HABEAS,LEAD
U.S. District Court District of Maryland (Greenbelt) CIVIL DOCKET FOR CASE #: 8:20-cv-00780-TDC

Coreas et al v. Bounds et al Assigned to: Judge Theodore D. Chuang Related Case: 1:20-cv-01304-TDC Case in other court: USCA, 20-06984
USCA, 20-07005 Cause: 28:2241 Petition for Writ of Habeas Corpus (State)

Date Filed: 03/24/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus Alien Detainee Jurisdiction: U.S. Government Defendant

Consol Plaintiff

Alpha Ibrahim Bah Mansaray

represented by Brian Scott Green Law Office of Brian Green 9609 S University Boulevard #630084 Littleton, CO 80130 443-799-4225 Fax: 323-285-0056 Email: briangreen@greenusimmigration.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sharareh Borhani Hoidra Sheri Hoidra Law Office, LLC 1777 Reisterstown Rd. Suite 385 Pikesville, MD 21208 443-660-7513 Fax: 443-660-7514 Email: shoidra@sherihoidralaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sirine Shebaya National Immigration Project of the National Lawyers' G 2201 Wisconsin Ave NW Suite 200 Washington, DC 20007

V. Defendant William P. Barr in his official capacity as Attorney General of the United States
Petitioner Mauricio Coreas on behalf of himself and all others similarly situated

202-656-4788 Email: sirine@nipnlg.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amber Qureshi National Immigration Project of the National Lawyers Guild 2201 Wisconsin Ave, NW, Suite 200 Washington, DC 20007 202-470-2082 Email: amberq4@gmail.com ATTORNEY TO BE NOTICED
represented by Vickie LeDuc US Attorney Office 36 S Charles St Fourth Floor Baltimore, MD 21201 4102094912 Fax: 4109622310 Email: vickie.leduc@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vincent J Vaccarella US Attorney's Office 36 S.Charles St. 4th Floor Baltimore, MD 21201 4102094836 Fax: 41096232310 Email: vincent.vaccarella@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adina B Appelbaum Capital Area Immigrants' Rights (CAIR) Coalition 1612 K St. NW Ste. 204 Washington, DC 20006 2028991412 Fax: 2023313341 Email: adina@caircoalition.org

PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Qureshi National Immigration Project of the National Lawyers Guild 13200 Anthem Greenfields Drive Bowie, MD 20720 240-460-1091 Email: amberq4@gmail.com ATTORNEY TO BE NOTICED
David Cyrus Fathi ACLU National Prison Project 915 15th St NW Seventh Fl Washington, DC 20005 2025486603 Fax: 2023934931 Email: dfathi@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Eunice Cho ACLU National Prison Project 915 15th St. NW 7th Fl. Washington, DC 20005 2025486616 Fax: 2023934931 Email: echo@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew S Vogel National Immigration Project of the National Lawyers Guild 2201 Wisconsin Ave. NW Ste. 200 Washington, DC 20007 7184195876 Fax: 6172275495 Email: matt@nipnlg.org PRO HAC VICE ATTORNEY TO BE NOTICED
Michael K.T. Tan ACLU Immigrants' Rights Project

Petitioner

125 Broad St 18th Floor New York, NY 10004 2125492660 Fax: 2155492654 Email: mtan@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Taichi Steiner American Civil Liberties Union of Maryland 3600 Clipper Mill Road Suite 350 Baltimore, MD 21211 410-889-8555 Email: steiner@aclu-md.org ATTORNEY TO BE NOTICED
Omar C Jadwat American Civil Libterties Union 125 Broad St. 18th Fl New York, NY 10004 2125492620 Fax: 2125492654 Email: ojadwat@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Kang ACLU Foundation Immigrant's Rights Project 39 Drumm St. Fl. 7 San Francisco, CA 94111 4153430783 Fax: 4153950950 Email: skang@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED

Jose Quinteros Hernandez
Petitioner Julio Navarro Martinez

represented by Adina B Appelbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Qureshi (See above for address) ATTORNEY TO BE NOTICED
Michael K.T. Tan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Taichi Steiner (See above for address) ATTORNEY TO BE NOTICED
Stephen Kang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED
represented by Adina B Appelbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Qureshi (See above for address) ATTORNEY TO BE NOTICED
David Cyrus Fathi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael K.T. Tan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Petitioner Angel Guzman Cedillo

Nicholas Taichi Steiner (See above for address) ATTORNEY TO BE NOTICED
Stephen Kang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED
represented by Adina B Appelbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Qureshi (See above for address) ATTORNEY TO BE NOTICED
David Cyrus Fathi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Eunice Cho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew S Vogel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael K.T. Tan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Taichi Steiner (See above for address)

Petitioner William Kemcha

ATTORNEY TO BE NOTICED
Omar C Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Kang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED
represented by Adina B Appelbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Qureshi (See above for address) ATTORNEY TO BE NOTICED
David Cyrus Fathi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael K.T. Tan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Taichi Steiner (See above for address) ATTORNEY TO BE NOTICED
Stephen Kang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya

Petitioner Wilson Ramos Reyes
V. Respondent Warden Donna Bounds

(See above for address) ATTORNEY TO BE NOTICED
represented by Adina B Appelbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amber Qureshi (See above for address) ATTORNEY TO BE NOTICED
David Cyrus Fathi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael K.T. Tan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Taichi Steiner (See above for address) ATTORNEY TO BE NOTICED
Stephen Kang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED
represented by Kelly M Marzullo United States Attorney's Office 36 South Charles Street 4th Floor Baltimore, MD 21201 410-209-4956 Fax: 410-962-2310

Respondent Jack Kavanaugh

Email: kelly.marzullo@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vickie LeDuc (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vincent J Vaccarella (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roscoe R Leslie Worcester County Governement One W. Market St. Room 1103 Snow Hill, MD 21863 410.632.1194 Email: roscoe.leslie@co.worcester.md.us ATTORNEY TO BE NOTICED
represented by Kelly M Marzullo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vickie LeDuc (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vincent J Vaccarella (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia Grams Peltzman Howard County Office of Law 3450 Court House Drive Ellicott City, MD 21043 14103133074 Fax: 14103133292

Respondent Janean Ohin
Respondent Matthew T. Albence

Email: cpeltzman@howardcountymd.gov ATTORNEY TO BE NOTICED
Gary W Kuc Howard County Office of Law Carroll Building 3450 Court House Dr Ellicott City, MD 21043 14103134315 Fax: 14103133292 Email: gkuc@howardcountymd.gov ATTORNEY TO BE NOTICED
Louis P Ruzzi Howard County Office of Law 3450 Courthouse Dr Ellicott City, MD 21043 4103132104 Fax: 4103133292 Email: lruzzi@howardcountymd.gov ATTORNEY TO BE NOTICED
represented by Kelly M Marzullo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vickie LeDuc (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vincent J Vaccarella (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kelly M Marzullo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vickie LeDuc (See above for address)

Respondent Immigration and Customs Enforcement
Amicus Amici Curiae Public Health and Human Rights Experts

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vincent J Vaccarella (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kelly M Marzullo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vickie LeDuc (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vincent J Vaccarella (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Darren Johnson Paul Weiss Rifkind Wharton and Garrison 1285 Avenue of the Americas New York, NY 10019 2123733710 Fax: 2124920710 Email: DJohnson@paulweiss.com PRO HAC VICE ATTORNEY TO BE NOTICED
David Kimball Stanley Paul Weiss Rifkind Wharton and Garrison 1285 Avenue of the Americas New York, NY 10019 2123733275 Fax: 2124920275 Email: dkimballstanley@paulweiss.com PRO HAC VICE ATTORNEY TO BE NOTICED

Susanna M Buergel Paul Weiss Rifkind Wharton and Garrison 1285 Avenue of the Americas New York, NY 10019 2123733553 Fax: 2124920553 Email: sbuergel@paulweiss.com PRO HAC VICE ATTORNEY TO BE NOTICED
Maureen A Sweeney Maryland Carey School of Law 500 W Baltimore St Baltimore, MD 21201 4107063922 Fax: 4107065856 Email: msweeney@law.umaryland.edu ATTORNEY TO BE NOTICED

Date Filed 03/24/2020
03/24/2020
03/24/2020 03/24/2020 03/25/2020 03/25/2020

# Docket Text
1 PETITION for Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Relief ( Filing fee $ 5 receipt number 0416-8583585.), filed by Mauricio Coreas, Angel Guzman Cedillo. (Attachments: # 1 Civil Cover Sheet civil cover sheet, # 2 Summons compiled summons)(Shebaya, Sirine) (Entered: 03/24/2020)
2 Emergency MOTION for Temporary Restraining Order by Angel Guzman Cedillo, Mauricio Coreas (Attachments: # 1 Memorandum in Support Memorandum of Law, # 2 Text of Proposed Order Proposed Order, # 3 Exhibit Ex 1 - Qureshi Decl, # 4 Exhibit Ex 2 - Mishori Decl, # 5 Exhibit Ex 3 - Lorenzen-Strait Decl, # 6 Exhibit Ex 4 - Lopez Decl, # 7 Exhibit Ex 5 - Bakst Decl 1, # 8 Exhibit Ex 6 - Bakst Decl 2)(Shebaya, Sirine) (Entered: 03/24/2020)
3 NOTICE of Appearance by Amber Qureshi on behalf of Angel Guzman Cedillo, Mauricio Coreas (Qureshi, Amber) (Entered: 03/24/2020)
4 NOTICE of Appearance by Nicholas Taichi Steiner on behalf of All Plaintiffs (Steiner, Nicholas) (Entered: 03/24/2020)
Case Assigned to Judge Theodore D. Chuang. (ko, Deputy Clerk) (Entered: 03/25/2020)
5 NOTICE by Angel Guzman Cedillo, Mauricio Coreas re 2 Emergency MOTION for Temporary Restraining Order Notice of Supplemental

03/25/2020 03/25/2020 03/25/2020
03/25/2020 03/25/2020 03/25/2020 03/25/2020 03/25/2020 03/26/2020 03/26/2020 03/26/2020

Authority (Attachments: # 1 Exhibit Ex A - Amended Order)(Shebaya, Sirine) (Entered: 03/25/2020)
6 NOTICE of Appearance by Vincent J Vaccarella on behalf of All Defendants (Vaccarella, Vincent) (Entered: 03/25/2020)
7 Summons Issued 60 days as to Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin, U.S. Attorney and U.S. Attorney General(ybs, Deputy Clerk) (Entered: 03/25/2020)
8 PAPERLESS NOTICE. A telephone case management conference in this case will be held on Thursday, March 26, 2020 at 10:30 a.m. In advance of the conference, the parties shall meet and confer to seek agreement on a briefing schedule on the pending Motion for a Temporary Restraining Order. Call-in information will be sent separately. (sb3s, Chambers) (Entered: 03/25/2020)
9 MOTION to Appear Pro Hac Vice for Matthew Vogel (Filing fee $100, receipt number 0416-8586405.) by Angel Guzman Cedillo, Mauricio Coreas(Shebaya, Sirine) (Entered: 03/25/2020)
10 MOTION to Appear Pro Hac Vice for Adina Appelbaum (Filing fee $100, receipt number 0416-8586407.) by Angel Guzman Cedillo, Mauricio Coreas(Shebaya, Sirine) (Entered: 03/25/2020)
11 MOTION to Appear Pro Hac Vice for Michael Tan (Filing fee $100, receipt number 0416-8586408.) by Angel Guzman Cedillo, Mauricio Coreas(Shebaya, Sirine) (Entered: 03/25/2020)
12 MOTION to Appear Pro Hac Vice for Stephen Kang (Filing fee $100, receipt number 0416-8586409.) by Angel Guzman Cedillo, Mauricio Coreas(Shebaya, Sirine) (Entered: 03/25/2020)
13 MOTION to Appear Pro Hac Vice for Omar Jadwat (Filing fee $100, receipt number 0416-8586411.) by Angel Guzman Cedillo, Mauricio Coreas(Shebaya, Sirine) (Entered: 03/25/2020)
14 QC NOTICE: 9 Motion to Appear Pro Hac Vice filed by Angel Guzman Cedillo, Mauricio Coreas needs to be modified. See attachment for details and corrective actions needed regarding the signature(s) on the motion. (srds, Deputy Clerk) (Entered: 03/26/2020)
15 QC NOTICE: 10 Motion to Appear Pro Hac Vice filed by Angel Guzman Cedillo, Mauricio Coreas needs to be modified. See attachment for details and corrective actions needed regarding the signature(s) on the motion. (srds, Deputy Clerk) (Entered: 03/26/2020)
16 QC NOTICE: 11 Motion to Appear Pro Hac Vice filed by Angel Guzman Cedillo, Mauricio Coreas needs to be modified. See attachment for details and corrective actions needed regarding the signature(s) on the motion. (srds, Deputy Clerk) (Entered: 03/26/2020)

03/26/2020 03/26/2020 03/26/2020 03/26/2020 03/26/2020 03/26/2020 03/26/2020 03/26/2020 03/26/2020 03/27/2020
03/27/2020

17 CERTIFICATE OF SERVICE by Angel Guzman Cedillo, Mauricio Coreas re 2 Emergency MOTION for Temporary Restraining Order Amended Certificate of Service (Shebaya, Sirine) (Entered: 03/26/2020)
18 QC NOTICE: 12 Motion to Appear Pro Hac Vice filed by Angel Guzman Cedillo, Mauricio Coreas needs to be modified. See attachment for details and corrective actions needed regarding the signature(s) on the motion. (srds, Deputy Clerk) (Entered: 03/26/2020)
19 QC NOTICE: 13 Motion to Appear Pro Hac Vice filed by Angel Guzman Cedillo, Mauricio Coreas needs to be modified. See attachment for details and corrective actions needed regarding the signature(s) on the motion. (srds, Deputy Clerk) (Entered: 03/26/2020)
20 Case Management Conference held on 3/26/2020 before Judge Theodore D. Chuang.(FTR: K.A. Moye') (kams, Deputy Clerk) (Entered: 03/26/2020)
21 CORRECTED MOTION to Appear Pro Hac Vice for Adina Appelbaum by Angel Guzman Cedillo, Mauricio Coreas. The fee has already been paid.(Shebaya, Sirine) (Entered: 03/26/2020)
22 CORRECTED MOTION to Appear Pro Hac Vice for Matthew Vogel by Angel Guzman Cedillo, Mauricio Coreas. The fee has already been paid.(Shebaya, Sirine) (Entered: 03/26/2020)
23 CORRECTED MOTION to Appear Pro Hac Vice for Stephen Kang by Angel Guzman Cedillo, Mauricio Coreas. The fee has already been paid.(Shebaya, Sirine) (Entered: 03/26/2020)
24 CORRECTED MOTION to Appear Pro Hac Vice for Michael Tan by Angel Guzman Cedillo, Mauricio Coreas. The fee has already been paid.(Shebaya, Sirine) (Entered: 03/26/2020)
25 CORRECTED MOTION to Appear Pro Hac Vice for Omar Jadwat by Angel Guzman Cedillo, Mauricio Coreas. The fee has already been paid.(Shebaya, Sirine) (Entered: 03/26/2020)
26 PAPERLESS ORDER granting 21 Corrected Motion to Appear Pro Hac Vice on behalf of Adina B Appelbaum. Directing attorney Adina B Appelbaum to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic-case-filing-password-reset. Signed by Clerk on 3/27/2020. (srds, Deputy Clerk) (Entered: 03/27/2020)
27 PAPERLESS ORDER granting 22 Corrected Motion to Appear Pro Hac Vice on behalf of Matthew S Vogel. Directing attorney Matthew S Vogel to register online for CM/ECF at http://www.mdd.uscourts.gov/electroniccase-filing-registration. Signed by Clerk on 3/27/2020. (srds, Deputy Clerk) (Entered: 03/27/2020)

03/27/2020 03/27/2020 03/27/2020 03/27/2020
03/27/2020
03/27/2020 03/27/2020 03/30/2020 03/30/2020

28 PAPERLESS ORDER granting 23 Corrected Motion to Appear Pro Hac Vice on behalf of Stephen B Kang. Directing attorney Stephen B Kang to register online for CM/ECF at http://www.mdd.uscourts.gov/electroniccase-filing-registration. Signed by Clerk on 3/27/2020. (srds, Deputy Clerk) (Entered: 03/27/2020)
29 PAPERLESS ORDER granting 24 Corrected Motion to Appear Pro Hac Vice on behalf of Michael Tan. Directing attorney Michael Tan to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic-case-filing-password-reset. Signed by Clerk on 3/27/2020. (srds, Deputy Clerk) (Entered: 03/27/2020)
30 PAPERLESS ORDER granting 25 Corrected Motion to Appear Pro Hac Vice on behalf of Omar C Jadwat. Directing attorney Omar C Jadwat to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic-case-filing-password-reset. Signed by Clerk on 3/27/2020. (srds, Deputy Clerk) (Entered: 03/27/2020)
31 PAPERLESS ORDER. As stated at the March 26, 2020 Case Management Conference, the Government's Opposition to Plaintiffs' Motion for a Preliminary Injunction is due Monday, March 30, 2020 by the close of business. Plaintiffs' Reply is due April 1, 2020 by the close of business. The "close of business" is defined as 5:00 p.m. EDT. Signed by Judge Theodore D. Chuang on 3/27/2020. (nrs, Chambers) (Entered: 03/27/2020)
32 MOTION for Leave to File Brief of Amici Curiae Public Health and Human Rights Experts, MOTION to Appear Pro Hac Vice for Susanna Buergel (Filing fee $100, receipt number 0416-8590310.) by Amici Curiae Public Health and Human Rights Experts (Attachments: # 1 Entry of Appearance of Maureen A. Sweeney for Amici Curiae Public Health and Human Rights Experts, # 2 Motion for Admission Pro Hac Vice for Susanna Buergel)(Sweeney, Maureen) (Entered: 03/27/2020)
33 MOTION to Appear Pro Hac Vice for Darren Johnson (Filing fee $100, receipt number 0416-8590311.) by Amici Curiae Public Health and Human Rights Experts(Sweeney, Maureen) (Entered: 03/27/2020)
34 MOTION to Appear Pro Hac Vice for David Kimball-Stanley (Filing fee $100, receipt number 0416-8590312.) by Amici Curiae Public Health and Human Rights Experts(Sweeney, Maureen) (Entered: 03/27/2020)
35 PAPERLESS ORDER granting 32 Motion for Leave to File Amicus Brief. Signed by Judge Theodore D. Chuang on 3/30/2020. (nr, Chambers) (Entered: 03/30/2020)
36 QC NOTICE: 33 Motion to Appear Pro Hac Vice filed by Amici Curiae Public Health and Human Rights Experts needs to be modified. See

03/30/2020 03/30/2020
03/30/2020 03/30/2020 03/31/2020 03/31/2020 03/31/2020 03/31/2020 03/31/2020

attachment for details and corrective actions needed regarding the signature(s) on the motion. (srds, Deputy Clerk) (Entered: 03/30/2020)
37 QC NOTICE: 34 Motion to Appear Pro Hac Vice filed by Amici Curiae Public Health and Human Rights Experts needs to be modified. See attachment for details and corrective actions needed regarding the signature(s) on the motion. (srds, Deputy Clerk) (Entered: 03/30/2020)
38 QC NOTICE: 32 Motion for Leave to File,, Motion to Appear Pro Hac Vice, filed by Amici Curiae Public Health and Human Rights Experts was filed incorrectly. **The Motion for Admission Pro Hac Vice for Susanna Buergel must be a separate filing. This motion will not be approved as filed. Please re-file the Motion for Admission Pro Hac Vice for Susanna Buergel using the docketing event Motion to Appear Pro Hac Vice. (rss, Deputy Clerk) (Entered: 03/30/2020)
39 RESPONSE in Opposition re 2 Emergency MOTION for Temporary Restraining Order filed by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3)(Vaccarella, Vincent) (Entered: 03/30/2020)
40 SUPPLEMENTAL RESPONSE in Opposition re 2 Emergency MOTION for Temporary Restraining Order filed by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin. (Attachments: # 1 Exhibit Exhibit 4)(Vaccarella, Vincent) Modified on 3/31/2020 to enhance title(rss, Deputy Clerk). (Entered: 03/30/2020)
41 MOTION to Appear Pro Hac Vice for Eunice Cho (Filing fee $100, receipt number 0416-8592990.) by Angel Guzman Cedillo, Mauricio Coreas(Shebaya, Sirine) (Entered: 03/31/2020)
42 MOTION to Appear Pro Hac Vice for David Fathi (Filing fee $100, receipt number 0416-8593003.) by Angel Guzman Cedillo, Mauricio Coreas(Shebaya, Sirine) (Entered: 03/31/2020)
43 ORDER re 2 Emergency MOTION for Temporary Restraining Order filed by Angel Guzman Cedillo, Mauricio Coreas; Scheduling video conference on Thursday, April 2, 2020 at 2:00 p.m.. Signed by Judge Theodore D. Chuang on 3/31/2020. (ybs, Deputy Clerk) (Entered: 03/31/2020)
44 CORRECTED MOTION to Appear Pro Hac Vice for Darren Johnson by Amici Curiae Public Health and Human Rights Experts. The fee has already been paid.(Sweeney, Maureen) (Entered: 03/31/2020)
45 CORRECTED MOTION to Appear Pro Hac Vice for David KimballStanley by Amici Curiae Public Health and Human Rights Experts. The fee has already been paid.(Sweeney, Maureen) (Entered: 03/31/2020)

03/31/2020 04/01/2020 04/01/2020 04/01/2020 04/01/2020 04/01/2020 04/01/2020
04/02/2020

46 CORRECTED MOTION to Appear Pro Hac Vice for Susanna Buergel by Amici Curiae Public Health and Human Rights Experts. The fee has already been paid.(Sweeney, Maureen) (Entered: 03/31/2020)
47 PAPERLESS ORDER granting 41 Motion to Appear Pro Hac Vice on behalf of Eunice Cho. Directing attorney Eunice Cho to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filingregistration. Signed by Clerk on 4/1/2020. (srds, Deputy Clerk) (Entered: 04/01/2020)
48 QC NOTICE: 42 Motion to Appear Pro Hac Vice filed by Angel Guzman Cedillo, Mauricio Coreas needs to be modified. See attachment for details and corrective actions needed regarding the signature(s) on the motion. (srds, Deputy Clerk) (Entered: 04/01/2020)
49 PAPERLESS ORDER granting 44 Corrected Motion to Appear Pro Hac Vice on behalf of Darren Johnson. Directing attorney Darren Johnson to register online for CM/ECF at http://www.mdd.uscourts.gov/electroniccase-filing-registration. Signed by Clerk on 4/1/2020. (srds, Deputy Clerk) (Entered: 04/01/2020)
50 PAPERLESS ORDER granting 45 Corrected Motion to Appear Pro Hac Vice on behalf of David Kimball-Stanley. Directing attorney David Kimball-Stanley to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 4/1/2020. (srds, Deputy Clerk) (Entered: 04/01/2020)
51 PAPERLESS ORDER granting 46 Corrected Motion to Appear Pro Hac Vice on behalf of Susanna Buergel. Directing attorney Susanna Buergel to register online for CM/ECF at http://www.mdd.uscourts.gov/electroniccase-filing-registration. Signed by Clerk on 4/1/2020. (srds, Deputy Clerk) (Entered: 04/01/2020)
52 REPLY to Response to Motion re 2 Emergency MOTION for Temporary Restraining Order filed by Angel Guzman Cedillo, Mauricio Coreas. (Attachments: # 1 Exhibit Qureshi Declaration, # 2 Exhibit Coreas Declaration, # 3 Exhibit Guzman Cedillo Declaration, # 4 Exhibit Bakst Declaration, # 5 Exhibit Yorick Declaration, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit)(Shebaya, Sirine) (Entered: 04/01/2020)
53 NOTICE by Angel Guzman Cedillo, Mauricio Coreas re 2 Emergency MOTION for Temporary Restraining Order Notice of Withdrawal of Expert Declaration of Dr. Ranit Mishori (Attachments: # 1 Attachment Amended TRO with updated citations, # 2 Attachment Amended TRO redline)(Shebaya, Sirine) (Entered: 04/02/2020)

04/02/2020 04/02/2020 04/03/2020 04/03/2020 04/06/2020 04/08/2020 04/08/2020 04/08/2020
04/09/2020

54 Motion Hearing held on 4/2/2020 re 2 Emergency MOTION for Temporary Restraining Order filed by Angel Guzman Cedillo, Mauricio Coreas before Judge Theodore D. Chuang.(Court Reporter: Christine Asif) (bus, Deputy Clerk) (Entered: 04/02/2020)
55 CORRECTED MOTION to Appear Pro Hac Vice for David Fathi by Angel Guzman Cedillo, Mauricio Coreas. The fee has already been paid.(Shebaya, Sirine) (Entered: 04/02/2020)
56 MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 4/3/2020. (kns, Deputy Clerk) (Entered: 04/03/2020)
57 ORDER denying 2 Petitioners' Motion for Temporary Restraining Order without prejudice. Signed by Judge Theodore D. Chuang on 4/3/2020. (kns, Deputy Clerk) (Entered: 04/03/2020)
58 PAPERLESS ORDER granting 55 Corrected Motion to Appear Pro Hac Vice on behalf of David Cyrus Fathi. Directing attorney David Cyrus Fathi to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 4/6/2020. (srds, Deputy Clerk) (Entered: 04/06/2020)
59 DECLARATION of Kevin J. Brown Jr. by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) Modified on 4/8/2020 (ybs, Deputy Clerk). (Entered: 04/08/2020)
60 Emergency MOTION for Other Relief Requesting Status Conference by Angel Guzman Cedillo, Mauricio Coreas (Attachments: # 1 Exhibit Ex 1 Plaintiff Counsel email to chambers)(Shebaya, Sirine) (Entered: 04/08/2020)
61 PAPERLESS ORDER. The Court is in receipt of 60 Emergency Motion for Status Conference and of emails from the parties regarding Mr. Coreass detention at Howard County Detention Center. In light of those communications, it is hereby ORDERED that the Government must file by 9:30 a.m. on Thursday, April 9, 2020 a written Status Report regarding the current status of Mr. Coreass detention at HCDC and any plans to transfer him to another detention center. The Motion is GRANTED in that a telephone case management conference is scheduled for Thursday, April 9, 2020 at 11:00 a.m. In light of the Governments representation that Mr. Coreas will not be transferred before the case management conference, the Court need not issue an order at this time relating to his possible transfer. Instructions for the call will be emailed to the parties. The parties are advised that all further substantive communications with the Court should be made only through filings on the docket. Signed by Judge Theodore D. Chuang on 4/8/2020. (nrs, Chambers) (Entered: 04/08/2020)
62 CASE MANAGEMENT ORDER. Signed by Judge Theodore D. Chuang on 4/8/2020. (tds, Deputy Clerk) (Entered: 04/09/2020)

04/09/2020 04/09/2020
04/09/2020 04/10/2020 04/10/2020
04/13/2020 04/13/2020
04/20/2020 04/25/2020 04/26/2020

63 STATUS REPORT by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Vaccarella, Vincent) (Entered: 04/09/2020)
64 STATUS REPORT Petitioners' Response to Respondents' Status Report by Angel Guzman Cedillo, Mauricio Coreas (Attachments: # 1 Exhibit Ex 1 - Declaration of Mr. Mauricio Coreas, # 2 Exhibit Ex 2 Declaration of Dr. Kate Sugarman)(Shebaya, Sirine) (Entered: 04/09/2020)
65 ORDER regarding Status Conference held on April 9, 2020. Signed by Judge Theodore D. Chuang on 4/9/2020. (ybs, Deputy Clerk) (Entered: 04/09/2020)
66 Correspondence re: April 9, 2020 Email Correspondence from Mr. Vaccarelli (Attachments: # 1 Exhibit Ex 1 - Vaccarella Email, # 2 Exhibit Ex - Bakst Supplemental Declaration)(Shebaya, Sirine) (Entered: 04/10/2020)
67 ORDER BARRING all parties from communicating with the Court by email or telephone on any matter relating to the merits of this case. Any future violations may result in an Order of Contempt. Signed by Judge Theodore D. Chuang on 4/10/2020. (rss, Deputy Clerk) (Entered: 04/10/2020)
68 STATUS REPORT Joint Status Report by Angel Guzman Cedillo, Mauricio Coreas(Shebaya, Sirine) (Entered: 04/13/2020)
69 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 04/02/2020, before Judge Theodore D. Chuang. Court Reporter Christine Asif, Telephone number 410-962-4492. Total number of pages filed: 91. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 5/4/2020. Redacted Transcript Deadline set for 5/14/2020. Release of Transcript Restriction set for 7/13/2020.(ca, Court Reporter) (Entered: 04/13/2020)
70 NOTICE of Appearance by David Cyrus Fathi on behalf of All Plaintiffs (Fathi, David) (Entered: 04/20/2020)
71 NOTICE by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 04/25/2020)
72 AMENDED COMPLAINT against Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin, filed by Angel Guzman Cedillo, Mauricio Coreas, William Kemcha. (Attachments: # 1 Attachment Redline to Complaint)(Shebaya, Sirine) (Entered: 04/26/2020)

04/26/2020
04/27/2020 04/27/2020 04/27/2020 04/27/2020 04/27/2020

73 Emergency MOTION for Temporary Restraining Order Second Emergency Motion for Temporary Restraining Order by Angel Guzman Cedillo, Mauricio Coreas, William Kemcha (Attachments: # 1 Memorandum in Support Memorandum of Law In Support of Motion for Temporary Restraining Order, # 2 Exhibit Ex 27 - Qureshi Decl, # 3 Exhibit Ex 28 - Coreas Supp Decl, # 4 Exhibit Ex 29 - Guzman Cedillo Supp Decl, # 5 Exhibit Ex 30 - Kemcha Decl, # 6 Exhibit Ex 31 Daud Decl, # 7 Exhibit Ex 32 - Yorick Supp Decl, # 8 Exhibit Ex 33 Greifinger Second Decl, # 9 Exhibit Ex 34 - Sugarman Second Decl, # 10 Exhibit Ex 35 - WHO Situation Rpt, # 11 Exhibit Ex 36 - MD Dept of Health Coronavirus Update, # 12 Exhibit Ex 37, # 13 Exhibit Ex 38, # 14 Exhibit Ex 39, # 15 Exhibit Ex 40, # 16 Exhibit Ex 41, # 17 Exhibit Ex 42, # 18 Exhibit Ex 43, # 19 Exhibit Ex 44, # 20 Exhibit Ex 45, # 21 Exhibit Ex 46, # 22 Exhibit Ex 47, # 23 Exhibit Ex 48, # 24 Exhibit Ex 49, # 25 Text of Proposed Order Proposed Order)(Shebaya, Sirine) (Entered: 04/26/2020)
74 ORDER DENYING 73 Emergency MOTION for Temporary Restraining Order Second Emergency Motion for Temporary Restraining Order and SCHEDULING a Case Management Conference is scheduled for today, April 27, 2020, at 2:00 p.m. Signed by Judge Theodore D. Chuang on 4/27/2020. (rss, Deputy Clerk) (Entered: 04/27/2020)
75 NOTICE by Angel Guzman Cedillo, William Kemcha Notice of Intent to File Motion for Preliminary Injunction (Shebaya, Sirine) (Entered: 04/27/2020)
76 MOTION for Preliminary Injunction by Mauricio Coreas (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit)(Shebaya, Sirine) (Entered: 04/27/2020)
77 ORDER GRANTING LEAVE TO FILE RENEWED MOTION FOR PRELIMINARY INJUNCTION AND SETTING RELATED DEADLINES. Signed by Judge Theodore D. Chuang on 4/27/2020. (cs3s, Deputy Clerk) (Entered: 04/27/2020)
78 AMENDED COMPLAINT against Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin, filed by William Kemcha, Angel Guzman Cedillo, Mauricio Coreas. (Attachments: # 1 Attachment Redline to Complaint, # 2 Exhibit Ex A, # 3 Exhibit Ex B, # 4 Exhibit Ex C, # 5 Exhibit Ex D, # 6 Exhibit Ex F, # 7 Exhibit Ex G, # 8 Exhibit Ex H, # 9 Exhibit Ex I, # 10 Exhibit Ex J, # 11 Exhibit Ex K, # 12 Exhibit Ex L, # 13 Exhibit Ex M, # 14 Exhibit Ex N, # 15 Exhibit Ex O, # 16 Exhibit Ex P, # 17 Exhibit Ex Q)(Shebaya, Sirine) (Entered: 04/27/2020)

04/28/2020
04/28/2020 04/28/2020 04/28/2020 04/28/2020 04/29/2020 04/29/2020 04/30/2020 04/30/2020 04/30/2020

79 RENEWED MOTION for Preliminary Injunction by Angel Guzman Cedillo, William Kemcha (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit Ex 71 - Fifth Qureshi Decl, # 4 Exhibit Ex 72 - Guzman Cedillo Supplemental Decl, # 5 Exhibit Ex 73 - Kemcha Decl, # 6 Exhibit Ex 74 - Daud Decl, # 7 Exhibit Ex 75 Medical Records, # 8 Exhibit Ex 76 - Second Sugarman Decl, # 9 Exhibit Ex 77 - WHO Situation Report, # 10 Exhibit Ex 78 - Maryland COVID Website, # 11 Exhibit Ex 79 - Worcester Study)(Shebaya, Sirine) Modified on 4/29/2020 to enhance title (rss, Deputy Clerk). (Entered: 04/28/2020)
80 MOTION to Seal Portion of the Record by Angel Guzman Cedillo, William Kemcha (Attachments: # 1 Text of Proposed Order)(Shebaya, Sirine) (Entered: 04/28/2020)
81 Sealed Document(Shebaya, Sirine) (Entered: 04/28/2020)
82 RESPONSE in Opposition re 76 MOTION for Preliminary Injunction filed by Matthew T. Albence, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Vaccarella, Vincent) (Entered: 04/28/2020)
83 -SEALED - NOTICE of Filing Under Seal Exhibit 75 to Motion for Preliminary Injunction by Angel Guzman Cedillo, William Kemcha re 80 MOTION to Seal Portion of the Record, 79 MOTION for Preliminary Injunction , 81 Sealed Document (Shebaya, Sirine) (Entered: 04/28/2020)
84 REPLY to Response to Motion re 76 MOTION for Preliminary Injunction filed by Mauricio Coreas. (Attachments: # 1 Exhibit Ex 80 Third Yorick Declaration, # 2 Exhibit Ex 81 - Supplemental Coreas Declaration)(Shebaya, Sirine) (Entered: 04/29/2020)
85 Supplemental to 84 Reply to Response to Motion, filed by Mauricio Coreas Supplemental Declaration Concerning Release Plan (Shebaya, Sirine) (Entered: 04/29/2020)
86 RESPONSE to Motion re 79 MOTION for Preliminary Injunction filed by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Janean Ohin. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Vaccarella, Vincent) (Entered: 04/30/2020)
87 MEMORANDUM ORDER granting ECF No. 76 MOTION for Preliminary Injunction by Mauricio Coreas. Signed by Judge Theodore D. Chuang on 4/30/2020. (ybs, Deputy Clerk) Modified on 4/30/2020 (ybs, Deputy Clerk). (Entered: 04/30/2020)
88 PRELIMINARY INJUNCTION. Signed by Judge Theodore D. Chuang on 4/30/2020. (ybs, Deputy Clerk) (Entered: 04/30/2020)

05/01/2020 05/01/2020 05/04/2020 05/07/2020 05/07/2020 05/15/2020 05/18/2020
05/18/2020
05/22/2020

89 NOTICE by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 05/01/2020)
90 REPLY to Response to Motion re 79 MOTION for Preliminary Injunction filed by Angel Guzman Cedillo, William Kemcha. (Attachments: # 1 Exhibit Ex 81 - Bakst Declaration, # 2 Exhibit Ex 82 Cancel Decl)(Shebaya, Sirine) (Entered: 05/01/2020)
91 ORDER re 79 MOTION for Preliminary Injunction filed by Angel Guzman Cedillo, William Kemcha; directing Respondents to produce information for review by Tuesday, May 5, 2020. Signed by Judge Theodore D. Chuang on 5/4/2020. (ybs, Deputy Clerk) (Entered: 05/04/2020)
93 MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 5/7/2020. (ybs, Deputy Clerk) (Entered: 05/07/2020)
94 ORDER granting 79 RENEWED Motion for Preliminary Injunction. Signed by Judge Theodore D. Chuang on 5/7/2020. (ybs, Deputy Clerk) (Entered: 05/07/2020)
95 NOTICE by Angel Guzman Cedillo, Mauricio Coreas, William Kemcha Notice of intent to file motion to amend complaint and seek expedited discovery (Shebaya, Sirine) (Entered: 05/15/2020)
96 PAPERLESS NOTICE. A CASE MANAGEMENT CONFERENCE is scheduled for May 18, 2020 at 4:00 p.m. to discuss 95 Notice of Intent to file Motion for Leave to Amend Habeas Petition and Motion for Expedited Class Certification Discovery. To join the call at the scheduled time: (1) Dial 1-888-557-8511. (2) Enter access code 3008173, followed by the # key. You will then be placed on hold until Chambers dials into the call, at which point you will be prompted to enter a security code. (3) When prompted, enter security code 05180400 followed by the # key. The call will be recorded, so please do not use speakerphones as they compromise sound quality. (sb3s, Chambers) (Entered: 05/18/2020)
97 PAPERLESS ORDER. As agreed at the May 18, 2020 Case Management Conference, the parties will meet and confer tomorrow as to the issues discussed. Petitioners are granted leave to file their proposed motions. Absent a different schedule mutually agreed upon by the parties, the Motions are due May 22, 2020; the Oppositions are due May 29, 2020; and any Reply is due June 1, 2020. Signed by Judge Theodore D. Chuang on 5/18/2020. (sb3s, Chambers) (Entered: 05/18/2020)
98 Consent MOTION for Leave to File to File Amended Complaint by Angel Guzman Cedillo, Mauricio Coreas, William Kemcha (Attachments: # 1 Attachment A - Proposed Amended Petition, # 2 Attachment B Redline to FAC, # 3 Text of Proposed Order)(Shebaya, Sirine) (Entered: 05/22/2020)

05/22/2020
05/27/2020 05/28/2020 05/29/2020 05/29/2020 05/29/2020 05/29/2020
05/29/2020 06/01/2020

99 MOTION for Other Relief for Expedited Discovery by Angel Guzman Cedillo, Mauricio Coreas, William Kemcha (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Affidavit Fifth Qureshi Declaration, # 4 Exhibit Ex 83 - CDC high-risk categories, # 5 Exhibit Ex 84 - ICE April 4 guidance, # 6 Exhibit Ex 85 - Morrissey article, # 7 Exhibit Ex 86 - Santana article)(Shebaya, Sirine) (Entered: 05/22/2020)
100 NOTICE by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Vaccarella, Vincent) (Entered: 05/27/2020)
101 NOTICE by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Attachments: # 1 Exhibit 1)(Vaccarella, Vincent) (Entered: 05/28/2020)
102 PAPERLESS ORDER granting 98 Motion for Leave to File. Signed by Judge Theodore D. Chuang on 5/29/2020. (sb3s, Chambers) (Entered: 05/29/2020)
103 RESPONSE to Motion re 98 Consent MOTION for Leave to File to File Amended Complaint filed by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin.(Vaccarella, Vincent) (Entered: 05/29/2020)
104 RESPONSE in Opposition re 99 MOTION for Other Relief for Expedited Discovery filed by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin. (Attachments: # 1 Exhibit 1)(Vaccarella, Vincent) (Entered: 05/29/2020)
105 AMENDED COMPLAINT against Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin, filed by William Kemcha, Angel Guzman Cedillo, Mauricio Coreas. (Attachments: # 1 Exhibit Ex A - Scott and Rich letter, # 2 Exhibit Ex B ICE COVID, # 3 Exhibit Ex C - Blakinger Article, # 4 Exhibit Ex D NYT COVID cases in US, # 5 Exhibit Ex E - CDC situation report, # 6 Exhibit Ex F - NYT article, # 7 Exhibit Ex G - MD gov COVID numbers, # 8 Exhibit Ex H - Summers article, # 9 Exhibit Ex I - ICE COVID guidance, # 10 Exhibit Ex J - Ockerman article, # 11 Exhibit Ex K - OIG report 2019, # 12 Exhibit Ex L - OIG report 2018, # 13 Exhibit Ex M - Sacchetti article, # 14 Exhibit Ex N - House Oversight Committee PR, # 15 Exhibit Ex O - Sandweg Op-ed, # 16 Exhibit Ex P - Reuters release article, # 17 Exhibit Ex Q - Gaskill article)(Shebaya, Sirine) (Entered: 05/29/2020)
106 NOTICE by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Attachments: # 1 Exhibit 1)(Vaccarella, Vincent) (Entered: 05/29/2020)
107 REPLY to Response to Motion re 99 MOTION for Other Relief for Expedited Discovery filed by Angel Guzman Cedillo, Mauricio Coreas,

