees across the country who have vanished for days or weeks at a time in the wake of the global health pandemic and the increase of transfers between detention centers and medical facilities.
ICE’s withholding of detainee location and medical information from lawyers has become very common, attorneys say, despite federal regulations that require that a detainee’s lawyer of record be notified at the time of a transfer. Glades currently ranks among the nation’s top 10 detention centers with the largest number of COVID-19 cases. Last week the agency said the entire detention center was on lockdown after every single one of its 320 detainees was exposed to the virus.
The Herald identified three cases of South Florida detainees who vanished from the Glades County detention center after becoming severely ill and ultimately testing positive for the coronavirus at area hospitals in either Broward or Palm Beach County. Information was not provided to attorneys or family for weeks at a time until the Herald inquired about the cases.
ICE did not comment on the specific claims. According to an ICE spokesperson, the agency says “while precise location information may in some instances not be publicly disclosed it is available to a detainee’s attorney of record and/or next of kin.” Officials say hospitalized detainees are able to make phone calls with advanced coordination and are subject to approval on a case-by-case basis.
However, the Department of Homeland Security’s own federal regulation for ICE says medical information shall be released “to immediate family members and attorneys or other agents acting on behalf of an alien to assist those individuals in determining the current medical condition of an alien” in ICE custody.
“According to ICE’s policies, ICE has an obligation to not allow a detainee to disappear for two weeks, especially if the attorneys and family are making inquiries,” said Eunice Hyunhye Cho, a senior staff attorney with the American Civil Liberties Union’s National Prison Project.
Though ICE has broad discretionary authority to transfer detainees in immigration detention from one detention facility to another under its own transfer standards, the detainee’s attorney of-record must be notified at the time of a transfer, according to ICE’s internal transfer policies.
The policy does not specify whether or not the agency’s transfer guidelines also include transfers to and from medical facilities. None of ICE’s guidelines on medical care explicitly address notifications to family or attorneys.
Though DHS’s federal regulation supersedes ICE’s guidelines, Cho said, the omission of notification instructions in the agency’s Detention Standards that govern individual facilities is “problematic” because it indicates a “striking gap” in ICE protocol with respect to notification to counsel and family during medical emergencies, “particularly in light of COVID-19.”
“We are seeing several examples where families and counsel are facing great difficulty in obtaining medical and location information,” Cho said. “ICE is placing the burden on the family member and attorney to try to get that information but what we are also finding is that ICE is being obstructive, despite federal requirements that require ICE to provide that information to family and counsel.”
Brown’s case, Cho added, is “not an isolated problem. We have seen this issue come up many times before; it’s particularly a concern now, given the added risks and consequences that come with the rapid increase of COVID in immigration detention.”
How ICE handles medical emergencies and death for detainees in their custody varies widely and depends on the detention center that the individual is held at during the time of the emergency.
Each of ICE’s 200-plus detention centers across the country is governed by a patchwork of federal guidelines and standards – the Performance-Based National Detention Standards of 2008, the Performance-Based National Detention Standards of 2011 and the National Detention Standards of 2019. Each detention center is governed by one of the three.
Glades is governed by the NDS 2019 while Krome and Broward follow the PBNDS of 2011. In general, which standards govern which detention centers are determined by the date the contract was signed or renewed and negotiations between ICE and the facility.
There have been concerns about ICE’s “watered-down” NDS guidance among immigration advocates and experts, Cho said, which was rewritten in 2019 to replace policies established in 2000. The new standards removed language requiring that facility immediately contact ICE of serious injury or illness, among other protections in certain areas like use of force and solitary confinement.
Each center also follows individual rules set forth in that facility’s contract with whatever third-party operator runs that detention center. Glades is contracted out to the Glades County Sheriff’s Office; Krome is operated by Akima Global Services, and the Broward Transitional Center is run by the private prisons company GEO Group.
The Herald examined the three sets of transfer guidelines. According to the documents, ICE is to notify the detainee’s attorney when each transfer occurs. None of the medical care guidelines address notification during hospitalization.
