we'll begin with the motion ray cell versus bar good afternoon your honors and may it please the court my name is denitia bacchus and alongside my colleague gregory devinsky i am pro bono appointed counsel for petitioner mohammad russell i understand from your deputy that rebuttals are not the default in the motion context so if i may i'd like to request one minute for rebuttal you can have one minute that means you're only going to get four for your main argument but go ahead understood your honor so thank you your honor this emergency motion of two simple questions whether mr russell raises substantial claims and whether extraordinary circumstances justify his release if you answer both questions affirmatively then you should exercise your authority to release him on the first question the government doesn't dispute that mr russell raises substantial claims which we preview in this motion or we'll read them full in our forthcoming petition the second question on what are extraordinary circumstances justify his release comes out in our favor there can be no doubts that we live in extraordinary times evidence in part by our discussing this motion by phone but it is not just the pandemic and its effect on normal life that make these circumstances extraordinary it is mr russell's severe medical vulnerabilities among them his longterm use of an immunosuppressant medication and his syndrome there are many of these applications now we're getting them in the in the the criminal context the the facilities do seem do seem to do better they're doing better and and so just from a couple of months ago there i mean you know the the the numbers are down so is it still such a great emergency it is your honor and to be clear we applaud all efforts to make the buffalo facility safer for the average detainee but the the point is that mr russell is not the average detainee he is the medicine let me let me question you about that because i am familiar with these corticosteroids that are used for allergies have cause i have number of family members who use them gerd you also the gastroesophageal reflux chronic cough exercise induced asthma all seem to be relatively you know common ailments rather than this is not something like lupus or a cancer that has been diagnosed these are the chronic conditions that are found widely in the general population the government argues at them and i guess he's had one cold and an upper respiratory infection to file an immigration detention sorry are you confident that these population that they would distinguish mr russell just on their own i mean there may be other aspects of his circumstances having been held for so long for example that make his case extraordinary but i i do wonder about your reliance so heavily on his use of the corticosteroid and as well as these other relatively minimal conditions in my experience and by the way by the way you have one minute left of your four minutes go ahead all right sorry i used your time no no problem your honor so dr keller a medical expert with over twenty years of expertise in diagnosis and treating people and also in work alongside i has opines that mr russell's particular medical conditions and that does include both his longterm immunosuppressant use and his weight and all of these and and his depression anxiety has longterm detention and the facility that all together combined these various conditions at to his specific medical vulnerability to coronavirus that is the point we are not arguing that anyone separately would necessarily affect what would be enough but we do believe that combined and we have evidence both here and in the cdc guidelines that these these condition's effective vulnerability on the cdc guidelines your honor the cdc does recognize that immunosuppressants use excuse me that corticosteroid use does lead to immunosuppression and so but that is respectfully what we put forward on the relevance of the you know suppressant medication if i may just very briefly i just like to quickly address the government's extraordinary attempts last night to forward a new medical declaration in in reply to our arguments i think it probably goes without saying that you cannot surprise the court and your opponent with new evidence on the oral arguments he the i actually haven't i haven't seen it was something something was filed last night it was your honor at six hundred and fifty eight pm last night the government attempted to amend its medical declaration and what we contend is an almost a concession of our points on there of our challenges to their medical repetition all right we'll find it and take a look at it but we'll hear from the government good afternoon your honor said the government and may it please the court i'd like to start very quickly with the various cdc guidelines that the petitioner has cited in support of her claim that russell's used the corticosteroids puts him at risk those exact those exact cdc guidelines actually say and i quote that the use of oral or intravenous corticosteroids may affect a patient's immune system and so could you speak a little more slowly please yes i'm sorry i only have five minutes i'm so sorry that doesn't help so i'd just like to very quickly point the court to the cdc guidelines that the petitioner's cite explicitly as saying at mr russel's use of these corticosteroids that he takes the nasal spray which is a localized corticosteroid affects his immune system and puts him at greater risk the cdc guidelines explicitly describe corticosteroid use as a risk factor in saying and i quote the use of oral or intravenous corticosteroids or other medications causing immunosuppression can put a patient at risk of a at risk of an effective immune system and so the cdc guidelines that the petitioner sites themselves they're actually not probative but the claim that they're making that is that this localized steroids which acts differently than intravenous or oral corticosteroids in the bloodstream and its effect on a person's immune system i i was troubled by some of the other aspects of the case including that even though he does not have a criminal record he's he's been in detention for for for two years does that not make this an unusual case an extraordinary case really your honorit's our position that it doesn't mr russell has challenged the nature and length of his detention more than once in the district court and he has actually won one of his habeas petitions in part and it's entitled by july of this year to receive a more individualized hearing on his continued detention status and so the nature of this sort of motion and again they're so rare but we're seeing them in this pandemic context but they shouldn't we in considering what is a danger from respect to the