06/02/2020 06/03/2020 06/04/2020 06/05/2020 06/12/2020 06/15/2020
06/16/2020

Jose Quinteros Hernandez, William Kemcha, Julio Navarro Martinez, Wilson Ramos Reyes. (Attachments: # 1 Affidavit Seventh Qureshi Decl, # 2 Exhibit Ex 87 - CDC report)(Shebaya, Sirine) (Entered: 06/01/2020)
108 ORDER granting 99 Motion for Other Relief for Expedited Discovery by Angel Guzman Cedillo, Mauricio Coreas, William Kemcha. Signed by Judge Theodore D. Chuang on 6/2/2020. (ybs, Deputy Clerk) (Entered: 06/02/2020)
109 NOTICE by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 06/03/2020)
110 NOTICE by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 06/04/2020)
111 NOTICE by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Vaccarella, Vincent) (Entered: 06/05/2020)
112 NOTICE by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Wilson Ramos Reyes of Intent to File Motions (Shebaya, Sirine) (Entered: 06/12/2020)
113 PAPERLESS NOTICE. A CASE MANAGEMENT CONFERENCE is scheduled for Tuesday, June 16, 2020 at 9:00 a.m. to discuss 112 NOTICE OF INTENT TO FILE MOTION FOR CLASS CERTIFICATION AND EMERGENCY BAIL HEARINGS. To join the call at the scheduled time: (1) Dial 1-888-557-8511. (2) Enter access code 3008173, followed by the # key. You will then be placed on hold until Chambers dials into the call, at which point you will be prompted to enter a security code. (3) When prompted, enter security code 06160900 followed by the # key. The call will be recorded, so please do not use speakerphones as they compromise sound quality. Also, we ask that parties not remain on the conference line after the Judge has left the call, to ensure that the line is free for other calls that may be on the Judge's calendar. The parties should also be prepared to address whether they consent to have all further proceedings before a Magistrate Judge and whether they wish to participate in a mediation session with a Magistrate Judge, whether before, during, or after discovery. Parties are expected to consult with their clients and confer with each other on these issues in advance of the Case Management Conference and, if possible, present joint views to the Court. (nrs, Chambers) (Entered: 06/15/2020)
114 PAPERLESS ORDER. For the reasons stated during the June 16, 2020 Case Management Conference, it is hereby ORDERED that Petitioners are granted leave to file the Motion(s) proposed in 112 . The Motion(s) will be deemed timely if filed by June 19, 2020. Respondents' Opposition to the Motion(s) is due by June 26, 2020. Petitioners' Reply is due by June

06/18/2020 06/19/2020
06/24/2020 06/26/2020
06/26/2020 06/29/2020 06/30/2020
06/30/2020 07/01/2020

30, 2020. Signed by Judge Theodore D. Chuang on 6/16/2020. (nrs, Chambers) (Entered: 06/16/2020)
115 NOTICE by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 06/18/2020)
116 MOTION to Certify Class and for Expedited Bail Hearings by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Julio Navarro Martinez, Wilson Ramos Reyes (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Affidavit Eighth Qureshi Decl, # 4 Exhibit Ex 88 - Diop Declaration, # 5 Exhibit Ex 89 - Ramos Reyes Declaration, # 6 Exhibit Ex 90 - Third Sugarman Decl, # 7 Exhibit Ex 91 - Shebaya Decl, # 8 Exhibit Ex 92 - Appelbaum Decl, # 9 Exhibit Ex 93 - Tan Decl, # 10 Exhibit Ex 94 - Steiner Decl, # 11 Exhibit Ex 95 - NYTimes article)(Shebaya, Sirine) (Entered: 06/19/2020)
117 NOTICE by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Julio Navarro Martinez, Wilson Ramos Reyes regarding consolidation (Shebaya, Sirine) (Entered: 06/24/2020)
118 RESPONSE in Opposition re 116 MOTION to Certify Class and for Expedited Bail Hearings filed by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Vaccarella, Vincent) (Entered: 06/26/2020)
119 NOTICE OF APPEAL as to 87 Order, 88 Preliminary Injunction by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin. (Vaccarella, Vincent) (Entered: 06/26/2020)
120 NOTICE by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 06/29/2020)
121 REPLY to Response to Motion re 116 MOTION to Certify Class and for Expedited Bail Hearings filed by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Julio Navarro Martinez, Wilson Ramos Reyes. (Attachments: # 1 Affidavit Qureshi Declaration, # 2 Exhibit Ex 96 - Greifinger Decl, # 3 Exhibit Ex 97 - BBC Article, # 4 Exhibit Ex 98 - OIG Report)(Shebaya, Sirine) (Entered: 06/30/2020)
122 NOTICE by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 06/30/2020)
123 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 119 Notice of Appeal. IMPORTANT NOTICE: To access

07/01/2020 07/01/2020 07/01/2020
07/02/2020 07/06/2020
07/06/2020 07/06/2020 07/06/2020 07/06/2020

forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms & Notices.(nus, Deputy Clerk) (Entered: 07/01/2020)
124 ORDER granting 14 Motion to Consolidate Cases (filed in 20-cv-01304TDC). Signed by Judge Theodore D. Chuang on 7/1/2020.(ybs, Deputy Clerk) (Entered: 07/01/2020)
125 NOTICE of Appearance by Vickie LeDuc on behalf of Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh (LeDuc, Vickie) (Entered: 07/01/2020)
126 PAPERLESS NOTICE. A CASE MANAGEMENT CONFERENCE is scheduled for July 6, 2020 at 2:00 p.m. To join the call at the scheduled time: (1) Dial 1-888-557-8511. (2) Enter access code 3008173, followed by the # key. You will then be placed on hold until Chambers dials into the call, at which point you will be prompted to enter a security code. (3) When prompted, enter security code 07060200 followed by the # key. The call will be recorded, so please do not use speakerphones as they compromise sound quality. Also, we ask that parties not remain on the conference line after the Judge has left the call, to ensure that the line is free for other calls that may be on the Judge's calendar. (sb3s, Chambers) (Entered: 07/01/2020)
127 Correspondence re: (Vaccarella, Vincent) (Entered: 07/02/2020)
128 PAPERLESS ORDER. The Court is in receipt of 127 Correspondence, informing the Court that one government attorney is unable to attend today's scheduled telephone status conference. Because another government attorney can attend the conference, the call will PROCEED AS SCHEDULED. Signed by Judge Theodore D. Chuang on 7/6/2020. Associated Cases: 8:20-cv-00780-TDC, 1:20-cv-01304-TDC(nrs, Chambers) (Entered: 07/06/2020)
129 USCA Case Number 20-6984 for 119 Notice of Appeal filed by Matthew T. Albence, Jack Kavanaugh, Immigration and Customs Enforcement, Donna Bounds, Janean Ohin. Case Manager - Michael Radday (nu, Deputy Clerk) (Entered: 07/06/2020)
130 Case Management Conference held on 7/6/2020 before Judge Theodore D. Chuang.(FTR - 1A.) (bus, Deputy Clerk) (Entered: 07/06/2020)
131 PAPERLESS ORDER. As agreed by the parties at the July 6, 2020 Case Management Conference, the parties shall submit by FRIDAY, July 10, 2020, a joint list of proposed experts as well as a joint proposal as to the expert's mandate. Signed by Judge Theodore D. Chuang on 7/6/2020. (nrs, Chambers) (Entered: 07/06/2020)
132 NOTICE OF APPEAL as to 94 Order on Motion for Preliminary Injunction by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin. (Vaccarella, Vincent) (Entered: 07/06/2020)

07/07/2020 07/08/2020 07/08/2020 07/09/2020 07/10/2020 07/13/2020
07/13/2020 07/13/2020 07/13/2020

133 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 132 Notice of Appeal. IMPORTANT NOTICE: To access forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms & Notices.(nus, Deputy Clerk) (Entered: 07/07/2020)
134 USCA Case Number 20-7005 for 132 Notice of Appeal filed by Matthew T. Albence, Jack Kavanaugh, Immigration and Customs Enforcement, Donna Bounds, Janean Ohin. Case Manager - Michael Radday (nus, Deputy Clerk) (Entered: 07/08/2020)
135 ORDER of USCA consolidating case 20-7005 with case 20-6984 as to 132 Notice of Appeal filed by Matthew T. Albence, Jack Kavanaugh, Immigration and Customs Enforcement, Donna Bounds, Janean Ohin (nus, Deputy Clerk) (Entered: 07/08/2020)
136 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 07/09/2020)
137 NOTICE by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Julio Navarro Martinez, Wilson Ramos Reyes re 131 Order, Joint Proposal regarding Health Inspection (Attachments: # 1 Exhibit Ex A - Homer Venters CV, # 2 Exhibit Ex B - Fred Rottnek CV)(Shebaya, Sirine) (Entered: 07/10/2020)
138 PAPERLESS NOTICE. A CASE MANAGEMENT CONFERENCE is scheduled for TODAY, July 13, 2020 at 4:00 p.m. To join the call at the scheduled time: (1) Dial 1-888-557-8511. (2) Enter access code 3008173, followed by the # key. You will then be placed on hold until Chambers dials into the call, at which point you will be prompted to enter a security code. (3) When prompted, enter security code 07130400 followed by the # key. The call will be recorded, so please do not use speakerphones as they compromise sound quality. Also, we ask that parties not remain on the conference line after the Judge has left the call, to ensure that the line is free for other calls that may be on the Judge's calendar. (sb3s, Chambers) (Entered: 07/13/2020)
139 Case Management Conference held on 7/13/2020 before Judge Theodore D. Chuang.(FTR - Ulander.) (bus, Deputy Clerk) (Entered: 07/13/2020)
140 PAPERLESS ORDER. By 5:00 p.m. on Thursday, July 16, 2020, each party shall submit a final list of its proposed experts, along with detailed explanations for its objections, if any, to the other party's proposed experts. Signed by Judge Theodore D. Chuang on 7/13/2020. (sb3s, Chambers) (Entered: 07/13/2020)
141 PAPERLESS NOTICE. A CASE MANAGEMENT CONFERENCE is scheduled for July 17, 2020 at 11:00 a.m. To join the call at the scheduled time: (1) Dial 1-888-557-8511. (2) Enter access code 3008173, followed

07/16/2020 07/17/2020 07/21/2020 07/21/2020 07/22/2020
07/24/2020 07/27/2020
07/27/2020 07/28/2020

by the # key. You will then be placed on hold until Chambers dials into the call, at which point you will be prompted to enter a security code. (3) When prompted, enter security code 07171100 followed by the # key. The call will be recorded, so please do not use speakerphones as they compromise sound quality. Also, we ask that parties not remain on the conference line after the Judge has left the call, to ensure that the line is free for other calls that may be on the Judge's calendar.(sb3s, Chambers) (Entered: 07/13/2020)
142 NOTICE by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Julio Navarro Martinez, Wilson Ramos Reyes Joint Proposal regarding Health Expert (Shebaya, Sirine) (Entered: 07/16/2020)
143 Case Management Conference held on 7/17/2020 before Judge Theodore D. Chuang.(FTR - R. Smith) (rss, Deputy Clerk) (Entered: 07/17/2020)
144 STATUS REPORT Joint status report re inspection mandate and logistics by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Julio Navarro Martinez, Wilson Ramos Reyes(Shebaya, Sirine) (Entered: 07/21/2020)
145 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 07/21/2020)
146 Consent MOTION for Extension of Time to Respond to Second Amended Complaint by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Attachments: # 1 Text of Proposed Order)(LeDuc, Vickie) (Entered: 07/22/2020)
147 STATUS REPORT Joint status report re inspection mandate and logistics by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Julio Navarro Martinez, Wilson Ramos Reyes(Shebaya, Sirine) (Entered: 07/24/2020)
148 MOTION to Withdraw as Attorney for Mr. Mauricio Coreas by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Julio Navarro Martinez, Wilson Ramos Reyes (Attachments: # 1 Attachment, # 2 Text of Proposed Order)(Shebaya, Sirine) (Entered: 07/27/2020)
149 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 07/27/2020)
150 Joint Request for Hearing to discuss outstanding issues related to health inspection (Shebaya, Sirine) (Entered: 07/28/2020)

07/28/2020 07/28/2020
07/28/2020 07/29/2020 07/29/2020 07/29/2020 07/30/2020

151 PAPERLESS ORDER granting 146 Motion for Extension of Time. Signed by Judge Theodore D. Chuang on 7/28/2020. (nrs, Chambers) (Entered: 07/28/2020)
152 PAPERLESS NOTICE. A CASE MANAGEMENT CONFERENCE is scheduled for Wednesday, July 29, 2020 at 11:00 a.m. (The Court has a previously scheduled proceeding at 10:00 a.m.) To join the call at the scheduled time: (1) Dial 1-888-557-8511. (2) Enter access code 3008173, followed by the # key. You will then be placed on hold until Chambers dials into the call, at which point you will be prompted to enter a security code. (3) When prompted, enter security code 07281100 followed by the # key. The call will be recorded, so please do not use speakerphones as they compromise sound quality. Also, we ask that parties not remain on the conference line after the Judge has left the call, to ensure that the line is free for other calls that may be on the Judge's calendar. The parties should also be prepared to address whether they consent to have all further proceedings before a Magistrate Judge and whether they wish to participate in a mediation session with a Magistrate Judge, whether before, during, or after discovery. Parties are expected to consult with their clients and confer with each other on these issues in advance of the Case Management Conference and, if possible, present joint views to the Court. (nrs, Chambers) (Entered: 07/28/2020)
153 PAPERLESS NOTICE of CORRECTED Dial-In Information. To join the July 29, 2020 call at the scheduled time: (1) Dial 1-888-557-8511. (2) Enter access code 3008173, followed by the # key. You will then be placed on hold until Chambers dials into the call, at which point you will be prompted to enter a security code. (3) When prompted, enter security code 07291100 followed by the # key. (nrs, Chambers) (Entered: 07/28/2020)
154 Case Management Conference held on 7/29/2020 before Judge Theodore D. Chuang.(FTR - Ulander - 4A.) (bus, Deputy Clerk) (Entered: 07/29/2020)
155 PAPERLESS ORDER. As discussed at the July 29, 2020 Case Management Conference, the parties shall submit by 10 a.m. tomorrow, July 30, 2020, a single combined document setting forth the mandate and visit protocols for the expert. In addition to docketing, the parties should also email a Word version of that document to Chambers. Signed by Judge Theodore D. Chuang on 7/29/2020. (nrs, Chambers) (Entered: 07/29/2020)
156 STIPULATION of Order Regarding Confidentiality by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Attachments: # 1 Attachment A)(LeDuc, Vickie) (Entered: 07/29/2020)
157 NOTICE by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Julio Navarro Martinez, Wilson Ramos

07/30/2020 07/30/2020 07/31/2020 08/06/2020 08/14/2020 08/17/2020
08/17/2020 08/17/2020

Reyes with proposed order re health inspection protocols and mandate (Attachments: # 1 Text of Proposed Order)(Shebaya, Sirine) (Entered: 07/30/2020)
158 STIPULATED ORDER REGARDING CONFIDENTIALITY. Signed by Judge Theodore D. Chuang on 7/30/2020. (ybs, Deputy Clerk) (Entered: 07/30/2020)
159 ORDER Regarding Health Inspection Mandate and Visiting Protocol. Signed by Judge Theodore D. Chuang on 7/30/2020. (ybs, Deputy Clerk) (Entered: 07/30/2020)
160 ORDER re 116 MOTION to Certify Class and for Expedited Bail Hearings filed by Julio Navarro Martinez, Angel Guzman Cedillo, Wilson Ramos Reyes, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha; directing the parties to submit a Joint Supplemental within seven days. Signed by Judge Theodore D. Chuang on 7/30/2020. (ybs, Deputy Clerk) (Entered: 07/31/2020)
161 Joint Correspondence re: ECF 160 (Vaccarella, Vincent) (Entered: 08/06/2020)
162 Joint Request for Hearing to discuss responses to expert report (Shebaya, Sirine) (Entered: 08/14/2020)
163 PAPERLESS NOTICE. A CASE MANAGEMENT CONFERENCE is scheduled for Tuesday, August 18, 2020 at 1:30 p.m. To join the call at the scheduled time: (1) Dial 1-888-557-8511. (2) Enter access code 3008173, followed by the # key. You will then be placed on hold until Chambers dials into the call, at which point you will be prompted to enter a security code. (3) When prompted, enter security code 08180130 followed by the # key. The call will be recorded, so please do not use speakerphones as they compromise sound quality. Also, we ask that parties not remain on the conference line after the Judge has left the call, to ensure that the line is free for other calls that may be on the Judge's calendar. The parties should also be prepared to address whether they consent to have all further proceedings before a Magistrate Judge and whether they wish to participate in a mediation session with a Magistrate Judge, whether before, during, or after discovery. Parties are expected to consult with their clients and confer with each other on these issues in advance of the Case Management Conference and, if possible, present joint views to the Court. (nrs, Chambers) (Entered: 08/17/2020)
164 -SEALED- MOTION to Seal by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Attachments: # 1 Attachment A, # 2 Text of Proposed Order)(Vaccarella, Vincent) (Entered: 08/17/2020)
165 REDACTED DOCUMENT Expert Report by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin(Vaccarella, Vincent) (Entered: 08/17/2020)

08/18/2020
08/18/2020 08/19/2020 08/20/2020 08/21/2020 08/21/2020 08/21/2020
08/24/2020 08/24/2020 08/25/2020

166 PAPERLESS ORDER. As discussed at the August 18, 2020 Case Management Conference, the parties will each submit materials as to the expert report and alleged retaliation by Friday, August 21, 2020. These submissions are limited to 10 pages, including exhibits. Any responsive filings are due by August 26, 2020 and are also limited to 10 pages. The parties should also submit by August 26, 2020 the document compiling all of the testing data for both facilities, including any future plans for testing, and the document compiling data as to the number of potential class members in each facility on the date the Class Complaint was filed, on the date the information was originally reported to the Court, and on the present date. Signed by Judge Theodore D. Chuang on 8/18/2020. (nrs, Chambers) (Entered: 08/18/2020)
167 Case Management Conference held on 8/18/2020 before Judge Theodore D. Chuang.(Hardaway/FTR 3B) (dhs, Deputy Clerk) (Entered: 08/18/2020)
168 Second MOTION for Extension of Time by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Attachments: # 1 Text of Proposed Order)(LeDuc, Vickie) (Entered: 08/19/2020)
169 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 08/20/2020)
170 PAPERLESS NOTICE of Hearing. A VIRTUAL HEARING is scheduled for September 2, 2020 at 2:00 p.m. The parties will be contacted closer to the date of the hearing with information about how to join the virtual proceeding. (nrs, Chambers) (Entered: 08/21/2020)
171 Correspondence re: Expert Report (Vaccarella, Vincent) (Entered: 08/21/2020)
172 Supplemental to 165 Redacted Document filed by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Julio Navarro Martinez, Wilson Ramos Reyes Petitioners' Response to Expert Report (Attachments: # 1 Affidavit Declaration of Mr. Alpha Mansaray, # 2 Affidavit Declaration of Mr. Kabil Are, # 3 Exhibit Ex A - Timeline of COVID Infections)(Shebaya, Sirine) (Entered: 08/21/2020)
173 RESPONSE re 171 by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) Modified on 8/24/2020 (ybs, Deputy Clerk). Modified on 8/24/2020 (ybs, Deputy Clerk). (Entered: 08/24/2020)
174 PAPERLESS ORDER granting 168 Motion for Extension of Time. Signed by Judge Theodore D. Chuang on 8/24/2020. (nrs, Chambers) (Entered: 08/24/2020)
175 NOTICE of Appearance by Cynthia Grams Peltzman on behalf of Jack Kavanaugh (Peltzman, Cynthia) (Entered: 08/25/2020)

08/25/2020 08/25/2020 08/26/2020 08/26/2020 08/26/2020 08/31/2020
08/31/2020 09/02/2020
09/04/2020 09/08/2020 09/08/2020
09/11/2020

176 NOTICE of Appearance by Louis P Ruzzi on behalf of Jack Kavanaugh (Ruzzi, Louis) (Entered: 08/25/2020)
177 NOTICE of Appearance by Gary W Kuc on behalf of Jack Kavanaugh (Kuc, Gary) (Entered: 08/25/2020)
178 Correspondence re: Expert Report (Attachments: # 1 Exhibit 1)(Vaccarella, Vincent) (Entered: 08/26/2020)
179 Correspondence re: Timeline of Putative Class Members (Vaccarella, Vincent) (Entered: 08/26/2020)
180 Supplemental to Response to Expert Report (Shebaya, Sirine) (Entered: 08/26/2020)
181 PAPERLESS ORDER. Having reviewed the filings submitted in advance of the video hearing on September 2, 2020 at 2:00 p.m., the Court hereby ORDERS that Howard County Detention Center ("HCDC") Correctional Officer Rosa Savage appear at the hearing by video to testify under oath about the alleged statements to HCDC detainees about the consequences of speaking to the Court's expert witness, Dr. Fred Rottnek. The Government shall elicit direct testimony from Office Savage, and Plaintiffs shall have the opportunity to cross examine the witness. Signed by Judge Theodore D. Chuang on 8/31/2020. (nrs, Chambers) (Entered: 08/31/2020)
182 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 08/31/2020)
183 Motion Hearing held on 9/2/2020 re: before Judge Theodore D. Chuang 116 MOTION to Certify Class and for Expedited Bail Hearings filed by Julio Navarro Martinez, Angel Guzman Cedillo, Wilson Ramos Reyes, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha..(Court Reporter: Renee Ewing) (ds2s, Deputy Clerk) (Entered: 09/02/2020)
184 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 09/04/2020)
185 PAPERLESS ORDER granting 164 Motion to Seal. Signed by Judge Theodore D. Chuang on 9/8/2020. (nrs, Chambers) (Entered: 09/08/2020)
186 NOTICE by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Julio Navarro Martinez, Wilson Ramos Reyes of HCDC retaliation against Mr. Mansaray (Attachments: # 1 Affidavit Declaration of Ms. Hoidra)(Shebaya, Sirine) (Entered: 09/08/2020)
187 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 09/11/2020)

09/14/2020 09/14/2020
09/16/2020
09/17/2020 09/17/2020 09/18/2020 09/18/2020 09/30/2020
09/30/2020

188 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 09/14/2020)
189 ORDER re 186 Notice of HCDC retaliation against Mr. Mansaray, filed by Julio Navarro Martinez, Angel Guzman Cedillo, Wilson Ramos Reyes, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha; directing Respondent to file response by Thursday, September 17, 2020. Signed by Judge Theodore D. Chuang on 9/14/2020. (ybs, Deputy Clerk) (Entered: 09/14/2020)
190 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 09/02.2020, before Judge Chuang. Court Reporter/Transcriber Renee Ewing, Telephone number 301-344-3227. Total number of pages filed: 155. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 10/7/2020. Redacted Transcript Deadline set for 10/19/2020. Release of Transcript Restriction set for 12/15/2020.(re, Court Reporter) (Entered: 09/16/2020)
191 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 09/17/2020)
192 RESPONSE re 186 Notice (Other), filed by Jack Kavanaugh. (Attachments: # 1 Declaration of Jack Kavanagh, # 2 Exhibit 1 to Declaration, # 3 Exhibit 2 to Declaration, # 4 Exhibit 3 to Declaration, # 5 Exhibit 4 to Declaration)(Peltzman, Cynthia) (Entered: 09/17/2020)
193 MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 9/18/2020. (ybs, Deputy Clerk) (Entered: 09/18/2020)
194 ORDER granting in part and denying in part 116 Motion to Certify Class. Signed by Judge Theodore D. Chuang on 9/18/2020. (ybs, Deputy Clerk) (Entered: 09/18/2020)
195 ORDER of USCA granting motion to dismiss appeal pursuant to FRAP 42(b) as to 119 Notice of Appeal filed by Matthew T. Albence, Jack Kavanaugh, Immigration and Customs Enforcement, Donna Bounds, Janean Ohin, 132 Notice of Appeal filed by Matthew T. Albence, Jack Kavanaugh, Immigration and Customs Enforcement, Donna Bounds, Janean Ohin (nus, Deputy Clerk) (Entered: 09/30/2020)
196 RULE 42(b) MANDATE of USCA issued as to 119 Notice of Appeal filed by Matthew T. Albence, Jack Kavanaugh, Immigration and Customs Enforcement, Donna Bounds, Janean Ohin, 132 Notice of Appeal filed by Matthew T. Albence, Jack Kavanaugh, Immigration and Customs Enforcement, Donna Bounds, Janean Ohin (nus, Deputy Clerk) (Entered: 09/30/2020)

10/07/2020
10/07/2020 10/07/2020 10/09/2020 10/14/2020 10/15/2020 10/16/2020 10/19/2020 10/20/2020

197 -SEALED- MOTION to Redact 190 Transcript,, by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Attachments: # 1 Text of Proposed Order)(LeDuc, Vickie) (Entered: 10/07/2020)
198 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 10/07/2020)
199 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 10/07/2020)
200 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 10/09/2020)
201 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 10/14/2020)
202 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 10/15/2020)
203 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 10/16/2020)
204 Request for Pre-Motion Conference Notice of Intent to File Motion (LeDuc, Vickie) (Entered: 10/19/2020)
205 PAPERLESS NOTICE. A CASE MANAGEMENT CONFERENCE is scheduled for Friday, October 23, 2020 at 10:00 a.m. to discuss 204 NOTICE OF INTENT. To join the call at the scheduled time: (1) Dial 1-888-557-8511. (2) Enter access code 3008173, followed by the # key. You will then be placed on hold until Chambers dials into the call, at which point you will be prompted to enter a security code. (3) When prompted, enter security code 10231000 followed by the # key. The call will be recorded, so please do not use speakerphones as they compromise sound quality. Also, we ask that parties not remain on the conference line after the Judge has left the call, to ensure that the line is free for other calls that may be on the Judge's calendar. The parties should also be prepared to address whether they consent to have all further proceedings before a Magistrate Judge and whether they wish to participate in a mediation session with a Magistrate Judge, whether before, during, or after discovery. Parties are expected to consult with their clients and confer with each other on these issues in advance of the Case Management Conference and, if possible, present joint views to the Court. Associated Cases: 8:20-cv-00780-TDC, 1:20-cv-01304-TDC (nrs, Chambers) (Entered: 10/20/2020)

10/20/2020 10/22/2020 10/22/2020 10/23/2020
10/23/2020 10/26/2020 10/26/2020 10/28/2020
10/29/2020 10/29/2020

206 ORDER granting Motion for Additional Redactions. Signed by Judge Theodore D. Chuang on 10/16/2020. (ybs, Deputy Clerk) (Entered: 10/20/2020)
207 NOTICE of Appearance by Roscoe R Leslie on behalf of Donna Bounds (Leslie, Roscoe) (Entered: 10/22/2020)
208 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 10/22/2020)
209 PAPERLESS ORDER. As discussed at the October 23, 2020 Case Management Conference, the Government's Answer in Mansaray v. Kavanaugh, TDC-20-1304, ECF No. 9, is DEEMED FILED in this case as to the pending Rehabilitation Act claims. The Government's Answer to the remaining Constitutional claims is due December 4, 2020. Petitioners' Reply is due December 18, 2020. The Government will be permitted to make an additional filing, which will be due January 8, 2021. Discovery in this matter will begin on November 2, 2020, on which date a scheduling order shall issue. The parties are given leave to submit proposals as to the scope and timing of discovery. Any response by the Petitioners to 192 Defendant Kavanaugh's Response to Petitioners' allegations of retaliation, is due October 30, 2020. A hearing on that issue will be noticed separately. Signed by Judge Theodore D. Chuang on 10/23/2020. (nrs, Chambers) (Entered: 10/23/2020)
210 Case Management Conference held on 10/23/2020 before Judge Theodore D. Chuang (FTR 4A) (dhs, Deputy Clerk) (Entered: 10/23/2020)
211 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 10/26/2020)
212 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 10/26/2020)
213 PAPERLESS NOTICE that a HEARING on 186 and 192 is scheduled for November 18, 2020 at 9:30 a.m. before Judge Theodore D. Chuang at the United States Courthouse located at 6500 Cherrywood Lane in Greenbelt, Maryland. THIS HEARING WILL OCCUR IN PERSON. The specific courtroom for the motions hearing will be available the week of the proceeding on the Court's website. (nrs, Chambers) (Entered: 10/28/2020)
214 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 10/29/2020)
215 RESPONSE re 192 Response, 186 Notice (Other), filed by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Alpha Ibrahim Bah Mansaray, Julio Navarro Martinez, Wilson Ramos Reyes.(Shebaya, Sirine) (Entered: 10/30/2020)

10/30/2020
10/30/2020
10/30/2020 11/03/2020 11/05/2020 11/09/2020 11/10/2020 11/13/2020 11/13/2020 11/13/2020 11/16/2020 11/17/2020

216 Consent MOTION to Amend/Correct to amend Petitioners complaint to add retaliation claims re HCDC by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Alpha Ibrahim Bah Mansaray, Julio Navarro Martinez, Wilson Ramos Reyes(Shebaya, Sirine) (Entered: 10/30/2020)
217 Joint MOTION for Other Relief for entry of proposed order with respect to Respondent Kavanaugh by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Alpha Ibrahim Bah Mansaray, Julio Navarro Martinez, Wilson Ramos Reyes(Shebaya, Sirine) (Entered: 10/30/2020)
218 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 10/30/2020)
219 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 11/03/2020)
220 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 11/05/2020)
221 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 11/09/2020)
222 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 11/10/2020)
223 ORDER granting 216 Motion to Amend/Correct to amend Petitioners complaint to add retaliation claims re HCDC. Signed by Judge Theodore D. Chuang on 11/12/2020. (ybs, Deputy Clerk) (Entered: 11/13/2020)
224 ORDER granting 217 Motion for entry of proposed order with respect to Respondent Kavanaugh. Signed by Judge Theodore D. Chuang on 11/13/2020. (ybs, Deputy Clerk) (Entered: 11/13/2020)
225 PAPERLESS NOTICE that in light of 224 , the November 18, 2020 Hearing is CANCELLED. (nrs, Chambers) (Entered: 11/13/2020)
226 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 11/16/2020)
227 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 11/17/2020)

11/17/2020 11/19/2020 11/19/2020 11/20/2020 11/20/2020 11/20/2020
11/23/2020 11/23/2020 11/24/2020 11/24/2020

228 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 11/17/2020)
229 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 11/19/2020)
230 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 11/19/2020)
231 Correspondence re: Request for Discovery Scheduling Order (Qureshi, Amber) (Entered: 11/20/2020)
232 NOTICE by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Julio Navarro Martinez, Wilson Ramos Reyes of Intent to File Renewed Motion for Expedited Bail Hearings (Qureshi, Amber) (Entered: 11/20/2020)
233 PAPERLESS NOTICE. A CASE MANAGEMENT CONFERENCE is scheduled for Tuesday, November 24, 2020 at 9:00 a.m. to discuss 232 NOTICE OF INTENT. To join the call at the scheduled time: (1) Dial 1-888-557-8511. (2) Enter access code 3008173, followed by the # key. You will then be placed on hold until Chambers dials into the call, at which point you will be prompted to enter a security code. (3) When prompted, enter security code 11240900 followed by the # key. The call will be recorded, so please do not use speakerphones as they compromise sound quality. Also, we ask that parties not remain on the conference line after the Judge has left the call, to ensure that the line is free for other calls that may be on the Judge's calendar. The parties should also be prepared to address whether they consent to have all further proceedings before a Magistrate Judge and whether they wish to participate in a mediation session with a Magistrate Judge, whether before, during, or after discovery. Parties are expected to consult with their clients and confer with each other on these issues in advance of the Case Management Conference and, if possible, present joint views to the Court. (nrs, Chambers) (Entered: 11/20/2020)
234 SCHEDULING ORDER: Status Report due by 4/20/2021.. Signed by Judge Theodore D. Chuang on 11/23/2020. (ybs, Deputy Clerk) (Entered: 11/23/2020)
235 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 11/23/2020)
236 NOTICE by Jack Kavanaugh re 224 Order on Motion for Other Relief (Peltzman, Cynthia) (Entered: 11/24/2020)
237 Case Management Conference held on 11/24/2020 before Judge Theodore D. Chuang (FTR 4A) (dhs, Deputy Clerk) (Entered: 11/24/2020)

11/25/2020 11/30/2020 12/01/2020 12/02/2020 12/02/2020 12/02/2020
12/04/2020 12/07/2020 12/07/2020 12/08/2020 12/08/2020 12/08/2020

238 ORDER granting Petitioners leave to file the proposed Renewed Motion for Expedited Bail Hearings. Signed by Judge Theodore D. Chuang on 11/25/2020. (ybs, Deputy Clerk) (Entered: 11/25/2020)
239 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 11/30/2020)
240 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/01/2020)
241 ANSWER to 105 Amended Complaint,,, by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin.(LeDuc, Vickie) (Entered: 12/02/2020)
242 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/02/2020)
243 NOTICE by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Julio Navarro Martinez, Wilson Ramos Reyes re 238 Order (Attachments: # 1 Exhibit A - MD COVID-19 Cases, # 2 Exhibit B - Howard County COVID-19 Cases, # 3 Exhibit C Mansaray Decl, # 4 Exhibit D - Are Decl, # 5 Exhibit E - Bissemo Decl)(Qureshi, Amber) (Entered: 12/02/2020)
244 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/04/2020)
245 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/07/2020)
246 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/07/2020)
247 NOTICE by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Julio Navarro Martinez, Wilson Ramos Reyes of Intent to File Renewed Motion for Expedited Bail Hearings (Qureshi, Amber) (Entered: 12/08/2020)
248 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/08/2020)
249 PAPERLESS ORDER. The Court has reviewed 247 and finds no premotion conference necessary. Plaintiffs are granted leave to file the proposed motion. Briefing will proceed on the following schedule: the Motion is due December 9, 2020; the Opposition is due December 17,

12/09/2020 12/09/2020
12/10/2020 12/10/2020 12/14/2020 12/14/2020 12/15/2020

2020; the Reply is due December 21, 2020. (nrs, Chambers) (Entered: 12/08/2020)
250 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/09/2020)
251 MOTION for Other Relief Expedited Bail Hearings by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Julio Navarro Martinez, Wilson Ramos Reyes (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit A Mansaray Decl, # 4 Exhibit B - Are Decl, # 5 Exhibit C - Amon Dec, # 6 Exhibit D - WHO, # 7 Exhibit E - Baltimore Sun Article, # 8 Exhibit F - JAMA Article, # 9 Exhibit G - USA Today Article, # 10 Exhibit H Washington Post Article, # 11 Exhibit I - NY Times, # 12 Exhibit J WTOP Article, # 13 Exhibit K - LA Times Article)(Qureshi, Amber) (Entered: 12/09/2020)
252 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/10/2020)
253 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/10/2020)
254 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/14/2020)
255 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/14/2020)
256 PAPERLESS NOTICE. A Rule 16 Conference is scheduled for Wednesday, December 16, 2020 at 10:00 a.m. To join the call at the scheduled time: (1) Dial 1-888-557-8511. (2) Enter access code 3008173, followed by the # key. You will then be placed on hold until Chambers dials into the call, at which point you will be prompted to enter a security code. (3) When prompted, enter security code 12161000 followed by the # key. The call will be recorded, so please do not use speakerphones as they compromise sound quality. Also, we ask that parties not remain on the conference line after the Judge has left the call, to ensure that the line is free for other calls that may be on the Judge's calendar. The parties should also be prepared to address whether they consent to have all further proceedings before a Magistrate Judge and whether they wish to participate in a mediation session with a Magistrate Judge, whether before, during, or after discovery. Parties are expected to consult with their clients and confer with each other on these issues in advance of the

12/17/2020
12/18/2020 12/18/2020 12/21/2020 12/21/2020 12/21/2020 12/21/2020 12/22/2020
12/22/2020

Case Management Conference and, if possible, present joint views to the Court. (nrs, Chambers) (Entered: 12/15/2020)
257 RESPONSE in Opposition re 251 MOTION for Other Relief Expedited Bail Hearings filed by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1, Part A, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6)(Vaccarella, Vincent) (Entered: 12/17/2020)
258 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/18/2020)
259 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/18/2020)
260 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/21/2020)
261 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/21/2020)
262 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/21/2020)
263 REPLY to Response to Motion re 251 MOTION for Other Relief Expedited Bail Hearings filed by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Julio Navarro Martinez, Wilson Ramos Reyes. (Attachments: # 1 Exhibit A, Mansaray Supp Decl)(Qureshi, Amber) (Entered: 12/21/2020)
264 PAPERLESS NOTICE. A TELEPHONE STATUS CONFERENCE is scheduled for Wednesday, December 23, 2020 at 9:30 a.m. To join the call at the scheduled time: (1) Dial 1-888-557-8511. (2) Enter access code 3008173, followed by the # key. You will then be placed on hold until Chambers dials into the call, at which point you will be prompted to enter a security code. (3) When prompted, enter security code 12230930 followed by the # key. The call will be recorded, so please do not use speakerphones as they compromise sound quality. Also, we ask that parties not remain on the conference line after the Judge has left the call, to ensure that the line is free for other calls that may be on the Judge's calendar. (nrs, Chambers) (Entered: 12/22/2020)
265 AMENDED COMPLAINT against Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin, filed by Julio Navarro Martinez, William Kemcha, Jose Quinteros Hernandez, Angel Guzman Cedillo, Mauricio Coreas, Wilson

12/23/2020
12/23/2020 12/23/2020 12/23/2020 12/28/2020 12/28/2020 12/28/2020 12/28/2020

Ramos Reyes. (Attachments: # 1 Attachment Copy of Pleading with Tracked Changes, # 2 Exhibit B - ICE Statistics, # 3 Exhibit E - WHO COVID Dashboard, # 4 Exhibit G - MD COVID Dashboard)(Qureshi, Amber) (Entered: 12/22/2020)
266 PAPERLESS ORDER. As discussed at the December 23, 2020 Case Management Conference, Defendants will provide the Court with information about (1) who a facility inspector could contact in case of an unannounced inspection; (2) the layout of HCDC both before and after the recent move of ICE detainees to new wings; (3) how long HCDC will continue to not accept ICE detainees (including conversion of criminal detainees to ICE detainees); and (4) whether another round of universal testing will be occurring next week and/or when the next results are due. Defendants will also provide on-going updates as to the departure of detainees. As to briefing on the pending motions, Plaintiffs' Response is due January 8, 2021; Defendants will confer with Plaintiffs on a Reply deadline. Until the pending motions as to the Rehabilitation Act are resolved, no discovery will occur on those issues. The parties will also meet and confer on how they will proceed on the Third Amended Complaint.. Signed by Judge Theodore D. Chuang on 12/23/2020. (nrs, Chambers) (Entered: 12/23/2020)
267 Case Management Conference held on 12/23/2020 before Judge Theodore D. Chuang (FTR 4C.) (dhs, Deputy Clerk) (Entered: 12/23/2020)
268 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/23/2020)
269 NOTICE by Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/23/2020)
270 NOTICE by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Alpha Ibrahim Bah Mansaray, Julio Navarro Martinez, Wilson Ramos Reyes re 266 Order,,,, re Availability of Expert for HCDC Inspection (Attachments: # 1 Exhibit Ex A - Expert CV)(Shebaya, Sirine) (Entered: 12/28/2020)
271 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/28/2020)
272 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/28/2020)
273 -SEALED - NOTICE of Filing Under Seal Response to ECF 266 by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin re 266 Order,,,, (Vaccarella, Vincent) (Entered: 12/28/2020)

12/29/2020
12/29/2020 12/29/2020 12/30/2020 12/30/2020 12/31/2020 01/04/2021 01/05/2021 01/07/2021 01/07/2021 01/08/2021

274 PAPERLESS NOTICE. A CASE MANAGEMENT CONFERENCE is scheduled for December 29, 2020 at 1:30 p.m. To join the call at the scheduled time: (1) Dial 1-888-557-8511. (2) Enter access code 3008173, followed by the # key. You will then be placed on hold until Chambers dials into the call, at which point you will be prompted to enter a security code. (3) When prompted, enter security code 12290130 followed by the # key. The call will be recorded, so please do not use speakerphones as they compromise sound quality. Also, we ask that parties not remain on the conference line after the Judge has left the call, to ensure that the line is free for other calls that may be on the Judge's calendar. (egms, Chambers) (Entered: 12/29/2020)
275 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/29/2020)
277 Case Management Conference held on 12/29/2020 before Judge Theodore D. Chuang (FTR 4A.) (dhs, Deputy Clerk) (Entered: 12/29/2020)
278 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin of Administering COVID-19 Vaccine at HCDC (Vaccarella, Vincent) (Entered: 12/30/2020)
279 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 12/30/2020)
280 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin of Expert (Attachments: # 1 Exhibit 1)(Vaccarella, Vincent) (Entered: 12/31/2020)
281 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 01/04/2021)
282 NOTICE regarding inspection. Signed by Judge Theodore D. Chuang on 1/5/2021. (ybs, Deputy Clerk) (Entered: 01/05/2021)
283 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 01/07/2021)
284 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 01/07/2021)
285 RESPONSE re 209 Order,,, 266 Order,,,, In Opposition to Respondents' Answer in Mansaray v. Kavanaugh, TDC-20-1304, ECF No. 9 filed by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez,

01/11/2021
01/12/2021 01/14/2021 01/14/2021 01/14/2021 01/14/2021 01/15/2021 01/19/2021 01/20/2021

William Kemcha, Alpha Ibrahim Bah Mansaray, Julio Navarro Martinez, Wilson Ramos Reyes.(Qureshi, Amber) (Entered: 01/08/2021)
286 PAPERLESS ORDER. The Parties must submit their responses to Dr. Rottnek's Second Expert Report, to be docketed separately under seal, by THURSDAY, January 14, 2021. Responses are limited to 10 pages, with the document to have 1 inch margins, and the text to be double-spaced and in 12-point Times New Roman font. In their submissions, the Parties should state whether they wish (1) to have oral argument on the motion and/or (2) to have the opportunity to ask questions of Dr. Rottnek. The Parties should also submit by January 25, 2021 a copy of the second report with any proposed redactions, following the same procedure used for the first report, to enable the Court to place an unsealed copy of the report on the docket. If no redactions are requested, the Parties should submit a notice to that effect. Signed by Judge Theodore D. Chuang on 1/11/2021. (nrs, Chambers) (Entered: 01/11/2021)
288 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 01/12/2021)
289 STIPULATION of Order Regarding Confidentiality of Discovery Material by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin(LeDuc, Vickie) (Entered: 01/14/2021)
290 -SEALED-RESPONSE re 286 Order,,, Response to Expert Report filed by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Vaccarella, Vincent) (Entered: 01/14/2021)
291 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 01/14/2021)
292 -SEALED-RESPONSE re 286 Order,,, to Second Expert Report filed by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Julio Navarro Martinez, Wilson Ramos Reyes. (Attachments: # 1 Exhibit Amon Decl)(Qureshi, Amber) (Entered: 01/14/2021)
293 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 01/15/2021)
294 ANSWER to 265 Amended Complaint, Retaliation Claim by Jack Kavanaugh.(Peltzman, Cynthia) (Entered: 01/19/2021)
295 NOTICE of Appearance by Kelly M Marzullo on behalf of Matthew T. Albence, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Marzullo, Kelly) (Entered: 01/20/2021)

01/22/2021 01/25/2021
01/25/2021 01/26/2021 01/26/2021 01/26/2021 01/27/2021
01/28/2021 01/29/2021 02/04/2021
02/05/2021
02/08/2021 02/10/2021

296 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 01/22/2021)
297 -SEALED- MOTION to Seal by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Vaccarella, Vincent) (Entered: 01/25/2021)
298 REDACTED DOCUMENT Expert Report by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin(Vaccarella, Vincent) (Entered: 01/25/2021)
299 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 01/26/2021)
300 MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 1/25/2021. (ybs, Deputy Clerk) (Entered: 01/26/2021)
301 ORDER denying 251 Motion Expedited Bail Hearings. Signed by Judge Theodore D. Chuang on 1/25/2021. (ybs, Deputy Clerk) (Entered: 01/26/2021)
302 RESPONSE in Support of Answer, Rehab Act Claim by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(LeDuc, Vickie) (Entered: 01/27/2021)
303 Stipulated CONFIDENTIALITY ORDER. Signed by Judge Theodore D. Chuang on 1/19/2021. (ybs, Deputy Clerk) (Entered: 01/28/2021)
304 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 01/29/2021)
305 Joint MOTION for Extension of Time to Complete Discovery by Angel Guzman Cedillo, Mauricio Coreas, Jose Quinteros Hernandez, William Kemcha, Alpha Ibrahim Bah Mansaray, Julio Navarro Martinez, Wilson Ramos Reyes(Qureshi, Amber) (Entered: 02/04/2021)
306 PAPERLESS ORDER granting 305 Motion for Extension of Time to Complete Discovery. Discovery now closes on June 8, 2021. All other deadlines are those set forth in 305 . Signed by Judge Theodore D. Chuang on 2/5/2021. (nrs, Chambers) (Entered: 02/05/2021)
307 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 02/08/2021)
308 Joint MOTION for Extension of Time to Complete Discovery and Expert Witness Disclosures for Retaliation Claim by Jack Kavanaugh(Peltzman, Cynthia) (Entered: 02/10/2021)

02/11/2021

309 NOTICE by Matthew T. Albence, William P. Barr, Donna Bounds, Immigration and Customs Enforcement, Jack Kavanaugh, Janean Ohin (Vaccarella, Vincent) (Entered: 02/11/2021)

PACER Service Center Transaction Receipt

02/12/2021 16:29:04

PACER Login:

CRClearinghouse:2563377:0

Client Code:

Description: Docket Report

Search Criteria:

Billable Pages:

30

Cost:

Gillan
8:20-cv00780-TDC
3.00

 
 Case 8:20-cv-00780-TDC Document 87 Filed 04/30/20 Page 1 of 7

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

MAURICIO COREAS,

A

G

C

and

WILLIAM KEMCHA,

Petitioners,

v.

