Update: Daniel was released from ICE detention on Sunday evening after suffering a medical crisis. He is doing much better after being taken to an El Paso migrant shelter said his legal representative, Rosa De Jong. She said he was released to her after ICE refused to take him to a hospital.

Legal advocates say ICE’s El Paso field office is not following federal court orders for treatment of “medically vulnerable” people in its custody, causing added harm to sick detainees. 

The situation of a sick asylum seeker currently detained at El Paso Service Processing Center exemplifies the breakdown of these rules, according to his representatives at Las Americas Immigrant Advocacy Center. 

“It’s just a completely avoidable scenario,” said his accredited legal representative, Rosa De Jong. She listed a number of Immigration and Customs Enforcement protocols that were not followed for her client Daniel, who asked not to be identified by his real name for fear of negative consequences. 

De Jong said Daniel’s treatment in ICE detention resulted in an extreme mental health crisis on top of all his other acute medical vulnerabilities — a mental health crisis that would then be used as justification for delaying his release.

ICE officials have not responded to requests for comment on Daniel’s treatment. 

Originally from Cuba, Daniel had already had an arduous journey in the U.S. immigration system prior to landing in ICE custody.

Described as “amazingly gracious and kind” by De Jong, Daniel attempted to cross into the United States more than once. He entered the United States in September and was placed in Migrant Protection Protocols, a Trump-era policy that requires asylum seekers to remain in Mexico while their claims are heard in U.S. immigration court. The Biden administration ended that policy last month.

After being sent back to Mexico, Daniel and his wife were kidnapped by armed men, De Jong said. That has been a common occurrence for migrants sent back to Mexico under MPP. Daniel and his wife escaped from their kidnappers in November and crossed the border again. 

“It was very scary, and he had a lot of fear and made a last-ditch effort with his wife to cross into the U.S.,” De Jong said, noting that Daniel’s wife has already been released from immigration custody, and he has family ready to receive him in the United States.

Taken into custody at a Border Patrol checkpoint 

Federal court records show that Daniel was arrested Nov. 12 at the Border Patrol checkpoint in Sierra Blanca, Texas, where he allegedly produced a forged permanent resident card. He was charged with fraud or misuse of visas/permits and held in the El Paso County Jail. He pleaded guilty on Feb. 23, was sentenced to time served on Feb. 25 and turned over to ICE, court records show.

People who do not enter the country through official ports of entry still have the right to seek asylum in the United States. 

After being taken into ICE custody in February, Daniel was taken to University Medical Center because of acute appendicitis. He later received a $900 bill for the ambulance, delivered to him at the ICE detention facility. 

Daniel has been in acute medical crises at several points since he entered ICE detention on Feb. 25. He suffers from asthma, hypertension, and high blood pressure that at times has peaked so intensely that he has been warned of imminent heart attack danger. In the time he has been in ICE detention, he has needed to be on a ventilator, has received multiple EKG’s due to heart attack concerns, and has had frequent changes of medication, according to De Jong and medical records provided to El Paso Matters.

Seeking release under federal court ruling

Within days of Daniel’s arrival to ICE custody, De Jong requested his release based on the “Fraihat” rules, which protect ICE detainees with medical vulnerabilities. 

In April 2020, the Fraihat v. ICE federal court decision established new rules for ICE in order to ensure the safety of medically vulnerable detainees during the COVID-19 pandemic. Commonly referred to as Fraihat, these rules were borne out of a federal judge’s assessment that ICE had shown “callous indifference” to the safety and wellbeing of medically vulnerable people held at its facilities. 

Under Fraihat, ICE is required to identify detainees who are medically vulnerable within five days of their arrival in detention, notify the detainee and their legal counsel within 12 hours of making a determination about their risk factors, and to make a “timely” decision regarding their custody within seven days of receiving the request. 

