On paper, Lorena and María have almost identical immigration cases. After all, they’re a lesbian couple with very similar backstories, who experienced many of the same incidents and general harassment in their native Cuba, applied jointly for asylum at the southern border, were detained together, and applied to be released from detention with the same U.S.-based sponsor. Yet as the coronavirus pandemic rages around the country, killing thousands of people per day and spreading among Immigration and Customs Enforcement detainees, Lorena is free, staying at a friend’s house in Arizona, while María remains detained at the South Louisiana ICE Processing Center, growing ever more fearful that the virus will take her health, and maybe her life. Pressure is growing on ICE to quickly release as many detainees as possible, as migrants stage protests and a flurry of legal actions bear down on the agency. Yet ICE remains recalcitrant, opaque, and unpredictable in its decision-making. One side effect of the coronavirus outbreak may be a growing awareness of just how many people in ICE detention simply don’t have to be there. ICE has full discretion to unilaterally release people in its custody who are not otherwise subject to mandatory detention, through humanitarian parole, bond, or own their own recognizance. Of the roughly 34,000 people in ICE custody, the majority are not subject to mandatory detention, and about 6,000 of them have completed the initial step toward seeking asylum. Nonetheless, ICE is reportedly only considering the release of about 600 detainees it deems vulnerable.

While there are some top-down directives supposedly guiding these decisions, it’s long been known that each ICE field office can operate like its own little fiefdom, with wildly different standards for release that can shift at the drop of a hat, even depending on the day or whether an officer is keen on antagonizing a specific detainee. A field office may decide one day that migrants newly barred from seeking asylum are no longer eligible for parole at all. Another may decide that detainees can only be released if they have immediate family in the United States, despite there being no such requirement under the law. Before the pandemic, this arbitrariness kept otherwise releasable people in detention for longer, hampering their cases and sometimes leading them to accept deportation rather than remain indefinitely in jails or detention facilities that very much resemble jails.

One side effect of the coronavirus may be a growing awareness of just how many people in ICE detention simply don’t have to be there.

In the midst of an aggressive and uncontained contagion that thrives on physical proximity, the inscrutable processes that result in detention determinations are tantamount to life-or-death decisions. ICE currently acknowledges 72 confirmed cases of detainees with Covid-19, the disease caused by the novel coronavirus. The fact that some of those who remain in detention will die is not really up for debate. The coronavirus has already killed inmates in jails and prisons around the country, including multiple in a single facility. “Jails, prisons, and the immigration detention facilities are overcrowded. They are too crowded for people to practice social distancing, they are unhygienic, and they do not have the medical facilities to manage intensive care,” Dr. Chris Beyrer, a professor and epidemiologist at the Johns Hopkins Bloomberg School of Public Health, told The Intercept.

Beyrer explained that because the facilities are often in rural areas with limited health facilities, an outbreak could quickly overwhelm the local health system, which would likely be facing escalating numbers of cases both in and out of detention. “There’s lots of people in and out, and also out in the community. In the prison outbreaks that we know about — there was a major one in Wuhan, and there is now a major one underway on Rikers Island — it has been staff and guards who have been the vector for introducing this into the detention facility,” he said. The threat of contagion is there even in the best of circumstances, and detention conditions certainly are not the best of circumstances. “The only additional precautions they’ve taken is putting a little bit more soap in the bathrooms so we can wash our hands. But it runs out because we’re like 50 women in this dorm, and so we’re without soap for a couple days until they refill it,” María said in a telephone interview from detention. (María and the other asylum-seekers interviewed for this story are identified by pseudonyms to protect them from retaliation.) “We are very afraid. The officials here aren’t taking steps of any kind.” On March 20, detainees at the Richwood Correctional Center in Louisiana drafted an open letter to ICE and its supervisors at the Department of Homeland Security. “We, The Immigrants, detained for a very long period of time in the named detention center, request to you for freedom under any condition and supervision terms, parole, bond, bail or GPS tracker,” they wrote. “We are not criminals, our unique crime was to come to this country looking for asylum, and in this moment our biggest fear: we haven’t the sanitizer-hygienic conditions needed if the Virus would get into the center.” “We are afraid because it’s about our life what we are talking about, nobody can minimize that,” the letter continued. “We want to touch your Human Sensibility to find the best answer to our cases and also we want to know who is the one with such responsibility.” A total of 179 detainees from South and Central America, the Caribbean, Africa, Eastern Europe, and South Asia signed the letter.

A search of ICE detainee records shows that some of the letter’s signatories are no longer in the system, meaning that they have either been released or deported, while others remain at Richwood, and some have been transferred to detention centers that now have confirmed Covid-19 cases, like the LaSalle ICE Processing Center. The answer to the detainees’ last question, about who bears the crucial responsibility to decide their fates, seems to be each individual deportation officer, operating in a separate context in each different field office. “The discretion that ICE officers in particular have is longstanding. It’s baked into the Immigration and Nationality Act, into federal federal immigration law,” said César Cuauhtémoc García Hernández, an author and law professor at the University of Denver’s Sturm College of Law who has long studied immigration detention. “When you transpose the very clear expectations articulated by the president and the heads of [the Department of Homeland Security] and ICE repeatedly for three and a half years, then the incentive is to take a more limited view of who merits release, rather than the view of the public health community.”