DONNA BOUNDS, in her official capacity as Warden, Worcester County Detention Center, JACK KAVANAUGH, in his official capacity as Director, Howard County Detention Center, JANEAN OHIN, in her official capacity as Acting Baltimore Field Office Director, U.S. Immigration and Customs Enforcement, MATTHEW T. ALBENCE, in his official capacity as Deputy Director and Senior Official performing the duties of the Director of the U.S. Immigration and Customs Enforcement, and IMMIGRATION AND CUSTOMS ENFORCEMENT,

Respondents.

Civil Action No. TDC-20-0780

MEMORANDUM ORDER Pending before the Court is Petitioner Mauricio Coreas’s Renewed Motion for a Preliminary Injunction seeking release from the Howard County Detention Center in Jessup, Maryland at which he is detained by United States Immigration and Customs Enforcement (“ICE”) on alleged immigration violations. On April 3, 2020, the Court issued a memorandum opinion and order denying without prejudice a Motion for a Temporary Restraining Order (“TRO”) in

Case 8:20-cv-00780-TDC Document 87 Filed 04/30/20 Page 2 of 7

which Petitioners Coreas and A G

C sought release based on their claim that their

continued ICE detention during the COVID-19 pandemic violated their right to due process under

the Fourteenth Amendment to the United States Constitution. Coreas v. Bounds, No. TDC-20-

0780, 2020 WL 1663133 at *1, *5 (D. Md. Apr. 3, 2020) (“Coreas I”). In that opinion, the Court

concluded that although it did not find a likelihood of success on the merits of Coreas’s claim in

light of the lack of any evidence that the Coronavirus had entered HCDC, it would find such a

constitutional violation likely upon either a showing that a detainee or staff member at HCDC had

tested positive for COVID-19, or upon Respondents’ failure to certify that they were testing all

individuals at HCDC exhibiting COVID-19 symptoms. Id. at *11-13. The Court also found that

under such circumstances, the Court would find likely irreparable harm to Coreas and that the

balance of the equities and the public interest would favor release. Id. at *13-14. Where the vast

majority of the analysis necessary to resolve the present Motion is set forth in Coreas I, the Court

fully adopts, restates, and incorporates by reference Coreas I as part of this memorandum order.

On April 25, 2020, in accordance with the Court’s prior order, Respondents reported that

a nurse at HCDC had tested positive for COVID-19. Although the nurse works at HCDC only one

day per week, on Monday, April 20, 2020, she worked in the medical unit at HCDC and interacted

with seven to eight detainees. On Wednesday, April 22, the nurse began to feel ill, and she tested

positive on Thursday, April 23. Coreas filed the present Motion on April 27, 2020.

DISCUSSION

In order to succeed on a motion for a preliminary injunction, a party must establish (1) a

likelihood of success on the merits; (2) a likelihood of “irreparable harm in the absence of

preliminary relief”; (3) that the balance of equities tips in the moving party’s favor; and (4) that

“an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20

2

Case 8:20-cv-00780-TDC Document 87 Filed 04/30/20 Page 3 of 7
(2008). Based on its prior analysis, the Court finds that the presence of an individual with COVID19 inside HCDC, combined with the conditions of confinement for Coreas, the deficiencies in Respondents’ mitigation measures at HCDC, and Coreas’s status as a detainee with a high-risk health condition that places him at heightened risk of death or serious illness from COVID-19, establishes a likelihood of success on the merits of Coreas’s constitutional claim. Coreas I, 2020 WL 1663133 at *11-13. Based on that same analysis, the Court further finds that under the present conditions of confinement, there is likely irreparable harm to Coreas and that the balance of the equities and the public interest favor release. Id. at *13-14. Accordingly, the Court will grant the Motion.
Although this conclusion is largely self-executing based on the Court’s prior analysis, the Court has considered possible reasons not to grant the preliminary injunction contemplated by that analysis. First, Respondents suggest that the presence at HCDC of the nurse who tested positive for COVID-19 does not alter the landscape because surveillance video supports the conclusion that she did not interact with Coreas, and that she was wearing personal protective equipment (“PPE”) during her shift. However, PPE does not necessarily prevent the transmission of the Coronavirus. Greifinger Second Decl. ¶ 7, Renewed Mot. Prelim. Inj. Ex. 53, ECF No. 76-6 (“The use of personal protective equipment . . . does not eliminate the risk of COVID-19 spread . . . .”). Moreover, the Court never conditioned its analysis on direct contact between Coreas and an individual with COVID-19. Respondents acknowledge that the nurse interacted with seven to eight detainees and do not specify whether she interacted with other medical or correctional staff, and, if so, whether she wore PPE at all times when in the presence of other staff. Although Respondents report that HCDC is conducting some form of contact tracing, they have not reported that all individuals who interacted with the nurse were quarantined. There appear to be no plans
3

Case 8:20-cv-00780-TDC Document 87 Filed 04/30/20 Page 4 of 7
to test these individuals. Although HCDC’s post-Motion review of the health status of detainees, limited only to those in Coreas’s housing unit, did not identify anyone with symptoms, the lack of overt symptoms does not establish that no one at HCDC was exposed to the Coronavirus during the nurse’s shift. Id. ¶ 11(c) (noting evidence that many individuals with the Coronavirus exhibit mild or no symptoms). The Court therefore concludes that the nurse constitutes an actual case of an individual with COVID-19 at HCDC who interacted with others inside the facility, presenting a health risk to all individuals at HCDC, including Coreas. Id. ¶ 8 (asserting that a “review of policies and guidelines at both the Howard and Worcester County Detention facilities indicate that ICE and county officials will be unable to prevent the spread of COVID-19”); see also id. ¶ 6 (“Once COVID-19 is introduced into [correctional] facilities, it spreads like wildfire.”).
Second, the Court has considered whether circumstances inside HCDC have changed to a sufficient degree since April 3 to warrant a re-examination of the Court’s prior analysis. They have not. In its prior opinion, the Court concluded that had the Coronavirus been present at HCDC, there would likely be a constitutional violation because in that circumstance, the deficiencies in the mitigation measures in effect at that time would establish deliberate indifference to the health and safety of a high-risk detainee such as Coreas. Coreas I, 2020 WL 1663133 at *11-12. In particular, the Court identified the lack of any social distancing measures, the lack of any accommodations to protect detainees with high-risk health conditions, and the lack of any testing for COVID-19 as notable deficiencies. Id. at *11. Based on Respondents’ submission, although some additional measures have been adopted since April 3, such as the wearing of masks inside the facility, none of these identified deficiencies have been addressed. Even though HCDC remains below capacity, no social distancing measures have been implemented, as confirmed by the Warden’s statement that the 24 detainees in Coreas’s housing unit continue to eat lunch
4

Case 8:20-cv-00780-TDC Document 87 Filed 04/30/20 Page 5 of 7
together. Kavanaugh Decl. ¶ 14, Opp’n Renewed Mot. Prelim. Inj. Ex. 1, ECF No. 82-1. No policies specifically aimed at protecting detainees with high-risk health conditions have been adopted. Although HCDC has, through ICE, certified that it would test any individuals with COVID-19 symptoms, it has not actually tested anyone to date, even though the nurse who tested positive for COVID-19 interacted with several detainees and Coreas has provided evidence, including a declaration by an attorney, that at least two individuals with symptoms have not been tested. Yorick Supp. Decl. ¶¶ 3-4, Renewed Mot. Prelim. Inj. Ex. 52, ECF No. 76-5. The Court therefore finds no reason to revisit its determination of likely deliberate indifference to inmate health and safety under the circumstances that have now come to pass. Coreas I, 2020 WL 1663133 at *11-12. Moreover, the Court’s separate finding, that the detention of a civil detainee with a high-risk health condition in a facility exposed to the Coronavirus likely imposes unconstitutional punishment because the conditions bear no reasonable relationship to the purpose of the detention, is not dependent on the specific mitigation measures present at HCDC. Id. at *12-13.
Finally, the Court notes that the balance of the equities and public interest continue to favor the granting of the preliminary injunction. Beyond the Court’s prior analysis, id. at *13-14, the Court notes that the failure to address the previously identified deficiencies in mitigation measures, and HCDC’s propensity to respond to any complaints raised by Coreas by placing him in administrative segregation, which it has now done twice since the Court’s April 3 order, confirm that release on conditions, rather than any modification of conditions, is warranted at this time.
The Court’s determination is consistent with that of other courts that have released immigration detainees with high-risk health conditions who are at risk of exposure in ICE detention facilities. See, e.g., Fofana v. Albence, No. 20-10869, 2020 WL 1873307 at *7-9, *11
5

Case 8:20-cv-00780-TDC Document 87 Filed 04/30/20 Page 6 of 7
(E.D. Mich. Apr. 15, 2020) (granting release to a detainee with a high-risk medical condition upon a finding of deliberate indifference to a “serious risk of illness and death from exposure to COVID19” where, even though there was no confirmed case of the Coronavirus in the facility, social distancing was not observed and medical facilities were substandard); Valenzuela Arias v. Decker, No. 20-2802 (AT), 2020 WL 1847986 at *1, *6-7 (S.D.N.Y. Apr. 10, 2020) (granting release based on a finding of a likelihood of success on a deliberate indifference claim where the detention facility had confirmed cases of the Coronavirus, did not protect high-risk individuals, and could not enforce social distancing); Coronel v. Decker, No. 20-2472 (AJN), 2020 WL 1487274, at *46 (S.D.N.Y. Mar. 27, 2020) (granting release based on a finding of deliberate indifference to the medical needs of high-risk detainees for social distancing where the Coronavirus was known to be in a detention facility and “the record demonstrates that ICE has not taken any action to address the particular risks COVID-19 poses to high risk individuals like Petitioners here”); Basank v. Decker, No. 20-2518 (AT), 2020 WL 1481503, at *5 (S.D.N.Y. Mar. 26, 2020) (granting release based on a finding of deliberate indifference based on the absence of social distancing within the detention facility and the absence of any “steps to protect high-risk detainees like Petitioners” in facilities where the Coronavirus was present).
Accordingly, where the Court has found that all four prongs of the preliminary injunction analysis have been met, the Motion will be granted. See Winter, 555 U.S. at 20. Coreas will be ordered released on the conditions proposed by ICE, as modified in the accompanying Order, as well as the following conditions: (1) maintaining residence at the designated address in Maryland and self-quarantining there for the first 14 days following his release; (2) location monitoring, at the discretion of ICE; and (3) compliance with the terms of supervised release set in United States
6

Case 8:20-cv-00780-TDC Document 87 Filed 04/30/20 Page 7 of 7
v. Coreas, No. TDC-15-0447 (D. Md.), including reporting, by telephone if necessary, to the assigned United States Probation Officer within 72 hours of release from ICE custody.
Finally, the Court will not require a bond in this case. Although “[t]he court may issue a preliminary injunction . . . only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained,” Fed. R. Civ. P. 65(c), the Court “retains the discretion to set the bond amount as it sees fit or waive the security requirement.” Pashby v. Delia, 709 F.3d 307, 331-32 (4th Cir. 2013). Where the financial impact to Respondents of an improperly imposed injunction is limited and would not create any significant hardship, and the Court found in Coreas’s criminal case that he has no assets in the United States and could not pay a fine, Presentence Investigation and Report ¶¶ 46-47, United States v. Coreas, No. TDC-15-0447 (D. Md.) (ECF No. 33), the Court will waive the security requirement. See Pashby, 709 F.3d at 331-32; Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 421 n.3 (4th Cir. 1999) (noting that “[i]n some circumstances, a nominal bond may suffice” and citing a case in which the bond was set at $0).
CONCLUSION For the foregoing reasons, it is hereby ORDERED that Coreas’s Renewed Motion for a Preliminary Injunction, ECF No. 76, is GRANTED. The injunction will be set forth in a separate order.

Date: April 30, 2020

/s/ Theodore D. Chuang THEODORE D. CHUANG United States District Judge

7

 
 Case 8:20-cv-00780-TDC Document 93 Filed 05/07/20 Page 1 of 15

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

MAURICIO COREAS,

A

G

C

and

WILLIAM KEMCHA,

Petitioners,

v.

DONNA BOUNDS, in her official capacity as Warden, Worcester County Detention Center, JACK KAVANAUGH, in his official capacity as Director, Howard County Detention Center, JANEAN OHIN, in her official capacity as Acting Baltimore Field Office Director, U.S. Immigration and Customs Enforcement, MATTHEW T. ALBENCE, in his official capacity as Deputy Director and Senior Official performing the duties of the Director of the U.S. Immigration and Customs Enforcement, and IMMIGRATION AND CUSTOMS ENFORCEMENT,

Respondents.

Civil Action No. TDC-20-0780

MEMORANDUM OPINION

Pending before the Court is a Renewed Motion for a Preliminary Injunction by Petitioners

A G

C

and William Kemcha seeking release from the Worcester County

Detention Center in Snow Hill, Maryland (“WCDC”) at which they are detained by United States

Immigration and Customs Enforcement (“ICE”) on alleged or established immigration violations.

At a case management conference on April 27, 2020, the parties agreed that upon completion of

Case 8:20-cv-00780-TDC Document 93 Filed 05/07/20 Page 2 of 15

briefing, the Motion could be resolved without a hearing. The Motion is now fully briefed, and

the Court finds that no hearing is necessary. See D. Md. Local R. 105.6. For the reasons set forth

below, the Motion will be GRANTED.

BACKGROUND

I. Procedural History

On April 3, 2020, the Court issued a Memorandum Opinion and Order denying without

prejudice a Motion for a Temporary Restraining Order (“TRO”) (“the First Motion”) in which

Petitioners G

C

and Mauricio Coreas sought release based on their claim that their

continued ICE detention during the COVID-19 pandemic violated their right to due process under

the Fourteenth Amendment to the United States Constitution. Coreas v. Bounds, No. TDC-20-

0780, 2020 WL 1663133, at *1, *5 (D. Md. Apr. 3, 2020) (“Coreas I”). In that opinion, the Court

concluded that although it did not find a likelihood of success on the merits of G

C ’s

claim in light of the lack of any evidence that the Coronavirus had entered WCDC, it would find

a constitutional violation likely upon either a showing that a detainee or staff member at WCDC

had tested positive for COVID-19, or upon Respondents’ “fail[ure] to submit a timely certification

that they have obtained COVID-19 tests and will administer a test to any individual at [the]

Detention Facility who exhibits suspected COVID-19 symptoms.” Id. at *11-13. The Court also

found that under such circumstances, the Court would find likely irreparable harm to G

C and that the balance of the equities and the public interest would favor release. Id. at *13-

14. Where the vast majority of the analysis necessary to resolve the present Motion is set forth in

Coreas I, the Court fully adopts, restates, and incorporates by reference Coreas I as part of this

Memorandum Opinion.

2

Case 8:20-cv-00780-TDC Document 93 Filed 05/07/20 Page 3 of 15

In Coreas I, the Court denied the First Motion without prejudice and stated that Petitioners

could renew the Motion under certain circumstances, including if Respondents failed to certify

that they would administer a COVID-19 test to “any individual at . . . WCDC with suspected

COVID-19 symptoms” or if there were “other materially changed circumstances.” Coreas I, 2020

WL 1663133, at *15. Although G

C had an immigration hearing on April 17, 2020,

an additional hearing before an immigration judge was scheduled for June 6, 2020. On April 26,

2020, Petitioners filed an Amended Complaint in which Kemcha was added as a Petitioner. On

April 27, 2020, Coreas filed a Renewed Motion for a Preliminary Injunction seeking his release

from the Howard County Detention Center in Jessup, Maryland, which was granted on April 30,

2020. On April 28, 2020, G

C

and Kemcha (hereinafter, “Petitioners”) filed the

present Motion seeking release from WCDC.

II. WCDC

With the Motion, Petitioners have provided new evidence that at least one WCDC detainee,

, had symptoms of COVID-19 yet was not tested. Specifically,

began to develop a severe cough on or about March 20, 2020 and reported his

symptoms to a nurse. He was later placed in an isolation cell near the nurse’s office and as his

cough persisted, he also reported that he believed he had a fever and that his chest and lungs were

hurting. On March 27, 2020, he was provided with a face mask and instructed to wear it at all

times. Correctional officers and medical staff who entered his cell wore full protective suits,

similar to hazmat suits, as well as masks and gloves. On April 3, 2020, through a translator,

was told that he was isolated because he was showing COVID-19 symptoms. On

April 8 and 9, his cough remained and he still had chest pain, but his fever had declined. He was

released from isolation on April 11, 2020.

3

Case 8:20-cv-00780-TDC Document 93 Filed 05/07/20 Page 4 of 15

Medical records confirm that as of March 27, 2020,

had a cough, chest

discomfort, a sore throat, and a fever of 99.3 degrees and was placed in an isolation cell at the

direction of WCDC Warden Donna Bounds. As of March 30, his fever was 99.8 degrees.

Although his fever later declined, from March 30 and continuing until at least April 2,

-

was still required to wear a mask, including in the shower and while on the telephone, and

medical staff continued to wear personal protective equipment (“PPE”) during their encounters

with him. On April 2, 2020,

was moved from the medical unit to “secondary

housing” to complete a quarantine period.

Med. Records (“Med. Records II”) at

34, ECF No. 92-24. On April 10, 2020, WCDC’s tracking chart noted that

had

“completed 14 day quarantine for suspected COVID-19 infection,” that he had remained fever-

free and no longer claimed symptoms, and was cleared to return to the general population. Id. at

37.

The medical records specifically state that

was monitored for “suspected

COVID-19” on April 1 and “possible COVID-19 infection” on April 2.

Med.

Records (“Med. Records I”) at 3-4, 73, Renewed Mot. Prelim. Inj. Ex. 75, ECF No. 81. Moreover,

WCDC tracked

’s progress on forms entitled “Patient Monitoring for Confirmed

or Suspected COVID-19,” with a subheading of “Monitoring of Symptomatic patient with

suspected or confirmed COVID-19,” from March 28 to April 2, 2020. Med. Records I at 20-32.

WCDC also maintained a tracking chart with each entry for

during those same

dates containing the designation “Patient Monitoring for Confirmed or Suspected COVID-19.”

Med. Records II at 27-34. Nevertheless,

was never tested for COVID-19.

On April 25, 2020,

had chest pains, cold sweats, shortness of breath, and

a fever of 99.3 degrees. He was sent to a hospital because of concerns about his heart condition,

4

Case 8:20-cv-00780-TDC Document 93 Filed 05/07/20 Page 5 of 15

but during that visit his electrocardiogram was deemed normal. He was returned to WCDC and

underwent 14 days of quarantine because he left the facility.

In addition to

, since March 27, 2020, there were two other immigration

detainees who were moved to the medical housing area because of elevated temperatures and were

isolated and monitored for 14 days. According to Warden Bounds, they were not tested for

COVID-19 because their temperatures did not go above 100 degrees. According to medical

records, on April 3, 2020, one of these detainees had a temperature of 99.8 degrees and had a cough

that was a 7 on a scale of 1-10. Warden Bounds was notified, and the detainee was directed to

wear a mask, staff wore mask and gloves when interacting with him, and the detainee was isolated

until April 6.

III. William Kemcha

Petitioner William Kehdinga Kemcha, a native and citizen of Cameroon, has lived in the

United States for 33 years and has a wife and two United States citizen daughters who reside in

Maryland. He is 58 years old and suffers from high blood pressure and lymphedema. Kemcha’s

lymphedema is the result of surgery he had to remove a malignant mole on the sole of his foot and

has caused him to have a compromised immune system. One of Petitioners’ expert witnesses, Dr.

Kate Sugarman, has submitted a declaration attesting that Kemcha’s age, his hypertension, and his

compromised immune system each independently increase his risk of serious complications or

death from COVID-19. Sugarman Decl. ¶ 6, Renewed Mot. Prelim. Inj. Ex. 76, ECF No. 79-8.

See also Groups at Higher Risk for Severe Illness, Ctrs. for Disease Control and Prevention,

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html#

serious-heart-conditions (last visited May 7, 2020) (identifying hypertension and compromised

immune systems based on cancer treatment as high-risk conditions). Indeed, based on recent data,

5

Case 8:20-cv-00780-TDC Document 93 Filed 05/07/20 Page 6 of 15

Kemcha’s status as a cancer patient alone puts his risk of dying from COVID-19 at double that of

the general population. Sugarman Decl. ¶ 6. Together, these conditions and his age leave Kemcha

“at extremely high risk of serious illness or death should he contract COVID-19.” Id.

Kemcha first entered the United States in on an student visa. In , Kemcha

was placed in removal proceedings after overstaying his visa. In , an immigration judge

denied Kemcha’s applications for relief, and that determination was affirmed by the Board of

Immigration Appeals in . In

, Kemcha was arrested by ICE at his home in

, but ICE could not secure a travel document for his removal and released him in

on conditions of supervision. Kemcha reported to ICE as directed for the ensuing

nine years, until he was again taken into custody in

. Kemcha was scheduled to

be removed back to

on

, but on

the flight was canceled

due to COVID-19 concerns. As of now, another flight is not available until

.

DISCUSSION

In the Motion, Petitioners argue that release is now warranted because the Court’s prior

denial of the First Motion was predicated on Respondent’s certification that WCDC would test for

the Coronavirus any detainee exhibiting symptoms of COVID-19, and they have now uncovered

evidence that Respondents failed to test at least one such individual. Respondents assert that there

is no reason to revisit the Court’s prior ruling because no violation of the testing protocol occurred.

I. Legal Standard

In order to succeed on a motion for a preliminary injunction, a party must establish (1) a

likelihood of success on the merits; (2) a likelihood of “irreparable harm in the absence of

preliminary relief”; (3) that the balance of equities tips in the moving party’s favor; and (4) that

6

Case 8:20-cv-00780-TDC Document 93 Filed 05/07/20 Page 7 of 15

“an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20

(2008).

II. Likelihood of Success on the Merits

In ruling on the First Motion, the Court found that in the event that a detainee or staff

member at WCDC tested positive for COVID-19, or that WCDC failed to commit to test any

individual at WCDC who had suspected COVID-19 symptoms, the conditions of confinement for

G

C , the deficiencies in Respondents’ mitigation measures at WCDC, and G

C ’s status as a detainee with a high-risk health condition that places him at heightened risk

of death or serious illness from COVID-19 would collectively establish a likelihood of success on

the merits of his constitutional claim. Coreas I, 2020 WL 1663133, at *11-13. The Court reaffirms

and adopts this reasoning as relevant and applicable to the present Motion. Where, based on the

facts set forth above, the Court finds that Kemcha also has high-risk medical conditions that place

him at a risk from COVID-19 comparable to or greater than that faced by G

C , the

Court adopts the same reasoning, as applicable, to Kemcha’s claim. See id.

Petitioners have now presented compelling evidence that a detainee at WCDC had

suspected COVID-19 symptoms yet was never tested. On or about March 20, 2020,

developed a severe cough. No later than March 27, 2020,

reported to the

medical staff that he had a cough, chest discomfort, a sore throat, and a fever. He was placed in

an isolation cell and required to wear a mask when showering and using the telephone. Medical

staff wore PPE when interacting with

, kept him in an isolation cell until April 2,

then transferred him to a different cell where he remained quarantined until April 11. According

to the Centers for Disease Control and Prevention (“CDC”), COVID-19 symptoms include cough,

shortness of breath, fever, sore throat, muscle pain, headache, and chills, and that someone with a

7

Case 8:20-cv-00780-TDC Document 93 Filed 05/07/20 Page 8 of 15

cough or shortness of breath, or with any two of the other symptoms, may have COVID-19.

Symptoms of Coronavirus, Ctrs. for Disease Control and Prevention,

https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (last visited May

7, 2019). See also Golob Decl. ¶ 5, Reply Mot TRO Ex. 7, ECF No. 52-7 (identifying the most

common symptoms of COVID-19 as fever, cough, and shortness of breath). Where

-

had a severe cough, fever, sore threat, and discomfort in his chest, the Court finds that

had suspected COVID-19 symptoms.

Respondents cannot and do not seriously dispute that

had suspected

COVID-19 symptoms. Rather, they argue that there was no violation of the Court’s testing

requirement because under the guidance of their health care contractor, Wellpath, no test is

required unless an individual’s temperature exceeds 100 degrees, and in any event by the time of

the Court’s April 3 Order requiring testing, there was no need to test

because he

no longer had symptoms and had improved sufficiently that he had been moved out of the medical

unit, though he remained quarantined until April 11. This hypertechnical reasoning is

unpersuasive. In its April 3 Order, the Court required testing of “any individual at . . . WCDC

with suspected COVID-19 symptoms,” without an exception for individuals whose fever did not

exceed 100 degrees. Apr. 3, 2020 Order at 2, ECF No. 57; Coreas I, 2020 WL 1663133, at *14.

Moreover,

had been explicitly identified on forms as “suspected COVID-19” as

of April 2, he continued to have a cough as of April 8 and 9, and he remained in quarantine until

April 11, eight days after the April 3 Order, because he had had COVID-19 symptoms. Under any

fair reading of the Court’s Order, he should have been tested.

Even if the language of the Court’s Order could be parsed in a way to support the argument

that there was no violation of the Court’s mandated testing protocol, this episode with

8

Case 8:20-cv-00780-TDC Document 93 Filed 05/07/20 Page 9 of 15

remains highly significant for two reasons. First, there can be no dispute that as of March

27, 2020,

represented a suspected case of COVID-19 at WCDC. For proof, one

need look no further than WCDC’s own medical records, which tracked information about

through April 2, 2020 on forms and charts with the designation, “Patient

Monitoring for Confirmed or Suspected COVID-19,” with a subheading, “Monitoring of

Symptomatic patient with suspected or confirmed COVID-19.” Med. Records I at 20-32. Yet in

a declaration under penalty of perjury filed with the First Motion, the ICE Deputy Assistant

Director for Healthcare Compliance attested to the fact that as of March 27, 2020, “[t]here are zero

suspected cases of COVID-19 in . . . the Worcester County Jail.” Moon Decl. ¶ 12, Opp’n Mot.

TRO Ex. 2, ECF No. 39-2. This statement, which the Court relied upon in deciding the First

Motion, proved to be demonstrably false. Even assuming that the inaccuracy was unintentional at

the time, such as because

’s condition was just emerging and had yet to be

identified and reported up the chain to ICE by the time the declaration was signed, the declaration

was not filed with the Court until March 30, three days later, and the Court did not issue its ruling

on the first Motion until April 3, 2020, almost a full week after

was identified as

a “symptomatic patient with suspected or confirmed COVID-19.” Med. Records I at 20-32.

Respondents’ withholding of this information and failure to correct the record on this point either

before or after the Court ruled on the First Motion raises significant doubt whether WCDC will

reveal suspected cases when they arise so as to facilitate proper testing and responsive measures

to protect the detainee population, or whether it will conceal suspected cases in the future and take

no action, at substantial risk to the detainee population.

Second, WCDC’s unilateral decision not to test

, and perhaps the other

detainees who were isolated because of elevated temperature levels, is highly probative on the

9

Case 8:20-cv-00780-TDC Document 93 Filed 05/07/20 Page 10 of 15

issue of deliberate indifference. To the extent that WCDC claims that a detainee it labeled as

“suspected COVID-19” did not need to be tested because his temperature did not reach a particular

threshold, it reflects an unreasonably high tolerance for the potential presence of undetected cases

of COVID-19 inside WCDC. WCDC identifies no scientific basis to conclude that a symptomatic

detainee whose temperature did not reach 100 degrees does not have COVID-19. Indeed, it is

understood that even asymptomatic individuals can be carrying the Coronavirus. See Golob Decl.

¶ 6. Even if such a testing protocol may be deemed acceptable under certain conditions, in a prison

setting, where the risk of widespread transmission is so high and can have such devastating effects,

the choice of such a standard does not sufficiently protect the detainee population. See Greifinger

Second Decl. ¶ 6, Renewed Mot. Prelim. Inj. Ex. 53, ECF No. 76-6 (“Once COVID-19 is introduced

into [detention] facilities, it spreads like wildfire.”). By having unilaterally adopted and applied such

a rule, under which WCDC will not test individuals whose symptoms otherwise cause them to be

labeled by WCDC’s own medical staff as “suspected COVID-19,” WCDC has shown that it is

willing to disregard a known “excessive risk to inmate health and safety.” Jackson v. Lightsey,

775 F.3d 170, 178 (4th Cir. 2014).

Furthermore, Respondents’ argument that WCDC was not required to test

because his symptoms had subsided by the time the Court issued its Order reveals that WCDC’s

interest was in doing the minimum amount required by the Court’s Order, or in avoiding learning

whether the Coronavirus had entered the facility because of the obligations that such knowledge

would bring, rather than in acting to safeguard individuals inside the facility. At the time the Court

issued its April 3 Order,

had just been moved out of medical isolation but

remained under quarantine for another week. He was one day removed from being identified as

“suspected COVID-19.” Med. Records I at 20. Beyond whether it was required by the Court’s

10

Case 8:20-cv-00780-TDC Document 93 Filed 05/07/20 Page 11 of 15

Order, Respondents have provided no principled reason not to have tested

, either

before or after the Court’s Order, when it was clear that he had had COVID-19 symptoms. Thus,

to the extent that Respondents chose not to test him or other similarly situated detainees because

their symptoms had subsided, that decision further supports a finding of likely deliberate

indifference to inmate health and safety. Indeed, had the Court not been misled by Respondents’

claim that there were no suspected COVID-19 cases at WCDC, and had it known that such a

detainee existed but would not be tested, it likely would have reached a different conclusion on

the First Motion.

In its opinion on the First Motion, the Court concluded that in the absence of testing for

COVID-19 at WCDC, there would likely be a constitutional violation because in that

circumstance, the deficiencies in the mitigation measures in effect at that time would establish

deliberate indifference to the health and safety of high-risk detainees such as Petitioners. Coreas

I, 2020 WL 1663133, at *11-12. In particular, the Court identified the lack of any social distancing

measures, the lack of any accommodations to protect detainees with high-risk health conditions,

and the lack of any testing for COVID-19 as notable deficiencies. Id. at *11. Based on

Respondents’ submission, although some additional measures have been adopted since April 3,

such as the wearing of masks inside the facility, none of these identified deficiencies have been

addressed. Even though WCDC remains below capacity, no social distancing measures have been

implemented. No policies specifically aimed at protecting detainees with high-risk health

conditions have been adopted. And as discussed above, the Court now knows that WCDC was

aware of at least one detainee, and possibly two more, with suspected COVID-19 but failed to test

him without good reason. Thus, the Court finds that where the identified deficiencies in mitigation

measures remain, but the record now reflects that WCDC has been unwilling to test for the

11

Case 8:20-cv-00780-TDC Document 93 Filed 05/07/20 Page 12 of 15

Coronavirus even when detainees are suspected of having COVID-19, this combination of facts

reveals likely deliberate indifference to inmate health and safety. Moreover, the Court separately

concludes that its prior finding that the detention of a civil detainee with a high-risk health

condition in a facility without any testing for COVID-19 likely imposes unconstitutional

punishment because the conditions bear no reasonable relationship to the purpose of the detention,

id. at *12-13, applies equally to a facility in which a detainee with known symptoms of COVID-

19 was never tested. Accordingly, the Court finds a likelihood of success on the merits of

Petitioners’ constitutional claim.

III. Remaining Factors

In Coreas I, the Court found that if it concluded that there was a likelihood of success on

the merits, there would be likely irreparable harm to G

C , and that the balance of the

equities and the public interest would favor his release. Id. at *13-14. The Court reaffirms and

adopts this general reasoning as relevant and applicable to the present Motion as to both

Petitioners. Particularly given the failure to address the previously identified deficiencies in

mitigation measures and WCDC’s overly narrow approach to testing, the Court finds that these

factors have been satisfied as to G

C . See id.

As for Kemcha, who was not a Petitioner at the time of the First Motion, where, as

discussed above, there is no dispute that Kemcha has a high-risk medical condition that makes him

particularly vulnerable to COVID-19, the Court finds that by the same reasoning, there is a

likelihood of irreparable harm to him. See id. The Court also finds that the balance of the equities

and public interest tip substantially in his favor. Beyond the general analysis set forth in Coreas

I, the Court notes that Kemcha has no known criminal history, so he would present no discernible

risk to the public if released. Although the fact that Kemcha is being detained pursuant to a final

12

Case 8:20-cv-00780-TDC Document 93 Filed 05/07/20 Page 13 of 15

order of removal arguably increases his risk of flight, Kemcha has been subject to an order of

removal since 2010, and for the ensuing nine years, until he was returned to custody in 2019,

Kemcha reported to ICE as directed. In light of Kemcha’s extended track record of compliance

with reporting requirements and the fact that his wife and United States citizen daughters live in

,

, the Court finds that the although there is a public interest in the enforcement of

immigration laws, there is only a limited interest in Kemcha’s continued detention until his

removal, and that such interest is outweighed by Kemcha’s interest in reducing his risk of exposure

to a potentially deadly disease. Where no alternative means of addressing that risk have been

offered, both the balance of the equities and the public interest favor release.

IV. Preliminary Injunction

Where the Court has found that all four prongs of the preliminary injunction analysis have

been met, the Motion will be granted. See Winter, 555 U.S. at 20. This ruling is consistent with

those of numerous federal courts across the nation that have ordered the release of immigration

detainees based on the imminent threat of the Coronavirus to those with high-risk health

conditions, even when no cases of COVID-19 had been confirmed in the relevant facilities. See,

e.g., Favi v. Kolitwenzew, No. 20-2087, 2020 WL 2114566, at *3, *12 (C.D. Ill. May 4, 2020);

Pimentel-Estrada v. Barr, No. 20-0495 RSM-BAT, 2020 WL 2092430, at *13, *19 (W.D. Wash.

Apr. 28, 2020); Perez v. Wolf, No. 19-5191 (EJD), 2020 WL 1865303, at *12, *13-14 (N.D. Cal.

Apr. 14, 2020); Malam v. Adducci, No. 20-10829, 2020 WL 1672662, at *9, *14 (E.D. Mich. Apr.

5, 2020); Thakker v. Doll, No. 20-0480, 2020 WL 1671563, at *3, *10 (M.D. Pa. Mar. 31, 2020)

(granting release from three detention facilities, only one of which had a positive test for COVID-

19). In granting this relief, these courts have focused on some of the same factors present here,

including the possibility of asymptomatic transmission, see Pimentel-Estrada, 2020 WL 2092430,

13

Case 8:20-cv-00780-TDC Document 93 Filed 05/07/20 Page 14 of 15

at *12 (“The biggest threat comes from Respondents’ inability to identify asymptomatic carriers

as staff, contractors, vendors, attorneys, and visitors come and go between the detention center and

the broader community where COVID-19 has been spreading.”); Malam, 2020 WL 1672662, at

*9; Favi, 2020 WL 2114566, at *10 (“Screening, however, will only allow the facility to identify

individuals with active symptoms, not those asymptomatic individuals who can nevertheless

spread the virus undetected.”); the failure or refusal of facilities to implement necessary testing,

see Pimentel-Estrada, 2020 WL 2092430, at *15 (“[G]iven this limited testing, a lack of proven

cases cannot establish that COVID-19 is not already present at [the facility].”); and the inability of

detainees to effectively practice social distancing, see id. at *13 (“Respondents continue to house

. . . detainees in conditions that make it practically impossible to maintain adequate social

distancing throughout the day.”); Perez, 2020 WL 1865303, at *12 (“[T]he structure of detention

facilities, which are designed to house multiple people in close proximity, render any sanitation

efforts somewhat meaningless as detainees cannot social distance.”); Malam, 2020 WL 1672662,

at *8 (“Respondents have confined Petitioner in an environment where she shares toilets, sinks,

phones, and showers, eats in communal spaces, and is in close contact with the many other

detainees and officers.”); Favi, 2020 WL 2114566, at *10 (relying on the “lack of meaningful

ability to social distance”).

Accordingly, Petitioners will be ordered released on the conditions proposed by ICE, as

modified in the accompanying Order, as well as the following conditions: (1) maintaining

residence at their respective designated addresses in

and self-quarantining there for the

first 14 days following their release; and (2) location monitoring, at the discretion of ICE. G

C shall also comply with the terms of supervised release set in United States v.

, No.

14

Case 8:20-cv-00780-TDC Document 93 Filed 05/07/20 Page 15 of 15
(D. Md.), including reporting, by telephone if necessary, to the assigned United States Probation Officer within 72 hours of release from ICE custody.
Finally, the Court will not require a bond in this case. Although “[t]he court may issue a preliminary injunction . . . only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained,” Fed. R. Civ. P. 65(c), the Court “retains the discretion to set the bond amount as it sees fit or waive the security requirement.” Pashby v. Delia, 709 F.3d 307, 331-32 (4th Cir. 2013). Where Petitioners have asserted that a bond would impose significant financial hardship upon them, Respondents have not disputed that claim, and the financial impact to Respondents of an improperly imposed injunction is limited and would not create any significant hardship, the Court will waive the security requirement. See Pashby, 709 F.3d at 331-32; Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 421 n.3 (4th Cir. 1999) (noting that “[i]n some circumstances, a nominal bond may suffice” and citing a case in which the bond was set at $0).
CONCLUSION For the foregoing reasons, Petitioners’ Renewed Motion for a Preliminary Injunction, ECF No. 79, will be GRANTED. The injunction will be set forth in a separate order.