Detainees are also not supposed to be placed in solitary confinement for medical isolation if it is not “operationally distinct” from being placed in solitary confinement as punishment, according to ICE’s COVID-19 Pandemic Response Requirements. 

De Jong said that none of these rules were followed with Daniel.

Release order comes, then is delayed again

Despite filing a Fraihat request for release on Feb. 28, De Jong did not receive the decision that he should be released until March 12, nearly two weeks later. She was never notified that her client had been evaluated, or whether a determination had been made about his medical vulnerabilities. 

“Timeliness matters. Every single day that transpired, our client’s health worsened to the point where medical officials feared he had suffered a heart attack. It’s devastating to know ICE had all of the facts it needed from day one to decide whether detention was safe and had zero ability or will to do anything about it,” said Linda Corchado, an attorney with Las Americas. 

Daniel ended up being placed into solitary confinement because the facility’s medical unit was full, something Corchado said has happened frequently during the COVID-19 pandemic. 

El Paso Service Processing Center has had frequent COVID-19 outbreaks among detainees and numerous reports of medical neglect by sick detainees. The facility currently reports 12 active COVID-19 cases among detainees, and 410 total detainee cases since the start of the pandemic. 

“This is the standard for (El Paso Service Processing Center) and Otero (an ICE detention facility in southern New Mexico) when there is overflow at the medical unit, which is often. When persons are suspected of having COVID-19 or confirmed to have COVID-19, they are dumped into segregated housing. It’s devastating for our clients,” Corchado said. 

She said Daniel’s response to solitary confinement illustrates this. “He was already experiencing severe health problems and segregated housing broke his spirit.”

Daniel called his accredited representative, De Jong, on Friday March 12.

“(He was) in absolute crisis. He was crying, he said he couldn’t breathe, he said he’d been freezing all night, the lights had been on all night. The segregated housing unit, they’re designed as punishment. It’s a … very small room, no shower, just a toilet, no TV, no tablet to contact your family,” De Jong said. 

That same day, a decision was finally made about his release — ICE had granted his release on grounds of medical vulnerability.

De Jong had been instructed to pick up Daniel at 4 p.m. that afternoon, and he had already changed into civilian clothing to prepare for release. Then they were told he had not been medically cleared for release because of his mental health. 

“You have a situation where there are no doctors and no space to adequately provide care that detained migrants need. And ICE medical opted to interfere with his release and place him in the toxic circumstances that have led to his demise. It’s reckless, it has already endangered him and we, along with his family, would have felt a lot more confident had he been transferred to medical professionals in area hospitals,” Corchado said. 

What lies ahead

De Jong was told that Daniel would have to wait through the weekend, until a physician was back at the facility on Monday and could make the decision to medically clear him for release. 

Corchado said that much of what Daniel has experienced is typical when dealing with Fraihat requests through the El Paso field office. 

“Overwhelmingly, the large amount of our Fraihat requests for release have not been processed in a timely fashion or not even processed at all until we escalate the case further,” she said. “I’ve also seen that medical officials at the detention center fail to continuously ensure that the persons currently detained are not exhibiting new risk factors that may have not been previously detected.”

De Jong said it’s important to recognize that the conditions of ICE detention are creating mental health issues that are then used to justify the delay of release, through their use of solitary confinement for medically vulnerable detainees. She emphasized that Daniel had no history of mental health issues prior to entering ICE detention. 

A recent report drawing from hundreds of detainee interviews at another El Paso area ICE detention facility found that the conditions migrants are exposed to in the U.S. immigration system are consistent with the definition of torture. The study detailed use of solitary confinement and pervasive medical neglect of sick detainees as examples of torturous conditions. 

“It cannot be clearer that ICE is simply unfit to deal with the dangers of detention during a pandemic,” Corchado said. 

Cover photo: The El Paso Service Processing Center on Montana Avenue houses hundreds of immigrants detained by Immigration and Customs Enforcement. (Corrie Boudreaux/El Paso Matters)