Since the Trump Administration first unrolled its policy of forcing migrants to wait in Mexico for their asylum hearings, advocates have been warning that the practice places them in danger. Now, the global coronavirus outbreak is putting an exclamation point on those warnings and adding a new, frightening layer of risk into the lives of asylum seekers stuck in Northern Mexico.

On Monday, reports emerged of asylum seekers who were scheduled to appear in court in the U.S. instead being turned back from border checkpoints by Customs and Border Protection (CBP) officers. That evening, the Department of Homeland Security (DHS) announced that all hearings for asylum seekers returned to Mexico up to April 22^nd would be rescheduled.

According to an attorney based in El Paso, Texas, those hearings are being pushed to late April or early May, although there is no guarantee that the outbreak will have abated by then.

Meanwhile, many asylum seekers have been stuck in dangerous border cities for months waiting for those hearings. Health workers say that now they are vulnerable to the COVID-19 pandemic in ways that would have been avoided if they had been admitted and released into the U.S. for their proceedings.

Under the “Migrant Protection Protocols” (MPP), around 60,000 people have been forced to wait in Mexico while their requests for protection in the U.S. are weighed by the courts. Over 17,000 of them are still waiting on upcoming hearings — more than 6,500 for at least six months.

Last Friday, the U.S. and Mexico announced they were closing the border to “non-essential” travel and the Centers for Disease Control released a public health order suspending “the introduction of certain persons” into the U.S. The order will likely be used to sharply curtail access to the asylum system for anyone who arrives at the border right now.

For those who were already returned to Mexico under the MPP — many of whom are fleeing political persecution, gang violence, and abuse at home — an uncertain future now looms.
 
For the past year, advocates have criticized the MPP as a cruel policy meant to deter people from seeking asylum in the U.S. by forcing them to stay in dangerous areas during a long, drawn-out legal process. Many asylum seekers who return to Mexico under the policy wind up in overcrowded migrant shelters or in some cases, sprawling tent camps near the border.
 
Thus far, no cases of COVID-19 have been reported among any asylum seekers in Mexico. But the numbers of people infected with the disease in states like California and Texas are growing, raising concerns in previous weeks that asylum seekers who attended their hearings could bring the virus back into Mexico with them after being exposed inside the U.S.
 
Linda Rivas, executive director of the El Paso-based legal services organization Las Americas, said last week a client of hers chose to skip a court date she’d been waiting on for months rather than risk entering the U.S.
 
“The idea of having to go back and forth and then going into the shelter space is just really scary,” said Rivas. “The cell phones that we have dedicated for our MPP clients are ringing off the hook. Lots of questions, lots of doubts.”
 
Tania Guerrero, an attorney with the Washington, D.C.-based Catholic Legal Immigration Network, says the federal migrant shelter in Ciudad Juarez has begun to implement precautionary measures, but she fears what might happen if an asylum seeker there contracts the disease.
 
“There’s no social distance,” she said. “Now at least people aren’t on the floor, they have bunk beds, but they’re all crammed into one huge room in a warehouse.”
 
Guerrero said the shelter is now requiring staff and volunteers to wear surgical masks as well as recording the temperature of its residents when they return to the facility:
 
“If you leave, you might not be able to come back. And that’s not just out of fear, it’s out of precaution.”

On the other end of the Texas border, in Matamoros, Mexico — where a tent camp with thousands of asylum seekers has sprung up — humanitarian relief workers say an outbreak of COVID-19 could be catastrophic.
 
Helen Perry, the director of Global Response Management (GRM), an aid organization that provides medical services to the camp’s residents, says she’s bracing for the arrival of the virus.
 
“The camp is close living quarters. Showers, kitchens, sinks, and bathrooms are all communal. They’re kind of crammed in there,” she said.
 
GRM is making plans to build a 20-bed field hospital with the capacity to do basic bloodwork and intravenous rehydration, which she hopes could keep moderate cases from becoming severe if there is an outbreak.
 
“People here are walking around moderately malnourished or chronically dehydrated, and 25 percent of them have underlying chronic health conditions like diabetes and hypertension,” she said. “We feel like we have to react and be able to offer care that could keep them from getting chronically ill and needing to be intubated.”
 
According to Perry, Matamoros has only ten total ventilators in the entire city. Tensions between residents of Matamoros and people living in the camp have spiked since anti-MPP protests temporarily shut down traffic at a major border checkpoints in January, and Perry worries about what could happen if someone in the camp contracts the virus.
 