Date: May 7, 2020

/s/ Theodore D. Chuang THEODORE D. CHUANG United States District Judge

15

 
 Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 1 of 33

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

MAURICIO COREAS and ANGEL GUZMAN CEDILLO,
Petitioners,
v.
DONNA BOUNDS, in her official capacity as Warden, Worcester County Detention Center, JACK KAVANAUGH, in his official capacity as Director, Howard County Detention Center, JANEAN OHIN, in her official capacity as Acting Baltimore Field Office Director, U.S. Immigration and Customs Enforcement, MATTHEW T. ALBENCE, in his official capacity as Deputy Director and Senior Official performing the duties of the Director of the U.S. Immigration and Customs Enforcement, and IMMIGRATION AND CUSTOMS ENFORCEMENT,
Respondents.

Civil Action No. TDC-20-0780

MEMORANDUM OPINION Petitioners Mauricio Coreas and Angel Guzman Cedillo (“Guzman Cedillo”), currently in immigration detention, have filed this action pursuant to 28 U.S.C. § 2241 against Respondents Donna Bounds, Warden of the Worcester County Detention Center in Snow Hill, Maryland; Jack Kavanaugh, Director of the Howard County Detention Center in Jessup, Maryland; Janean Ohin, the Acting Baltimore Field Office Director for United States Immigration and Customs

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 2 of 33
Enforcement (“ICE”); Matthew T. Albence, Deputy Director and Senior Official performing the duties of the Director of ICE; and ICE. Pending before the Court is Petitioners’ Motion for a Temporary Restraining Order (“TRO”), seeking their immediate release in response to the COVID-19 pandemic. The Motion is fully briefed, and the Court held a video hearing on the Motion on April 2, 2020. For the reasons set forth below, the Motion will be DENIED WITHOUT PREJUDICE.
BACKGROUND I. The COVID-19 Pandemic
The virus identified as SARS-CoV-2, commonly referred to as the novel coronavirus (“the Coronavirus”), has caused a global pandemic of the condition known as COVID-19. As of April 3, 2020, there were 932,166 confirmed cases and 46,764 deaths worldwide. Coronavirus Disease (COVID-19) Pandemic, World Health Org., https://www.who.int/emergencies/diseases/novelcoronavirus-2019. As of April 2, 2020, there were 213,144 confirmed cases and 4,513 deaths in the United States. Cases in U.S., Ctrs. for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html. The Centers for Disease Control and Prevention (“CDC”) has projected that, without effective public health intervention, about 200 million people in the United States may contract the disease, and, under some projections, as many as 1.5 million people in the United States may die from the disease. Another organization’s projection puts the potential number of American fatalities at 2.2 million. Moreover, some evidence suggests that, even when not fatal, COVID-19 results in long-term, serious illnesses, which may include severe damage to internal organs, in about 16 percent of cases.
COVID-19 poses special risks for the elderly and those with certain preexisting medical conditions. Amici Curiae Public Health and Human Rights Experts Br. at 6-7, ECF No. 32. The
2

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 3 of 33
CDC has identified several medical conditions that place an individual at an increased risk of serious COVID-19 complications: “blood disorders, chronic kidney or liver disease, compromised immune system, endocrine disorders, including diabetes, metabolic disorders, heart and lung disease, neurological[,] neurologic and neurodevelopmental conditions, and current or recent pregnancy.” Greifinger Decl. ¶ 7, Reply Mot. TRO (“Reply”) Ex. 6, ECF No. 52-6. Of those who have died from COVID-19 in Italy, another country experiencing a high number of COVID-19 cases, about three-fourths had high blood pressure, one-third had diabetes, and one-third had heart disease. According to Dr. Jonathan Louis Golob, an Assistant Professor at the University of Michigan School of Medicine, there is evidence that in the highest risk populations, COVID-19 causes death in about 15 percent of cases. Preliminary data from China has shown that 20 percent of COVID-19 cases involving high-risk categories have resulted in death.
There is no vaccine, antiviral treatment, or cure for COVID-19. The Coronavirus is believed to spread through “droplets” that can be transmitted during close interpersonal contact, though these droplets can also survive on surfaces for days and spread the disease even absent such close contact. Id. ¶ 21. There is some evidence that individuals with the Coronavirus can transmit it to others even when they are not yet symptomatic. Public health measures aiming to stop the spread of the virus—most notably the practice of social distancing—have been widespread: “[s]chools, courts, collegiate and professional sports, theater and other congregate settings have been closed,” id. ¶ 8, and many states have issued mandatory social distancing polices. The Governor of Maryland issued a stay-at-home order on March 30, 2020. See Order of the Governor of the State of Maryland § II, No. 20-03-30-01 (Mar. 30, 2020), https://governor.maryland.gov/wpcontent/uploads/2020/03/Gatherings-FOURTH-AMENDED-3.30.20.pdf. As of April 2, 2020, 40 states and the District of Columbia had issued stay-at-home or shelter-in-place orders. See These
3

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 4 of 33
States Have Implemented Stay-at-Home Orders, CNN (Apr. 2, 2020), https://www.cnn.com/2020/03/23/us/coronavirus-which-states-stay-at-home-ordertrnd/index.html.
Prisons, jails, and detention centers are especially vulnerable to outbreaks of COVID-19. First, even if these facilities suspend in-person visitation, the staff, contractors, and vendors working at the facilities can still introduce the Coronavirus into the facility, a risk that is all the more difficult to contain because asymptomatic individuals can transmit the virus and because these facilities lack the capacity to screen for the virus in asymptomatic individuals. According to Petitioners’ expert, Dr. Robert B. Greifinger, an expert on prison and jail health care and the former manager of medical care for the New York State prison system, “[j]ails and detention centers are congregate environments where the risk of infection and infectious spread are extraordinarily high.” Greifinger Decl. ¶¶ 1-2, 16. Indeed, there have already been confirmed outbreaks of COVID-19 at several prisons and detention facilities across the United States, including the Rikers Island detention facility in New York City, the Cook County Jail in Chicago, Illinois, and the federal prison in Oakdale, Louisiana, as well as certain New Jersey jails housing ICE detainees. In this region, COVID-19 has been identified in the Clifton T. Perkins Hospital Center, a psychiatric hospital in Jessup, Maryland; and the D.C. Jail in Washington, D.C.
Second, once the Coronavirus is introduced into a detention facility, the nature of these facilities makes the mitigation measures introduced elsewhere in the country difficult or impossible to implement. Detention facilities often lack personal protective equipment that helps prevent the transmission of the virus. Shared facilities, such as bathrooms, dining halls, and telephones, are often not disinfected between uses. Poor ventilation increases the risk of transmission. Detained individuals are often not given the opportunity or tools to wash or sanitize
4

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 5 of 33
their hands frequently. And the crowded nature of the facilities can make social distancing recommended by the CDC impossible.
The ICE Health Service Corps, which oversees medical care at ICE detention facilities, has issued new guidelines for addressing the COVID-19 pandemic. See Interim Reference Sheet on 2019-Novel Coronavirus (COVID-19), ICE Health Service Corps, Mar. 6, 2020, https://www.aila.org/infonet/ice-interim-reference-sheet-coronavirus. The guidelines set out screening procedures that include questioning incoming detainees about travel and potential contact with individuals with COVID-19 and establish some protocols for isolating and monitoring detainees with COVID-19. However, the guidelines do not advise on how and when to test individuals for COVID-19 or to plan for surges once the illness spreads. They also do not include guidance on how to identify detainees at high risk due to health conditions or how to provide special protection for high-risk detainees.
Some courts have granted motions to release high-risk individuals from ICE detention on constitutional grounds. For example, in New York, a federal judge ordered that ten detainees who face a high risk of complications from COVID-19 be released from New Jersey immigration detention facilities in which the Coronavirus was confirmed to be present. See Basank v. Decker, 20-cv-2518, 2020 WL 1481503, at *7 (S.D.N.Y. Mar. 26, 2020). Several other federal courts have also ordered ICE detainees released on the grounds that their continued detention under the threat of the Coronavirus violates the Constitution. See, e.g., Thakker v. Doll, 20-cv-00480, Doc. No. 47 (E.D. Pa. Mar. 31, 2020); Castillo v. Barr, No. 20-cv-0605, 2020 WL 1502864, at *6 (C.D. Cal. Mar. 27, 2020); Coronel v. Decker, No. 20-cv-2472, 2020 WL 1487274, at *10 (S.D.N.Y. Mar. 27, 2020). Other courts have declined to release immigration detainees on this basis. See Sacal-
5

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 6 of 33
Micha v. Longoria, No. 20-cv-0037, 2020 WL 1518861, at *6 (S.D. Tex. Mar. 27, 2020); Dawson v. Asher, No. C20-0409JLR-MAT, 2020 WL 1304557, at *1 (W.D. Wash. Mar. 19, 2020). II. Detention of Petitioners
Petitioners are both detained by ICE in Maryland, and both have underlying medical conditions that place them at increased risk of serious complications or even death from COVID19. According to Dr. Greifinger, based on reviewing the conditions in their respective facilities, “ICE has failed to adequately comprehend and respond to the COVID-19 pandemic for those detained in ICE custody, including at Worcester and Howard County Detention Centers.” Greifinger Decl. ¶ 17.
A. Mauricio Coreas Petitioner Mauricio Coreas, a native of El Salvador, is a construction worker who has three daughters in the United States, including one who is a lawful permanent resident as a result of a successful asylum application. Coreas is seeking relief from deportation on asylum grounds and is currently detained by ICE at the Howard County Detention Center (“HCDC”). He is 52 years old and suffers from severe Type 2 diabetes. This medical condition puts him “at high risk for complications from COVID-19 should [he] be exposed to the virus in detention.” Id. ¶ 31. Coreas was convicted in 2007 in Virginia state court of burglary, arson, and related crimes, deported after serving his sentence, then convicted in 2016 in this Court of illegal reentry after deportation, 8 U.S.C. § 1326 (2018). In 2020, Coreas was convicted of a violation of supervised release on his illegal reentry conviction and sentenced to time served of approximately seven months of imprisonment. He was taken into ICE custody on January 15, 2020 following completion of that sentence. He is scheduled to have an immigration hearing on April 16, 2020.
6

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 7 of 33
At HCDC, low security level detainees are housed in dormitories, large rooms with 32 beds, while higher-level detainees are housed in cells that they share with other detainees. Detainees spend approximately 11 hours per day in communal spaces in which they are placed into close contact with other detainees. As of the filing of this case, these communal spaces, which include dining and restroom facilities, were not disinfected regularly. Detainees come into contact with detainees from other dormitories and parts of HCDC in shared spaces such as the chapel, law library, and medical unit, and with detention staff who regularly move to and from different parts of the facility and in and out of the facility. The medical unit and commissary are shared with individuals who are under pretrial detention in criminal cases. Coreas must visit the shared medical unit twice a day to have his blood sugar level checked. As of March 27, 2020, HCDC had space for approximately 100 immigration detainees and was housing 60 such detainees.
Since March 13, 2020, all programs within HCDC, such as chapel services and group presentations, have been suspended. However, according to Petitioners, certain group activities, such as bible study and recreational games, are ongoing at HCDC. Beginning on March 26, 2020, two days after this lawsuit was initiated, HCDC suspended all visits except for attorney visits through non-contact visiting booths; has begun to take the temperature of everyone entering the facility and is denying access to those with temperatures above 100.4 degrees; has issued cleaning kits to allow detainees to clean their cells and bunks; has begun assigning officers to the same housing posts for 14 days to make contact tracking easier; approved emergency staffing plans for each shift; and developed quarantine procedures. Any new detainees were screened for fever, respiratory illness, travel history, and past contact with persons who had contracted COVID-19. HCDC also now provides disinfectant, hand sanitizer, soap, and masks to housing units. However, Coreas has asserted that detainees are given only one bar of soap every two weeks to use for both
7

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 8 of 33
bathing and washing their hands; once that soap runs out, detainees must purchase their own soap, if they have the funds to do so. Soap is often unavailable in the bathrooms. Finally, Coreas has stated that the cleaning procedures in the detention facility have not changed since the beginning of the pandemic.
As of March 27, 2020, Respondents report that HCDC had no confirmed and no suspected cases of COVID-19. However, as acknowledged by Respondents during the hearing on the Motion, HCDC has conducted no tests for COVID-19, has no test kits, and has no plans to conduct testing. Meanwhile, Coreas has observed that “[m]any people are coughing and sneezing” at HCDC. Coreas Decl. ¶ 9, Reply Ex. 2, ECF No. 52-2. In fact, Petitioners identify at least three detainees at HCDC who have been exhibiting symptoms consistent with COVID-19 but who have been neither treated nor tested for the Coronavirus. Moreover, Coreas reports that HCDC has not given detainees any information about the Coronavirus, and that they receive their information instead from the news.
B. Angel Guzman Cedillo Petitioner Angel Guzman Cedillo, a native of Guatemala, is a construction worker with two sons who live in the United States. As he awaits a hearing at which he will seek relief from deportation based on asylum grounds, Guzman Cedillo is detained at Worcester County Detention Center (“WCDC”). He is 54 years old and has hypertension, prostate problems, and a history of traumatic injuries that have limited his cognitive abilities. As with Coreas, these medical conditions put him “at high risk for complications from COVID-19 should [he] be exposed to the virus in detention.” Greifinger Decl. ¶ 31. In 2010, Guzman Cedillo was convicted of aggravated assault in Georgia, sentenced to six months of imprisonment, and removed to Guatemala. In 2019, he was convicted in this Court of illegal reentry after deportation and sentenced to time served of
8

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 9 of 33
approximately eight months of imprisonment. He was taken into ICE custody after completion of his sentence on November 14, 2019. He is scheduled to have an immigration hearing on April 17, 2020.
WCDC generally houses immigration detainees in shared cells with two detainees per cell. At this time, Guzman Cedillo is not currently sharing a cell. As at HCDC, detainees at WCDC spend about half the day in common areas that are not regularly disinfected, come into contact with each other in several shared spaces, and are frequently moved between units by officers. Immigration detainees use the same recreation area as the criminal pretrial detainees, but at different times. Detainees in criminal custody bring meals to those in immigration detention, and the two sets of detainees share one commissary and one barber shop. WCDC’s medical facilities are also used by both sets of detainees. Moreover, those in criminal detention clean the facility’s common areas. During a shift, WCDC personnel work either in the immigration detainee or the criminal pretrial detainee unit, except for Medical Unit, Processing Area, and Women’s Section staff who interact with both categories of detainees. Over time, however, WCDC personnel may rotate units depending on their shift assignment. As of March 27, 2020, WCDC had capacity for over 200 immigration detainees but was housing only 90 such detainees.
Since the emergence of the COVID-19 pandemic and the filing of this lawsuit, WCDC has taken certain steps to address the threat of the Coronavirus. Since March 20, 2020, there have been no ICE detainees transferred into WCDC. Although there are new criminal pretrial detainees entering WCDC, Respondents report that “[t]he facility screens all newly arriving inmates for potential exposure.” Brown Decl. ¶ 25, Opp’n Mot. TRO (“Opp’n”) Ex. 1, ECF No. 39-1. Inperson visits at WCDC have been stopped, save for visits from attorneys, who are screened before entering the building. WCDC also screens and takes the temperatures of all staff who enter the
9

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 10 of 33
facility. WCDC “has extra cleaning practices for the facility and housing units, which includes the installation of soap dispensers and hand air dryers in housing unit dayrooms, a common area within the housing unit.” Id. ¶ 25. However, the shared showers are not disinfected between uses. Finally, WCDC has identified housing units to be used to quarantine patients who have or are suspected of having COVID-19.
Although Petitioners have alleged that WCDC is under quarantine, Respondents have asserted that such reports related to an ICE administrative facility in Salisbury, Maryland. Rather, Respondents have attested to the fact that as of March 27, 2020, WCDC has had no suspected or confirmed cases of COVID-19. As with HCDC, however, it also has no testing capability and no plans to conduct tests for COVID-19.
DISCUSSION On March 24, 2020, Petitioners filed their Petition for a Writ of Habeas Corpus and a Complaint for Declaratory and Injunctive Relief, along with a Motion for Temporary Restraining Order seeking their release from ICE detention. In the Motion, they assert that they are likely to succeed on the merits of their claim that their ongoing detention violates their due process rights under the Fifth Amendment to the United States Constitution, and that because of their health conditions that make them especially vulnerable to COVID-19, a TRO or preliminary injunction ordering their immediate release is necessary to avoid irreparable harm. I. Standing As a threshold issue, Respondents assert that Petitioners lack standing to assert their claims. One “essential aspect” of the limitations that Article III of the Constitution imposes on federal courts is the requirement “that any person invoking the power of a federal court must demonstrate standing to do so.” Hollingsworth v. Perry, 570 U.S. 693, 704 (2013). “To establish Article III
10

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 11 of 33
standing, a plaintiff must show (1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likel[ihood] that the injury will be redressed by a favorable decision.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157-58 (2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Respondents argue that Petitioners have failed to establish the first and third of these requirements.
A. Injury-in-Fact Petitioners do not allege that they have already contracted COVID-19, meaning that the injury they seek to redress is a future one. However, an injury can satisfy Article III’s requirements so long as it is “imminent, not conjectural or hypothetical.” Id. at 158 (citation omitted). Nevertheless, Respondents claim that Petitioners fail to meet this standard because their alleged injury is “conjectural and not imminent,” as there are no confirmed cases of COVID-19 in their detention facilities. Opp’n at 8. The Court disagrees. The imminence requirement is met when “the threatened injury is certainly impending, or there is a substantial risk that the harm will occur.” Susan B. Anthony List, 573 U.S. at 158. Here, Petitioners, who have the burden to establish standing, id., have offered evidence from a medical expert that “detention centers are congregate environments where the risk of infection and infectious spread are extraordinarily high,” and that Respondents have failed to implement effective measures to decrease the risk of COVID-19 reaching the facility and Petitioners. Greifinger Decl. ¶ 16. The imminence of the injury facing Petitioners is accentuated by the growing number of COVID-19 cases in detention facilities and the widespread havoc the virus can wreak once inside these facilities. As of April 1, 2020, ICE had reported four cases among its detainees and five cases among personnel working at ICE detention facilities. There have also been three reported cases in Maryland prisons, while there have been hundreds of cases
11

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 12 of 33
in prisons and jails outside the state. In these circumstances, the Court has no trouble concluding that the injury Petitioners allege is sufficiently imminent to confer standing.
B. Redressability In addition to showing an injury-in-fact, Petitioners “must show that ‘it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Sierra Club v. U.S. Dep’t of the Interior, 899 F.3d 260, 284 (4th Cir. 2018) (quoting Laidlaw Envtl. Servs., 528 U.S. 167, 181 (2000)). “The burden imposed by this requirement is not onerous.” Deal v. Mercer Cty. Bd. of Educ., 911 F.3d 183, 189 (4th Cir. 2018). “[P]laintiffs need only show that they personally would benefit in a tangible way from the court’s intervention.” Id. (citation omitted). Respondents argue that Petitioners have not met this low burden because they “do not explain how release from HCDC or WCDC—two facilities without a single confirmed case of COVID-19—into the greater Washington, D.C., area will reduce their risk of injury or death.” Opp’n at 9. Even leaving aside the fact that it is impossible to point to any confirmed cases within HCDC or WCDC when Respondents have not conducted any COVID-19 tests at those facilities, this argument strains credulity. Beyond the absurdity of the claim that someone will be safer from a contagious disease while confined in close quarters with dozens of other detainees and staff than while at liberty, Petitioners have provided multiple expert opinions supporting the contrary conclusion, such as that of Dr. Greifinger, who has stated that “[d]etention centers are extraordinarily high-risk environments for the transmission of infectious diseases,” an assertion supported by examples of COVID-19 spreading “like wildfire” in detention facilities around the nation. Greifinger Decl. ¶¶ 14, 19. The Court finds that Petitioners have satisfied the redressability requirement of standing.
12

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 13 of 33
II. 28 U.S.C. § 2241 Petitioners seek their release from ICE detention through a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. Under this provision, a district court may grant a writ of habeas corpus if a prisoner “is in custody under or by color of the authority of the United States” or is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c) (2018). Defendants, however, argue that § 2241 is an inappropriate vehicle for raising what it characterizes as a challenge to Petitioners’ conditions of confinement.
In Preiser v. Rodriguez, 411 U.S. 475 (1973), the United States Supreme Court, while reaffirming prior decisions allowing inmates to raise challenges to their conditions of confinement as federal civil rights actions, cautioned that “[t]his is not to say that habeas corpus may not also be available to challenge such prison conditions.” Id. at 499. Indeed, it expressly noted that in those decisions, the plaintiffs were not, as Petitioners are here, “seeking immediate release or a speedier release from that confinement—the heart of habeas corpus.” Id. More recently, the Supreme Court has stated that it has “left open the question whether [prisoners] might be able to challenge their confinement conditions via a petition for a writ of habeas corpus.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1862-63 (2017). In the absence of clear guidance, lower courts have split on the extent to which habeas provides a mechanism for asserting challenges to conditions of confinement. Wilborn v. Mansukhani, 795 F. App’x 157, 163 (4th Cir. 2019) (listing cases).
The United States Court of Appeals for the Fourth Circuit has not ruled in a published, binding opinion whether § 2241 is available to challenge conditions of confinement. Id. at 16364. Moreover, the Fourth Circuit’s unpublished opinions declining to allow certain claims relating to conditions of confinement to be raised through a habeas petition are clearly distinguishable from the instant Petition. In Wilborn, a federal inmate sought to use § 2241 to challenge his housing
13

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 14 of 33
assignment within the Bureau of Prisons. Id. at 164. In another case, a federal inmate sought to use § 2241 to challenge his failure to receive good conduct credits and a transfer to another facility. Rodriguez v. Ratledge, 715 F. App’x 261, 266 (4th Cir. 2017); see also Braddy v. Wilson, 580 F. App’x 172 (4th Cir. 2014) (rejecting a federal inmate’s use of § 2241 to raise a claim that his conditions of confinement violated the terms of his plea agreement). By contrast, Petitioners are not challenging their placement within their respective detention facilities. Instead, they are seeking release from the facility entirely. See Pet. at 30, ECF No. 1 (“Plaintiffs request that this Court . . . [i]ssue a writ of habeas corpus and order Plaintiffs’ immediate release or placement in community-based alternatives to detention.”); Mot. TRO at 25, ECF No. 2-1 (“Plaintiffs respectfully request that this Court . . . order their immediate release from custody.”). Moreover, while the petitioners in the unpublished Fourth Circuit cases were convicted federal prisoners, Petitioners here are civil immigration detainees, who have traditionally had recourse to § 2241 for constitutional challenges to their detention. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001) (holding that § 2241 was a proper vehicle to challenge an immigration detainee’s detention as violating due process due to its length).
In the absence of binding Fourth Circuit authority, this Court concludes, consistent with the positions of several circuits, that a claim by an immigration detainee seeking release because of unconstitutional conditions or treatment is cognizable under § 2241. See Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (finding that § 2241 is available to challenge a federal detainee’s conditions of confinement); Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001) (same); Miller v. United States, 564 F.2d 103, 106 (1st Cir. 1977) (same). First, and most fundamentally, although the grounds on which they seek release relate to their conditions of confinement, Petitioners seek complete release from confinement, which is “the heart of habeas corpus.” Preiser, 411 U.S. at
14

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 15 of 33
498. Second, for immigration detainees, if § 2241 is unavailable, Petitioners may have no vehicle by which to seek redress for the constitutional violation they allege. Lee v. Winston, 717 F.2d 888, 892 (4th Cir. 1983) (stating that 42 U.S.C. § 1983 “cannot be used to seek release from illegal physical confinement”), aff’d, 470 U.S. 753 (1985); cf. In re Jones, 226 F.3d 328, 333 (4th Cir. 2000) (holding that where 28 U.S.C. § 2255 is “inadequate or ineffective” to test the legality of the detention of a federal prisoner, a prisoner may file a habeas petition pursuant to 28 U.S.C. § 2241). The Court will therefore consider the Petition. III. TRO
To obtain a TRO or a preliminary injunction, moving parties must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011). A moving party must satisfy each requirement as articulated. Pashby v. Delia, 709 F.3d 307, 320-21 (4th Cir. 2013). Because a TRO or a preliminary injunction is “an extraordinary remedy,” it “may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.
A. Likelihood of Success on the Merits In asserting their claims, Petitioners cast themselves as civil detainees held in immigration detention. As an initial matter, the Respondents argue that because they are immigration detainees, Petitioners are entitled to lesser constitutional protections as to their detention conditions than other civil detainees. The Court finds Respondents’ argument on this score unpersuasive. None of the cases cited by Respondents speaks to the situation here. For example, Reno v. Flores, 507 U.S. 307 (1993), while reaffirming the broad notion that Congress has plenary power over immigration
15

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 16 of 33
matters in rejecting the argument that the Government may not deprive unaccompanied juvenile immigration detainees of their liberty at all, also reaffirmed that aliens are entitled to “due process of law in deportation proceedings.” Id. at 305-06. Mathews v. Diaz, 426 U.S. 67 (1976), involved a challenge to citizenship requirements for eligibility for certain welfare benefits and thus sheds no light on whether immigration detainees have lesser due process rights than other civil detainees. Id. at 80. Where the matter at issue is the conditions of detention, not the right to enter or remain in the United States, the Court rejects Respondents’ suggestion that the due process standards for civil detainees do not apply to individuals in immigration detention.
Civil detainees who challenge the conditions of their confinement are protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. See Youngberg v. Romeo, 457 U.S. 307, 315 (1982) (stating, in the context of involuntary civil commitment, that “the right to personal security constitutes a ‘historic liberty interest’ protected substantively by the Due Process Clause” and “that right is not extinguished by lawful confinement” (quoting Ingraham v. Wright, 430 U.S. 651, 673 (1977))). These protections are at least as robust as those of the Eighth Amendment because “[i]f it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed—who may not be punished at all—in unsafe conditions.” Id. at 315-16. Cf. Bell v. Wolfish, 441 U.S. 520, 545 (1979) (holding that pretrial detainees “retain at least those constitutional rights that we have held are enjoyed by convicted prisoners”). Thus, individuals who have been civilly detained or committed “are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Youngberg, 457 U.S. at 321-22 (addressing persons subjected to involuntary civil commitment for mental health reasons). Cf. Bell, 441 U.S. at 536-
16

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 17 of 33
37 (holding that pretrial detainees may be held in custody “so long as those conditions and restrictions [of confinement] do not amount to punishment”).
Protections for individuals confined by the state, whether civilly or criminally, include the right to reasonable safety and adequate medical care. See Youngberg, 457 U.S. at 315-16l; Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 2016) (holding that prison officials are constitutionally required to maintain “humane conditions of confinement,” including “the provision of adequate medical care” and taking “reasonable measures to guarantee the safety of the inmates”). “The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989).
The Supreme Court has made clear as to reasonable safety that the Eighth Amendment “protects against future harm,” including a “condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year.” Helling v. McKinney, 509 U.S. 25, 33 (1993). Under this principle, constitutional violations could arise from “the exposure of inmates to a serious, communicable disease” even if “the complaining inmate shows no serious current symptoms” and “even though the possible infection might not affect all those exposed.” Id.; see Hutto v. Finney, 437 U.S. 678, 682-83, 687 (1978) (finding no error in the trial court’s conclusion that the conditions of a state prison violated the Eighth Amendment where those conditions included, among other things, daily, random redistribution of mattresses to inmates, some of whom suffered from communicable diseases such as hepatitis and venereal disease); see
17

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 18 of 33
also DeGidio v. Pung, 920 F.2d 525, 526, 533 (8th Cir. 1990) (upholding a district court’s ruling that prison officials’ response to a tuberculosis outbreak, including their screening and control procedures, was inadequate and violated the Eighth Amendment).
1. Health and Safety Petitioners argue that Respondents have violated their due process rights by failing to protect them from a known threat to their health and safety: the Coronavirus. In the related context of convicted prisoners, the Eighth Amendment requires that prison officials maintain “humane conditions of confinement,” including taking “reasonable measures to guarantee the safety of the inmates.” Raynor, 817 F.3d at 127. In order to establish an Eighth Amendment claim arising from a failure to ensure reasonable safety or provide adequate medical care, a convicted prisoner must demonstrate that the actions of prison officials amounted to deliberate indifference to the inmate’s health and safety. Estelle v. Gamble, 429 U.S. 97, 106 (1976) (establishing deliberate indifference as the standard for Eighth Amendment inadequate medical care claims); Helling, 509 U.S. at 32 (applying the deliberate indifference standard to a claim that a communicable disease threatened inmates’ health and safety). The Fourth Circuit has held that for due process claims by pretrial detainees of inadequate medical treatment, the Eighth Amendment deliberate indifference standard applies. See, e.g., Hill v. Nicodemus, 979 F.2d 987, 991-92 (4th Cir. 1992) (“[P]rison officials violate [a] detainee’s rights to due process when they are deliberately indifferent to serious medical needs.”); see also Young v. City of Mount Rainier, 238 F.3d 567, 575 (4th Cir. 2001) (“[D]eliberate indifference to the serious medical needs of a pretrial detainee violates the due process clause.”). Since Hill, the Supreme Court has called into question the equivalence between the standards applied to claims by pretrial detainees and those applied to claims by post-conviction inmates. In Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), the Court held that, unlike the standard applied
18

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 19 of 33
to post-conviction detainees’ excessive force claims under the Eighth Amendment, the standard for pretrial detainees’ excessive force claims under the Fourteenth Amendment includes no subjective component. Id. at 2472-73. Several circuits have extended this reasoning to hold that the standard for pretrial detainees’ claims of inadequate medical care under the Fourteenth Amendment should likewise not include a subjective component. See, e.g., Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th Cir. 2018); Gordon v. Cty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018). In Gordon, for example, the court held that a Fourteenth Amendment claim of inadequate medical care is to be evaluated under an “objective deliberate indifference standard” that requires “more than negligence but less than subjective intent—something akin to reckless disregard.” Gordon, 888 F.3d at 1125 (requiring that a pretrial detainee show that the defendant did not take “reasonable available measures” to address a medical risk even though “a reasonable official in the circumstances would have appreciated the high degree of risk involved,” such that the adverse consequences were “obvious”). Although it is sensible, after Kingsley, to conclude that a different, less stringent standard should be applied to the claims of pretrial detainees relating to health and safety, this Court remains bound by Fourth Circuit precedent on this issue as stated in Hill.
Neither the Supreme Court nor the Fourth Circuit has expressly decided what standard applies to health and safety or inadequate medical care claims raised by individuals in civil detention. In Heyer v. United States Bureau of Prisons, 849 F.3d 202 (4th Cir. 2017), the Fourth Circuit stated that in cases involving civilly committed psychiatric patients, inadequate medical care claims would be governed by the professional judgment standard articulated in Youngberg, not by the Eighth Amendment deliberate indifference standard. Id. at 209 n.6. However, in Matherly v. Andrews, 859 F.3d 264 (4th Cir. 2017), in deciding the appropriate standard for civil
19

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 20 of 33
detainees’ claims of unconstitutionally punitive conditions of confinement, the Fourth Circuit expressly drew on the applicable standard for pretrial detainees because it was “natural to borrow” from that context, and that to do otherwise would result in the “unwieldy outcome” of multiple standards “contingent upon the type of civil detention.” Id. at 275. Coupling the Fourth Circuit’s concern in Matherly for a uniformity of standards across varied forms of detention with the clear holding in Hill that the deliberate indifference standard applies to pretrial detainee claims of inadequate medical care, the Court concludes that the deliberate indifference standard applies to the Fourteenth Amendment health and safety and inadequate medical care claims asserted here.
Under this standard, a plaintiff must satisfy a two-part inquiry that includes both an objective and a subjective component. See Raynor, 817 F.3d at 127. First, a plaintiff must show objectively “a serious deprivation” of rights “in the form of a serious or significant physical or emotional injury,” Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir. 2014), or “a substantial risk of such serious harm resulting from the prisoner’s unwilling exposure to the challenged conditions,” Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (quoting Strickler v. Waters, 989 F.2d 1375, 1381 (4th Cir. 1993)). Thus, “a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year” may violate the Constitution, even if “the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33–34; Webb v. Deboo, 423 F. App’x 299, 300 (4th Cir. 2011). To establish the subjective component, there must be evidence of deliberate indifference, in that a known excessive risk of harm to the inmate’s health or safety was disregarded. See Wilson v. Seiter, 501 U.S. 294, 302-03 (1991) (applying the deliberate indifference standard to conditions of confinement claims). “[T]he test is whether the guards know the plaintiff inmate faces a serious danger to his safety and they
20

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 21 of 33
could avert the danger easily yet they fail to do so.” Brown v. N.C. Dep’t of Corr., 612 F.3d 720, 723 (4th Cir. 2010) (quoting Case v. Ahitow, 301 F.3d 605, 607 (7th Cir. 2002)).
To the extent that Petitioners’ claims are based in part on their underlying medical conditions and the failure to address it, the medical condition at issue must be objectively serious. Hudson v. McMillian, 503 U.S. 1, 9 (1992). A medical condition is serious when it is “so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)) (citation omitted). As for the subjective component, “[a]n official is deliberately indifferent to an inmate’s serious medical needs only when he or she subjectively knows of and disregards an excessive risk to inmate health or safety.” Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). If the requisite subjective knowledge is established, an official may avoid liability by responding “reasonably to the risk, even if the harm ultimately was not averted.” See Farmer v. Brennan, 511 U.S. 825, 844 (1994).
As to the objective prong, the available evidence establishes that COVID-19 is a highly communicable disease that presents a potentially mortal risk, particularly for high-risk individuals such as Petitioners. Although the Government disputes the immediacy of that risk to Petitioners, that argument, as discussed above, see supra part I.A, lacks merit because “a remedy for unsafe conditions need not await a tragic event.” Helling, 509 U.S. at 33-34 (rejecting the argument that “only deliberate indifference to current serious health problems of inmates is actionable under the Eighth Amendment”). Here, even without direct evidence that individuals within HCDC and WCDC (collectively, “the Detention Facilities”) have contracted the Coronavirus, its spread has been remarkably rapid, including into prisons and detention facilities. Since March 24, 2020, the number of cases in the United States has increased from approximately 54,000 to approximately
21

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 22 of 33
250,000. Cases in U.S., Ctrs. for Disease Control and Prevention, https://www.cdc.gov/ coronavirus/2019-ncov/cases-updates/cases-in-us.html. There are now approximately 450 cases among detainees and staff at the New York City detention center at Rikers Island. In the past two weeks, it has been reported to have entered immigration detention centers in New Jersey, a federal prison in Louisiana, and the D.C. Jail. It thus presents an imminent risk to health and safety that satisfies the objective prong.
At the same time, as much as Petitioners have sought to paint with broad brush strokes by offering an expert opinion that the nature of immigration detention facilities, including chronic overcrowding, is such that there is a “heightened public health risk” that COVID-19 will spread into such facilities, Greifinger Decl. ¶ 9, the facts relating to the Detention Facilities are of particular importance to the Court’s analysis. At the present time, there are no confirmed cases of COVID-19 among detainees or staff at HCDC or WCDC. Both Detention Facilities have adopted procedures to screen individuals entering the facilities, ended non-attorney visits, and stopped receiving new immigration detainees. At the hearing on the Motion, Respondents reported that the immigration detainee population of HCDC has now been reduced to 38 individuals in a facility with a maximum capacity of 100, and the comparable population of WCDC has been reduced to 86 detainees housed in a facility designed for 200 individuals. These conditions contrast markedly with those at other detention facilities described in the press accounts submitted by Respondents, which include a report of 110 men sleeping in the same room. Immigrants Jailed by ICE are Sick, Panicking, and Can’t Get Coronavirus Tests at 3, Reply Ex. 10, ECF No. 52-10. Thus, although there is an objective risk, it is not at the same level as in other facilities.
Turning to the subjective prong, there is no dispute that Respondents were and are subjectively aware of the risk that COVID-19 poses to both healthy and high-risk individuals. The
22

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 23 of 33
issue is whether COVID-19 poses an excessive risk that is being disregarded by Respondents. The evidence supports the conclusion that as of the time of the filing of the Petition and the Motion, on March 24, 2020, Respondents were disregarding the risk. Prior to that date, at HCDC, Respondents had reportedly suspended group programs, including chapel services, and had started holding hearings with ICE detainees by telephone. At WCDC, they had stopped ICE transports of detainees in and out of the facility, and they had suspended visits except for attorney visits. Otherwise, as acknowledged at the hearing on the Motion, there is no evidence that they took any other protective measures. It is undisputed that at both facilities, immigration detainees are housed in close quarters. At HCDC, most immigration detainees are housed in dormitory-like facilities that hold up to 32 people, though Coreas and certain other detainees live in two-person cells. At WCDC, immigration detainees are housed in cells that hold up to two people. Guzman Cedillo presently is in such a cell but without a cellmate. During the day, immigration detainees at both facilities spend approximately 11 hours in communal activities and spaces, where they are in close proximity to one another. Nevertheless, as of the filing of the Motion, communal spaces, including restrooms, were not regularly disinfected. It is undisputed that up to that time, detainees were not provided with cleaning materials for their cells or any or adequate soap or hand sanitizer. No systematic social distancing protocols, even within the limitations of a detention facility, were implemented. Further, the limited number of bathrooms available to the detainees were not disinfected after each use. Such facts lead to the inescapable conclusion that, before this lawsuit, HCDC and WCDC were disregarding the known risk of a highly communicable and potentially fatal disease.
Since the filing of this lawsuit, both Detention Facilities have instituted more COVID-19 mitigation efforts. Respondents assert that detainees are now given soap, hand sanitizer, and
23

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 24 of 33
cleaning supplies, and they have increased the frequency of cleaning of high use areas in both facilities. According to Respondents, detainees are now advised on the importance of hand washing and told to seek medical assistance if they become ill. Any individuals allowed to come into the Detention Facilities are screened for body temperature, symptoms, and travel histories. The Detention Facilities have identified housing units that could be used to quarantine individuals who are suspected of having COVID-19. Coreas disputes the claims that cleaning frequency at HCDC has increased, and that HCDC is educating the detainee population on the risks of COVID19 and how to stop the spread of the Coronavirus.
Although steps in the right direction, these measures leave notable gaps. Despite the fact that the Detention Facilities are not currently at full capacity, there continue to be no social distancing protocols at either facility. Even though ICE claims to be following CDC guidance, there is no evidence of any actions to increase the distance among detainees, whether by moving detainees in double cells to single cells to the extent possible, or by requiring detainees to be separated by empty bunks in the dormitory or empty seats in the dining areas. See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Ctrs. for Disease Control (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-detention.pdf (recommending that correctional and detention facilities stagger meal times, rearrange seating in dining halls to allow more space between individuals, and space out bunks to allow six feet between detainees).
More specifically, the Court finds a major deficiency in the lack of any procedures to address the heightened risk to detainees with certain medical conditions. It is undisputed that Coreas has an objectively serious medical condition, diabetes. Regardless of whether he is
24

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 25 of 33
receiving otherwise adequate medical care for that condition, diabetes places Coreas at a significantly higher risk of death or serious harm from COVID-19. For individuals in high risk categories such as Petitioners, the available data shows that the death rate for those with COVID19 is between 15 percent and 20 percent. While adequate treatment for Coreas’s condition would necessarily require separation from, or at least minimization of contact with, other detainees, Respondents have taken no general or specific steps to meet this medical need for distancing, whether by providing Coreas with his own cell and otherwise distancing him from other detainees.
Finally, although the Detention Facilities have instituted screening procedures for entering individuals, they have not conducted any tests for COVID-19, and they have neither the capability nor any plans to do so. This fact not only calls into question the claim that there are no confirmed cases of COVID-19 in either HCDC or WCDC, it also exposes a serious vulnerability, where Petitioners have reported many people coughing and sneezing at HCDC and have identified at least three individuals at HCDC who have symptoms consistent with COVID-19 but have never been tested.
If any detainee or staff member at HCDC or WCDC were known to have COVID-19, the Court would conclude that these identified deficiencies, particularly the absence of any steps to address Coreas’s obvious medical need for separation from others, would establish knowing disregard of a serious medical need constituting deliberate indifference that would likely violate the Constitution. See Coronel, 2020 WL 1487274, at *4-6 (finding deliberate indifference to the medical needs of high-risk detainees for social distancing where the Coronavirus was known to be in a detention facility and “the record demonstrates that ICE has not taken any action to address the particular risks COVID-19 poses to high risk individuals like Petitioners here”); Basank, 2020 WL 1481503, at *5 (finding deliberate indifference in the absence of social distancing within the
25

