In February, the American Civil Liberties Union and the ACLU of the District of Columbia took action and sued Immigration and Customs Enforcement (ICE) for denying Covid-19 booster shots to five medically vulnerable detainees. ACLU senior staff attorney Eunice Cho wrote that “failing to provide booster shots is irresponsible, cruel and a violation of people’s rights—and that’s why we’re suing” ICE.
The ACLU sees ICE’s failure to provide this crucial medical care as “unconscionable” and “further evidence that our entire immigration detention system is fundamentally inhumane.”
The five plaintiffs have medical conditions that make their detainment especially dangerous during the current prolonged Covid-19 pandemic. Moreover, they represent the roughly 22,000 people detained by ICE who are at risk. Of these, according to the ACLU, fewer than a thousand had been given the booster vaccine as of the beginning of this year.
Forced to live in crowded housing units as the pandemic continues to rage, detainees are increasingly vulnerable to Covid. The ACLU is demanding that Covid-19 booster shots be administered to the plaintiffs. ICE and the Department of Homeland Security (DHS) are listed as defendants in the lawsuit.
The treatment and care of undocumented detainees is a reflection of our nation’s values. At least, it should be. And the fact that these civil detainees are being denied critical healthcare is not in line with our American values. In fact, it’s egregious and unacceptable.
Cho, who is also part of the legal team for the case, made it clear: To not provide and administer critical booster shots “is not only irresponsible and cruel, it’s also a violation of their constitutional rights.”
The complaint, filed on Jan. 31, explains how the plaintiffs “fear for their health and their lives” in light of the current Covid surge. It notes that Covid-19 cases in ICE facilities grew “approximately 1,000%” in the 30 days before the filing. It says that the plaintiffs “have requested booster shots, only to be told that none are available or that they should wait an indeterminate time, or their requests have been simply ignored.”
The lawsuit argues that ICE and DHS have “done little to ensure that detained people can receive booster shots.”
“As of this date,” the complaint reads, ICE and DHS “have failed to develop any plan to provide Covid-19 booster shots to people in ICE custody nationwide. Defendants have provided no instruction requiring that the approximately 200 ICE detention facilities nationwide provide Covid-19 booster shots to eligible detained people.”
ICE and DHS have placed their detainees at unreasonable risk of serious illness or death—all while there is a readily available and free, life-saving vaccine booster available. Moreover, the complaint points out that not administering booster shots is actually contrary to ICE’s own official policies: “Defendants’ failure to provide booster shots further violates ICE’s own detention standards on medical care, which require adherence to CDC infectious disease guidelines.”
One of the plaintiffs, whose name is redacted in court documents, is housed in the Central Valley at Golden State Annex, a private prison in McFarland run by GEO Group. He is a 24-year-old man who suffers from asthma. He filed petitions for his booster shots on three separate occasions and was just put on a waiting list. He eventually tested positive.
Another plaintiff, a 34-year-old woman named Liliana Cardenas Solis, detained at the Aurora Detention Facility in Aurora, Colo., another private prison run by GEO Group, requested her booster shot in December 2021 and was placed on a waiting list. As of the time of court filing, she had not received any follow-up notice. Solis suffers from anemia and depression.
Another plaintiff, 29-year-old Marvin Hernandez Villalobo, detained at Stewart Detention Center in Lumpkin, Ga., a private prison run by Corrections Corporation of America, requested his booster on at least two occasions and was denied. A facility manager simply told him that “he did not have time to speak with him” and another medical unit official just told him that the “booster shots were not available.” Villalobo suffers from obesity and schizophrenia.
Three of the five plaintiffs are detained at private prisons. This fact makes this dangerous fiasco even more unacceptable. How can we allow private companies to neglect and abuse our civil immigrant detainees? We can’t. We need to hold them accountable.
The lawsuit includes a special section specifically focused on these three plaintiffs. In Claim II of the filing, the ACLU accuses ICE and DHS of violating parts of the Administrative Procedure Act (APA) and the Accardi doctrine of unlawful agency (in)action, even calling defendants’ actions “arbitrary and capricious” in their neglect of administering booster shots to Villalobo, Solis and the unnamed plaintiff.
In Claim I of the filing, the ACLU argues that ICE and DHS “are violating Plaintiffs’ substantive due process rights under the Fifth Amendment because they knew or should have known that Plaintiffs, medically vulnerable people in ICE detention facilities who have not received a Covid-19 booster shot, face an unreasonable risk to their health and have recklessly disregarded their serious medical need for a Covid-19 booster shot.”
The ACLU also accuses ICE and DHS with having “acted with deliberate indifference towards Plaintiffs.” The officials at these ICE detention centers know how important the Covid-19 booster shot is. They knew but didn’t care. The lawsuit even goes as far as to say that “ICE’s failure to provide booster shots, therefore, amounts to unconstitutional punishment.” Illegal punishment—that is what withholding life-saving medical treatments is, plain and simple.
But the ACLU doesn’t stop there. In Claim III of the filing, they accuse the defendants of discriminating against persons with disabilities. Indeed, all the plaintiffs are individuals with disabilities and suffer from certain medical conditions that make them more likely than others to suffer severe illness or death from a Covid-19 infection.
Finally, Claim IV addresses the failure of ICE and DHS to provide reasonable accommodation in a reasonable time to persons with disabilities, which is also required under the Rehabilitation Act. ICE and DHS officials violate these provisions every day they unlawfully withhold and unreasonably delay the administering of the Covid-19 booster shot.
The ACLU requested an injunctive relief order forcing the defendants to immediately provide Covid-19 booster shots to the plaintiffs and asked the court to “declare” the failure of ICE and DHS to provide and administer Covid-19 booster shots to the plaintiffs as “unconstitutional” under the Due Process Clause of the Fifth Amendment.
The ACLU is not giving ICE or DHS a pass on their medical neglect of the most vulnerable detainees during such a critical and pernicious pandemic time. Instead, the ACLU is holding the government accountable; disclosing its neglect and abuse; demonstrating how it was not only callous and cavalier with the treatment of disabled detainees but also unconstitutional and unlawful; and demanding that life-saving medical treatment be immediately provided to detainees. Such accountability is crucial for a healthy democracy and nation.