“There is already stigma that exists against individuals in the camp,” she said.
 
The ACLU sued to end the MPP not long after it first went into effect in Tijuana, Mexico. On February 28^th, the Ninth Circuit Court of Appeals ruled in favor of the ACLU in the suit, agreeing with a lower court that it should be blocked. But on March 11^th, the Supreme Court stepped in and stayed the Ninth Circuit’s order, allowing the policy to remain in effect.
 
Now, because of that policy, asylum seekers in Northern Mexico who traveled to the U.S. hoping to find safety will have to face the COVID-19 outbreak in an environment that was already precarious, and which has now become even more unsafe.
 
If the disease becomes widespread in Northern Mexico, asylum seekers from Central America and elsewhere are unlikely to be at the front of the line for a health care system with limited resources. And with their legal process delayed by at least a month or more, there is no way to tell what the ultimate impact of the crisis will be on their efforts to find safety.
 
“We’re worried about them,” said Guerrero. “They’ve been in limbo for so long, you know?”

Ashoka Mukpo, Staff Reporter, ACLU

Many of us are scared for our families and friends right now because of COVID-19. Every day we learn new information about the virus. Today we know that all of us, even the young and healthy, are at risk of this disease and serious complications from it. We cope and try to make ourselves safer, whether by social distancing, washing our hands more, or eating nutrition-packed meals.

But people in government custody — including the 37,000 immigrants held in immigration jails and prisons throughout the country, and thousands more held near the border — don’t have these options.  They are being held in deadly conditions. That is why in addition to calling on public officials to downsize prisons and jails in the criminal legal system, the ACLU is calling on the government to utilize all available options to reduce the number of people in immigration detention. Ultimately, no one, whether they are a citizen or an immigrant, should be forced to live in conditions that imperil their lives during this public health crisis.

Immigrants in government custody are forced to live, sleep, and eat together. Some spend nearly all day in large rooms filled with closely packed bunk beds, or just long concrete benches. Others live in dank two-person cells, sometimes with minimal ventilation. Dozens of people share toilets and showers, sometimes with no divider and without disinfection between use. Social distancing is not an option. With everything we’ve learned from the Centers for Disease Control, we know these conditions are dangerous, even deadly.

For immigrants in detention, the tools for basic hygiene aren’t available either. Many people don’t have access to soap, let alone hand sanitizer. In Border Patrol stations, many immigrants are detained in overcrowded cells without ready access to sinks and showers. Detained people have described feeling like “sitting ducks, waiting to be infected.” One detained man in New Jersey said he and others were on a hunger strike to try to obtain soap and toilet paper — and that guards reportedly said, “Well, you’re going to have to die of something.”

It can be hard if not impossible to get medical attention, including access to previously prescribed medications. For example, it is not uncommon for detained immigrants to be given Tylenol for serious illnesses, including HIV and pneumonia. It’s no wonder that since October, 10 people have died in ICE custody. And over the past two years, at least seven children have died in CBP custody or shortly after being released, many after receiving delayed medical care or being denied care altogether.

The ACLU has long said that the vast majority of people in immigration jails are being detained unnecessarily. They are being held for processing at the border, or are awaiting their immigration hearings or another administrative action — yet they have completely lost their liberty. COVID-19 lays bare the injustice, and the often life-or-death stakes, of their detention. As public health experts have already stated, “social distancing through release is necessary to slow transmission of infection.” ICE and CBP must immediately start reducing the number of people in detention, starting with the most vulnerable, to prevent the continued spread of COVID-19 to both people in immigration jails, and the staff who work in them.

We are far from alone in raising the alarm bells on this. There is an “imminent risk to the health and safety of immigrant detainees,” according to physicians who have investigated immigration prisons on behalf of the Department of Homeland Security (DHS) and are experts in the field of detention health. They’ve warned that once an outbreak occurs in immigration detention, it will spread quickly and have a devastating impact.

Mass incarceration of immigrants also risks the health and safety of the people who work in these facilities, as well as the communities they return home to. Last week, ICE told Congress it would “utilize alternatives to detention, as appropriate,” but an ICE official later reportedly clarified, “there has been no announcement related to releasing individuals that are currently detained.”