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 26 of 33
detention facility and the absence of any “steps to protect high-risk detainees like Petitioners” in facilities where the Coronavirus was present). Where Guzman Cedillo also has an objectively serious medical condition—hypertension—which creates a specific need for distancing from others and which Respondents have taken no steps to address, the Court would reach the same conclusion as to Guzman Cedillo.
At this point, however, where there is no evidence that the Coronavirus is present in either HCDC or WCDC, and Respondents have instituted a screening procedure for those entering the facilities, have suspended non-attorney visits, and have stopped transfers of immigration detainees into the facility, the direct threat to Petitioners remains sufficiently attenuated that the Court will not find that the identified deficiencies have established a likelihood of success on the merits of Petitioners’ claim of deliberate indifference to their health and safety or their serious medical needs. Indeed, in cases in which there were no cases of COVID-19 associated with the detention facility, courts have declined to find a likelihood of constitutional violations and to grant a TRO. See Sacal-Micha, 2020 WL 1518861, at *6; Dawson, 2020 WL 1304557, at *1. Although at least one federal court has found constitutional violations warranting release of immigration detainees even before the appearance of COVID-19 in a facility, see Castillo, 2020 WL 1502864, at *6, the facility at issue in that case, the Adelanto ICE Processing Center in California, is a substantially larger facility with more crowded conditions and a history of health and safety risks. Id. at *1-2; see Office of Inspector Gen., Management Alert: Issues Requiring Action at the Adelanto ICE Processing Center in Adelanto, California, U.S. Dep’t of Homeland Sec. at 2 (Sept. 27, 2018), https://www.oig.dhs.gov/sites/default/files/assets/Mga/2018/oig-18-86-sep18.pdf. In contrast, the Detention Facilities are substantially below capacity, and Guzman Cedillo already has his own cell. Under the present facts, the Court will not find a likely constitutional violation.
26

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 27 of 33
However, the Court recognizes that where HCDC and WCDC are currently unable or unwilling to test for the Coronavirus, there would be no way to determine whether it has entered one of the Detention Facilities. Accordingly, the Court concludes that in the event that the Coronavirus is found in HCDC or WCDC, or if those facilities fail to submit a timely certification that they have obtained COVID-19 tests and will administer a test to any individual at either Detention Facility who exhibits suspected COVID-19 symptoms (“Testing Certification”), the Court would find a likelihood of success on the due process claim based on deliberate indifference to the serious medical needs of Petitioners.
2. Conditions of Confinement Petitioners separately argue that their detention under the specter of the Coronavirus violates due process because it effectively constitutes impermissible punishment. To establish such a claim, civil detainees must show either that (1) the condition was imposed with the express intent to punish; or (2) it is not reasonably related to a legitimate, nonpunitive governmental objective, such that the intent to punish can be inferred. Matherly, 859 F.3d at 275 (considering whether an individual detained in advance of a determination whether he should be civilly committed as a sexually dangerous person was subjected to conditions of confinement that were unconstitutionally punitive). As to the second prong, “due process requires that the conditions and duration of confinement . . . bear some reasonable relation to the purpose for which persons are committed.” Id. In assessing whether such a relationship exists, courts consider, as applicable, whether “professional judgment” was exercised in balancing “the legitimate interests of the State and the rights of the involuntarily committed to reasonable conditions of safety and freedom from unreasonable restraints.” Id.; Youngberg, 457 U.S. at 321.
27

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 28 of 33
On the first factor, the Court finds no evidence in the record that the conditions of Petitioners’ confinement were imposed with the express intent to punish. The Court thus turns to whether the challenged conditions of confinement are reasonably related to a legitimate, nonpunitive governmental objective. Matherly, 859 F.3d at 275. Although the Court agrees with Respondents that ordinary detention at HCDC or WCDC would be reasonably related to the legitimate governmental objective of ensuring an immigration detainee’s presence at an immigration hearing, the present conditions of confinement are markedly different. At this point, Petitioners are confined in facilities where they are particularly vulnerable to COVID-19 because of the lack of ability to maintain distance from others, and if they contract the Coronavirus they have up to a 20 percent chance of death, greater than the odds of losing a game of Russian roulette. If it were known that there were cases of Coronavirus within the detention facility, the Court would conclude that for high-risk immigration detainees, who are held not for the purpose of answering to criminal charges, but merely to face civil status violations, such conditions imposing a palpable risk of death or serious harm inflict far more serious consequences on them than are justified by the need to hold them for their immigration proceedings. Thus, upon consideration of the governmental interest and the detainee’s right to reasonable conditions of safety, such conditions would bear no reasonable relationship “to the purpose for which persons are committed” and would violate due process. Matherly, 859 F.3d at 275; see Thakker v. Doll, 1:20-cv-00480-JEJ, Doc. No. 47.
At present, however, there are no confirmed cases of COVID-19 in the Detention Facilities. Although in Thakker, the court found conditions of confinement at three detention facilities to constitute unconstitutional punishment in light of COVID-19 even though only one of the facilities had a known case of COVID-19, the court relied in part on the fact that the facilities had significant
28

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 29 of 33
overcrowding and unsanitary conditions, including the presence of rats. Thakker, Doc. No. 47 at 14, 20-21. Here, unlike most immigration detention facilities, HCDC and WCDC are substantially below capacity. Under the specific circumstances before it, the Court does not find that the threat of the Coronavirus in society generally, as opposed to its presence inside a detention facility, inflicts unconstitutional punishment on high-risk detainees. To adopt Petitioners’ position would be to hold that the detention of any high-risk immigration detainee during the pandemic is necessarily unconstitutional, a position that the Court is not presently prepared to adopt.
The Court is aware, however, that although there is no direct evidence that the Coronavirus has entered the Detention Facilities, there are individuals at HCDC with symptoms consistent with COVID-19, and neither HCDC nor WCDC has the capability to test anyone for the Coronavirus. Unless Respondents are able to provide the Testing Certification referenced above, the Court would consider the lack of a testing capability to be the equivalent of having positive tests in the detention facility, as there would be no way to know whether high-risk detainees are at direct risk of exposure to the Coronavirus. Thus, while the Court does not presently find a likelihood of success on the merits on this claim, it would so find upon either a showing of evidence that a detainee or staff member at HCDC or WCDC has COVID-19, or upon Respondents’ failure to provide the Testing Certification by the stated deadline. Accordingly, while the Court’s conclusion on the likelihood of success on the merits precludes issuance of a TRO at the present time, Pashby, 709 F.3d at 320-21, it will address the remaining prongs and make findings in the event of a future determination of a likelihood of success on the merits.
B. Irreparable Harm On the issue of irreparable harm, the Court finds that in the event that Petitioners were able to establish a likelihood of success on the merits on their constitutional claims, they would also be
29

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 30 of 33
irreparably harmed. “Generally, irreparable injury is suffered when monetary damages are difficult to ascertain or are inadequate.” Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 551 F.3d 546, 551 (4th Cir. 1994). The Fourth Circuit has held that “the denial of a constitutional right . . . constitutes irreparable harm for purposes of equitable jurisdiction.” Ross v. Meese, 818 F.2d 1132, 1135 (4th Cir. 1987); see Overstreet v. LexingtonFayette Urban Cty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002) (noting that “[c]ourts have also held that a plaintiff can demonstrate that a denial of an injunction will cause irreparable harm if the claim is based upon a violation of the plaintiff's constitutional rights” and collecting cases). More specifically, Petitioners have introduced uncontroverted evidence that contracting COVID-19 would put them at serious risk of severe medical complications and even death. As discussed above, Petitioners’ medical experts place the risk of death for high-risk individuals at 15 to 20 percent. Moreover, Dr. Greifinger notes that those who do not die from COVID-19 suffer “prolonged serious illness” and that once COVID-19 is introduced into a detention facility, “it spreads like wildfire.” Greifinger Decl. ¶¶ 6, 14. Thus, in the event that a detainee or staff member were found to have COVID-19, or if Respondents fail to submit the Testing Certification such that there would be no way to confirm its presence, there would be a high likelihood of irreparable health consequences that could not be alleviated without release. Respondents’ assertion that “detainees who present symptoms compatible with COVID-19 will be placed in isolation” does not remove the risk that the virus will spread quickly once inside the facility and would specifically threaten high-risk detainees like Petitioners. Moon Decl. ¶ 9. Because Petitioners would face a significant risk of death or serious illness under such circumstances, the Court would find likely irreparable harm. See Multi-Channel TV Cable Co., 22 F.3d at 551.
30

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 31 of 33
C. Balance of the Equities and the Public Interest When a plaintiff seeks preliminary injunctive relief against the Government, the balance of the equities and the public interest factors merge. See Nken v. Holder, 556 U.S. 418, 435 (2009) (noting, in the context of a plaintiff’s suit seeking a stay of removal proceedings, that the balance of equities and public interest “factors merge when the Government is the opposing party”); Roe v. Dep’t of Def., 947 F.3d 207, 230 (4th Cir. 2020) (citing Nken in the context of a preliminary injunction). To the extent that the Court were to find a likelihood of success on the merits, it would necessarily find that the detention and treatment of Petitioners would violate due process. Generally, “upholding constitutional rights surely serves the public interest.” Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002). Moreover, the significant risk that the Coronavirus, upon entering HCDC or WCDC, would cause death or serious harm to high-risk detainees like Petitioners, weighs in favor of the requested injunction. In contrast, however, Respondents express a public interest in the detention of Petitioners grounded both in the general public interest in immigration enforcement, see Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981), as well as the specific interest in upholding the statutory requirement that these particular detainees are subject to mandatory detention under 8 U.S.C. § 1226(c). As to the general interest, the Court recognizes that it weighs in favor of Respondents, but concludes that it is of markedly less importance than the interest in incarceration of convicted federal or state prisoners, or even the detention of individuals formally charged with federal or state criminal offenses. Thus, the balance of equities in a case involving civil detention tips significantly less favorably toward the Government than in a case involving criminal pretrial detention or post-conviction imprisonment.
31

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 32 of 33
As to the specific interest, unlike decisions facing judges relating to individuals who are detained solely because they cannot afford bail, or those relating to immigration detainees who are not subject mandatory detention and for whom there is no specific concern about risk of flight or danger to the community, here, Petitioners both have prior convictions for serious offenses. Coreas was convicted in 2007 of arson and burglary, while Guzman Cedillo was convicted of aggravated assault in 2010. Although these convictions are dated and do not necessarily establish any present risk to the community, it cannot be said that there is no public interest in detention. Furthermore, there is evidence that Coreas would present a risk of non-appearance at his immigration hearing. After he was convicted in this Court in 2015 of illegal reentry after deportation, Coreas was placed on supervised release which required him, if not deported, to report to the United States Probation Office upon release and to not commit any additional crimes. However, when he was released by state authorities after they dismissed charges against him for operating a prostitution business, Coreas did not report to Probation as ordered by this Court, and instead relocated to Iowa, where he was off the radar until he was identified by law enforcement three years later, in 2019, after committing a drug possession crime. Thus, unlike in other cases in which judges have found little or no risk of flight, where Coreas has a demonstrated history of disregarding the orders of this Court specifically, it cannot make such a finding here. Thus, there is a public interest in continued detention in order to have Coreas available for his immigration proceedings.
While Respondents’ interests explain why an injunction granting Petitioners’ release should not occur prematurely, they do not provide a basis to conclude that upon a finding of a likely constitutional violation, the balance of equities and public interest would not favor release. Although the remedy for unconstitutional conditions of confinement is typically a requirement that the conditions be modified, Dawson, 2020 WL 1304557, at *2, neither party has identified any
32

Case 8:20-cv-00780-TDC Document 56 Filed 04/03/20 Page 33 of 33
steps that could be taken that would adequately address any unconstitutional conditions short of release. On balance, the interests of the health and safety of Petitioners would outweigh the public interest in the assurance of the completion of civil proceedings, particularly where ICE would be able to impose conditions of release using “a range of highly effective tools” designed to result in Petitioners’ appearances at their hearings. See Lorenzen-Strait Decl. ¶ 15, Mot. TRO Ex. 3, ECF No. 2-5. Thus, upon a finding of a likelihood of success on the merits, this prong would favor issuance of the requested injunction.
CONCLUSION For the foregoing reasons, the Motion for a Temporary Restraining Order will be DENIED WITHOUT PREJUDICE. Petitioners may renew the Motion, without leave of the Court, in the event of (1) evidence that a detainee or staff member at HCDC or WCDC has COVID-19; (2) the failure of Respondents to file a Testing Certification by Wednesday, April 8, 2020 that HCDC and WCDC have COVID-19 tests and will administer a test to any individual at HCDC or WCDC with suspected COVID-19 symptoms; (3) the postponement of a Petitioner’s currently scheduled immigration hearing; or (4) other materially changed circumstances. Any renewed Motion will be handled on an extremely expedited basis and may be decided without a hearing. Respondents will be ORDERED to (1) immediately inform the Court and Petitioners of any evidence that a detainee or staff member at HCDC or WCDC has COVID-19; and (2) immediately provide to the Court and Petitioners, upon execution, the above-described Testing Certifications as to both HCDC and WCDC. A separate Order shall issue.

Date: April 3, 2020

/s/ Theodore D. Chuang THEODORE D. CHUANG United States District Judge
33

 
 Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

COREAS, et al.,

Petitioners-Plaintiffs,

v.

Civil Action No.: 8:20-cv-00780-TDC

BOUNDS, et al.,

Respondents-Defendants.

PETITIONER-PLAINTIFF COREAS’S MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION FOR A PRELIMINARY INJUNCTION

Sirine Shebaya (Bar No. 07191) sirine@nipnlg.org Amber Qureshi (Bar No. 21218) amber@nipnlg.org Matthew Vogel* matt@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 (202) 656-4788
Adina Appelbaum* adina@caircoalition.org CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR) COALITION 1612 K Street NW Suite 204 Washington, DC 20006 (202) 899-1412
Nicholas T. Steiner, Esq. (Bar No. 19670) steiner@aclu-md.org ACLU OF MARYLAND FOUNDATION 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211 (410) 889-8550
* Admitted pro hac vice. † Not admitted in D.C.; practice limited to federal courts.

David C. Fathi*† dfathi@aclu.org Eunice H. Cho* echo@aclu.org ACLU FOUNDATION, NATIONAL PRISON PROJECT 915 15th Street N.W. 7th Floor Washington, DC 20005 (202) 548-6616
Michael Tan* mtan@aclu.org Omar Jadwat* ojadwat@aclu.org ACLU FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2600
Stephen B. Kang* skang@aclu.org ACLU FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 (415) 343-0783
Attorneys for Petitioners-Plaintiffs

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 2 of 25
INTRODUCTION On April 3, 2020, this Court denied without prejudice Petitioners-Plaintiffs’ (“Petitioners”) Motion for a Temporary Restraining Order seeking their immediate release from the Howard County Detention Center (“HCDC”) and Worcester County Detention Center (“WCDC”) (collectively, “Maryland Detention Facilities”). ECF No. 56 at 33. The Court held that Petitioners had not yet shown they were likely to succeed on the merits of their claims that RespondentsDefendants (“Respondents”) were violating their due process rights by putting them in extreme danger of exposure to COVID-19—a lethal virus with no vaccine or cure. However, the Court concluded that it likely would find a violation of Petitioners’ due process rights in either of two circumstances: (1) upon evidence that a detained person or staff member at the HCDC or WCDC has tested positive for COVID-19 or (2) upon Respondents’ failure to certify that they have COVID-19 tests and will administer tests to any individual at the HCDC or WCDC with suspected COVID-19 symptoms. Id. at 27, 29, 33. The Court further concluded that, under either of these circumstances, Petitioners would face irreparable harm to their life and health, and that the public interest and balance of hardships would favor their immediate release. Id. at 29-33. Unfortunately, the former predicate has come to pass at the HCDC. Pursuant to this Court’s order, on April 8, 2020, Respondents certified to this Court that they will begin testing anyone who exhibits COVID-19 symptoms at the HCDC and WCDC. ECF 59, ¶¶ 5-6 (Declaration of Kevin J. Brown, Jr.). Respondents further certified that they would inform the Court if anyone at either facility tests positive for COVID-19. Id. ¶ 7. On April 25, 2020, Respondents informed the Court that a nurse in HCDC has tested positive for COVID-19. ECF No. 71. This poses particular risk for Mr. Coreas because he goes to the medical unit twice each day in order to receive insulin for his diabetes. ECF No. 2-7, ¶ 7 (Declaration of Eleni Bakst).

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 3 of 25
Respondents are also still likely under-counting the number of cases of COVID-19 at the two facilities. Respondents are not testing any of the individuals who may have had contact with the nurse in HCDC who tested positive for COVID-19. ECF No. 71 at 2. Respondents still do not have an adequate number of testing kits to administer COVID-19 tests to individuals who exhibit COVID-19 symptoms, and Respondents have failed to administer tests to individuals exhibiting symptoms in HCDC. See infra Section III. As this Court concluded, “the lack of testing capability [is] the equivalent of having positive tests in the detention facility, as there [is] no way to know whether high-risk detainees are at direct risk of exposure to the Coronavirus.” ECF No. 56 at 27.
As a result, Petitioner Coreas faces the extreme risk of serious illness or death from COVID-19 if he continues to be confined in HCDC. Indeed, the Court recognized that if Petitioners “contract the Coronavirus they have up to a 20 percent chance of death, greater than the odds of losing a game of Russian roulette.” ECF No. 56 at 28. Petitioner Coreas’s continued detention at the HCDC violates his due process right to reasonable safety and endangers his life. Thus, for the reasons set forth in its prior Order, this Court should grant Petitioner Coreas’s motion for a preliminary injunction and order his immediate release. If released, Petitioner Coreas will go to live with his friends in Prince George’s County, who have indicated that he can stay with them for as long as he needs to, and will comply with any conditions of release the Court imposes.1
FACTUAL BACKGROUND I. COVID-19 Poses a Grave Risk of Harm, Including Serious Illness or Death, to
Older Adults and Those with Certain Medical Conditions. COVID-19 has become a global pandemic. As of April 26, 2020, there were over 2.8
1 Petitioners’ counsel has been unable to speak with Mr. Coreas as of this filing to confirm the details of his release plan, but will file a supplemental declaration promptly after speaking with Mr. Coreas.

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 4 of 25
million confirmed cases and 193,000 deaths worldwide and almost 900,000 confirmed cases and 46,000 deaths in the United States.2 In Maryland, nearly 19,500 people have tested positive for COVID-19 and 858 people have died from the disease as of April 27, 2020.3 The Governor of Maryland issued a stay-at-home order on March 30, 2020.4 The coronavirus has spread dramatically in Maryland jails and prisons. On April 1, 2020, Petitioners reported that three people in Maryland correctional facilities had tested positive for COVID-19. ECF 52 at 2. As of April 23, 2020, there have been 180 confirmed cases, including one death in the state’s correctional system.5 On April 18, 2020, Maryland’s Governor issued an executive order allowing for the potential release of hundreds of incarcerated individuals who are especially vulnerable to serious illness or death if they contract COVID-19.6
COVID-19 is a highly contagious disease that can result in severe and widespread damage to lungs, heart, liver, and other organs. In many cases, COVID-19 results in death. ECF No. 56 at 2; see also ECF No. 52-6 ¶¶ 3-5 (Declaration of Robert Greifinger, MD). Individuals who do not die from the disease may face prolonged recovery periods, including extensive rehabilitation from neurological damage and loss of respiratory capacity. Id. ¶ 6. A patient’s condition can seriously
2 Ex. 54, Coronavirus Disease (COVID-19) Situation Report – 97, World Health Org. (Apr. 26, 2020). 3 Ex. 55, Coronavirus Disease 2019 (COVID-19) Outbreak, Maryland Dep’t of Health (accessed Apr. 27, 2020). 4 See ECF 52-14. 5 Ex. 56, Tiffany Watson, 180 Confirmed COVID-19 Cases in Maryland Correctional Facilities, Fox5News (Apr. 23, 2020). 6 See Ex. 57, Order of the Governor of the State of Maryland, No. 20-04-18-01 (Apr. 18, 2020); Ex. 39, Danielle E. Gaines, Hogan Issues Order to Guide Speedier Inmate Releases During COVID-19 Outbreak, Maryland Matters (Apr. 19, 2020).

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 5 of 25
deteriorate in a matter of days. ECF No. 52-7 ¶ 6, (Declaration of Dr. Jonathan Louis Golob). People can also be infected with COVID-19 and infectious but present no symptoms. ECF No. 526 ¶¶ 4, 22 (Greifinger Decl.).
Older individuals and those with certain medical conditions face greater chances of serious illness or death from COVID-19. ECF No. 56 at 2; ECF No. 52-6 ¶ 7 (Greifinger Decl.); ECF No. 52-7 ¶ 3 (Golob Decl.). Certain underlying medical conditions increase the risk of serious COVID19 disease for individuals of any age, including but not limited to lung disease, chronic liver or kidney disease, diabetes, epilepsy, hypertension, compromised immune systems, blood disorders, inherited metabolic disorders, stroke, and pregnancy. ECF No. 56 at 3; ECF No. 52-6 ¶ 7 (Greifinger Decl.); ECF No. 52-7 ¶¶ 3, 14 (Golob Decl.).
Most people in higher risk categories who develop serious disease will need advanced medical support. Id. ¶ 8. This level of supportive care requires highly specialized equipment that is in limited supply, and an entire team of care providers, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care physicians. Id. See also ECF No. 52-6 ¶ 6 (Greifinger Decl.). This level of support is especially difficult to provide for detained individuals. Id. ¶ 11.
There is no vaccine against COVID-19, nor any known medication to prevent or treat infection from the virus. ECF No. 56 at 3; ECF No. 52-7 ¶ 10 (Golob Decl.). The only known effective measure to reduce the risk of severe illness or death to vulnerable individuals is to prevent them from being infected with COVID-19. Id. Social distancing, or remaining physically separated from known or potentially infected individuals, and vigilant hygiene, including washing hands with soap and water, are the only known effective measures to prevent infection. Id.

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 6 of 25
II. U.S. Immigration and Customs Enforcement’s (“ICE”) COVID-19 Plan is Insufficient to Prevent the Spread and Management of COVID-19 in Detention Facilities. As this Court has found, “[p]risons, jails, and detention centers are especially vulnerable
to outbreaks of COVID-19.” ECF No. 56 at 4. Once one person in a detention facility contracts the virus, it spreads quickly because people live, sleep, eat, and use the bathroom in close proximity with others, and because behind bars, some of the most basic disease prevention measures are simply impossible. See id. at 4-5; see also ECF No. 52-6 ¶¶ 10, 19 (Greifinger Decl.). According to a study, between 72% and nearly 100% of individuals in ICE detention are expected to be infected with COVID-19 within 90 days of an infection reaching the facility.7 The study additionally found that, among the 60 individuals detained at HCDC, between 28 and 52 people will be infected within 30 days of the infection reaching the facility, between 44 and 55 people within 60 days, and between 46 and 55 people within 90 days.8
Although ICE has temporarily suspended social visitation in all detention facilities,9 staff, contractors, and vendors continue to enter and leave the detention centers. ECF No. 52-6 ¶ 25 (Greifinger Decl.). Thus, ICE detention facilities are at high risk for infections. Indeed, as of April 24, 2020, ICE has reported that 317 immigrants in detention and 35 ICE detention facility personnel in several states have contracted COVID-19.10 And now COVID-19 has arrived at the
7 Ex. 58, Michael Irvine, et al., Modeling COVID-19 and Impacts on U.S. Immigration and Enforcement (ICE) Detention Facilities, 2020, Journal of Urban Health (forthcoming). 8 Ex. 59, Modeling COVID-19 and Impacts on ICE detention facilities in the US, 2020 (accessed Apr. 27, 2020). 9 See Ex. 62, ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, available at https://www.ice.gov/coronavirus. 10 Ex. 61, Confirmed Cases, U.S. Immigration and Customs Enforcement (accessed Apr. 26, 2020).

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 7 of 25
HCDC. ECF No. 71. Nothing short of aggressive screening and testing of detained individuals, staff, officials,
and other care and service providers who enter the facility will contain the spread of the coronavirus. However, neither ICE nor the Maryland detention facilities have the necessary resources to engage in this effort. ECF No. 52-6 ¶¶ 13, 21, 24 (Greifinger Decl.). Despite Respondents’ assurances to this Court that “any individual [at the HCDC or the WCDC] with suspected COVID-19 symptoms will be tested,” ECF No. 59 ¶¶ 5-6 (Declaration of Kevin J. Brown, Jr.), neither facility has conducted that level of testing. Detained individuals in HCDC have exhibited COVID-19 symptoms but have not been tested since Respondents filed their Testing Certification. Ex. 52, ¶¶ 3-4, 6, 10 (Supplemental Declaration of Katie Yorick); see also Ex. 51, ¶¶ 1-2 (Supplemental Declaration of Mauricio Coreas). Respondents also do not plan to conduct any further testing at HCDC even after learning of a confirmed case. ECF No. 71. Therefore, despite this Court’s Order, the HCDC continues to lack both the capability and plans to conduct testing. See ECF No. 56 at 8-10.
Given the general lack of testing, it is impossible for detention facilities to consistently and adequately screen detained persons and staff for new infections. ECF No. 52-6 ¶¶ 17-18 (Greifinger Decl.). Moreover, to the extent ICE limits testing to individuals with symptoms, such testing is inadequate. Since COVID-19 carriers can be asymptomatic or not show symptoms for weeks after exposure, “screening people based on observable symptoms is just a game of catch up.” In re Extradition of Alejandro Toledo Manrique, No. 19-mj-71055, 2020 WL 1307109 (N.D. Cal. Mar. 19, 2020) (ordering release on bond in part because government’s COVID-19 management plan did not “say anything about testing”). The fact that the nurse who has tested positive for COVID-19 in the HCDC was asymptomatic when she was physically present in the

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 8 of 25
facility and only began showing symptoms two days later underscores this point. Instead of testing, ICE continues to segregate those who meet the Centers for Disease
Control and Prevention (“CDC”) criteria for epidemiologic risk of exposure to COVID-19.11 Even assuming ICE has adequate space in its detention facilities to segregate such individuals, isolating people in this manner is an ineffective way to prevent transmission. Unless an individual is isolated in a specialized negative pressure room, air continues to flow outward from rooms to the rest of the facility. See ECF No. 52-6 ¶ 29 (Greifinger Decl.). The HCDC is not equipped with negative pressure rooms to properly isolate individuals who contract COVID-19. ECF No. 2-6 ¶ 6 (Declaration of Eric Lopez). Furthermore, as this Court recognized, isolating those who present symptoms “does not remove the risk that the virus will spread quickly once inside the facility and would specifically threaten high-risk detainees like Petitioners.” ECF 56 at 30.
Nor can ICE’s recent changes to its COVID-19 protocol, issued on April 10, 2020,12 stop the spread of COVID-19 in HCDC. These new policies fall well short of what is required to prevent the spread of the virus, especially given the confirmed presence of COVID-19 in the facility. ICE’s new protocol fails to mandate social distancing in its facilities; fails to identify all categories of people medically vulnerable to COVID-19 as defined by the CDC; fails to address how facilities will account for people who have already been exposed to COVID-19, including asymptomatic and pre-symptomatic people; fails to account for lack of testing, as described above; does not account for any surge in medical need and any staffing deficiencies due to COVID-19; and
11 Ex. 62, ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, available at https://www.ice.gov/coronavirus (“Detainees who meet CDC criteria for epidemiologic risk of exposure to COVID-19 are housed separately from the general population.”). 12 Ex. 63, U.S. Immigration and Customs Enforcement, Enforcement and Removal Operations, COVID-19 Pandemic Response Requirements (Apr. 10, 2020).

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 9 of 25
implements a cohorting strategy that will accelerate the spread of COVID-19, among other shortcomings. Ex. 53, ¶¶ 5-17 (Supp. Greifinger Decl.).
Given the rapid community spread of COVID-19, the variability in symptoms and the likelihood of it being spread before a patient is symptomatic, the general lack of testing, and ICE’s history of failure to meet adequate standards for the containment and treatment of infectious diseases, Respondents cannot reliably prevent the spread of the virus in their detention facilities.
ICE has publicly acknowledged the need to limit the spread of the coronavirus and the number of people in its detention centers.13 Moreover, ICE has a longstanding practice of releasing individuals from custody and has routinely done so to release particularly vulnerable individuals like Petitioners on medical grounds. ECF No. 2-5 ¶¶ 3-15 (Declaration of Andrew LorenzenStrait). However, after releasing fewer than 700 individuals out of over 32,000 detained across the country, Respondent Albence has informed Congress that ICE has no plans to release more vulnerable people held in detention.14 III. People Detained at Maryland Detention Facilities Face an Imminent and Substantial
Risk of Contracting COVID-19. On April 25, 2020, Respondents confirmed that one person in HCDC has tested positive for COVID-19. ECF No. 71. That person is a nurse who works at the facility once a week, and just two days before testing positive for COVID-19, came into contact with at least seven or eight detained persons, and had been at the medical unit all day. Id. Respondents have not provided
13 See Ex. 64, Maria Sacchetti and Arelis R. Hernández, ICE to Stop Most Immigration Enforcement Inside the U.S., Will Focus on Criminals During Coronavirus Outbreak, The Washington Post (Mar. 18, 2020). 14 Ex. 65, DHS Officials Refuse to Release Asylum Seekers and Other Non-Violent Detainees Despite Spread of Coronavirus, U.S. House of Representatives Committee on Oversight and Reform (Apr. 17, 2020).

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 10 of 25
any information about how many staff members she interacted with that day; nor have they provided information about how many detained persons and staff she interacted with in the prior week. Because COVID-19 can be asymptomatic for up to 14 days, the number of people exposed to her who are currently present in the HCDC may be far greater than the seven people mentioned in Respondents’ submission.
Respondents’ confidence that no exposure occurred as a result of this nurse’s case is unsupported by any specific evidence. The assurance that the nurse was required to wear personal protective equipment (“PPE”) does not eliminate the risk of COVID-19 spread in the facility, even under the best circumstances. Ex. 53, ¶ 7 (Supp. Greifinger Decl.). The government has not provided any assurance that the nurse wore PPE at all times; that PPE was available at all times to staff; and that PPE was worn properly. PPE’s primary function, moreover, is meant to protect the wearer, and does not eliminate the risk of transmission. Id. Given the exponential spread of coronavirus in closed congregate environments, particularly correctional facilities, which are now the sites of the largest COVID-19 outbreaks in the nation, everyone in HCDC is now at heightened risk of contracting COVID-19. Ex. 53, ¶¶ 6-7 (Supp. Greifinger Decl.). Thus, there is an immediate and impending threat that COVID-19 will become widespread in HCDC, and Petitioner Coreas, who is at high risk for serious illness or death should he contract COVID-19, faces imminent and substantial risk of COVID-19 infection. As this Court found, in the absence of widespread testing, there is no way to be certain that outbreaks are not already occurring. ECF No. 56 at 25.
Conditions HCDC will only facilitate the spread of the virus. Groups of detained people are housed together and use common spaces together, sharing tables, telephones, and bathrooms.15
15 Ex. 52, ¶ 7 (Yorick Supp. Decl.); ECF No. 2-6 ¶¶ 4-5 (Lopez Decl.); ECF No. 2-7 ¶ 4

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 11 of 25
The dormitories in these detention centers house many individuals in close quarters, well under six feet apart.16 The hallways and corridors are tight, and people in the hallways are constantly in very close proximity.17 Bathrooms are limited in number and are not sanitized or disinfected after each use.18 Staff arrive and leave on a shift basis, and even asymptomatic staff can carry the infection into the facility—as has already happened at HCDC.19
Further, the detention centers are ill-equipped to manage an infectious disease outbreak. According to Robert Greifinger, MD, a physician who has worked in correctional healthcare for 30 years, “ICE has failed to adequately comprehend and respond to the COVID-19 pandemic for those detained in ICE custody, including at Worcester and Howard County Detention Centers.” ECF No. 52-6 ¶ 17 (Greifinger Dec.). Neither ICE nor the facilities have a plan to address the heightened risks that confront individuals with pre-existing medical conditions. ECF No. 56 at 24-25. Facilities generally have very limited on-site medical facilities. ECF No. 52-6 ¶ 11 (Greifinger Decl.); ECF No. 2-6 ¶ 7 (Lopez Decl.); ECF No. 2-7 ¶ 7 (Bakst Decl.); ECF No. 2-8 ¶¶ 6, 8 (Bakst Decl.). And HCDC does not have negative pressure isolation units, meaning that isolating infected people through solitary confinement will not prevent transmission of the disease because air continues to flow outwards from those rooms to the rest of the facility. ECF No. 526 ¶ 29 (Greifinger Decl.); ECF No. 2-6 ¶ 6 (Lopez Decl.). ICE and the HCDC remain woefully
(Declaration of Eleni Bakst). 16 ECF No. 2-6 ¶ 4 (Lopez Decl.); ECF No. 2-7 ¶ 4 (Bakst Decl.). 17 ECF No. 2-6 ¶ 5 (Lopez Decl.); ECF No. 2-7 ¶ 4 (Bakst Decl.). 18 ECF No. 2-7 ¶ 8 (Bakst Decl.); see also ECF No. 56 at 7-8 (describing conditions at the HCDC); id. at 9-10 (describing conditions at the WCDC). 19 ECF No. 52-6 ¶ 25 (Greifinger Decl.); ECF No. 71.

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 12 of 25
unprepared and incapable of taking necessary precautions to protect people in their custody against a life-threatening illness. Given the confirmed COVID-19 case at HCDC, Petitioner Coreas’s risk of contracting the virus has now increased exponentially. IV. People Most Vulnerable to COVID-19 Should Be Released from ICE Detention.
Public health experts with experience in immigration detention and correctional settings have recommended the release of vulnerable people from custody. As Dr. Greifinger explains, “the public health recommendation is to release high-risk people from detention.” ECF No. 52-6 ¶ 32 (Greifinger Decl.). Two medical experts for DHS have also sent a letter to Congress warning of the severe public health risks of keeping individuals detained and recommending release of medically vulnerable people from immigration detention.20
Releasing the most vulnerable people, such as Petitioner Coreas, would also reduce the burden on regional hospitals and health centers. Id. In case of an outbreak at a detention center, those institutions would bear the brunt of having to treat infected individuals from detention centers and would have fewer medical resources available for the general population. Id. Governments worldwide have also recognized the threat posed by the spread of COVID-19 among detained and incarcerated populations and have released detained persons for that reason. For example, Iran temporarily released more than 80,000 detained individuals to curb the spread of the virus.21 In the United States, several jurisdictions, including Prince George’s County and Baltimore, have also released detained individuals for the same reasons.22
20 ECF No. 52-19, Letter from Dr. Scott Allen and Dr. Josiah Rich. 21 Ex. 66, Parisa Hafezi, Iran Temporarily Frees 85,000 From Jail Including Political Prisoners, Reuters (Mar. 17, 2020). 22 Ex. 67, Scott Broom, 50 Prisoners Released Early in Prince George’s County as Coronavirus Precaution, WUSA9 (Mar. 19, 2020); Ex. 68, Associated Press, Dozens Released From

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 13 of 25
V. Petitioner Coreas Is Vulnerable to Serious Illness or Death If Infected by COVID-19 and Must Be Released from Custody.
Mr. Coreas is a 52-year-old citizen of El-Salvador who is currently detained at the HCDC. ECF No. 2-7 ¶¶ 5-6 (Bakst Decl.). In addition to being over 50, Mr. Coreas suffers from Type 2 diabetes. Id. ¶ 6. Mr. Coreas is critically vulnerable to serious illness or death from COVID-19 because of his diabetes. ECF No. 52-6 ¶ 31 (Greifinger Decl.). See also ECF No. 56 at 6 (finding Mr. Coreas to be at high risk for complications from COVID-19).
LEGAL STANDARD Motions for fpreliminary injunctions are governed by the same four-factor test. Courts consider whether plaintiffs have shown: (1) a likelihood of success on the merits; (2) that they are likely to suffer irreparable harm in the absence of such relief; (3) that the balance of equities tips in plaintiffs’ favor; and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008); see also Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 18889 (4th Cir. 2013) (en banc) (outlining Winter standard). To show a likelihood of success on the merits, plaintiffs “need not show a certainty of success.” Pashby v. Delia, 709 F.3d 307, 321 (4th Cir. 2013).
ARGUMENT I. Petitioner Coreas Is Likely to Succeed on the Merits.
A. Petitioner Coreas’s Detention Violates His Constitutional Right to Reasonable Safety Because It Constitutes Impermissible Punishment.
Baltimore Jails, Prisons, WBAL News (Apr. 6, 2020); Ex. 69, Hannah Gaskill, Md. Prisons Release New COVID-19 Data, Quietly Free More Than 2,000 Inmates, WTOP News (Apr. 21, 2020); see also Ex. 70, Catherine Kim, Why People Are Being Released From Jails and Prisons During the Pandemic, Vox (Apr. 3, 2020) (“California announced that it would let out 3,500 nonviolent inmates in the next 60 days — the most drastic measure taken by states so far. New York City Mayor Bill de Blasio also announced the city had released 900 people as of March 31.”).

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 14 of 25
1. Respondents Are Deliberately Indifferent to Petitioner Coreas’s Health and Safety.
Persons in civil immigration detention, like Petitioner Coreas, are protected by the Due
Process Clause of the Fifth Amendment. See Youngberg v. Romeo, 457 U.S. 307, 315 (1982)
(holding that “the right to personal security constitutes a ‘historic liberty interest’ protected
substantively by the Due Process Clause” and “that right is not extinguished by lawful
confinement” (quoting Ingraham v. Wright, 430 U.S. 651, 673 (1977))). Individuals who are
subject to civil detention “are entitled to more considerate treatment and conditions of
confinement” than persons who are incarcerated because of a criminal conviction. Id. at 321-22.
Thus, the Due Process Clause’s protections are at least as strong as those of the Eighth
Amendment. “If it is cruel and unusual punishment to hold convicted criminals in unsafe
conditions, it must be unconstitutional to confine the involuntarily committed—who may not be punished at all—in unsafe conditions.” Id. at 315-16.23
The government has an affirmative duty to provide conditions of reasonable health and
safety to the people it holds in its custody. As the Supreme Court has made clear,
[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being . . . . The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself,
23 Petitioners submit that those held in civil immigration detention are entitled to even stronger protections than individuals held in criminal pretrial detention. See Jones v. Blanas, 393 F.3d 918, 933-34 (9th Cir. 2004). Because a person in civil detention is “entitled to ‘more considerate treatment’ than his criminally detained counterparts,” “a presumption of punitive conditions arises where the individual is detained under conditions identical to, similar to, or more restrictive than those under which pretrial criminal detainees are held.” Id. at 932, 934 (citing Youngberg, 457 U.S. at 321-22). See also ECF No. 2-1 at 5-6; ECF No. 52 at 15-16. However, because Petitioners prevail under even the deliberate indifference standard, the Court need not address this issue.

