A version of this article was published in The Brownsville Herald on April 24, 2020.
A diabetic asylum seeker in immigration detention in Los Fresnos, Texas has filed a petition asking ICE to release him light of the COVID-19 pandemic and his heightened risk of succumbing to the virus if he becomes infected.
The suit alleges inadequate treatment for the man’s worsening diabetes over the course of his 16-month detention at the Port Isabel Detention Center. Allegations in the document detail concerns raised by local advocates and attorneys over an alleged lack of access to personal protective equipment (PPE) and hand soap inside the facility, as well as an inability to socially distance in crowded dormitories.
According to the complaint, S.T. was placed in removal proceedings following a positive finding in his credible fear interview by an asylum officer and was later denied parole. His asylum case is pending, with a petition for review in process at the U.S. Court of Appeals for the Fifth Circuit and motions to stay his removal pending with both the Fifth Circuit and the Board of Immigration Appeals.
Prior to his detention by Immigration and Customs Enforcement, S.T. was controlling his diabetes through diet, medication, and monitoring his blood sugar levels carefully with a finger-prick testing device, according to the complaint filed in federal court in Brownsville on Wednesday. “His diabetes is out of control. His diet is not suitable for a diabetic and he has been denied a diet that is suitable. The treatment he is receiving is inappropriate and inadequate. He has gone blind in one eye,” the document stated.
The man’s attorney argued that as such, S.T. is exceptionally vulnerable to COVID-19 and is likely to suffer potentially life-threatening consequences if he were to be infected. The listed respondents have “twice curiously denied [S.T.]’s request for release to the care of a responsible sponsor on an Order of Supervision or with a bond, either with or without electronic monitoring,” the complaint stated.
S.T.’s finger-prick testing device was taken from him when he was processed into PIDC, according to the complaint. A deportation officer denied his requested release to a sponsor in Weslaco on April 7 with no reasons given. The same request was sent to the ICE San Antonio Field Office and was denied, in writing, with no reasons given for the denial, the complaint stated.
On April 9, local media reported a contract employee at the Port Isabel Service Processing Center (PISPC) had contracted the virus 10 days prior. ICE told reporters that although the agency requires contract employees to report positive COVID-19 cases, those numbers are not included on ICE’s website – or in any public reports that can be accessed without submitting a FOIA request.
Allegations raised in the lawsuit indicated detainees are not provided hand soap and that guards and other personnel have access to masks and gloves, but most do not wear them. A box of masks put in one of the dormitories – each of which contain approximately 70 inmates – was quickly depleted and has not been replaced. Inmates are provided with three small packets of shampoo a day and only those with funds can purchase other products, according to the document.
Four open toilet bowls in each dormitory allegedly can’t be cleaned during daytime hours because staff provides supplies only in the mornings and evenings. “Reports are that PISPC employees going in and out of the different dormitories rarely wear masks and gloves. New intakes are processed into PISPC regularly and given the critical shortage of tests, it is highly unlikely that they are tested for COVID-19 before integration into the general population,” the complaint stated.
“This creates an unacceptable risk for detainees, particularly those most vulnerable to the virus. It also creates a risk for communities in the Rio Grande Valley, given that employees at PISPC come to work from the community, and return into the community after their shifts, thus acting as vehicles for the transfer of the virus between community and detention facility on a daily basis.”
S.T., who is under 40, has “already gone blind in one eye”. An appointment with an eye specialist resulted in a recommendation for surgery to remove the cataract caused by his uncontrolled diabetes, which was postponed until the lifting of a ban on elective surgeries imposed due to COVID-19, his attorney wrote. Officials have allegedly denied S.T. a suitable diet for a diabetic. A physician treating S.T. inside PIDC noted the metformin he was treated with as of April 5 is “an insufficient single medication in his case if, while taking it correctly, his blood glucose is over 500.”
The same doctor specified that as a result of this inadequate care, S.T.’s patient’s risks “over time are very high for diabetic retinopathy (development of vision problems), diabetic neuropathy (loss of nerve function and feeling in his feet and hands), and diabetic nephropathy (kidney failure leading to dialysis).”
According to his attorney, S.T. suffers from numbness and tingling in his extremities and manifests boils all over his body, “lesions often caused by infection with MSRA (methicillin resistant Staph Aureus) which spreads rapidly in prison or detention settings.”
A preliminary injunction issued by U.S. District Judge Jesus Bernal in California on Monday ordered ICE to “identify and track” detainees with risk factors within 10 days, or within five days of being detained by the agency and to consider their release. In an email, S.T.’s attorney called the opinion “helpful” but noted there are similar ongoing cases across the country right now.
ICE stated it does not comment on pending litigation and referred questions regarding COVID-19-related releases to the agency’s website.
Update May 27, 2020: U.S. District Judge Rolando Olvera, Jr. signed an order on Tuesday denying S.T.’s motion for a temporary restraining order. Olvera wrote that such an order is an “extraordinary remedy” that should only be granted if the movant has proved several relevant factors. These include a substantial likelihood of success on the merits, a substantial threat of irreparable injury if the motion is not granted, and that the injunction will not disservice the public. S.T.’s attorney called the status of the case “discouraging”. Litigation is ongoing.
Update June 2, 2020: On Monday, June 1, U.S. District Judge Rolando Olvera, Jr. signed on order denying a motion to reconsider filed on May 28. S.T.’s attorney confirmed that Olvera denied the order without providing reasons for the denial, which was based on “evidence” submitted by the government for which the original denial of the temporary restraining order was made. S.T. may be able to appeal his case at the Fifth Circuit and his attorney is looking into all other options.