We don’t know how serious the government is about utilizing alternatives. But we do know that options for reducing detention are already on the table. As we pointed out in our lawsuit,
Dawson v. Asher, DHS could use its parole authority to release people on medical grounds, including people whom the CDC and other medical experts have identified are particularly at risk: those over 50 and those who have an underlying medical condition, such as lung or heart disease.
DHS has a range of options to release people from detention: on bond, humanitarian parole, or an alternative-to-detention program. Even a former ICE chief, John Sandweg, called on ICE to utilize its options, warning that an outbreak will “spread like wildfire.” Many people in ICE jails and prisons have family or sponsors in the U.S., with whom they could live and, if necessary, quarantine safely. Likewise, people in CBP custody could be released to family, community sponsors, or shelters with proper precautions in place

There has perhaps never been a more urgent time for ICE and CBP to reduce the number of people they’re holding in detention — this is a health crisis and prevention and containment is key. Already, at least two staff members and one detained individual at immigration jails in New Jersey and Texas have tested positive for COVID-19, potentially putting at risk hundreds of detained people and staff.

Our nation’s collective health depends on the Trump administration following the advice of doctors, scientists and public health experts. These experts are telling us that social distancing is necessary to curb COVID-19. They are also telling us that access to adequate healthcare is critical. None of these are options for people trapped in immigration detention, and for the officers and staff who have to report to work. We know this is wrong. ICE and CBP must do the responsible thing: reduce the number of people in detention, starting with the most vulnerable, to keep them safe from COVID-19 before it is too late.

Naureen Shah, Senior Advocacy and Policy Counsel, ACLU,
& Andrea Flores, Deputy Director of Policy, ACLU's Equality Division

To ensure elections proceed and eligible Americans can vote, any federal legislative package addressing the impact of COVID-19 on our elections must include an immediate, substantial infusion of federal funding and federal requirements for no-excuse mail-in absentee voting and early in-person voting. While the coronavirus pandemic should not be a political issue, with presidential primaries and the general election coming up, it could soon directly impact our politics. It is simply not an option for Congress to fail to act on these basic issues to protect American elections while the pandemic is ongoing. 
 
For many, the safest way to vote will be to vote by mail. However, there are approximately 17 states that currently do not allow no-excuse absentee voting by mail. In almost all cases, this absentee voting limitation is codified in state law and in some cases within the states’ constitutions, making it very difficult, if not impossible, to expand the ability to vote by mail in time to help reduce the impact of COVID-19. This is especially true in light of the inability of legislatures to convene at all, given the pandemic. 
 
For example, in Texas it is only possible to vote by mail if you are over 65, disabled, will be out of the United States on Election Day and during the early vote period, or are confined to jail but otherwise still eligible to vote. The language about being disabled is further restrictive — the voter must have “a sickness or physical condition that prevents the voter from appearing at the polling place on election day.” Arguably, this language would permit only individuals actually sick with the coronavirus to vote by mail. All these restrictions are set in Texas law, and given that Texas’ legislature isn’t scheduled to meet in 2020, these laws would be very difficult to modify in time for upcoming elections. During the current pandemic, it is nearly impossible to imagine how the Texas legislature can efficiently and safely convene an emergency legislative session.  
 
For other states, the limitations on absentee voting are set within the state constitutions, making the process for changes even more cumbersome. For example, in Massachusetts, current law only allows voters to cast absentee ballots by mail if they are out of town or unable to get to the polls because of a physical disability or religious restrictions. To change this may require an amendment to the state constitution, which must pass two successive legislatures and be approved by the voters through a ballot initiative — making it an impossible change before the 2020 general election. 
 
Texas and Massachusetts are just two prime examples of why a federal mandate is necessary — to guarantee states can overcome hurdles posed by COVID-19, institute the necessary changes, and do so rapidly. Congress must act swiftly and aggressively so state and local election officials can begin preparing now to address these challenges. And without considerable and immediate funding from Congress — the ACLU has recommended $3 billion — a federal mandate alone will not be enough to achieve no-excuse absentee mail-in voting or an extended early vote period in time for this election. In order to safeguard our health and our democracy, there is no time to wait to save our elections. No one should have to choose between protecting their health and exercising their right to vote.
 

Sonia Gill, Senior Legislative Counsel, ACLU,
& Sarah Brannon, Managing Attorney, ACLU Voting Rights Project