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 15 of 25
and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment . . . . DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989). The Eighth Amendment “protects against future harm,” including a “condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year.” Helling v. McKinney, 509 U.S. 25, 33 (1993). Thus, constitutional violations may arise from “the exposure of inmates to a serious, communicable disease” even if “the complaining inmate shows no serious current symptoms” and “even though the possible infection might not affect all those exposed.” Id.; see also Hutto v. Finney, 437 U.S. 678, 682-83, 687 (1978) (holding that a state prison violated the Eighth Amendment where, among other things, it randomly redistributed mattresses to prisoners, some of whom suffered from communicable diseases such as hepatitis and sexually transmitted disease). Petitioner Coreas is likely to prevail under the deliberate indifference standard and thus has demonstrated a likely violation of his due process rights. To satisfy this standard, a petitioner must satisfy objective and subjective factors. First, a petitioners must show an objectively “serious deprivation” of rights “in the form of a serious or significant physical or emotional injury,” Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir. 2014), or “a substantial risk of such serious harm resulting from the prisoner’s unwilling exposure to the challenged conditions,” Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995). A medical condition is serious when it is “so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)) (citation omitted). Second, a petitioner must establish subjective deliberate indifference to their health or safety—that is, that the respondent must “subjectively know[] of and disregard[] an excessive risk to inmate health or safety.” Jackson v. Lightsey, 775

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 16 of 25
F.3d 170, 178 (4th Cir. 2014) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Petitioner Coreas satisfies both objective and subjective requirements. As this Court found,
“COVID-19 is a highly communicable disease that presents a potentially mortal risk, particularly for high-risk individuals such as Petitioners,” whose “spread has been remarkably rapid, including into prisons and detention facilities.” ECF No. 56 at 21. Indeed, in the short time since this Court issued its Order, there has already been a confirmed case of COVID-19 at the HCDC. It is clear that COVID-19 presents an objective, imminent risk to the health and safety of Petitioner Coreas. ECF No. 56 at 22.
Moreover, “there is no dispute that Respondents were and are subjectively aware of the risk that COVID-19 poses to both healthy and high-risk individuals,” and the evidence establishes that Respondents disregarded this risk. Id. As this Court has found, Respondents at best have taken only limited protective measures at HCDC, despite the high risk of infection. See id. Individuals at HCDC are “housed in close quarters” and “spend approximately 11 hours in communal activities and spaces, where they are in close proximity to one another.” Id. at 23. As of the filing of Plaintiffs’ Motion for Temporary Restraining Order, ECF No. 2, Respondents were not implementing any social distancing protocols; providing individuals with adequate cleaning or sanitizing materials; or disinfecting communal spaces, including bathrooms, regularly. Id. “Such facts lead to the inescapable conclusion that, before this lawsuit, HCDC [was] disregarding the known risk of a highly communicable and potentially fatal disease.” Id.
Moreover, although Respondents may have adopted additional precautions after the lawsuit was filed, “these measures leave notable gaps.” Id. at 24. As this Court found, “there continue to be no social distancing protocols at either facility,” nor is there any “evidence of any actions to increase the distance among” those detained as the CDC recommends. Id. Respondents

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 17 of 25
continue to “lack [] any procedures to address the heightened risk to detainees with certain medical conditions”—which, as the Court noted, is a “major deficiency” in Respondents’ protocols. Id. Finally, the facilities have not conducted tests for detained persons exhibiting COVID-19 symptoms, and “they have neither the capability nor any plans to do so.” Id. at 25.
For these reasons, the Court concluded that “in the event that the Coronavirus is found in HCDC or WCDC, or if those facilities fail to . . . administer a test to any individual at either Detention Facility who exhibits suspected COVID-19 symptoms . . . , the Court would find a likelihood of success on the due process claim based on deliberate indifference to the serious medical needs of Petitioners.” Id. As of this filing, both circumstances have come to pass in HCDC. For these reasons, Petitioners are likely to succeed on their due process claim.
2. Respondents Are Subjecting Petitioner Coreas to Unconstitutionally Punitive Conditions of Confinement.
Petitioner Coreas is also likely to succeed on his due process claim because his detention during the COVID-19 pandemic constitutes impermissible punishment. To prevail on this claim, Petitioner must show either that (1) the conditions at issue were imposed with the express intent to punish; or (2) those conditions are not reasonably related to a legitimate, nonpunitive governmental objective, such that the intent to punish can be inferred. Matherly v. Andrews, 859 F.3d 264, 275 (4th Cir. 2017). Here, the primary purpose of Petitioner’s detention is to ensure his appearance for their immigration proceedings. See Zadvydas v. Davis, 533 U.S. 678, 690-91 (2001). But there are many alternatives to detention that would serve that purpose equally well.
Petitioner’s detention is not reasonably related to a legitimate, nonpunitive objective. As this Court found, “Petitioners are confined in facilities where they are particularly vulnerable to COVID-19 because of the lack of ability to maintain distance from others, and if they contract the Coronavirus they have up to a 20 percent chance of death, greater than the odds of losing a game

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 18 of 25
of Russian roulette.” ECF No. 56 at 28. The Court thus concluded that, if COVID-19 were confirmed in the facilities, Petitioners’ detention under “conditions imposing a palpable risk of death or serious harm inflict far more serious consequences on them than are justified by the need to hold them for their immigration proceedings,” and thus “bear no reasonable relationship ‘to the purpose for which persons are committed.’” Id. (quoting Matherly, 859 F.3d at 275). The Court further held that it “would consider the lack of a testing capability to be the equivalent of having positive tests in the detention facility, as there would be no way to know whether high-risk detainees are at direct risk of exposure to the Coronavirus.” Id. at 29.
Because both these circumstances have come to pass in HCDC, Petitioner Coreas is likely to succeed on the merits of their due process claim.
B. The Court Has Authority to Order Petitioner’s Release as the Sole Effective Remedy for the Constitutional Violation.
This Court clearly has authority to protect Petitioner Coreas’s due process rights by ordering his release. Petitioner Coreas has filed this case as both a habeas action and a civil action seeking declaratory and injunctive relief. ECF No. 1. Both vehicles are available to Petitioner here.
First, as this Court already has held, a claim by a person “seeking release [from immigration detention] because of unconstitutional conditions or treatment is cognizable under [the federal habeas statute, 28 U.S.C. § 2241].” ECF No. 56 at 14 (citing cases). “[A]lthough the grounds on which they seek release relate to their conditions of confinement, Petitioners seek complete release from confinement, which is ‘the heart of habeas corpus.’” Id. at 14-15 (quoting Preiser v. Rodriguez, 411 U.S. 475, 499 (1973). A growing number of courts hearing claims identical to Petitioner’s have reached the same conclusion. See, e.g., Malam v. Adducci, 2:20-cv10829 (JEL) (APP), Dkt. No. 23, at 8 (E.D. Mich. Apr. 6, 2020) (holding that “where a petitioner claims no set of conditions would be sufficient to protect her constitutional rights, her claim should

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 19 of 25
be construed as challenging the fact, not conditions, of her confinement and is therefore cognizable in habeas.”); Thakker v. Doll, 1:20-cv-00480 (JEJ), Dkt No. 47, at 5 (E.D. Pa. Mar. 31, 2020) (holding that court has jurisdiction under § 2241 to hear conditions of confinement challenge by Petitioner seeking release from ICE detention due to threat from COVID-19).
Second, the Fifth Amendment provides Petitioner with an implied cause of action, and thus 28 U.S.C. § 1331 serves as an independent basis for jurisdiction. Federal courts have long recognized an implicit private right of action under the Constitution “as a general matter” to issue prospective injunctive relief against government action. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 491 n.2 (2010); accord Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (equitable relief “has long been recognized as the proper means for preventing entities from acting unconstitutionally”); Bolling v. Sharpe, 347 U.S. 497 (1954) (holding that the Fifth Amendment and § 1331 created a remedy for unconstitutional racial discrimination in public schools); Bell v. Hood, 327 U.S. 678, 684 (1946) (“[I]t is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution”). See also United States v. Minor, 228 F.3d 352, 356 (4th Cir. 2000) (recognizing an “equitable cause of action” under the Fifth Amendment and explaining that “[w]hen constitutional interests are so clearly implicated, federal courts have broad discretion to fashion a remedy in equity”).
Thus, there is both jurisdiction under 28 U.S.C. § 1331 and a cause of action under the Fifth Amendment to enjoin the Defendants’ unconstitutional actions. See Malam, 2020 WL 1672662, at *4 (“Should Petitioner’s habeas petition fail on jurisdictional grounds, the Fifth Amendment provides Petitioner with an implied cause of action, and accordingly 28 U.S.C. 1331 would vest the Court with jurisdiction.”). See also Simmat v. U.S. Bureau of Prisons, 413 F.3d

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 20 of 25
1225, 1231 (10th Cir. 2005) (implied cause of action under Eighth Amendment to enjoin unconstitutional prison conditions).
Sovereign immunity poses no bar to Petitioner’s challenge. First, Petitioner is suing for injunctive relief against federal officers in their official capacity. “The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015) (emphasis added). Second, Section 702 of the Administrative Procedures Act, 5 U.S.C. § 702, waives the federal government’s sovereign immunity in suits that challenge agency action and seek relief other than money damages. City of New York v. United States Dep’t of Def., 913 F.3d 423, 430 (4th Cir. 2019); see also Malam, 2020 WL 1672662, at *5 (holding that sovereign immunity did not apply where detained immigrant “raise[d] a constitutional challenge to her detention as the result of actions taken by [Defendant Rebecca] Adducci, a federal officer”). Thus, Petitioner can prevail under both theories.24
Moreover, this Court clearly has the power to order Petitioner’s release. “A district court enjoys wide discretionary authority in formulating remedies for constitutional violations.” Smith v. Bounds, 813 F.2d 1299, 1301 (4th Cir. 1987). And “[w]hen necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011). For example, in cases involving prisons and jails, federal courts have repeatedly ordered the release of detained persons when necessary to remedy constitutional violations caused by overcrowding. See, e.g., Duran v. Elrod, 713 F.2d 292, 297- 98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (concluding that court did not exceed its authority in
24 Thus, Petitioners respectfully disagree with the Court’s suggestion that, in the absence of habeas, Petitioners “may have no vehicle by which to seek redress . . . .” ECF No. 56 at 14. Rather, Petitioners may challenge their detention directly under the Due Process Clause.

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 21 of 25
directing release of low-bond pretrial detainees as necessary to reach a population cap); Mobile Cty. Jail Inmates v. Purvis, 581 F. Supp. 222, 224-25 (S.D. Ala. 1984) (concluding that district court properly exercised remedial powers to order a prison’s population reduced to alleviate unconstitutional conditions and noting other cases); Inmates of the Allegheny Cty. Jail v. Wecht, 565 F. Supp. 1278, 1297 (W.D. Pa. 1983) (order to reduce overcrowding “is within our power to correct the constitutional violations”); Brenneman v. Madigan, 343 F. Supp. 128, 139 (N.D. Cal. 1972) (“If the state cannot obtain the resources to detain persons . . . in accordance with minimum constitutional standards, then the state simply will not be permitted to detain such persons.”).
Since this Court’s order, courts all over the country have continued to invoke their authority to order the immediate release of individuals in immigration detention centers in light of the risk posed by COVID-19. See Essien v. Barr, 1:20-cv-01034 (WJM), Dkt. No. 17 (D. Colo. Apr. 24, 2020); Sallaj v. ICE, 1:20-cv-00167 (JJM) (LDA), Dkt. No. 18 (D.R.I Apr. 24, 2020); Hernandez v. Kolitwenzew, 2:20-cv-02088 (SLD), Dkt. No. 12 (C.D. Ill. Apr. 23, 2020); Durel B. v. Decker, 2:20-cv-3430 (KM), Dkt. No. 34 (D.N.J. Apr. 21, 2020); Zaya v. Adducci, 5:20-cv-10921 (JEL) (APP), Dkt. No. 9 (E.D. Mich. Apr. 18, 2020); Amaya-Cruz v. Adducci, 1:20-cv-00789 (DAP), Dkt. No. 35 (N.D. Ohio Apr. 18, 2020); Vazquez Barrera v. Wolf, 4:20-cv-01241, Dkt. No. 41 (S.D. Tex. Apr. 17, 2020); Wright v. Anderson, 20-cv-3704 (BRM), Dkt. No. 22 (D.N.J. Apr. 17, 2020); J.G. v. Decker, 20-cv-3644 (KM) (D.N.J. Apr. 15, 2020); Ixchop Perez v. Wolf, 19-cv-5191 (EJD), Dkt. No 29 (C.D. Cal. Apr. 14, 2020); Fofana v. Albence, 20-cv-10869 (GAD), Dkt. No. 15 (E.D. Mich. Apr. 14, 2020); Bahena Ortuno v. Jennings, 3:20-cv-02064 (MMC), Dkt No. 51 (N.D. Cal. Apr. 14, 2020); A.R. v. Decker, No. 20-cv-3600 (MCA), Dkt. No. 26 (D.N.J. Apr. 12, 2020); Doe v. Barr, 20-cv-2141 (LB), Dkt. No. 27 (N.D. Cal. Apr. 12, 2020); Arias v. Decker, No. 20-cv-2802 (AT), 2020 WL 1847986 (S.D.N.Y. Apr. 10, 2020); L.O., v. Tsoukaris, No. CV 20-

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 22 of 25
3481 (JMV), 2020 WL 1808843 (D.N.J. Apr. 9, 2020); Bent v. Barr, No. 19-CV-06123-DMR, 2020 WL 1812850 (N.D. Cal. Apr. 9, 2020); Toma v. Adducci, 20-cv-10829 (JEL), Dkt. No. 29 (E.D. MI Apr. 9, 2020); Hope v. Doll, No. 1:20-cv-00562-JEJ (M.D. Pa., Apr. 7, 2020); Malam v. Adducci, No. 2:20-cv-10829-JEL-APP, 2020 WL 1672662 (E.D. Mich., Apr. 6, 2020); see also Savino v. Souza, 20-cv-10617 (WGY), Dkt. No. 64 (D. Mass. Apr. 8, 2020).
Similarly, in this case, the release of Petitioner Coreas from detention is the only effective remedy for the constitutional violation he faces. Preventive measures, such as social distancing, may be effective in the community, but are impossible to implement in the detention setting. ECF No. 52-6 ¶ 19 (Greifinger Decl.). Petitioner Coreas continues to live with others in close quarters, and is unable to maintain the necessary hygiene and social distancing measures that could protect him from the disease. ECF No. 2-6 ¶ 4 (Lopez Decl.); ECF No. 2-7 ¶ 4 (Bakst Decl.). COVID-19 has already reached HCDC and Respondents have failed to institute the testing protocols required by this Court. Thus, for Petitioner Coreas, release is the only effective remedy. II. Petitioner Is Likely to Suffer Irreparable Harm Absent Release.
Because Petitioner Coreas has established a likelihood of success on his due process claim, he has also shown irreparable harm. ECF No. 56 at 29-30. The “denial of a constitutional right . . . constitutes irreparable harm for purposes of equitable jurisdiction.” Ross v. Meese, 818 F.2d 1132, 1135 (4th Cir. 1987). In addition, as this Court has found, “Petitioners have introduced uncontroverted evidence that contracting COVID-19 would put them at serious risk of severe medical complications and even death.” ECF No. 56 at 30 (citing ECF No. 52-6 ¶¶ 6, 14 (Greifinger Decl.)). Given that there is both a confirmed case in the HCDC and Respondents have failed to provide adequate testing, there is “a high likelihood of irreparable health consequences that could not be alleviated without release.” Id.

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 23 of 25
III. The Public Interest and Balance of Equities Weigh Heavily in Petitioner’s Favor. Finally, the balance of harms and public interest weigh strongly in favor of a preliminary
injunction. “[U]pholding constitutional rights surely serves the public interest.” Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002). “Moreover, the significant risk that the Coronavirus, [having entered the] HCDC or WCDC, [will] cause death or serious harm to highrisk detainees like Petitioners, weighs in favor of the requested injunction.” ECF No. 56 at 31.
Respondents assert an interest in Petitioner’s detention based on the general public interest in immigration enforcement, ECF No. 39 at 23-24. However, as this Court concluded, that interest “is of markedly less importance than the interest in incarceration of convicted federal or state prisoners, or even the detention of individuals formally charged with federal or state criminal offenses” and “thus tips significantly less favorably toward the Government than in a case involving criminal pretrial detention or post-conviction imprisonment.” ECF No. 56 at 31. Respondents also rely on the fact that Petitioner Coreas is subject to the mandatory detention statute, 8 U.S.C. § 1226(c), based on his criminal history. ECF No. 39 at 25. However, Petitioner’s mandatory detention does “not provide a basis to conclude that upon a finding of a likely constitutional violation, the balance of equities and public interest would not favor release.” ECF No. 56 at 32. Moreover, as explained in section I.B., supra, release is the only adequate remedy for Petitioner’s unconstitutional and life-threatening confinement. Thus, here “the interests of the health and safety of Petitioners . . . outweigh the public interest in the assurance of the completion of civil proceedings, particularly where ICE would be able to impose conditions of release using ‘a range of highly effective tools’ designed to result in Petitioners’ appearances at their hearings.” Id. at 33 (quoting ECF No. 2-5 ¶ 15 (Lorenzen-Strait Decl.)). IV. The Court Should Not Require Petitioner to Provide Security Prior to Issuing a
Preliminary Injunction.

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 24 of 25

Finally, this Court should waive the security requirement for a preliminary injunction set forth at Federal Rule of Civil Procedure 65(c). Pashby, 709 F.3d at 332 (explaining that “the district court retains the discretion to . . . waive the security requirement.” (citation omitted)). District courts routinely exercise this discretion to require no security in cases brought by indigent and/or incarcerated people. See, e.g., Beck v. Hurwitz, 380 F. Supp. 3d 479, 485 (M.D. N.C. 2019) (federal prisoner); Toussaint v. Rushen, 553 F. Supp. 1365, 1383 (N.D. Cal. 1983) (state prisoners); Orantes–Hernandez v. Smith, 541 F. Supp. 351, 385 n. 42 (C.D. Cal. 1982) (detained immigrants). This Court should do the same here.
CONCLUSION For the foregoing reasons, Petitioner Coreas respectfully requests that this Court grant the motion for a preliminary injunction and order his immediate release from custody.

Dated: April 27, 2020
Respectfully submitted,
/s/ Sirine Shebaya Sirine Shebaya (Bar No. 07191) sirine@nipnlg.org Amber Qureshi (Bar No. 21218) amber@nipnlg.org Matthew Vogel* matt@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 (202) 656-4788
Adina Appelbaum* adina@caircoalition.org CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR) COALITION

David C. Fathi*† dfathi@aclu.org Eunice H. Cho*† echo@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL PRISON PROJECT 915 15th Street N.W. 7th Floor Washington, DC 20005 (202) 548-6616
Michael Tan* mtan@aclu.org Omar Jadwat* ojadwat@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS

Case 8:20-cv-00780-TDC Document 76-1 Filed 04/27/20 Page 25 of 25

1612 K Street NW Suite 204 Washington, DC 20006 (202) 899-1412
Nicholas T. Steiner, Esq. (Bar No. 19670) steiner@aclu-md.org AMERICAN CIVIL LIBERTIES UNION OF MARYLAND FOUNDATION 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211 (410) 889-8550
Attorneys for Petitioners-Plaintiffs * Admitted pro hac vice. † Not admitted in D.C.; practice limited to federal courts.

PROJECT 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2600
Stephen B. Kang* skang@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 (415) 343-0783

 
 Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MAURICIO COREAS, Howard County Detention Center 7301 Waterloo Road Jessup, MD 20794;
ANGEL GUZMAN CEDILLO, Worcester County Detention Center 5022 Joyner Road Snow Hill, MD 21863;
WILLIAM KEMCHA, Worcester County Detention Center 5022 Joyner Road Snow Hill, MD 21863,
Petitioners-Plaintiffs,
v.
DONNA BOUNDS, in her official capacity as Warden, Worcester County Detention Center 5022 Joyner Road Snow Hill, MD 21863;
JACK KAVANAGH, in his official capacity as Director, Howard County Detention Center 7301 Waterloo Road Jessup, MD 20794;
JANEAN A. OHIN, in her official capacity as Acting Baltimore Field Office Director, U.S. Immigration and Customs Enforcement 31 Hopkins Plaza 7th Floor Baltimore, MD, 21201;
MATTHEW T. ALBENCE, in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement, U.S. Immigration and Customs Enforcement

FIRST AMENDED PETITION FOR A WRIT OF HABEAS CORPUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
Civil Action No. 8:20-cv-00780-TDC

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 2 of 31

500 12th St., S.W. Washington, DC 20536;

IMMIGRATION AND CUSTOMS ENFORCEMENT, 500 12th St., S.W. Washington, DC 20536,

Respondents-Defendants.

Sirine Shebaya, Bar No. 07191 sirine@nipnlg.org Amber Qureshi, Bar No. 21218 amber@nipnlg.org Matthew Vogel* matt@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 (202) 656-4788
Adina Appelbaum* adina@caircoalition.org CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR) COALITION 1612 K Street NW Suite 204 Washington, DC 20006 (202) 899-1412
Nicholas T. Steiner, Esq. (Bar No. 19670) AMERICAN CIVIL LIBERTIES UNION OF MARYLAND FOUNDATION 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211 Telephone: (410) 889-8550 steiner@aclu-md.org
Attorneys for Petitioners-Plaintiffs * Admitted pro hac vice † Not admitted in D.C.; practice limited to federal courts.

David C. Fathi*† dfathi@aclu.org Eunice H. Cho*† echo@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL PRISON PROJECT 915 15th Street N.W. 7th Floor Washington, DC 20005 (202) 548-6616
Michael Tan* mtan@aclu.org Omar Jadwat* ojadwat@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2600
Stephen B. Kang* skang@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 (415) 343-0783

April 27, 2020

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 3 of 31
FIRST AMENDED PETITION FOR A WRIT OF HABEAS CORPUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF INTRODUCTION 1. Today’s global pandemic of COVID-19, caused by the novel coronavirus,
has been characterized as the worst the world has seen since 1918. Several states and countries around the world—including the State of Maryland—have put in place significant restrictions on public gatherings, and many have imposed “shelter-in-place” orders in an attempt to control the spread of the disease. Public health experts, including the Centers for Disease Control and Prevention (“CDC”), have instructed that the only effective way to reduce the risk of severe illness or death for vulnerable individuals is social distancing and improved hygiene. Such distancing and hygiene measures are impossible to achieve in detention centers. For this reason, more than 3,000 medical health professionals have urgently requested that Immigration and Customs Enforcement (“ICE”) immediately release immigration detainees in their custody, and two doctors who are medical experts for the Department of Homeland Security have sent a warning to Congress that keeping immigration detainees detained poses “an imminent risk to the health and safety of immigration detainees” and to the general public.1
2. The coronavirus has already begun to spread to immigration detention facilities, including in Maryland. Yet Respondents-Defendants (“Defendants”) continue to hold in detention thousands of individuals, including those at severe risk of serious illness
1 Ex. A, Letter from Dr. Scott Allen and Dr. Josiah Rich, Medical Experts for DHS, to House Comm. on Homeland Sec. (Mar. 19, 2020), available at https://www.documentcloud.org/documents/6816336032020-Letter-From-Drs-Allen-Rich-to-Congress-Re.html#document/p4/a557238; Catherine E. Shoichet, Doctors warn of 'tinderbox scenario' if coronavirus spreads in ICE detention, CNN (Mar. 20, 2020), available at https://www.cnn.com/2020/03/20/health/doctors-ice-detention-coronavirus/index.html.
3

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 4 of 31
or death if they were to contract COVID-19, despite the ready availability of communitybased alternatives to detention such as release on conditions or on bond.
3. To date, nearly 2.7 million individuals worldwide have been diagnosed with COVID-19, and the United States is the worst hit country. Many more are likely infected, especially in the United States where testing for the virus has been extremely limited. Confirmed cases have begun to appear in numerous detention centers across the country,2 including at one of the Maryland Detention Facilities, and it is likely that many more detention centers have unconfirmed COVID-19 cases. It is impossible for people confined in prisons, jails, and detention centers to engage in the necessary social distancing and hygiene because people eat, sleep, and engage in activities in close proximity to each other, and basic supplies such as soap and hand sanitizer are often in short supply or completely unavailable.3 Even with the measures ICE has purported to take to prevent the spread of COVID-19 in its facilities, immigration detention centers are a hotbed for spread of the virus.
4. Under these circumstances, release is the only meaningful way to mitigate the spread of the virus among immigration detainees. For individuals who are at high risk for serious illness or death from COVID-19, protection from the virus is a matter of life or death.. As of the filing of this First Amended Petition and Complaint, over 18,500 individuals have tested positive and 827 have died in the state of Maryland. The Governor
2 See Ex. B, Confirmed Cases, https://www.ice.gov/coronavirus. 3 Ex. C, Keri Blakinger and Beth Schwartzapfel, When Purell is Contraband, How Do You Contain Coronavirus?, the Marshall Project (Mar. 6, 2020), available at https://www.themarshallproject.org/2020/03/06/when-purell-is-contraband-how-do-you-containcoronavirus (describing, for example, limited access to hand sanitizer and other precautionary measures).
4

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 5 of 31
has declared a State of Emergency, and has put in place widespread social distancing measures, including shutting down nonessential businesses and all public gatherings— measures that are impossible to implement in a crowded detention center. Indeed, in the United States, the most concentrated instance of death from the virus happened in confined congregated spaces such as prisons and jails.4
5. Petitioners-Plaintiffs (“Plaintiffs”) are individuals detained in ICE custody in Maryland who, because of pre-existing medical conditions, are particularly vulnerable to serious illness or death if infected by COVID-19.
6. As set forth below, the danger posed by Plaintiffs’ detention during the COVID-19 pandemic is “so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk” and violates their constitutional right to safety in government custody. Helling v. McKinney, 509 U.S. 25, 36 (1993). Their continued detention also violates Section 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq., because Defendants are failing to provide appropriate accommodations for Plaintiffs’ disabilities. Without this Court’s intervention, Plaintiffs continue to be at imminent risk of severe illness or death.
JURISDICTION AND VENUE 7. This action arises under the Due Process Clauses of the Fifth Amendment to the United States Constitution and the Rehabilitation Act, 29 U.S.C. § 701 et seq. 8. This Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 2241 (habeas corpus), 28 U.S.C. § 1331 (federal question), 5 U.S.C. § 702 (waiver of sovereign
4 See Ex. D, New York Times, Coronavirus in the U.S.: Latest Map and Case Count (accessed Apr. 26, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (eight out of the top 10 deadliest outbreaks have been in prisons or jails).
5

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 6 of 31
immunity), 28 U.S.C. § 1346 (original jurisdiction), and Article I, Section 9, clause 2 of the United States Constitution (the Suspension Clause).
9. Venue is proper in the District of Maryland pursuant to 28 U.S.C. § 2241(d) and pursuant to 28 U.S.C. § 1391(b) and (e).
PARTIES 10. Petitioner-Plaintiff Mauricio Coreas (“Mr. Coreas”) is currently detained by ICE at the Howard County Detention Center. He suffers from diabetes. He is therefore at high risk of severe illness or death if he contracts COVID-19. Prior to his detention, he resided in Prince George’s County. 11. Petitioner-Plaintiff Angel Guzman Cedillo (“Mr. Guzman Cedillo”) is currently detained by ICE at the Worcester County Detention Center. He suffers from hypertension, prostate problems, including a prostate infection, chronic pain, and a rule/out diagnosis of an intellectual disability. He is therefore at high risk of severe illness or death if he contracts COVID-19. Prior to his detention, he resided in Prince George’s County. 12. Petitioner-Plaintiff William Kemcha (“Mr. Kemcha”) is currently detained by ICE at the Worcester County Detention Center. He suffers from a compromised immune system, high blood pressure, and lymphedema. He is therefore at high risk of severe illness or death if he contracts COVID-19. Prior to his detention, he resided in Prince George’s County. 13. Respondent-Defendant Donna Bounds is the Warden of the Worcester County Detention Center, where Plaintiffs Guzman Cedillo and Kemcha are detained. Defendant Bounds is a legal custodian of Plaintiffs. She is sued in her official capacity.
6

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 7 of 31
14. Respondent-Defendant Jack Kavanagh is the Director of the Howard County Department of Corrections. As Director, he is responsible for overseeing the administration and management of the Howard County Detention Center, where Plaintiff Coreas is detained. Defendant Kavanagh is a legal custodian of Plaintiff. He is sued in his official capacity.
15. Respondent-Defendant Janean A. Ohin is the ICE Baltimore Field Office Director. The Baltimore Field Office is responsible for carrying out ICE’s immigration detention operations at all three Maryland detention centers that house immigration detainees. Defendant Ohin is a legal custodian of Plaintiffs. She is sued in her official capacity.
16. Respondent-Defendant Matthew T. Albence is the Deputy Director and Senior Official Performing the Duties of the Director of ICE. Defendant Albence is responsible for ICE’s policies, practices, and procedures, including those relating to the detention of immigrants. Defendant Albence is a legal custodian of Plaintiffs. He is sued in his official capacity.
17. Respondent-Defendant ICE is a federal law enforcement agency within the Department of Homeland Security. ICE is responsible for the criminal and civil enforcement of immigration laws, including the detention and removal of immigrants. Enforcement and Removal Operations (“ERO”), a division of ICE, manages and oversees the immigration detention system. Defendant ICE is a legal custodian of Plaintiffs.
FACTS A. COVID-19 Poses Grave Risk of Harm, Including Serious Illness or Death, to
Older Individuals and Those with Certain Underlying Medical Conditions.
7

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 8 of 31
18. COVID-19 is a coronavirus that has reached pandemic status. As of April 26, 2020, over 2.7 million individuals worldwide have confirmed diagnoses, including more than 860,000, in the United States.5 More than 187,000 individuals worldwide have died as a result of COVID-19, including at least 44,000 in the United States.6 Those numbers are growing exponentially, with more than 93,000 new cases worldwide in the past day alone.7
19. Nationally, CDC projections indicate that over 200 million individuals in the United States could be infected with COVID-19 over the course of the epidemic without effective public health intervention, with as many as 1.5 million deaths in the worst projections.8
20. COVID-19 is a highly contagious disease that is easily transmitted through respiratory droplets, especially when one is within six feet of an infected individual.
21. COVID-19 can result in respiratory failure, kidney failure, and death. Infected individuals who do not die from the disease can face serious damage to the lungs, heart, liver, and other organs, resulting in prolonged recovery periods, including extensive rehabilitation from neurological damage and loss of respiratory capacity.
22. Older individuals and those with certain medical conditions face greater chances of serious illness or death from COVID-19. Certain underlying medical conditions
5 Ex. E, Coronavirus disease 2019 (COVID-19) Situation Report – 96, 1, 5, 7, World Health Organization (Apr. 25, 2020), available at https://www.who.int/docs/default-source/coronaviruse/situationreports/20200425-sitrep-96-covid-19.pdf?sfvrsn=a33836bb_4.
6 Id. 7 Id. 8 Ex. F, James Glanz, et al., Coronavirus Could Overwhelm U.S. without Urgent Action, Estimates Say, New York Times (Mar. 20, 2020), available at https://www.nytimes.com/interactive/2020/03/20/us/coronavirus-model-us-outbreak.html.
8

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 9 of 31
increase the risk of serious COVID-19 disease for individuals of any age, including lung disease, chronic liver or kidney disease, diabetes, epilepsy, hypertension, compromised immune systems, blood disorders, inherited metabolic disorders, stroke, and pregnancy.
23. COVID-19 can also severely damage lung tissue, affect cardiac functions, and cause widespread damage to other organs. These complications can manifest at an alarming pace. Patients can show the first symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days or sooner.
24. Even some younger and healthier individuals who contract COVID-19 may require supportive care. And those who develop serious complications will need advanced support, including highly specialized equipment that is in limited supply and an entire team of care providers, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care physicians. This level of support is especially difficult to provide to detained individuals.
25. The need for care, including intensive care, and the likelihood of death, is much higher from COVID-19 infection than from influenza. According to recent estimates, the fatality rate of people infected with the coronavirus is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care systems.
26. Patients in high-risk categories who do not die from COVID-19 should expect a prolonged recovery, including the need for extensive rehabilitation.
27. There is no vaccine against COVID-19, nor is there any known medication to prevent or cure infection from the virus.
9

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 10 of 31
28. The only known effective measure to reduce the risk of severe illness or death to vulnerable individuals is to prevent them from being infected with the coronavirus. Social distancing, or remaining physically separated from known or potentially infected individuals, and vigilant hygiene, including washing hands with soap and water, are the only known effective measures to prevent infection.
B. Detained Immigrants in Maryland Face an Elevated Risk of Contracting COVID-19. 29. The Worcester County and Howard County Detention Centers are located
in Maryland, which is experiencing a coronavirus outbreak and has put in place a number of significant restrictions on public gatherings, including by closing down schools, bars, restaurants, and other public places.
30. As of April 26, 2020, there were over 18,500 COVID-19 cases and 827 confirmed deaths in Maryland.9 There is an immediate and impending threat that the coronavirus will spread uncontrollably in the Worcester County Detention Center. It has already reached the Howard County Detention Center.
31. COVID-19 is spreading quickly in immigrant detention centers in the United States.10 As of April 24, 2020, there have been 317 confirmed COVID-19 cases among those in ICE custody.11
9 Ex. G, Coronavirus Disease 2019 (COVID-19) Outbreak, Maryland Department of Health (accessed Mar. 23, 2020), available at https://coronavirus.maryland.gov/.
10 See Ex. H, Hannah Summers, 'Everyone Will Be Contaminated': Prisons Face Strict Coronavirus Controls, The Guardian (Mar. 23, 2020), available at https://www.theguardian.com/globaldevelopment/2020/mar/23/everyone-will-be-contaminated-prisons-face-strict-coronavirus-controls.
11 Ex. B, ICE Guidance on COVID-19 - Confirmed Cases, available at https://www.ice.gov/coronavirus.
10

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 11 of 31
32. Given the shortage of COVID-19 tests in the United States, detention facilities cannot currently conduct aggressive, widespread testing to identify all COVID19 cases.
33. In the absence of widespread testing, there is no way to be certain that COVID-19 is not already widespread in the Maryland detention centers. And given the rapid spread of COVID-19 throughout Maryland, and conditions in the Maryland detention facilities, it is only a matter of time before the disease becomes widespread among the detainee population.
34. Conditions in the Maryland detention centers make rapid spread of COVID19 very likely. In both detention centers, detainees are housed together in groups. The dormitories in these detention centers house many individuals in close quarters, well under the distance of six feet apart that the CDC recommends. Detainees use common spaces together, sharing tables, telephones, and bathrooms. The hallways are tight, and people in the hallways are constantly in very close proximity to each other. Bathrooms are used by large numbers of people and are not sanitized or disinfected after each use. Staff arrive and leave on a shift basis, and even asymptomatic staff could carry the infection into the facility.
35. Because of these conditions, outbreaks of infectious diseases are extremely common in confined detention centers. Individuals who are imprisoned or detained cannot protect themselves by social distancing as they could in the community. Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those that—like COVID-19—are transmitted by droplets through coughing and sneezing.
11

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 12 of 31
36. Additionally, the Maryland facilities do not adequately provide the mitigation measures that public health experts and the CDC recommend. Frequent handwashing and use of alcohol-based sanitizers are generally unavailable at the Maryland facilities, and it is impossible for individuals to remain six feet apart at all times.
37. Individuals detained in immigration detention centers, including in Maryland, are also more susceptible to experiencing complications from infectious diseases than the population at large. This is especially true for individuals with underlying conditions such as pregnancy, diabetes, lung disease, kidney disease, or other illness.
38. The two detention centers are also ill-equipped to manage an infectious disease outbreak. Neither facility has 24-hour medical care and they each have very limited on-site medical facilities.
39. Infectious disease outbreaks such as COVID-19 can also exacerbate existing mental health conditions and can contribute to the development of new mental health conditions.
40. A coronavirus brought into a detention facility can quickly spread among the dense detainee cohort, including individuals, like Plaintiffs, who are at high risk of severe illness or death from COVID-19.
41. The coronavirus has already started to spread inside U.S. prisons and jails, and experts predict a mass contagion is only a matter of time.
42. In at least eleven ICE detention facilities outside Maryland and at the Howard County Detention Center, facility staff have contracted COVID-19.12 ICE has not
12 Id.
12

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 13 of 31
specified what measures were being taken to protect detainees at those facilities and whether ICE is taking any precautionary steps to test other officials and detainees.
43. Despite these widespread warnings, the Maryland detention facilities—like ICE facilities in general—remain woefully unprepared and incapable of taking necessary precautions to protect people in their custody against a life-threatening illness.
C. ICE’s Response to COVID-19 Is Insufficient To Prevent the Spread of This Life-Threatening Disease. 44. COVID-19 has already reached one of the Maryland detention facilities.
Detainees like Plaintiffs face inherent challenges to protect themselves from COVID-19 infection because they live, sleep, and use the bathroom in close proximity with others, and because “[b]ehind bars, some of the most basic disease prevention measures are against the rules or simply impossible.”13
45. Similarly, it will be impossible for people, including Plaintiffs, to take steps to protect themselves from infection, such as washing their hands with soap or distancing themselves from other individuals.
46. Given the general lack of available testing, it is equally impossible for detention facilities to consistently and adequately screen detainees and staff for new, asymptomatic infection. The Maryland detention centers also do not have the capacity to prevent spread of the disease through airborne respiratory droplets.
13 Ex. C, Keri Blakinger and Beth Schwartzapfel, When Purell is Contraband, How Do You Contain Coronavirus?, the Marshall Project (Mar. 6, 2020), available at https://www.themarshallproject.org/2020/03/06/when-purell-is-contraband-how-do-you-containcoronavirus (describing, for example, limited access to hand sanitizer and other precautionary measures).
13

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 14 of 31
47. ICE’s official guidance on COVID-19 does not state under what conditions detainees would be tested.14 Instead, the only measure ICE has committed to taking is to segregate those who meet CDC criteria for epidemiologic risk of exposure to the coronavirus. Even assuming adequate space, isolation of people who are ill is generally an ineffective way to prevent transmission of COVID-19 because air continues to flow outward from their rooms to the rest of the facility.
48. ICE’s official guidance also does not offer an effective way to determine who even has the virus. Since some COVID-19 carriers can be asymptomatic or not show symptoms for weeks after exposure, “screening people based on observable symptoms is just a game of catch up.” In re. Extradition of Alejandro Toledo Manrique, No. 19-mj71055, 2020 WL 1307109 (N.D. Cal. March 19, 2020) (ordering release on bond in part because government’s management plan did not “say anything about testing”).
49. Although ICE has temporarily suspended social visitation in all detention facilities, staff, contractors, and vendors continue to enter and leave the detention centers. In addition, people are frequently transported to, from, and between facilities.
50. Anything short of aggressive screening and testing of all detainees, staff, officials and other care and service providers who enter the facility is insufficient to prevent infection. Neither ICE nor the Maryland facilities have the resources necessary to engage in such measures, especially considering the shortage in available tests.
51. Immigration detention facilities have faced outbreaks of other infectious diseases in recent years due to overcrowding, poor hygiene measures, medical negligence,
14 Ex. I, ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, https://www.ice.gov/covid19.
14

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 15 of 31
and poor access to resources and medical care. As recently as last year, ICE mishandled and failed to take adequate measures to protect detainees in Virginia against outbreaks of chicken pox and mumps.15 And ICE has a long history of mishandling infectious and communicable diseases, struggling to contain them, and failing to follow nationally accepted standards. The Office of the Inspector General (“OIG”) of the Department of Homeland Security (“DHS”) concluded in a 2019 report that ICE “does not adequately hold detention facility contractors accountable for not meeting performance standards,” “issued waivers to facilities with deficient conditions, seeking to exempt them from complying with certain standards,” and “does not adequately share information about ICE detention contracts with key officials.”16
52. Moreover, ICE has routinely failed to remedy inhumane conditions because, according to the OIG, “ICE does not adequately follow up on identified deficiencies or consistently hold facilities accountable for correcting them, which further diminishes the usefulness of inspections.”17
53. ICE has publicly acknowledged the need to limit the spread of the virus and the number of people in its detention centers, announcing that it will delay enforcement actions to arrest fewer immigrants and will use alternatives to detention as a response to
15 Ex. J, Emma Ockerman, Migrant Detention Centers Are Getting Slammed with Mumps and Chickenpox, Vice News (Jun. 14, 2019), available at https://www.vice.com/en_us/article/mb8k5q/migrantdetention-centers-are-getting-slammed-with-mumps-and-chicken-pox.
16 See Ex. K, Office of Inspector General, ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards, 1 (Jan. 29, 2019), available at https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf. 17 See Ex. L, ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements, Office of the Inspector General, 1 (Jun.e 26, 2018), available at https://www.oig.dhs.gov/sites/default/files/assets/20//18-06/OIG-18-67-Jun18.pdf.
15

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 16 of 31
the COVID-19 outbreak for people who are not already detained.18 However, after releasing fewer than 700 individuals out of over 32,000 detained across the country, Defendant Albence has informed Congress that ICE has no plans to release more vulnerable people held in detention.19
54. Given the rapid spread of COVID-19, the likelihood of spread before a person infected with the virus is symptomatic, highly limited availability of testing, ICE’s repeated failure to meet adequate standards for controlling infectious disease outbreaks in its facilities, and current conditions at the Maryland detention centers, Defendants cannot prevent the spread of COVID-19 in those facilities.
D. Individuals Most Vulnerable to COVID-19 Should Immediately Be Released. 55. The only viable public health strategy currently available in the United
States is risk mitigation. For this reason, public health experts with experience in immigration detention and correctional settings have recommended the release of vulnerable detainees from custody.
56. As early as February 25, 2020, Dr. Scott Allen and Dr. Josiah Rich, medical experts to the Department of Homeland Security, shared concerns about the specific risk to immigrant detainees as a result of COVID-19 with the agency. These experts warned of the danger of rapid spread of the coronavirus in immigration detention facilities. In a whistleblower letter to Congress, Dr. Allen and Dr. Rich recommended that “[m]inimally,
18 See Ex. M, Maria Sacchetti and Arelis R. Hernández, ICE to Stop Most Immigration Enforcement Inside the U.S., Will Focus on Criminals During Coronavirus Outbreak, The Washington Post (Mar. 18, 2020), available at https://www.washingtonpost.com/national/ice-halting-most-immigrationenforcement/2020/03/18/d0516228-696c-11ea-abef-020f086a3fab_story.html 19 Ex. N, DHS Officials Refuse to Release Asylum Seekers and Other Non-Violent Detainees Despite Spread of Coronavirus, U.S. House of Representatives Committee on Oversight and Reform (Apr. 17, 2020), available at https://oversight.house.gov/news/press-releases/dhs-officials-refuse-to-release-asylumseekers-and-other-non-violent-detainees.
16

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 17 of 31
DHS should consider releasing all detainees in high risk medical groups such as older people and those with chronic diseases.” They concluded that “acting immediately will save lives not of only those detained, but also detention staff and their families, and the community-at-large.”20
57. ICE has the authority to release individuals from custody on medical grounds and has routinely exercised its authority to release particularly vulnerable detainees like Plaintiffs. The former Acting Director of ICE, John Sandweg, has stated that “ICE can, and must, reduce the risk [COVID-19] poses to so many people, and the most effective way to do so is to drastically reduce the number of people it is currently holding.”21
58. Releasing the most vulnerable people, such as Plaintiffs, would also reduce the burden on regional hospitals and health centers. In case of an outbreak at a detention center, those institutions would bear the brunt of having to treat infected individuals from detention centers and would therefore have fewer medical resources available for the general population.
59. Indeed, governments in the United States and worldwide have recognized the threat posed by COVID-19 spread among detained and incarcerated populations and have released detained individuals for that reason. For example, Iran temporarily released
20 Ex. A, Letter from Dr. Scott Allen and Dr. Josiah Rich, Medical Experts for DHS, to House Comm. on Homeland Sec. (Mar. 19, 2020), available at https://www.documentcloud.org/documents/6816336032020-Letter-From-Drs-Allen-Rich-to-Congress-Re.html#document/p4/a557238.
21 Ex. O, John Sandweg, I Used to Run ICE. We Need to Release the Nonviolent Detainees, The Atlantic Monthly (Mar. 22, 2020), available at https://www.theatlantic.com/ideas/archive/2020/03/releaseice-detainees/608536/; Camilo Montoya-Galvez, “Powder kegs”: Call grow for ICE to Release Immigrants to Avoid Coronavirus Outbreak, CBS News (Mar. 19, 2020), available at https://www.cbsnews.com/news/coronavirus-ice-release-immigrants-detention-outbreak/.
17

