As a criminal defense attorney in the border city of El Paso, Texas, I meet with illegal immigrants weekly, if not daily. I witness their journey firsthand. I represented families when President Trump piloted his family separation policy in El Paso. Today, I am witnessing yet another Trump assault against brown immigrants. Trump is weaponizing COVID-19.
President Trump’s anti-immigration resume is extensive. It boasts, among other things, his threat to shut down the government if it doesn’t fund his “big, beautiful wall,” his attempt to end DACA, and his family separation policy. Trump’s newest weapon against brown immigrants is invisible, biological, and lethal.
The COVID-19 pandemic has not altered Trump’s policy of prosecuting immigrants for illegally entering the country. The Department of Justice continues to prosecute illegal immigrants and detain them in crowded cells known to be infected with the COVID-19 virus. It is impossible for these immigrants to practice social distancing or to follow other CDC directives to protect themselves from the coronavirus while under U.S. custody. Because of inadequate testing, and the fact that many COVID-19 victims do not show symptoms, it is impossible to determine how many immigrants are carrying the COVID-19 virus when the U.S. government ultimately deports them to their homes in Mexico, Honduras, El Salvador, or Guatemala. And because the U.S. government is doing little, if anything, to protect these immigrants from COVID-19, the likelihood that they return to their communities with the disease is high. This assertion is bolstered by recent reports that prisons are one of the current hot spots for COVID-19, with prisoners getting infected at an alarming rate.
In fact, Trump is taking a page out of the history books. Historians reported that the colonists and army gave blankets and linens contaminated with smallpox to the Native Americans as biological warfare in order to wipe them out. Trump is simply repeating history by weaponizing a deadly virus―like the colonists did against the Native Americans―in order to eliminate brown immigrants in this country.
Moreover, by holding those accused with illegal entry or reentry in prisons and ICE facilities infected with deadly COVID-19, the Trump Administration is violating the Eighth Amendment’s directive against inflicting inhumane punishment. When analyzing if a punishment violates the Eighth Amendment, the Supreme Court instructed that the penalty “must accord with ‘the dignity of man,’ which is the ‘basic concept underlying the Eighth Amendment.’” “This means, at least, that the punishment not be ‘excessive.’” The Court further explained that “the inquiry into ‘excessiveness’ has two aspects:” (1) “the punishment must not involve the unnecessary and wanton infliction of pain,” and, (2) “the punishment must not be grossly out of proportion to the severity of the crime.” Holding individuals in prisons and cells infected with COVID-19 for being in this country illegally—without protection and without the ability to social distance or comply with other CDC directives while they await deportation—is the type of punishment that is both unnecessary infliction of pain and grossly disproportionate to the offense. A federal district court in Florida recently agreed with this determination, holding that the government violated illegal immigrants’ constitutional rights under the Fifth and Eighth Amendments even before conviction when holding immigrant detainees in ICE facilities susceptible to the dangers of the COVID-19 virus.
Nonetheless, ultimately deporting illegal immigrants infected with COVID-19 benefits the Trump anti-immigrant policy and can potentially reduce the number of illegal immigrants in the future. The first, and most obvious, benefit is the fact that dead people cannot immigrate. Second, immigrant communities will be on notice that attempting to enter the U.S. may cause them to become infected, perhaps even die. And third, the spread of COVID-19 to the countries with the highest illegal immigration to the U.S. may compel their governments to discourage their citizens from illegally immigrating to the U.S. for fear that they will return with the virus.
It is highly unlikely that Trump sees illegal immigrants as worthy of COVID-19 protection while held in U.S. prisons and ICE facilities. After all, he admittedly separated families and caged their children as an immigration deterrent. Trump’s policies have repeatedly demonstrated his white nationalistic disdain towards illegal immigrants. Accordingly, it is reasonable to believe that Trump is purposely returning infected immigrants to their home countries. Likely, Trump will tout such claim as more ‘fake news.’ But the truth is that presidents are ultimately responsible for the consequences of their failed policies as President Truman popularized with his Oval Office sign—“the buck stops here.”
Sergio Garcia received his J.D. from Indiana University-Bloomington in 1998. He clerked for the Honorable Arthur L. Alarcon, U.S. Circuit Judge for the Ninth Circuit, and the Honorable William J. Riley, U.S. Circuit Judge for the Eighth Circuit. Mr. Garcia wishes to thank Jayne Garcia for her compelling thoughts on the COVID-19 crisis.