Sometimes, even the circumstances that led people to flee can end up damaging their chances of release once they reach the United States. María’s attorneys — Liza Doubossarskaia and Bridget Crawford of Immigration Equality, an organization dedicated to representing LGBTQ and HIV-positive immigrants — believe that, had she and Lorena been in a heterosexual relationship, their client might have already been out. Crawford said it wasn’t the first time the organization had represented a same-sex couple in which one person was able to leave detention and the other was not. “If it was a heterosexual couple, I don’t think you’d necessarily have the same results. They would have been able to get married. But there’s a kind of discrimination that plays into some of these decisions,” she said. “Currently, there is not a precedence within ICE to release detainees due to the COVID-19 pandemic,” reads an email sent April 8 by an ICE official in Georgia to attorneys with the Innovation Law Lab. The email came four days after ICE Assistant Director of Field Operations Peter Berg distributed guidance to field personnel directing them to “re-assess custody” of detainees with medical vulnerabilities — including those who were pregnant, over 60 years old, or had chronic conditions including blood disorders and lung disease — and the day after ICE assured congressional staffers that it would be following this policy. Whether or not there’s a presumption to reconsider the release of at-risk detainees seems to depend on who you ask within ICE’s sprawling national bureaucracy. A Venezuelan asylum-seeker who spoke to The Intercept from the Krome Detention Center in Miami last week — a facility that has since had a confirmed case — was abruptly released on Saturday. Two days earlier, a detainee at the El Paso Processing Center in Texas was denied parole. “After reviewing all available information, you have failed to establish that to establish that parole is warranted based on urgent humanitarian reasons or significant public benefit,” reads a denial letter signed by Field Office Director Corey Price. Things can shift around quickly and without much explanation. Attorneys for Immigration Equality submitted a March 18 parole redetermination request for an HIV-positive client at the Richwood Correctional Center who had already been denied parole in February, writing that “he must be released due to the grave and imminent danger posed to him by COVID-19.”

ICE denied his parole redetermination request because a global pandemic, apparently, did not constitute a significantly changed circumstance.

On March 30, New Orleans field office director signed a form denying the parole request because, among other reasons, “ICE previously provided you with a written decision declining to grant parole, and you have failed to provide additional documentation or to demonstrate any significant changed circumstances which would alter ICE’s previous determination.” The global pandemic, apparently, did not constitute a significantly changed circumstance. Less than a week later, the detainee was released, along with a handful of others. While his attorneys are glad that he’s out, they don’t seem entirely sure of what changed or why he’s out and others are still in. In a statement, an ICE spokesperson wrote that “ICE makes custody determinations every day on a case-by-case basis. … When making such decisions, ICE officers weigh a variety of factors, including the person’s criminal record, immigration history, ties to the community, risk of flight, and whether he or she poses a potential threat to public safety. In response to this global pandemic, ICE has instructed its field offices to further assess and consider for release certain individuals deemed to be at greater risk of exposure, consistent with CDC guidelines. … Additionally, efforts to identify other individuals who may be more vulnerable to COVID-19, based on risk factors identified by the CDC, other than age and pregnancy, are ongoing.” On March 26, Jaime was supposed to have a bond hearing, but it was cancelled when the clerk was unable to locate his file. “I felt so bad that morning, without hope. I felt like I was going to die in that place,” he said. He had been detained at the Hudson County Correctional Facility in New Jersey for about three months. According to Jaime, the detainees had all been moved from a dormitory-style section of the center to a cell block on about March 10, but no one had told them why. It wasn’t until they started refusing food that the jail administration informed them about the pandemic raging outside its walls. “There were guys losing control, hitting the doors, some were screaming, some fainted,” he said.

Jaime had been hospitalized for pneumonia years earlier — before he, his wife and their three kids traveled from Central America to the U.S. southern border to seek asylum last year — so he knew that he was at greater risk. Despite that, his attorneys hadn’t managed to get even a response to several attempts at bond or humanitarian release. The evening that his bond hearing had been canceled, Jaime was freed, but not by ICE. He was one of 10 people ordered released by a federal judge in New York, in response to a request filed by attorneys with the Brooklyn Defender Services. ICE and DHS “have exhibited, and continue to exhibit, deliberate indifference to Petitioners’ medical needs. The spread of COVID-19 is measured in a matter of a single day—not weeks, months, or years—and Respondents appear to ignore this condition of confinement that will likely cause imminent, life-threatening illness,” wrote District Judge Analisa Torres in her order. The case is part of a battery of legal motions being brought around the country against ICE in federal court as a result of its inflexibility during the pandemic, which have so far been largely successful. Despite some losses, dozens of detainees have been ordered released. These cases have mostly argued that continued detention is unconstitutional under the Fifth and Eighth Amendments, which ensure due process and prohibit cruel and unusual punishment. Attorneys are essentially arguing that at this point, no one in ICE detention is really safe, whether or not they have any particular vulnerability.

Attorneys are essentially arguing that at this point, no one in ICE detention is really safe, whether or not they have any particular vulnerability.