virus also consider why the person is being retained detained and how much i mean the two things really go together what is an extraordinary risk for one kind of person may not be sufficient for an another one shouldn't we look at the whole thing together your honor again there are so few of these cases that i think you're right in saying that this is a totality of the circumstances sort of consideration but i would say that the medical allegations that the petitioner is making are not supported by the record and that bumps this case away from being an extreme circumstance in a way that they're arguing let me ask you another question in two opposing counsel the presider had aren't things easing up i'd like to ask you both are they easing up generally or is it in prisons that currently there is still much to be worried about that is yeah it certainly has it eased up in my state for instance but the guidelines that we had in my state are the prisons are now becoming what nursing homes were in an earlier part is that so your honor i don't think thank you your honor that's not supported by the declarations that i've received from the detention centers there has been no i've confirmed this today there has been no new covid cases in the detention center where russell is since april 20th the facility is below fifty capacity to ensure that detainees can maintain social distance despite petitioner's contentions in their apply brief detainees are required to wear masks anytime they are outside of their housing unit and all employees that interact with the detainees must wear masks at all times and so not only has the detention center gotten better since the jones litigation but the detention center is a much safer place for russell to be when the epicenter of the pandemic which remains in the united states to be new york city could you just clarify one thing for me so the status of the mask requirement is what with regard to prisoners when i was looking into jones litigation it seemed to me that people were inmates that were requested to wear masks but it was not required it's a very new requirement that they are now required to wear the mask not all the time when they're outside of their housing unit so anytime they go to court anytime they go to a medical visit anytime they leave their housing unit they are required to wear a mask i think i'm sorry i understood mr russell was housed in a dormitory style kind of open area where there was space for people but where he could be then affected by someone else's mask wearing practices and be the victim of a transmission is that am i incorrect in that understanding that's not incorrect your honor not incorrect okay there aren't there aren't yeah sorry i just murped to that there there are only a few single unit housing styles in this detention center and those are being used for the jones litigation for detainees that are determined to be at high risk and russell has not met those criteria and so he is in one of the more standard housing units that housing unit itself to the extent it can be made more safe is being made more safe in that each unit is under fifty capacity one other quick question if i could i i understood you to be representing that the incidents is low right now of covid in this facility but it was not clear to me what the testing rate was does everyone tested every day not everyone is tested every person that comes into the texan detention center every new intake is tested and quarantined for fourteen days even if the test comes back negative otherwise detainees are screened for symptoms and tested if they display symptoms and any detainee symptomatic or not can request to be tested and they will be tested what about the staffs what about the staffs are they tested daily or how often are they tested your honor i don't know the answer to that question but i would gladly i can find out and file an amended statement from the director of the facility if you'd like well yeah sure go ahead and and you can do that and then the other side can respond if it wishes but but but i would do it relatively soon okay i'll do it as quickly as i can thank you your honor well we'll hear the rebuttal thank you your honor a few quick points first on the method of the trans method of the administration and the submissive slide the government is correct that currently the cdcs guidelines do distinguish between different methods of administration of corticosteroids i know that that is a recent update as the government's medical declaration itself acknowledges covid19 is still a new disease with evolving information thankfully the cdc guidelines are not the only evidence that we have to this point we cite cases excuse me not cases we cite studies by the national institutes of health namely the national library of medicine that does not distinguish between the immunosuppressant effects of corticosteroids that are administered nasally versus in any other fashion and one of those studies confirms that the specific corticosteroids that mr russell uses is absorbed into the system when it is administered nasally on the points about his criminal history we want to just reiterate that he has no criminal history he has never been arrested the government does not argue that he was a flight risk let me interrupt for just a second please i guess we have open still the question regarding the amended statement that has to do with medical information about the import of mr russell's white blood cell count and if we the panel decides to consider that is that something he'd want an opportunity to respond to on the substance as opposed to just the filing of this at the very last minute that's correct your honor i i would say here that you know based on us having less than twenty four hours to review it we believe that mr russell would still prevail even as the court were to wait that certified declaration we we we we would we would still believe that mr russell prevails he tries to the government tries to make two new arguments one on his white blood cell count and notably on his weights which they don't actually mention in their affirmative motion on the white blood cell counts the government puts forward a new cbc test from september two thousand and nineteen long after mr russell had already began his corticosteroids therapy based on the studies that we cite the relevant comparison are baseline levels eye levels before a patient begins corticosteroid therapy to a level after the patient is on corticosteroid therapy meaning that the fact that over the course of six months someone's white blood cells haven't changed very much doesn't tell us anything about the import of that test on the wait yep that's it thank you thank you well over the court we'll reserve decision