The medical guidelines that govern Krome and BTC say medical facilities are expected to provide detainees “other services such as telephone and legal access and materials consistent with their medical condition.” Guidelines that govern Glades, as well as its contract with the Glades Sheriff’s Office, don’t make mention of telephone access.
“My phone just stopped ringing with calls from my dad. He just disappeared without a trace,” said Maria Carolina Moros-Rodriguez, daughter of 67-year-old Juan Moros-Ramirez. Moros-Ramirez has been in ICE custody at Glades since late February. Rodriguez says her father went missing on May 30.
On Tuesday, hours after the Miami Herald emailed ICE asking about Moros-Ramirez’ status, the agency contacted the detainee’s attorney regarding his location and health condition.
“We are relieved because the deportation officer finally called our attorney saying my dad is at a hospital,” she told the Herald in a telephone interview from Venezuela on Wednesday. “But that doesn’t change the heartache we endured thinking that the worst happened to my dad. It was more than two weeks without hearing from him. We thought he could be dead.”
Moros-Ramirez was not dead, but rather hospitalized with pneumonia and COVID-19, his daughter said. He is currently at Lakeside Medical Center in Palm Beach, about an hour southwest of the detention center.
“We were calling every day, our attorney was asking and asking and we always got the runaround and lots of lies,” Rodriguez, noting that one detention center official told her she didn’t have a right to know his location or his medical status because her father was refusing to authorize privacy disclosure forms.
“I told [the employee] that ‘the only reason my father would ever not want us to know about his health is either because he is in a coma or dead, which one is it? Do I have to wait to be told that I have to pick up his ashes?’” Rodriguez said.
“My father is very, very weak. He couldn’t go into detail over the phone about his condition. We don’t know if he lost consciousness at some point. If he was intubated. We don’t know anything.”
Longtime Miami immigration lawyer Wilfredo Allen, who is representing Moros-Ramirez, as well as another COVID-positive detainee who went “excommunicado” for about a week after being hospitalized, told the Herald that he was not notified upon his clients’ transfers to a hospital and that none of the detainees had access to a telephone.
“That’s just the way it goes. When you’re at Glades and get sent to a hospital it’s very hard to find out anything about where and how they are,” Allen said. “Both my clients turned out to have COVID and were so sick that they were sent to hospitals. One of them was almost placed on a ventilator.”
It’s unclear why the detainees were transferred to faraway hospitals rather than hospitals in Glades County.
Johanny Uzacategui, the attorney representing Brown, the Jamaican national, said every time she inquired about her client, ICE officials told her she needed a signed medical waiver by the detainee in order to communicate with him.
The problem was she had no way of getting him the waiver because she had no way of speaking to him: “It’s a brick wall,” said Uzacategui. “Who could have thought someone could get lost in a hospital or medical unit?”
Cho, the senior litigator at the ACLU’s Prison Project, said that it’s “ridiculous” that the agency is telling attorneys that a waiver is required by an attorney who is registered in ICE’s system: “Federal regulations say they have to give that information upon transfers or hospitalization; no such waiver is required.”
According to ICE, at the field office director’s discretion a detainee’s movement within the ICE detention network may be protected for a variety of reasons ranging from operational security to privacy concerns resulting from medical care. As a result, their detention location may not appear on the Online Detainee Locator System.
John Sandweg, ICE’s former director, told the Miami Herald that “it’s not unheard of for detainees to go dark until they are resettled at another facility for minor operational security reasons.”
“Maybe there is some security reason, perhaps they are worried about someone’s effort to help the individual escape civil detention from a hospital, but you have to balance the humanitarian factors. It’s a basic human right to be able to notify family members and let them know that their loved ones are okay, or not okay. This is a transparency issue.”
“I’ve been very clear that ICE needs to aggressively cut the population, to be fair, it’s dropped,” Sandweg added. “But the bottom line is that if ICE is still going to maintain large numbers in detention, then they have the responsibility to provide support and methods of communication. It’s a moral, if not a legal, requirement that they make sure families and lawyers are kept aware.”