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 18 of 31
more than 80,000 people to curb the spread of the virus.22 In the United States, several jurisdictions including Maryland have also released detained individuals for the same reasons.23
E. Plaintiffs Are Particularly Vulnerable to Serious Illness or Death If Infected by COVID-19 and Should Be Released from Custody. 60. Plaintiffs in this case are individuals who are particularly vulnerable to
serious illness or death if infected by COVID-19 and who are currently detained at the two Maryland facilities as they await adjudication of their immigration cases.
61. Mauricio Coreas. Mr. Coreas is a 52-year-old citizen of El-Salvador who is currently detained at the Howard County Detention Center. Mr. Coreas suffers from Type 2 diabetes.
62. Mr. Coreas is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of his diabetes.
63. Mr. Coreas’s diabetes qualifies as a disability under the Rehabilitation Act. 64. Angel Guzman Cedillo. Mr. Guzman Cedillo is a 54-year-old citizen of Guatemala who is currently detained at the Worcester County Detention Center. He suffers from hypertension and prostate problems, including a prior prostate infection. He takes three prescription medications to treat those conditions. 65. Mr. Guzman Cedillo has sustained numerous traumatic injuries throughout his life to his head and other parts of his body. He has had several operations as a result.
22 Ex. P, Parisa Hafezi, Iran Temporarily Frees 85,000 From Jail Including Political Prisoners, Reuters (Mar. 17, 2020), available at https://www.reuters.com/article/us-health-coronavirus-iran-prisoners/irantemporarily-frees-85000-from-jail-including-political-prisoners-amid-coronavirus-idUSKBN21410M.
23 Ex. Q, Hannah Gaskill, Md. Prisons Release New COVID-19 Data, Quietly Free More Than 2,000 Inmates, WTOP News (Apr. 21, 2020), available at https://wtop.com/maryland/2020/04/state-prisonsrelease-new-covid-19-data-quietly-free-more-than-2000-inmates/.
18

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 19 of 31
These injuries have caused chronic pain and mental health conditions, including possible brain injury, memory loss, and limited cognitive functioning.
66. Mr. Guzman Cedillo is critically vulnerable to the coronavirus and to serious illness or death from COVID-19 because of his numerous physical and mental health conditions.
67. Mr. Guzman Cedillo’s health conditions qualify as disabilities under the Rehabilitation Act.
68. William Kemcha. Mr. Kemcha is a 58-year-old man who is currently detained at the Worcester County Detention Center. He suffers from high blood pressure, a compromised immune system, and lymphedema.
69. Mr. Kemcha is critically vulnerable to the coronavirus and to serious illness of death from COVID-19 because of his physical conditions.
70. Mr. Kemcha’s health conditions qualify as disabilities under the Rehabilitation Act.
LEGAL FRAMEWORK A. Plaintiffs Have a Constitutional Right to Reasonable Safety in Detention.
71. The government has a duty to provide conditions of reasonable health and safety to individuals in their custody. As the Supreme Court has explained, “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989). As a result, the government must provide those in its custody with “food, clothing, shelter, medical care, and reasonable safety.” Id. at 200.
19

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 20 of 31
72. Because immigration detainees are civil detainees, their constitutional protections are derived from the Fifth Amendment, which provides greater protections than the Eighth Amendment. “Civil detainees ‘are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.’” Heyer v. United States Bureau of Prisons, 849 F.3d 202, 209 n.5 (4th Cir. 2017) (quoting Youngberg v. Romeo, 457 U.S. 307, 322 (1982)); see also Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001) (“[T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law” (quoting Ingraham v. Wright, 430 U.S. 651, 671 n. 40 (1977)).
73. Due process rights of civil detainees such as immigration detainees “are at least as great as the Eighth Amendment protections available to a convicted prisoner.” City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) (emphasis added); see also Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (immigration detainees are civil detainees held pursuant to civil immigration laws).
74. Conditions that pose an unreasonable risk of future harm violate the Eighth Amendment’s prohibition against cruel and unusual punishment, even if that harm has not yet come to pass. See Helling v. McKinney, 509 U.S. at 33 (“It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.”)
75. The Supreme Court has explicitly recognized that the risk of contracting a communicable disease may constitute such an “unsafe, life-threatening condition” that
20

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 21 of 31
threatens “reasonable safety” even under the higher standard imposed by the Eighth Amendment. Id.
76. The Eighth Amendment, which applies to persons convicted of criminal offenses, allows punishment as long as it is not cruel and unusual, but the Fifth Amendment’s due process protections do not allow punishment at all. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”); Nelson v. Collins, 659 F.2d 420, 425 (4th Cir. 1981).
77. In order to establish that a particular condition of detention constitutes impermissible punishment, a detainee must show either an expressed intent to punish, or a lack of a reasonable relationship to a legitimate governmental purpose, from which an intent to punish may be inferred. See Wolfish, 441 U.S. at 538; Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988). Absent an explicit intention to punish a pretrial detainee, a court “must evaluate the evidence and ascertain the relationship between the actions taken against the detainee and the custodian’s supporting rationale.” Williamson v. Stirling, 912 F.3d 154, 178 (4th Cir. 2018). “That inquiry turns on whether the actions taken may validly be attributed to an alternative, nonpunitive rationale, and whether they appear ‘excessive in relation to the alternative purpose assigned.’” Id. (citations omitted).
78. The Fourth Circuit has also held that a pretrial detainee necessarily “makes out a due process violation if he shows ‘deliberate indifference to serious medical needs’. . . because no legitimate nonpunitive goal is served by a denial or unreasonable delay in providing medical treatment where the need for such treatment is apparent.” Martin v. Gentile, 849 F.2d 863, 871 (4th Cir. 1988) (citation omitted)).
21

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 22 of 31
79. In order to show that defendants acted with deliberate indifference, a plaintiff must show that (1) the plaintiff was exposed to a substantial risk of serious harm, and (2) the defendants knew of or disregarded that substantial risk to the plaintiff’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834, 837–38 (1994); Thompson v. Virginia, 878 F.3d 89, 97-98 (4th Cir. 2017).
80. A plaintiff “must establish a serious deprivation of his rights in the form of a serious or significant physical or emotional injury” or substantial risk of such injury. Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir. 2014). Such a claim “may be based on a defendant’s conduct in exposing an inmate to an unreasonable risk of future harm.” Smith v. Carpenter, 316 F.3d 178, 188 (2d Cir. 2003). Where a risk is obvious, such as during a contagious disease outbreak, a factfinder may conclude that the government official was aware of the risk. See, e.g., Farmer v. Brennan, 511 U.S. 825, 842 (1994).
B. Plaintiffs Have a Right to Reasonable Accommodations Under the Rehabilitation Act. 81. Section 504 of the Rehabilitation Act requires executive agencies to provide
“reasonable accommodations” to individuals with disabilities so they can fully participate in benefits administered by these agencies. 29 U.S.C. § 794(a).
82. DHS regulations implementing the Rehabilitation Act mandate that “[n]o qualified individual with a disability in the United States, shall, by reason of his or her disability, be excluded from participation in, be denied benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the Department.” 6 C.F.R. § 15.30.
83. To state a claim under the Rehabilitation Act, a plaintiff must establish “(1) that he has a disability; (2) that he is otherwise qualified for the benefit in question; and (3)
22

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 23 of 31
that he was excluded from the benefit due to discrimination solely on the basis of the disability.” Baird v. Rose, 192 F.3d 462, 467 (4th Cir. 1999).
84. To the extent possible, the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act should be construed to impose similar requirements; therefore, they require a plaintiff to demonstrate the same elements to establish liability. Halpern v. Wake Forest Univ. Health Scis., 699 F.3d 454 (4th Cir. 2012).
85. A qualifying disability is any physical or mental impairment that “substantially limits one or more major life activities.” 42 U.S.C. § 12102; see also 29 U.S.C. § 705; 6 C.F.R. § 15.3(d). A “major life activity” includes “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working” as well as “the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” 42 U.S.C. § 12102(A)-(B).
86. The ADA mandates that “[t]he definition of disability . . . be construed in favor of broad coverage of individuals . . . to the maximum extent permitted by the terms of [the statute].” 42 U.S.C. § 12102(4)(A).
87. The Fourth Circuit has determined that a temporary impairment may qualify as a disability under the ADA if it is “sufficiently severe” to substantially limit a major life activity. Summers v. Altarum Inst., 740 F.3d 325 (4th Cir. 2014).
C. This Court Has the Authority to Order Plaintiffs’ Release to Protect Their Constitutional and Statutory Rights.
23

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 24 of 31
88. “A district court enjoys wide discretionary authority in formulating remedies for constitutional violations.” Smith v. Bounds, 813 F.2d 1299, 1301 (4th Cir. 1987).
89. Although the Fourth Circuit has not had occasion to address this issue, courts in other circuits have exercised the authority to order release as a remedy for constitutional violations. See, e.g., Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (concluding that court did not exceed its authority in directing release of low-bond pretrial detainees as necessary to reach a population cap).
90. The Supreme Court has also recognized that “[w]hen necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011).
91. Multiple courts have also ordered the release of detained or incarcerated persons in light of the severe threats posed by COVID-19. See, e.g., Essien v. Barr, 1:20cv-01034 (WJM), Dkt. No. 17 (D. Colo. Apr. 24, 2020); Sallaj v. ICE, 1:20-cv-00167 (JJM) (LDA), Dkt. No. 18 (D.R.I Apr. 24, 2020); Hernandez v. Kolitwenzew, 2:20-cv02088 (SLD), Dkt. No. 12 (C.D. Ill. Apr. 23, 2020); Durel B. v. Decker, 2:20-cv-3430 (KM), Dkt. No. 34 (D.N.J. Apr. 21, 2020); Zaya v. Adducci, 5:20-cv-10921 (JEL) (APP), Dkt. No. 9 (E.D. Mich. Apr. 18, 2020); Amaya-Cruz v. Adducci, 1:20-cv-00789 (DAP), Dkt. No. 35 (N.D. Ohio Apr. 18, 2020); Vazquez Barrera v. Wolf, 4:20-cv-01241, Dkt. No. 41 (S.D. Tex. Apr. 17, 2020); Wright v. Anderson, 20-cv-3704 (BRM), Dkt. No. 22 (D.N.J. Apr. 17, 2020); J.G. v. Decker, 20-cv-3644 (KM) (D.N.J. Apr. 15, 2020); Ixchop Perez v. Wolf, 19-cv-5191 (EJD), Dkt. No 29 (C.D. Cal. Apr. 14, 2020); Fofana v. Albence, 20-cv10869 (GAD), Dkt. No. 15 (E.D. Mich. Apr. 14, 2020); Bahena Ortuno v. Jennings, 3:20-
24

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 25 of 31
cv-02064 (MMC), Dkt No. 51 (N.D. Cal. Apr. 14, 2020); A.R. v. Decker, No. 20-cv-3600 (MCA), Dkt. No. 26 (D.N.J. Apr. 12, 2020); Doe v. Barr, 20-cv-2141 (LB), Dkt. No. 27 (N.D. Cal. Apr. 12, 2020); Arias v. Decker, No. 20-cv-2802 (AT), 2020 WL 1847986 (S.D.N.Y. Apr. 10, 2020); L.O., v. Tsoukaris, No. CV 20-3481 (JMV), 2020 WL 1808843 (D.N.J. Apr. 9, 2020); Bent v. Barr, No. 19-CV-06123-DMR, 2020 WL 1812850 (N.D. Cal. Apr. 9, 2020); Toma v. Adducci, 20-cv-10829 (JEL), Dkt. No. 29 (E.D. MI Apr. 9, 2020); Hope v. Doll, No. 1:20-cv-00562-JEJ (M.D. Pa., Apr. 7, 2020); Malam v. Adducci, No. 2:20-cv-10829-JEL-APP, 2020 WL 1672662 (E.D. Mich., Apr. 6, 2020); Fraihat v. Wolf, 20-cv-00590 (TJH) (KSx) (C.D. Cal. Mar. 31, 2020); Thakker v. Doll, 1:20-cv-00480 (JEJ), Dkt No. 47 (E.D. Pa. Mar. 31, 2020); Castillo v. Barr, 20-cv-00605 (TJH), Dkt. No. 32 (C.D. Cal. Mar. 27, 2020); Coronel v. Decker, 20-cv-2472 (AJN), Dkt. No. 26 (S.D.N.Y. Mar. 27, 2020); Basank v. Decker, 20-cv-2518 (AT), Dkt. No. 11 (S.D.N.Y. Mar. 26, 2020); see also Savino v. Souza, 20-cv-10617 (WGY), Dkt. No. 64 (D. Mass. Apr. 8, 2020); Ronal Umana Jovel v. Decker, 12-cv-308 (GBD), Dkt. No. 27 (S.D.N.Y. Mar. 26, 2020); Jimenez v. Wolf, 18-10225-MLW (D. Mass. Mar. 26, 2020).
92. The unprecedented coronavirus pandemic unquestionably calls for individuals’ release, as multiple health experts have opined that no other measures would be sufficient or appropriate, especially for individuals with special vulnerability to severe illness or death from COVID-19.
93. The Rehabilitation Act provides for “reasonable accommodations” to ensure that individuals are not deprived of access to federally-administered benefits because of their disability. Because there is no reasonable accommodation available to protect vulnerable individuals from contracting COVID-19, and thereby being denied
25

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 26 of 31
access to removal proceedings due to serious illness or even death, release is the only sufficient accommodation available.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF: VIOLATION OF FIFTH AMENDMENT RIGHT
TO SUBSTANTIVE DUE PROCESS (UNLAWFUL PUNISHMENT) 94. The Fifth Amendment to the U.S. Constitution guarantees civil detainees, including immigration detainees, the right to be free from punitive conditions of confinement. The government violates this guarantee when conditions of confinement lack a reasonable relationship to any legitimate governmental purpose, i.e. when a custodian’s actions are excessive in relation to their purpose. 95. Conditions of confinement lack a reasonable relationship to any legitimate governmental purpose when the government acts with deliberate indifference when failing to safeguard the health and safety of those in custody. The government acts with deliberate indifference when it exposes detainees to a substantial risk of serious harm, and when it knows of or disregards that substantial risk to the detainee’s health or safety. 96. Defendants have subjected Plaintiffs to conditions of confinement that increase their risk of contracting COVID-19, for which there is no known vaccine, treatment, or cure. Plaintiffs’ underlying conditions—of which Defendants are aware— render them especially vulnerable to severe illness or even death if they contract COVID19. Defendants are therefore subjecting Plaintiffs to an unreasonable risk of serious harm and punitive conditions, in violation of their rights under the Due Process Clause. 97. Defendants’ continued detention of Plaintiffs fails to adequately protect Plaintiffs from the risks of contracting COVID-19.
26

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 27 of 31
98. Plaintiffs’ ongoing confinement lacks a reasonable relationship to any legitimate governmental purpose and is excessive in relation to any such purpose.
99. Defendants have exposed Plaintiffs to a substantial risk of serious harm. 100. Defendants have known of and disregarded the substantial risk of serious harm to Plaintiffs’ health and safety. 101. Defendants have acted with deliberate indifference to Plaintiffs’ health and safety. 102. Defendants’ continued detention of Plaintiffs violates the Due Process Clause. SECOND CLAIM FOR RELIEF: VIOLATION OF THE REHABILITATION ACT (FAILURE TO PROVIDE REASONABLE ACCOMMODATION TO
PERSONS WITH DISABILITIES) 103. Section 504 of the Rehabilitation Act requires federal agencies to provide “reasonable accommodations” to individuals with disabilities so they can fully participate in benefits administered by these agencies. 29 U.S.C. § 794(a). 104. DHS regulations implementing the Rehabilitation Act mandate that “[n]o qualified individual with a disability in the United States, shall, by reason of his or her disability, be excluded from participation in, be denied benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the Department.” 6 C.F.R. § 15.30; see also 29 U.S.C. § 794(a). The regulations implementing Section 504 prohibit entities receiving federal financial assistance from utilizing “criteria or methods of administration (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, [or] (ii) that have the purpose or effect of defeating
27

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 28 of 31
or substantially impairing the accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons.” 34 C.F.R. § 104.4(b)(4).
105. The removal process is a program or activity administered by DHS, and Plaintiffs are entitled to participate in the removal process. The services, programs, and activities within the detention centers where DHS detains Plaintiffs receive substantial federal financial assistance.
106. Plaintiffs’ underlying medical conditions qualify as disabilities for purposes of the Rehabilitation Act. 29 U.S.C. § 705(2)(B); 42 U.S.C. § 12102.
107. By exposing them to a heightened risk of contracting COVID-19, Defendants are preventing Plaintiffs from participating in the removal process by reason of their disability.
108. By failing to take account of their special vulnerability to severe illness or death if they were to contract COVID-19, Defendants are preventing Plaintiffs from participating in the removal process by reason of their disability.
109. By failing to provide Plaintiffs adequate protection from COVID-19 through the only effective means to reduce the risk of severe illness or death, Defendants have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of removal proceedings and the services, programs, and activities within the detention centers with respect to Plaintiffs.
110. The only available “reasonable accommodation” that would mitigate Plaintiffs’ disability is release from detention. Defendants have failed to implement this reasonable accommodation, which would not be unduly burdensome nor require a
28

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 29 of 31
fundamental alteration in the removal process or the programs and activities of the detention center.
111. Defendants’ ongoing detention of Plaintiffs constitutes discrimination because it is disparate treatment of, or has a disparate impact on, people with qualifying disabilities who are at severe risk of serious illness or death if they were to contract COVID-19.
112. For these reasons, Defendants’ ongoing detention of Plaintiffs violates the Rehabilitation Act.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that this Court:
a. Issue a writ of habeas corpus and order Plaintiffs’ immediate release or placement in community-based alternatives to detention such as conditional release, with appropriate precautionary public health measures, on the ground that their continued detention violates the Due Process Clause and the Rehabilitation Act;
b. Issue injunctive relief ordering Defendants to immediately release Plaintiffs or place them in community-based alternatives to detention such as conditional release, with appropriate precautionary public health measures, on the ground that their continued detention violates the Due Process Clause and the Rehabilitation Act;
c. Declare that Defendants’ continued civil detention of individuals at increased risk for severe illness, including all people over the age of 50 and persons of any age with underlying medical conditions that increase the risk of serious illness or death upon contracting COVID-19, violates the Due Process Clause and the Rehabilitation Act;
29

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 30 of 31

d. Award Plaintiffs all costs incurred in maintaining this action, including reasonable attorneys’ fees under the Equal Access to Justice Act, as amended, 5 U.S.C. § 504, and on any other basis justified by law; and
e. Grant Plaintiffs any other and further relief this Court deems just and proper.

Dated: April 27, 2020 Washington, D.C.

Respectfully submitted,
/s/ Sirine Shebaya Sirine Shebaya, Bar No. 07191 sirine@nipnlg.org Amber Qureshi, Bar No. 21218 amber@nipnlg.org Matthew Vogel* matt@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 (202) 656-4788
Adina Appelbaum* adina@caircoalition.org CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR) COALITION 1612 K Street NW Suite 204 Washington, DC 20006 (202) 899-1412
Nicholas T. Steiner, Esq. (Bar No. 19670) AMERICAN CIVIL LIBERTIES UNION OF MARYLAND FOUNDATION 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211 Telephone: (410) 889-8550 steiner@aclu-md.org
David C. Fathi*† dfathi@aclu.org Eunice H. Cho*† echo@aclu.org

30

Case 8:20-cv-00780-TDC Document 78 Filed 04/27/20 Page 31 of 31
AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL PRISON PROJECT 915 15th Street N.W. 7th Floor Washington, DC 20005 (202) 548-6616 Michael Tan* mtan@aclu.org Omar Jadwat* ojadwat@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2600 Stephen B. Kang* skang@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 (415) 343-0783
Attorneys for Petitioners-Plaintiffs * Admitted pro hac vice † Not admitted in D.C.; practice limited to federal courts.
31

 
 Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MAURICIO COREAS, Howard County Detention Center 7301 Waterloo Road Jessup, MD 20794;

A

G

C

,

Worcester County Detention Center

5022 Joyner Road

Snow Hill, MD 21863,

Petitioners-Plaintiffs,
v.
DONNA BOUNDS, in her official capacity as Warden, Worcester County Detention Center 5022 Joyner Road Snow Hill, MD 21863;

JACK KAVANAGH, in his official capacity as Director, Howard County Detention Center 7301 Waterloo Road Jessup, MD 20794;

JANEAN A. OHIN, in her official capacity as Acting Baltimore Field Office Director, U.S. Immigration and Customs Enforcement
31 Hopkins Plaza 7th Floor Baltimore, MD, 21201;

MATTHEW T. ALBENCE, in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration and Customs Enforcement, U.S. Immigration and Customs Enforcement 500 12th St., S.W. Washington, DC 20536;

IMMIGRATION AND CUSTOMS ENFORCEMENT,

PETITION FOR A WRIT OF HABEAS CORPUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
Civil Action No. ________________

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 2 of 32

500 12th St., S.W. Washington, DC 20536,

Respondents-Defendants.

Sirine Shebaya, Bar No. 07191 sirine@nipnlg.org Amber Qureshi, Bar No. 21218 amber@nipnlg.org Matthew Vogel* matt@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 (202) 656-4788
Adina Appelbaum* adina@caircoalition.org CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR) COALITION 1612 K Street NW Suite 204 Washington, DC 20006 (202) 899-1412
Nicholas T. Steiner, Esq. (Bar No. 19670) AMERICAN CIVIL LIBERTIES UNION OF MARYLAND FOUNDATION 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211 Telephone: (410) 889-8550 steiner@aclu-md.org

David C. Fathi* dfathi@aclu.org Eunice H. Cho* echo@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL PRISON PROJECT 915 15th Street N.W. 7th Floor Washington, DC 20005 (202) 548-6616
Michael Tan* mtan@aclu.org Omar Jadwat* ojadwat@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2600
Stephen B. Kang* skang@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 (415) 343-0783

Attorneys for Petitioners-Plaintiffs *pro hac vice applications forthcoming

March 24, 2020

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 3 of 32
PETITION FOR A WRIT OF HABEAS CORPUS AND COMPLAINT FOR INJUNCTIVE RELIEF INTRODUCTION
1. Today’s global pandemic of COVID-19, caused by the novel coronavirus, has been characterized as the worst the world has seen since 1918. Several states and countries around the world—including the State of Maryland—have put in place significant restrictions on public gatherings, and many have imposed “shelter-in-place” orders in an attempt to control the spread of the disease. Public health experts, including the Centers for Disease Control and Prevention (“CDC”), have instructed that the only effective way to reduce the risk of severe illness or death for vulnerable individuals is social distancing and improved hygiene. Such distancing and hygiene measures are impossible to achieve in crowded detention centers. For this reason, more than 3,000 medical health professionals have urgently requested that Immigration and Customs Enforcement (“ICE”) immediately release immigration detainees in their custody, and two doctors who are medical experts for the Department of Homeland Security have sent a warning to Congress that keeping immigration detainees detained poses “an imminent risk to the health and safety of immigration detainees” and to the general public.1
2. The coronavirus has already begun to spread to immigration detention facilities, including in Maryland. There is currently a quarantine due to COVID-19 exposure in the Worcester County Detention Center. Yet Respondents-Defendants (“Defendants”) continue to hold in detention thousands of individuals, including those at severe risk of serious illness or death if they were to contract COVID-19, despite the ready
1 Catherine E. Shoichet, Doctors warn of 'tinderbox scenario' if coronavirus spreads in ICE detention, CNN (Mar. 20, 2020), available at https://www.cnn.com/2020/03/20/health/doctors-ice-detentioncoronavirus/index.html.
3

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 4 of 32
availability of community-based alternatives to detention such as release on conditions or on bond.
3. To date, nearly 350,000 individuals worldwide have been diagnosed with COVID-19, and the United States is one of the worst hit countries. Many more are likely infected, especially in the United States where testing for the virus has been extremely limited. Confirmed cases have begun to appear in several detention centers across the country,2 including at the Worcester County Detention Center, and it is likely that many more detention centers have unconfirmed COVID-19 cases. It is impossible for people confined in prisons, jails, and detention centers to engage in the necessary social distancing and hygiene because people eat, sleep, and engage in activities in close proximity to each other, and basic supplies such as soap and hand sanitizer are often in short supply or completely unavailable at those facilities.3 Even with the measures ICE has purported to take to prevent the spread of COVID-19 in its facilities, immigration detention centers are a hotbed for spread of the virus.
4. Under these circumstances, release is the only meaningful way to mitigate the spread of the virus among immigration detainees. For individuals who are at high risk for serious illness or death from COVID-19, protection from the virus is a matter of life or death. In Maryland, as of the filing date of this case, there are nearly 300 confirmed cases
2 See, e.g., Hamed Aleaziz, A Medical Worker at An ICE Detention Facility For Immigrants Has Tested Positive For the Coronavirus, Buzzfeed News, (Mar.ch 19, 2020), available at https://www.buzzfeednews.com/article/hamedaleaziz/ice-medical-worker-coronavirus.
3 Keri Blakinger and Beth Schwartzapfel, When Purell is Contraband, How Do You Contain Coronavirus?, the Marshall Project (Mar. 6, 2020), available at https://www.themarshallproject.org/2020/03/06/when-purell-is-contraband-how-do-you-containcoronavirus (describing, for example, limited access to hand sanitizer and other precautionary measures).
4

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 5 of 32
and three deaths, and the numbers are rising exponentially. In the United States, the most concentrated instance of death from the virus happened in confined congregated spaces such as nursing homes and cruise ships.4
5. Petitioners-Plaintiffs (“Plaintiffs”) are individuals detained in ICE custody in Maryland who are particularly vulnerable to serious illness or death if infected by COVID-19. Plaintiffs have medical conditions that lead to a higher risk of serious COVID19 infection. Maryland has seen a significant COVID-19 outbreak. The Governor has declared a State of Emergency, and has put in place widespread social distancing measures, including shutting down nonessential businesses and all public gatherings. These measures are impossible to implement in a crowded detention center, and ICE has taken no meaningful measures to curb the spread of the virus.
6. As set forth below, the danger posed by Plaintiffs’ detention during the COVID-19 pandemic is “so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk” and violates their constitutional right to safety in government custody. Helling v. McKinney, 509 U.S. 25, 36 (1993). Their continued detention also violates Section 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq., because Defendants are failing to provide appropriate accommodations for Plaintiffs’ disabilities. Without this Court’s intervention, Plaintiffs continue to be at imminent risk of severe illness or death.
4 See Jon Swaine and Maria Sacchetti, As Washington Nursing Home Assumed It Faced Influenza Outbreak, Opportunities to Control Coronavirus Exposure Passed, Washington Post, (Mar.ch 16, 2020), available at https://www.washingtonpost.com/investigations/nursing-home-with-the-biggest-cluster-ofcovid-19-deaths-to-date-in-the-us-thought-it-was-facing-an-influenza-outbreak-a-spokesmansays/2020/03/16/c256b0ee-6460-11ea-845d-e35b0234b136_story.html; Victoria Forster, What Have Scientists Learned About COVID-19 And Coronavirus By Using Cruise Ship Data? (Mar. 22, 2020), available at https://www.forbes.com/sites/victoriaforster/2020/03/22/what-have-scientists-learned-fromusing-cruise-ship-data-to-learn-about-covid-19/#59a862b7406d.
5

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 6 of 32

JURISDICTION AND VENUE

7. This action arises under the Due Process Clauses of the Fifth Amendment

to the United States Constitution and the Rehabilitation Act, 29 U.S.C. § 701 et seq.

8. This Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 2241

(habeas corpus), 28 U.S.C. § 1331 (federal question), 5 U.S.C. § 702 (waiver of sovereign

immunity), 28 U.S.C. § 1346 (original jurisdiction), and Article I, Section 9, clause 2 of

the United States Constitution (the Suspension Clause).

9. Venue is proper in the District of Maryland pursuant to 28 U.S.C. § 2241(d)

and pursuant to 28 U.S.C. § 1391(b) and (e).

PARTIES

10. Petitioner-Plaintiff Mauricio Coreas (“Mr. Coreas”) is currently detained by

ICE at the Howard County Detention Center. He suffers from diabetes. He is therefore at

high risk of severe illness or death if he contracts COVID-19. Prior to his detention, he

resided in Prince George’s County.

11. Petitioner-Plaintiff A G

C

(“Mr. G

C ”) is

currently detained by ICE at the Worcester County Detention Center. He suffers from

hypertension, prostate problems, including a prostate infection, chronic pain, and a rule/out

diagnosis of an intellectual disability. He is therefore at high risk of severe illness or death

if he contracts COVID-19. Prior to his detention, he resided in Prince George’s County.

12. Respondent-Defendant Donna Bounds is the Warden of the Worcester

County Detention Center, where Plaintiff Ms. Castaneda detained. Defendant Bounds is a

legal custodian of Plaintiff. She is sued in her official capacity.

6

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 7 of 32
13. Respondent-Defendant Jack Kavanagh is the Director of the Howard County Department of Corrections. As Director, he is responsible for overseeing the administration and management of the Howard County Detention Center, where Plaintiffs Coreas and Navarro are detained. Defendant Kavanagh is a legal custodian of Plaintiffs. He is sued in his official capacity.
14. Respondent-Defendant Janean A. Ohin is the ICE Baltimore Field Office Director. The Baltimore Field Office is responsible for carrying out ICE’s immigration detention operations at all three Maryland detention centers that house immigration detainees. Defendant Ohin is a legal custodian of plaintiffs. She is sued in her official capacity.
15. Respondent-Defendant Matthew T. Albence is the Deputy Director and Senior Official Performing the Duties of the Director of ICE. Defendant Albence is responsible for ICE’s policies, practices, and procedures, including those relating to the detention of immigrants. Defendant Albence is a legal custodian of Plaintiffs. He is sued in his official capacity.
16. Respondent-Defendant ICE is a federal law enforcement agency within the Department of Homeland Security. ICE is responsible for the criminal and civil enforcement of immigration laws, including the detention and removal of immigrants. Enforcement and Removal Operations (“ERO”), a division of ICE, manages and oversees the immigration detention system. Defendant ICE is a legal custodian of Plaintiffs.
7

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 8 of 32
FACTS A. COVID-19 Poses Grave Risk of Harm, Including Serious Illness or Death, to
Older Individuals and Those with Certain Underlying Medical Conditions. 17. COVID-19 is a coronavirus that has reached pandemic status. As of March 24, 2020, nearly 350,000 individuals worldwide have confirmed diagnoses, including more than 31,000 ,in the United States.5 More than 14,600 individuals worldwide have died as a result of COVID-19, including at least 400 in the United States.6 Those numbers are growing exponentially, with more than 40,700 new cases worldwide in the past day alone.7 18. Nationally, CDC projections indicate that over 200 million individuals in the United States could be infected with COVID-19 over the course of the epidemic without effective public health intervention, with as many as 1.5 million deaths in the worst projections.8 19. COVID-19 is a highly contagious disease that is easily transmitted through respiratory droplets, especially when one is within six feet of an infected individual. 20. COVID-19 can result in respiratory failure, kidney failure, and death. Infected individuals who do not die from the disease can face serious damage to the lungs, heart, liver, or other organs, resulting in prolonged recovery periods, including extensive rehabilitation from neurological damage and loss of respiratory capacity.
5 Coronavirus disease 2019 (COVID-19) Situation Report – 63,1, World Health Organization (Mar.ch 230, 2020), available at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200323sitrep-63-covid-19.pdf?sfvrsn=d97cb6dd_2. https://www.who.int/docs/defaultsource/coronaviruse/situation-reports/20200321-sitrep-61-covid-19.pdf?sfvrsn=f201f85c_2.
6 Id. 7 Id. 8 James Glanz, et al., Coronavirus Could Overwhelm U.S. without Urgent Action, Estimates Say, New York Times (Mar. 20, 2020), available at https://www.nytimes.com/interactive/2020/03/20/us/coronavirusmodel-us-outbreak.html.
8

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 9 of 32
21. Older individuals and those with certain medical conditions face greater chances of serious illness or death from COVID-19. Certain underlying medical conditions increase the risk of serious COVID-19 disease for individuals of any age, including lung disease, chronic liver or kidney disease, diabetes, epilepsy, hypertension, compromised immune systems, blood disorders, inherited metabolic disorders, stroke, and pregnancy.
22. COVID-19 can also severely damage lung tissue, affect cardiac functions, and cause widespread damage to other organs. These complications can manifest at an alarming pace. Patients can show the first symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days or sooner.
23. Even some younger and healthier individuals who contract COVID-19 may require supportive care. And those who develop serious complications will need advanced support, including highly specialized equipment that is in limited supply and an entire team of care providers, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care physicians. This level of support is especially difficult to provide to detained individuals.
24. The need for care, including intensive care, and the likelihood of death, is much higher from COVID-19 infection than from influenza. According to recent estimates, the fatality of people infected with the coronavirus is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care systems.
25. Patients in high-risk categories who do not die from COVID-19 should expect a prolonged recovery, including the need for extensive rehabilitation.
9

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 10 of 32
26. There is no vaccine against COVID-19, nor is there any known medication to prevent or cure infection from the virus.
27. The only known effective measure to reduce the risk of severe illness or death to vulnerable individuals is to prevent them from being infected with the coronavirus. Social distancing, or remaining physically separated from known or potentially infected individuals, and vigilant hygiene, including washing hands with soap and water, are the only known effective measures to prevent infection.
B. Detained Immigrants in Maryland Face an Elevated Risk of Contracting COVID-19. 28. The Worcester County and Howard County Detention Centers are located
in Maryland, which is experiencing a coronavirus outbreak and has put in place a number of significant restrictions on public gatherings, including by closing down schools, bars, restaurants, and other public places. There is currently a quarantine in place at the Worcester County detention facility due to COVID-19.
29. As of March 24, 2020, there were nearly 300 COVID-19 cases in Maryland.9 The number of infected people is rising exponentially. At least three people in Maryland have so far died from the disease.10 There is an immediate and impending threat that the coronavirus will spread uncontrollably in the Worcester County Detention Center. It is virtually inevitable that it will reach and spread among the detainees in the Howard County Detention Center as well.
9 Coronavirus Disease 2019 (COVID-19) Outbreak, Maryland Department of Health (accessed Mar. 23, 2020), available at https://coronavirus.maryland.gov/.
10 Id.
10

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 11 of 32
30. COVID-19 spread quickly in Italy’s jails, and has been already confirmed in other jails and immigrant detention centers in the United States.11 Just this week, 17 employees and 21 detainees at the Rikers Correctional facility have so far tested positive for COVID-19.12
31. Given the shortage of COVID-19 tests in the United States, detention facilities cannot currently conduct aggressive, widespread testing to identify all COVID19 cases.
32. In the absence of widespread testing, there is no way to be certain that COVID-19 is not already widespread in the Maryland detention centers. And given the rapid spread of COVID-19 throughout Maryland, and conditions in the Maryland detention facilities, it is only a matter of time before the disease becomes widespread among the detainee population.
33. According to Dr. Ranit Mishori, M.D., Senior Medical Consultant for the Physicians for Human Rights and an expert in immigration detention and other correctional health issues, an outbreak in the Maryland detention centers is “highly likely and . . . the consequences of rampant COVID-19 infection in the facility would be disastrous, especially for high-risk individuals like the plaintiffs in this case.”
34. Conditions in the Maryland detention centers make rapid spread of COVID19 very likely. In both detention centers, detainees are housed together in groups. The dormitories in these detention centers house many individuals in close quarters, well under
11 See Hannah Summers, 'Everyone Will Be Contaminated': Prisons Face Strict Coronavirus Controls, The Guardian (Mar. 23, 2020), available at https://www.theguardian.com/globaldevelopment/2020/mar/23/everyone-will-be-contaminated-prisons-face-strict-coronavirus-controls.
12 21 Inmates, 17 Employees Test Positive for COVID-19 on Rikers Island: Officials, NBC New York (Mar. 22, 2020), available at https://www.nbcnewyork.com/news/coronavirus/21-inmates-17-employeestest-positive-for-covid-19-on-rikers-island-officials/2338242/.
11

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 12 of 32
the distance of six feet apart that the CDC recommends. Detainees use common spaces together, sharing tables, telephones, and bathrooms. The hallways are tight, and people in the hallways are constantly in very close proximity to each other. Bathrooms are used by large numbers of people and are not sanitized or disinfected after each use. Staff arrive and leave on a shift basis, and even asymptomatic staff could carry the infection into the facility.
35. Because of these conditions, outbreaks of infectious diseases are extremely common in confined detention centers. Individuals who are imprisoned or detained cannot protect themselves by social distancing as they could in the community. Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those that—like COVID-19—are transmitted by droplets through coughing and sneezing.
36. Additionally, the Maryland facilities do not adequately provide the mitigation measures that public health experts and the CDC recommend. Frequent handwashing and use of alcohol-based sanitizers are generally unavailable at the Maryland facilities, and it is impossible for individuals to remain six feet apart at all times.
37. Individuals detained in immigration detention centers, including in Maryland, are also more susceptible to experiencing complications from infectious diseases than the population at large. This is especially true for individuals with underlying conditions such as pregnancy, diabetes, lung disease, kidney disease, or other illness.
38. The two detention centers are also ill-equipped to manage an infectious disease outbreak. Neither facility has 24-hour medical care and they each have very limited on-site medical facilities. Putting infected individuals in solitary confinement is an
12

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 13 of 32
ineffective way to prevent transmission of the disease because air continues to flow outwards from those rooms to the rest of the facility. This makes containing the illness and caring for those who have become infected virtually impossible.
39. Infectious disease outbreaks such as COVID-19 can also exacerbate existing mental health conditions and can contribute to the development of new mental health conditions.
40. A coronavirus brought into a detention facility can quickly spread among the dense detainee cohort, including individuals, like Plaintiffs, who are at high risk of severe illness or death from COVID-19.
41. The coronavirus has already started to spread inside U.S. prisons and jails, and experts predict a mass contagion is only a matter of time.
42. In at least two ICE detention facilities outside Maryland, facility staff have contracted COVID-19.13 ICE has not specified what measures were being taken to protect detainees at those facilities and whether ICE is taking any precautionary steps to test other officials and detainees. And as previously noted, ICE has placed the Worcester County Detention Center on indefinite quarantine due to COVID-19 exposure.
43. Despite these widespread warnings, the Maryland detention facilities—like ICE facilities in general—remain woefully unprepared and incapable of taking necessary precautions to protect people in their custody against a life-threatening illness.
13 Hamed Aleaziz, A Medical Worker At An ICE Detention Facility For Immigrants Has Tested Positive For The Coronavirus, BuzzFeed News (Mar. 19, 2020), available at https://www.buzzfeednews.com/article/hamedaleaziz/ice-medical-worker-coronavirus.
13

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 14 of 32
C. ICE’s Response to COVID-19 Is Insufficient To Prevent the Spread of This Life-Threatening Disease. 44. COVID-19 has already reached the Worcester County Detention Center,
and is almost certain to reach the Howard County Detention Center. Detainees like Plaintiffs face inherent challenges to protect themselves from COVID-19 infection because they live, sleep, and use the bathroom in close proximity with others, and because “[b]ehind bars, some of the most basic disease prevention measures are against the rules or simply impossible.”14
45. Similarly, it will be impossible for people, including Plaintiffs, to take steps to protect themselves from infection, such as washing their hands with soap or distancing themselves from other individuals.
46. Given the general lack of available testing, it is equally impossible for detention facilities to consistently and adequately screen detainees and staff for new, asymptomatic infection. The Maryland detention centers also do not have the capacity to truly isolate spread of the disease through airborne respiratory droplets.
47. ICE’s official guidance on COVID-19 does not state under what conditions detainees would be tested.15 Instead, the only measure ICE has committed to taking is to segregate those who meet CDC criteria for epidemiologic risk of exposure to the coronavirus. Even assuming adequate space, isolation of people who are ill is generally an
14 Keri Blakinger and Beth Schwartzapfel, When Purell is Contraband, How Do You Contain Coronavirus?, the Marshall Project (Mar. 6, 2020), available at https://www.themarshallproject.org/2020/03/06/when-purell-is-contraband-how-do-you-containcoronavirus (describing, for example, limited access to hand sanitizer and other precautionary measures).
15 ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, https://www.ice.gov/covid19.
14

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 15 of 32
ineffective way to prevent transmission of COVID-19 because air continues to flow outward from rooms to the rest of the facility.
48. ICE’s official guidance also does not offer an effective way to determine who even has the virus. Since some COVID-19 carriers can be asymptomatic or not show symptoms for weeks after exposure, “screening people based on observable symptoms is just a game of catch up.” In re. Extradition of Alejandro Toledo Manrique, No. 19-mj71055, 2020 WL 1307109 (N.D. Cal. March 19, 2020) (ordering release on bond in part because government’s management plan did not “say anything about testing”).
49. Although ICE has temporarily suspended social visitation in all detention facilities, staff, contractors, and vendors continue to arrive and leave the detention centers. In addition, people are frequently transported to, from, and between facilities.
50. Anything short of aggressive screening and testing of all detainees, staff, officials and other care and service providers who enter the facility is insufficient to prevent infection. Neither ICE nor the Maryland facilities have the resources necessary to engage in such measures, especially considering the shortage in available tests.
51. Immigration detention facilities have faced outbreaks of other infectious diseases in recent years due to overcrowding, poor hygiene measures, medical negligence, and poor access to resources and medical care. As recently as last year, ICE mishandled and failed to take adequate measures to protect detainees in Virginia against outbreaks of chicken pox and mumps.16 And ICE has a long history of mishandling infectious and communicable diseases, struggling to contain them, and failing to follow nationally
16 Emma Ockerman, Migrant Detention Centers Are Getting Slammed with Mumps and Chickenpox, Vice News (Jun. 14, 2019), available at https://www.vice.com/en_us/article/mb8k5q/migrant-detentioncenters-are-getting-slammed-with-mumps-and-chicken-pox.
15

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 16 of 32
accepted standards. The Office of the Inspector General (“OIG”) of the Department of Homeland Security (“DHS”) even concluded in a 2019 report that ICE “does not adequately hold detention facility contractors accountable for not meeting performance standards,” “issued waivers to facilities with deficient conditions, seeking to exempt them from complying with certain standards,” and “does not adequately share information about ICE detention contracts with key officials.”17
52. Moreover, ICE has routinely failed to remedy inhumane conditions because, according to the OIG, “ICE does not adequately follow up on identified deficiencies or consistently hold facilities accountable for correcting them, which further diminishes the usefulness of inspections.”18
53. ICE has even publicly acknowledged the need to limit the spread of the virus and the number of people in its detention centers, announcing that it will delay enforcement actions to arrest fewer immigrants and will use alternatives to detention as a response to the COVID-19 outbreak for people who are not already detained.19 But the agency still has no plan to release vulnerable individuals who are currently in custody.20
17 See Office of Inspector General, ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards, 1 (Jan. 29, 2019), available at https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf. 18 See ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements, Office of the Inspector General, 1 (Jun.e 26, 2018), available at https://www.oig.dhs.gov/sites/default/files/assets/20//18-06/OIG-18-67-Jun18.pdf.
19 See Maria Sacchetti and Arelis R. Hernández, ICE to Sstop Mmost Iimmigration Eenforcement Iinside the U.S., Wwill Ffocus on Ccriminals Dduring Ccoronavirus Ooutbreak, The Washington Post (Mar. 18, 2020), available at https://www.washingtonpost.com/national/ice-halting-most-immigrationenforcement/2020/03/18/d0516228-696c-11ea-abef-020f086a3fab_story.html
20 Noah Lanard, ICE Is Ignoring Recommendations to Release Immigrant Detainees to Slow the Spread of Coronavirus, Mother Jones (Mar. 20, 2020), available at https://www.motherjones.com/politics/2020/03/ice-is-ignoring-recommendations-to-release-immigrantdetainees-to-slow-the-spread-of-coronavirus/.
16

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 17 of 32
54. Given the rapid spread of COVID-19, the likelihood of spread before a person infected with the virus is symptomatic, highly limited availability of testing, ICE’s repeated failure to meet adequate standards for controlling infectious disease outbreaks in its facilities, and current conditions at the Maryland detention centers, Defendants cannot prevent the spread of COVID-19 in those facilities.
D. Individuals Most Vulnerable to COVID-19 Should Immediately Be Released. 55. The only viable public health strategy currently available in the United
States is risk mitigation. For this reason, public health experts with experience in immigration detention and correctional settings have recommended the release of vulnerable detainees from custody.
56. As early as February 25, 2020, Dr. Scott Allen and Dr. Josiah Rich, medical experts to the Department of Homeland Security, shared concerns about the specific risk to immigrant detainees as a result of COVID-19 with the agency. These experts warned of the danger of rapid spread of the coronavirus in immigration detention facilities. In a whistleblower letter to Congress, Dr. Allen and Dr. Rich recommended that “[m]inimally, DHS should consider releasing all detainees in high risk medical groups such as older people and those with chronic diseases.” They concluded that “acting immediately will save lives not of only those detained, but also detention staff and their families, and the community-at-large.”
57. Dr. Ranit Mishori, Senior Medical Consultant for Physicians for Human Rights and an expert in immigration detention and other correctional health issues, has concluded that “[r]eleasing people from incarceration is the best and safest way to prevent the spread of disease and reduce the threat to the most vulnerable incarcerated people,” and
17

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 18 of 32
that “[i]mmediate release is crucial for individuals with chronic illnesses or other preexisting conditions.”
58. ICE has the authority to release individuals from custody on medical grounds and has routinely exercised its authority to release particularly vulnerable detainees like Plaintiffs. The former Acting Director of ICE, John Sandweg, has stated that “ICE can, and must, reduce the risk [COVID-19] poses to so many people, and the most effective way to do so is to drastically reduce the number of people it is currently holding.”21
59. Releasing the most vulnerable people, such as Plaintiffs, would also reduce the burden on regional hospitals and health centers. In case of an outbreak at a detention center, those institutions would bear the brunt of having to treat infected individuals from detention centers and have fewer medical resources available for the general population.
60. Indeed, governments in the United States and worldwide have recognized the threat posed by COVID-19 spread among detained and incarcerated populations and have released detained individuals for that reason. For example, Iran temporarily released more than 80,000 people to curb the spread of the virus.22 In the United States, several jurisdictions including Los Angeles and Chicago have also released detained individuals for the same reasons.23
21 John Sandweg, I Used to Run ICE. We Need to Release the Nonviolent Detainees, The Atlantic Monthly (Mar. 22, 2020), available at https://www.theatlantic.com/ideas/archive/2020/03/release-icedetainees/608536/; Camilo Montoya-Galvez, “Powder kegs”: Call grow for ICE to Release Immigrants to Avoid Coronavirus Outbreak, CBS News (Mar. 19, 2020), available at https://www.cbsnews.com/news/coronavirus-ice-release-immigrants-detention-outbreak/.
22 Parisa Hafezi, Iran Temporarily Frees 85,000 From Jail Including Political Prisoners, Reuters (Mar. 17, 2020), available at https://www.reuters.com/article/us-health-coronavirus-iran-prisoners/irantemporarily-frees-85000-from-jail-including-political-prisoners-amid-coronavirus-idUSKBN21410M.
23 Michael Rezendes & Robin McDowell, New York City Urged to Release Detainees From Rikers Island and Other Jails After 38 Test Positive for Coronavirus, Time.com (Mar. 22, 2019), available at
18

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 19 of 32

E. Plaintiffs Are Particularly Vulnerable to Serious Illness or Death If Infected by COVID-19 and Should Be Released from Custody.

61. Plaintiffs in this case are individuals who are particularly vulnerable to

serious illness or death if infected by COVID-19 and who are currently detained at the two

Maryland facilities as they await adjudication of their immigration cases.

62. Mauricio Coreas. Mr. Coreas is a 52-year-old citizen of El-Salvador who

is currently detained at the Howard County Detention Center. Mr. Coreas suffers from

Type 2 diabetes.

63. Mr. Coreas is critically vulnerable to the coronavirus and to serious illness

or death from COVID-19 because of his diabetes.

64. Mr. Coreas’s diabetes qualifies as a disability under the Rehabilitation Act.

65. A G

C . Mr. G

C is a 54-year-old citizen of

Guatemala who i rently detained at the Worcester County Detention Center. He suffers

from hypertensi d prostate problems, including a prior prostate infection. He takes

three prescription medications to treat those conditions.

66. Mr.

C has sustained numerous traumatic injuries throughout

his life to his head and other parts of his body. He has had several operations as a result.

These injuries have caused chronic pain and mental health conditions, including possible

brain injury, memory loss, and limited cognitive functioning.

https://time.com/5807909/new-york-city-coronavirus-jails/; Maura Dolan, Alene Tchekmedyian & Paige St. John, California Releases More Jail Inmates Amid Coronavirus Crisis, Los Angeles Times (Mar. 20, 2020), available at https://www.latimes.com/california/story/2020-03-20/california-releases-more-jailinmates-amid-coronavirus-crisis; David Struett, Cook County Jail Releases Several Detainees ‘Highly Vulnerable’ to Coronavirus, Chicago Sun-Times, available at https://chicago.suntimes.com/coronavirus/2020/3/17/21183289/cook-county-jail-coronavirus-vulnerabledetainees-released-covid-19.
19

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 20 of 32

67. Mr. G

C

is critically vulnerable to the coronavirus and to

serious illness or death from COVID-19 because of his numerous physical and mental

health conditions.

68. Mr. G

C ’s health conditions qualify as disabilities under the

Rehabilitation Act.

LEGAL FRAMEWORK

A. Plaintiffs Have a Constitutional Right to Reasonable Safety in Detention.

69. The government has a duty to provide conditions of reasonable health and

safety to individuals in their custody. As the Supreme Court has explained, “when the State

takes a person into its custody and holds him there against his will, the Constitution

imposes upon it a corresponding duty to assume some responsibility for his safety and

general well-being.” DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189,

199-200 (1989). As a result, the government must provide those in its custody with “food,

clothing, shelter, medical care, and reasonable safety.” Id. at 200.

70. Because immigration detainees are civil detainees, their constitutional

protections are derived from the Fifth Amendment, which provides greater protections than

the Eighth Amendment. “Civil detainees ‘are entitled to more considerate treatment and

conditions of confinement than criminals whose conditions of confinement are designed to

punish.” Heyer v. United States Bureau of Prisons, 849 F.3d 202, 209 n.5 (4th Cir. 2017)

(quoting Youngberg v. Romeo, 457 U.S. 307, 322 (1982)); see also Brown v. Harris, 240

F.3d 383, 388 (4th Cir. 2001) (“[T]he State does not acquire the power to punish with

which the Eighth Amendment is concerned until after it has secured a formal adjudication

20

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 21 of 32
of guilt in accordance with due process of law” (quoting Ingraham v. Wright, 430 U.S. 651, 671 n. 40 (1977)).
71. Due process rights of civil detainees such as immigration detainees “are at least as great as the Eighth Amendment protections available to a convicted prisoner.” City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) (emphasis added); see also Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (immigration detainees are civil detainees held pursuant to civil immigration laws).
72. Conditions that pose an unreasonable risk of future harm violate the Eighth Amendment’s prohibition against cruel and unusual punishment, even if that harm has not yet come to pass. See Helling v. McKinney, 509 U.S. at 33 (“It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.”)
73. The Supreme Court has explicitly recognized that the risk of contracting a communicable disease may constitute such an “unsafe, life-threatening condition” that threatens “reasonable safety” even under the higher standard imposed by the Eighth Amendment. Id.
74. The Eighth Amendment, which applies to persons convicted of criminal offenses, allows punishment as long as it is not cruel and unusual, but the Fifth Amendment’s due process protections do not allow punishment at all. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”); Nelson v. Collins, 659 F.2d 420, 425 (4th Cir. 1981).
75. In order to establish that a particular condition of detention constitutes impermissible punishment, a detainee must show either an expressed intent to punish, or a
21

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 22 of 32
lack of a reasonable relationship to a legitimate governmental purpose, from which an intent to punish may be inferred. See Wolfish, 441 U.S. at 538; Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988). Absent an explicit intention to punish a pretrial detainee, a court “must evaluate the evidence and ascertain the relationship between the actions taken against the detainee and the custodian’s supporting rationale.” Williamson v. Stirling, 912 F.3d 154, 178 (4th Cir. 2018). “That inquiry turns on whether the actions taken may validly be attributed to an alternative, nonpunitive rationale, and whether they appear ‘excessive in relation to the alternative purpose assigned.’” Id. (citations omitted).
76. The Fourth Circuit has also held that a pretrial detainee necessarily “makes out a due process violation if he shows ‘deliberate indifference to serious medical needs’. . . because no legitimate nonpunitive goal is served by a denial or unreasonable delay in providing medical treatment where the need for such treatment is apparent.” Martin v. Gentile, 849 F.2d 863, 871 (4th Cir. 1988) (citation omitted)).
77. In order to show that defendants acted with deliberate indifference, a plaintiff must show that (1) the plaintiff was exposed to a substantial risk of serious harm, and (2) the defendants knew of or disregarded that substantial risk to the plaintiff’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834, 837–38 (1994); Thompson v. Virginia, 878 F.3d 89, 97-98 (4th Cir. 2017).
78. A plaintiff “must establish a serious deprivation of his rights in the form of a serious or significant physical or emotional injury” or substantial risk to either injury. Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir. 2014). Such a claim “may be based on a defendant’s conduct in exposing an inmate to an unreasonable risk of future harm.” Smith v. Carpenter, 316 F.3d 178, 188 (2d Cir. 2003). Where a risk is obvious, such as
22

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 23 of 32
during a contagious disease outbreak, it is fair for a factfinder to assume that the government official was aware of the risk. See, e.g., Farmer v. Brennan, 511 U.S. 825, 842 (1994).
B. Plaintiffs Have a Right to Reasonable Accommodations Under the Rehabilitation Act. 79. Section 504 of the Rehabilitation Act requires executive agencies to provide
“reasonable accommodations” to individuals with disabilities so they can fully participate in benefits administered by these agencies. 29 U.S.C. § 794(a).
80. DHS regulations implementing the Rehabilitation Act mandate that “[n]o qualified individual with a disability in the United States, shall, by reason of his or her disability, be excluded from participation in, be denied benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the Department.” 6 C.F.R. § 15.30.
81. To state a claim under the Rehabilitation Act, a plaintiff must establish “(1) that he has a disability; (2) that he is otherwise qualified for the benefit in question; and (3) that he was excluded from the benefit due to discrimination solely on the basis of the disability.” Baird v. Rose, 192 F.3d 462, 467 (4th Cir. 1999).
82. To the extent possible, the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act should be construed to impose similar requirements; therefore, they require a plaintiff to demonstrate the same elements to establish liability. Halpern v. Wake Forest Univ. Health Scis., 699 F.3d 454 (4th Cir. 2012).
83. A qualifying disability is any physical or mental impairment that “substantially limits one or more major life activities.” 42 U.S.C. § 12102; see also 29 U.S.C. § 705; 6 C.F.R. § 15.3(d). A “major life activity” includes “caring for oneself,
23

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 24 of 32
performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working” as well as “the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” 42 U.S.C. § 12102(A)-(B).
84. The ADA mandates that “[t]he definition of disability . . . be construed in favor of broad coverage of individuals . . . to the maximum extent permitted by the terms of [the statute].” 42 U.S.C. § 12102(4)(A).
85. The Fourth Circuit has determined that a temporary impairment may qualify as a disability under the ADA if it is “sufficiently severe” to substantially limit a major life activity. Summers v. Altarum Inst., 740 F.3d 325 (4th Cir. 2014).
C. This Court Has the Authority to Order Plaintiffs’ Release to Protect Their Constitutional and Statutory Rights. 86. “A district court enjoys wide discretionary authority in formulating
remedies for constitutional violations..” Smith v. Bounds, 813 F.2d 1299, 1301 (4th Cir. 1987).
87. Although the Fourth Circuit has not had occasion to address this issue, courts in other circuits have exercised the authority to order release as a remedy for constitutional violations. See, e.g., Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (concluding that court did not exceed its authority in directing release of low-bond pretrial detainees as necessary to reach a population cap).
24

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 25 of 32
88. The Supreme Court has also recognized that “[w]hen necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011).
89. In the past two weeks, multiple courts have also ordered the release of detained or incarcerated persons in light of the severe threats posed by COVID-19. On March 23, 2020, in a published order, the Ninth Circuit sua sponte ordered release of an immigrant detainee because of the danger posed by COVID-19. “[I]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that Petitioner be immediately released from detention and that removal of Petitioner be stayed pending final disposition by this court.” Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir. Mar. 23, 2020) (Order).
90. Several other courts have ordered the release of individuals in the federal criminal system. See, e.g., United States v. Stephens, 1:15-cr-00095 (AJN), Doc. No. 2798 (S.D.N.Y. March 19, 2020) (explaining that “the unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic has become apparent” and that “inmates may be at a heightened risk of contracting COVID-19 should an outbreak develop”); United States v. Barkman, 3:19-cr-0052-RCJ-WGC, 2020 U.S. Dist. LEXIS 45628 (D. Nev. March 17, 2020) (modifying intermittent confinement as a condition of probation due to the COVID-19 pandemic); In re. Extradition of Alejandro Toledo Manrique, 2020 WL 1307109 (N.D. Cal. March 19, 2020) (ordering release on bond despite government assertions that facility has preparedness plan in place and no cases have been confirmed); United States v. Raihan, No. 20-cr-68 (BMC) (JO), Dkt. No. 20 at 10:12-19 (E.D.N.Y.
25

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 26 of 32
Mar. 12, 2020) (deciding to continue a criminal defendant on pretrial release rather than remand to the Metropolitan Detention Center in part due to risk of COVID-19).
91. The unprecedented coronavirus pandemic unquestionably calls for individuals’ release, as multiple health experts have opined that no other measures would be sufficient or appropriate, especially for individuals with special vulnerability to severe illness or death from COVID-19.
92. The Rehabilitation Act provides for “reasonable accommodations” to ensure that individuals are not deprived of access to federally-administered benefits because of their disability. Because there is no reasonable accommodation available to protect vulnerable individuals from contracting COVID-19, and thereby being denied access to removal proceedings due to serious illness or even death, release is the only sufficient accommodation available.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF: VIOLATION OF FIFTH AMENDMENT RIGHT
TO SUBSTANTIVE DUE PROCESS (UNLAWFUL PUNISHMENT) 93. The Fifth Amendment to the U.S. Constitution guarantees civil detainees, including immigration detainees, the right to be free from punitive conditions of confinement. The government violates this guarantee when conditions of confinement lack a reasonable relationship to any legitimate governmental purpose, i.e. when a custodian’s actions are excessive in relation to their purpose. 94. Conditions of confinement lack a reasonable relationship to any legitimate governmental purpose when the government acts with deliberate indifference when failing to safeguard the health and safety of those in custody. The government acts with deliberate
26

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 27 of 32

indifference when it exposes detainees to a substantial risk of serious harm, and when it

knows of or disregards that substantial risk to the detainee’s health or safety.

95. Defendants have subjected Plaintiffs to conditions of confinement that

increase their risk of contracting COVID-19, for which there is no known vaccine,

treatment, or cure. Plaintiffs’ underlying conditions—of which Defendants are or should

be aware—render them especially vulnerable to severe illness or even death if they contract

COVID-19. Defendants are therefore subjecting Plaintiffs to an unreasonable risk of

serious harm and punitive conditions, in violation of their rights under the Due Process

Clause.

96. Defendants’ continued detention of Plaintiffs fails to adequately protect

Plaintiffs from the risks of contracting COVID-19

97. Plaintiffs’ ongoing confinement lacks a reasonable relationship to any

legitimate governmental purpose and is excessive in relation to their purpose.

98. Defendants have exposed Plaintiffs to a substantial risk of serious harm.

99. Defendants have known of or disregarded the substantial risk of harm to

Plaintiffs’ health and safety.

100.

Defendants have acted with deliberate indifference to Plaintiffs’ health and

safety.

101. Defendants continued detention of Plaintiffs violates the Due Process

Clause.

27

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 28 of 32
SECOND CLAIM FOR RELIEF: VIOLATION OF THE REHABILITATION ACT (FAILURE TO PROVIDE REASONABLE ACCOMMODATION TO PERSONS WITH DISABILITIES) 102. Section 504 of the Rehabilitation Act requires federal agencies to provide
“reasonable accommodations” to individuals with disabilities so they can fully participate in benefits administered by these agencies. 29 U.S.C. § 794(a).
103. DHS regulations implementing the Rehabilitation Act mandate that “[n]o qualified individual with a disability in the United States, shall, by reason of his or her disability, be excluded from participation in, be denied benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the Department.” 6 C.F.R. § 15.30; see also 29 U.S.C. § 794(a). The regulations implementing Section 504 prohibit entities receiving federal financial assistance from utilizing “criteria or methods of administration (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, (ii) that have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons.” 34 C.F.R. § 104.4(b)(4).
104. The removal process is a benefit administered by DHS and Plaintiffs are entitled to participate in the removal process. The services, programs, and activities within the detention centers where DHS detains Plaintiffs receive substantial federal financial assistance.
105. Plaintiffs’ underlying medical conditions qualify as disabilities for purposes of the Rehabilitation Act. 29 U.S.C. § 705(2)(B); 42 U.S.C. § 12102.
28

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 29 of 32
106. By exposing them to a heightened risk of contracting COVID-19, Defendants are preventing Plaintiffs from participating in the removal process by reason of their disability.
107. By failing to take account of their special vulnerability to severe illness or death if they were to contract COVID-19, Defendants are preventing Plaintiffs from participating in the removal process by reason of their disability.
108. By failing to provide Plaintiffs adequate protection from COVID-19 through the only effective means to reduce the risk of severe illness or death, Defendants have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of removal proceedings and the services, programs, and activities within the detention centers with respect to Plaintiffs.
109. The only available “reasonable accommodation” that would mitigate Plaintiffs’ disability is release from detention. Defendants have failed to implement this reasonable accommodation, which would not be unduly burdensome nor require a fundamental alteration in the removal process or the programs and activities of the detention center.
110. Defendants’ ongoing detention of Plaintiffs constitutes discrimination because it is either disparate treatment of, or at the very least has a disparate impact on, people with qualifying disabilities who are at severe risk of serious illness or death if they were to contract COVID-19.
111. For these reasons, Defendants’ ongoing detention of Plaintiffs violates the Rehabilitation Act.
29

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 30 of 32

PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that this Court:
a. Issue a writ of habeas corpus and order Plaintiffs’ immediate release or placement in community-based alternatives to detention such as conditional release, with appropriate precautionary public health measures, on the ground that their continued detention violates the Due Process Clause and/or the Rehabilitation Act;
b. In the alternative, issue injunctive relief ordering Defendants to immediately release Plaintiffs or place them in community-based alternatives to detention such as conditional release, with appropriate precautionary public health measures, on the ground that their continued detention violates the Due Process Clause and/or the Rehabilitation Act;
c. Declare that Defendants’ continued civil detention of individuals at increased risk for severe illness, including all people over the age of 50 and persons of any age with underlying medical conditions that increase the risk of serious illness or death upon contracting COVID-19 violates the Due Process Clause and/or the Rehabilitation Act;
d. Award Plaintiffs all costs incurred in maintaining this action, including reasonable attorneys’ fees under the Equal Access to Justice Act, as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412, and on any other basis justified by law; and
e. Grant Plaintiffs any other and further relief this Court deems just and proper.

Dated: March 24, 2020 Washington, D.C.

Respectfully submitted,
/s/ Sirine Shebaya Sirine Shebaya, Bar No. 07191 sirine@nipnlg.org Amber Qureshi, Bar No. 21218

30

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 31 of 32
amber@nipnlg.org Matthew Vogel* matt@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 (202) 656-4788
Adina Appelbaum* adina@caircoalition.org CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR) COALITION 1612 K Street NW Suite 204 Washington, DC 20006 (202) 899-1412
Nicholas T. Steiner, Esq. (Bar No. 19670) AMERICAN CIVIL LIBERTIES UNION OF MARYLAND FOUNDATION 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211 Telephone: (410) 889-8550 steiner@aclu-md.org
David C. Fathi* dfathi@aclu.org Eunice H. Cho* echo@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL PRISON PROJECT 915 15th Street N.W. 7th Floor Washington, DC 20005 (202) 548-6616
Michael Tan* mtan@aclu.org Omar Jadwat* ojadwat@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2600
31

Case 8:20-cv-00780 Document 1 Filed 03/24/20 Page 32 of 32 Stephen B. Kang* skang@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 (415) 343-0783 Attorneys for Petitioners-Plaintiffs *pro hac vice applications forthcoming
32

 
 Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 1 of 27
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

COREAS, et al., Petitioners-Plaintiffs,
v. BOUNDS, et al.,

Civil Action No.: 8:20-cv-00780 ORAL ARGUMENT REQUESTED

Respondents-Defendants.

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR A TEMPORARY RESTRAINING ORDER

1

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 2 of 27
INTRODUCTION Today’s global pandemic of COVID-19, caused by the novel coronavirus, has been characterized as the worst the world has seen since 1918. Several states and countries around the world—including the State of Maryland—have put in place significant restrictions on public gatherings, and many have imposed “shelter-in-place” orders in an attempt to control the spread of the disease. Public health experts, including the Centers for Disease Control and Prevention (“CDC”), have instructed that the only effective way to reduce the risk of severe illness or death for vulnerable individuals is social distancing and improved hygiene. Such distancing and hygiene measures are impossible to achieve in crowded detention centers. For this reason, more than 3,000 medical health professionals have urgently requested that Immigration and Customs Enforcement (“ICE”) immediately release immigration detainees in their custody, and two doctors who are medical experts for the Department of Homeland Security have sent a warning to Congress that keeping immigration detainees detained poses “an imminent risk to the health and safety of immigration detainees” and to the general public.1 Yet Respondents-Defendants (“Defendants”) continue to hold in detention thousands of individuals in facilities in Maryland and across the country, including those at severe risk of serious illness or death if they were to contract COVID-19, despite the ready availability of communitybased alternatives to detention such as release on conditions or on bond. To date, nearly 350,000 individuals worldwide have been diagnosed with COVID-19, and the United States is one of the worst hit countries. Many more are likely infected, especially in the United States where testing for the virus has been extremely limited. Confirmed cases have begun to appear in several ICE
1 Catherine E. Shoichet, Doctors Warn of 'Tinderbox Scenario' if Coronavirus Spreads in ICE Detention, CNN (Mar. 20, 2020), available at https://www.cnn.com/2020/03/20/health/doctors-ice-detention-coronavirus/index.html.
2

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 3 of 27
detention centers.2 The Worcester County Detention Center is currently under a COVID-19 related quarantine. It is quite likely—if not certain— that many more detention centers already have unconfirmed COVID-19 cases.
People confined in prisons, jails, and detention centers, including those in ICE custody in Maryland, will find it impossible to engage in the necessary social distancing and hygiene to protect themselves from infection because people eat, sleep, and engage in activities in close proximity to each other, and basic supplies such as soap and hand sanitizer are often in short supply or completely unavailable at those facilities.3 Even with the apparent measures ICE is taking to prevent the spread of COVID-19 in its facilities, immigration detention centers are a hotbed for spread of the virus.
Under these circumstances, release is the only meaningful way to mitigate the spread of the virus among immigration detainees. For individuals who are at high risk for serious illness or death from COVID-19, protection from the virus is a matter of life or death. As of March 24, there are over 240 confirmed cases of COVID-19 in Maryland, and three deaths.4 In the United States, the most concentrated instance of death from the virus occurred in a confined institutional setting.5
2 Hamed Aleaziz, A Medical Worker At An ICE Detention Facility For Immigrants Has Tested Positive For The Coronavirus, BuzzFeed News (Mar. 19, 2020), available at https://www.buzzfeednews.com/article/hamedaleaziz/ice-medical-worker-coronavirus. 3 See Ex. 4 ¶¶ 4-5 (Declaration of Eric Lopez); Ex. 5 ¶ 4 (Declaration of Eleni Bakst); Ex. 6 ¶ 4 (Declaration of Eleni Bakst). 4 Coronavirus Disease 2019 (COVID-19) Outbreak, Maryland Department of Health (accessed Mar. 23, 2020), available at https://coronavirus.maryland.gov/. 5 Maria Sacchetti & Jay Greene, As Coronavirus Quietly Spread, A Nondescript Nursing Home Became The Deadliest Hot Spot in the U.S., The Washington Post (Mar. 7, 2020), available at https://www.washingtonpost.com/national/as-coronavirus-quietly-spread-a-nondescript-nursing-home-became-thedeadliest-hot-spot-in-the-us/2020/03/06/5d788a26-5f47-11ea-9055-5fa12981bbbf_story.html,
3

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 4 of 27
Petitioners-Plaintiffs (“Plaintiffs”) are individuals detained in ICE custody in Maryland who, due to their pre-existing medical conditions, are particularly vulnerable to serious illness or death if infected by the coronavirus. Maryland has seen a significant coronavirus outbreak. The Governor has declared a State of Emergency and has put in place widespread social distancing measures, including shutting down all nonessential businesses and all public gatherings. These measures are impossible to implement in a crowded detention center. The danger posed by Plaintiffs’ continued detention during the COVID-19 pandemic is “so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk” and violates their constitutional right to safety in government custody. Helling v. McKinney, 509 U.S. 25, 36 (1993). Without this Court’s intervention, Plaintiffs will continue to face the imminent risk of severe illness or death. Accordingly, Plaintiffs seek a temporary restraining order directing their immediate release from custody.
FACTUAL BACKGROUND I. COVID-19 Poses a Grave Risk of Harm, Including Serious Illness or Death, to
Older Adults and Those with Certain Medical Conditions. COVID-19 is a highly contagious disease that can result in severe and widespread damage to lungs, heart, liver, or other organs. In many cases, COVID-19 results in death. Ex. 2 ¶¶ 8-9, 12 (Declaration of Ranit Mishori, MD, MHS, FAAFP). Individuals who do not die from the disease may face prolonged recovery periods, including extensive rehabilitation from neurological damage and loss of respiratory capacity. Id. ¶ 11. A patient’s condition can seriously deteriorate in a matter of days. Id. ¶ 12. Older individuals and those with certain medical conditions face greater chances of serious illness or death from COVID-19. Id. ¶¶ 9-10. Certain underlying medical conditions increase the risk of serious COVID-19 disease for individuals of any age, including but not limited to lung
4

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 5 of 27
disease, chronic liver or kidney disease, diabetes, epilepsy, hypertension, compromised immune systems, blood disorders, inherited metabolic disorders, stroke, and pregnancy. Id.
Most people in higher risk categories who develop serious disease will need advanced medical support. Id. ¶ 11. This level of supportive care requires highly specialized equipment that is in limited supply, and an entire team of care providers, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care physicians. Id. This level of support is especially difficult to provide for detained individuals. See id. ¶¶ 16-31.
The need for advanced medical care, including intensive care, and the likelihood of death, is much greater from COVID-19 infection than from influenza. Id. ¶ 9. According to recent estimates, the fatality of people infected with COVID-19 is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care systems. Id.
There is no vaccine against COVID-19, nor any known medication to prevent or treat infection from the virus. Id. ¶ 13. The only known effective measure to reduce the risk of severe illness or death to vulnerable individuals is to prevent them from being infected with COVID-19. Id. ¶ 14. Social distancing, or remaining physically separated from known or potentially infected individuals, and vigilant hygiene, including washing hands with soap and water, are the only known effective measures to prevent infection. Id. ¶ 15.
II. ICE’s Plan for COVID-19 is Insufficient to Prevent the Spread and Management of COVID-19 in Detention Facilities.
COVID-19 appears to have already reached the Worcester County Detention Center, which is currently under indefinite quarantine. Once one person in a detention facility contracts the virus, it spreads quickly because detainees live, sleep, eat, and use the bathroom in close proximity with
5

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 6 of 27
others, and because “[b]ehind bars, some of the most basic disease prevention measures are against the rules or simply impossible.”6 Id. ¶¶ 19-21.
Although ICE has temporarily suspended social visitation in all detention facilities, staff, contractors, and vendors continue to arrive and leave the detention centers.7 Id. ¶ 17. Detained individuals are also frequently transported to, from, and between facilities. Id. Given the general lack of available testing, it is impossible for detention facilities to consistently and adequately screen detainees and staff for new, asymptomatic infection. Id. ¶¶ 17-18. Moreover, ICE’s official guidance on COVID-19 does not state under what conditions detainees will be tested. Instead, the only measure ICE has committed to taking is to segregate those who meet CDC criteria for epidemiologic risk of exposure to COVID-19. Even assuming ICE has adequate space in their detention facilities to segregate such individuals, isolating detainees in this manner is an ineffective way to prevent transmission because, except in specialized negative pressure rooms, air continues to flow outward from rooms to the rest of the facility. Id. ¶¶ 23-24. And the Maryland facilities are not equipped with the necessary isolation spaces. Ex. 4 ¶ 6 (Declaration of Eric Lopez). Since some COVID-19 carriers can be asymptomatic or not show symptoms for weeks after exposure, “screening people based on observable symptoms is just a game of catch up.” In re Extradition of Alejandro Toledo Manrique, No. 19-mj-71055, 2020 WL 1307109 (N.D. Cal. March 19, 2020) (ordering release on bond in part because government’s COVID-19 management plan did not “say anything about testing”).
6 Keri Blakinger and Beth Schwartzapfel, When Purell is Contraband, How Do You Contain Coronavirus?, the Marshall Project (Mar. 6, 2020), available at https://www.themarshallproject.org/2020/03/06/when-purell-iscontraband-how-do-you-contain-coronavirus. 7 ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, available at https://www.ice.gov/covid19.
6

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 7 of 27
Anything short of aggressive screening and testing of detainees, staff, officials and other care and service providers who enter the facility is insufficient to contain the spread of coronavirus. Neither ICE nor the Maryland detention facilities have the resources necessary to engage in such an effort. Ex. 2 ¶¶ 18-19, 21, 23, 28, 32-38 (Mishori Decl.). Moreover, the Maryland Governor has not committed to taking any measures other than limiting visits to prisons and jails. Facilities holding immigration detainees in Maryland are not equipped to isolate individuals who contract COVID-19. Id. ¶¶ 23-24; Ex. 4 ¶ 6 (Lopez Decl.).
The Office of the Inspector General (“OIG”) of the Department of Homeland Security (“DHS”) even concluded in a 2019 report that ICE “does not adequately hold detention facility contractors accountable for not meeting performance standards,” “issued waivers to facilities with deficient conditions, seeking to exempt them from complying with certain standards,” and “does not adequately share information about ICE detention contracts with key officials.”8
Immigration detention facilities have faced outbreaks of other infectious diseases in recent years due to overcrowding, poor hygiene measures, medical negligence, and poor access to resources and medical care. Ex. 2 ¶ 28 (Mishori Decl.). As recently as last year, ICE mishandled and failed to take adequate measures to protect detainees in Virginia against outbreaks of chicken pox and mumps.9
ICE has publicly acknowledged the need to limit the spread of the coronavirus and the number of people in its detention centers,10 but the agency has not disclosed a plan to release
8 See Office of Inspector General, ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards, 1 (Jan. 29, 2019), available at https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf. 9 Emma Ockerman, Migrant Detention Centers Are Getting Slammed with Mumps and Chickenpox, Vice News (Jun. 14, 2019), available at https://www.vice.com/en_us/article/mb8k5q/migrant-detention-centers-are-gettingslammed-with-mumps-and-chicken-pox. 10 See Maria Sacchetti and Arelis R. Hernández, ICE to Stop Most Immigration Enforcement Inside the U.S., Will Focus on Criminals During Coronavirus Outbreak, The Washington Post (Mar. 18, 2020), available at
7

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 8 of 27
vulnerable people held in detention. According to a former high-ranking ICE official who oversaw detention programs, ICE can exercise discretion to release individuals from custody and has routinely done so to release particularly vulnerable detainees like Plaintiffs on medical grounds. Ex. 3 ¶¶ 3-15 (Declaration of Andrew Lorenzen-Strait).
Given the rapid community spread of COVID-19, variability in symptoms and the likelihood of it being spread before a patient is symptomatic, general lack of testing in the United States, and ICE’s history of failure to meet adequate standards for containment and treatment of infectious diseases, Defendants cannot reliably prevent the spread of the virus in their detention facilities.
III. People Detained at Maryland Detention Facilities Face an Imminent and Substantial Risk of Contracting COVID-19.
The Worcester County and Howard County Detention Centers are located in Maryland.11 As of March 24, 2020, there were over 250 COVID-19 cases in Maryland, and the numbers are rising exponentially.12 At least three people in Maryland have so far died from the disease.13 At present, there is a COVID-19-related quarantine in the Worcester County Detention Center. Thus, there is an immediate and impending threat that COVID-19 will become widespread in Maryland detention centers that house immigration detainees. In fact, in the absence of widespread testing, there is no way to be certain that outbreaks are not already occurring.
In the Maryland detention centers, groups of detainees are housed together and use common spaces together, sharing tables, telephones, and bathrooms. Ex. 4 ¶¶ 4-5 (Lopez Decl.);
https://www.washingtonpost.com/national/ice-halting-most-immigration-enforcement/2020/03/18/d0516228-696c11ea-abef-020f086a3fab_story.html. 11 Detention Facility Locator, U.S. Immigration and Customs Enforcement, available at https://www.ice.gov/detention-facilities. 12 Coronavirus Disease 2019 (COVID-19) Outbreak, Maryland Department of Health (accessed Mar. 23, 2020), available at https://coronavirus.maryland.gov/. 13 Id.
8

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 9 of 27
Ex. 5 ¶ 4 (Declaration of Eleni Bakst); Ex. 6 ¶ 4 (Declaration of Eleni Bakst). The dormitories in these detention centers house many individuals in close quarters, well under six feet apart. Ex. 4 ¶ 4 (Lopez Decl.); Ex. 5 ¶ 4 (Bakst Decl.); Ex. 6 ¶ 4 (Bakst Decl.). The hallways and corridors are tight and people in the hallways are constantly in very close proximity to each other. Ex. 4 ¶ 5 (Lopez Decl.); Ex. 5 ¶ 4 (Bakst Decl.); Ex. 6 ¶ 4 (Bakst Decl.). Frequent handwashing and use of alcohol-based sanitizers are generally unavailable. Ex. 4 ¶ 5 (Lopez Decl.); Ex. 5 ¶ 8 (Bakst Decl.); Ex. 6 ¶ 4 (Bakst Decl.). Bathrooms are limited in number and are not sanitized or disinfected after each use. Ex. 5 ¶ 8 (Bakst Decl.); Ex. 6 ¶ 4 (Bakst Decl.). Staff arrive and leave on a shift basis, and even asymptomatic staff could carry the infection into the facility. Ex. 2 ¶ 17 (Mishori Decl.).
Further, the detention centers are ill-equipped to manage an infectious disease outbreak. None of the facilities has 24-hour medical care and they each have very limited on-site medical facilities. Ex. 2 ¶ 37 (Mishori Decl.); Ex. 4 ¶ 7 (Lopez Decl.); Ex. 5 ¶ 7 (Bakst Decl.); Ex. 6 ¶¶ 6, 8 (Bakst Decl.). Neither facility has negative pressure isolation units, meaning that isolating infected people through solitary confinement will not prevent transmission of the disease because air continues to flow outwards from those rooms to the rest of the facility. Ex. 2 ¶¶ 23-24, 36 (Mishori Decl.); Ex. 4 ¶ 6 (Lopez Decl.). This makes both containing the illness and caring for those who have become infected much more difficult.
At present, there is an indefinite quarantine due to COVID-19 exposure in the Worcester County Detention Center. Ex. 4 ¶¶ 10-12 (Lopez Decl.). In at least one other ICE detention facility, located in New Jersey, an ICE official has been confirmed as having contracted COVID19.14 ICE has not specified what measures were being taken to protect detainees at the facility
14 Hamed Aleaziz, A Medical Worker at An ICE Detention Facility For Immigrants Has Tested Positive For The Coronavirus, BuzzFeed News (Mar. 19, 2020), available at https://www.buzzfeednews.com/article/hamedaleaziz/ice-medical-worker-coronavirus.
9

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 10 of 27
and whether ICE is taking any precautionary steps to test other officials and detainees at that facility. Despite these widespread warnings, ICE and the Maryland detention facilities remain woefully unprepared and incapable of taking necessary precautions to protect people in their custody against a life-threatening illness.
According to Dr. Ranit Mishori, M.D., Senior Medical Consultant for Physicians for Human Rights and an expert in immigration detention and correctional health care, the two Maryland detention facilities “are particularly susceptible to rapid spread of the virus and are not equipped to handle a coronavirus outbreak.” Ex. 2 ¶ 32 (Mishori Decl.). Dr. Mishori concludes that an outbreak in the Maryland detention centers is “highly likely and that the consequences of rampant COVID-19 infection in the facility would be disastrous, especially for high-risk individuals like the plaintiffs in this case.” Id. ¶ 38.
IV. People Most Vulnerable to COVID-19 Should Be Released from ICE Detention. The only viable public health strategy currently available in the United States is risk
mitigation, and therefore immigration detainees most vulnerable to serious injury should they contract COVID-19 must be released.
Public health experts with experience in immigration detention and correctional settings have recommended the release of vulnerable detainees from custody. Dr. Mishori has concluded that “[r]eleasing people from incarceration is the best and safest way to prevent the spread of disease and reduce the threat to the most vulnerable incarcerated people,” and that “[i]mmediate release is crucial” for individuals with chronic illnesses or other preexisting conditions. Id. ¶¶ 4546. Two medical experts for DHS have also sent a letter to Congress warning of the severe public
10

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 11 of 27
health risks of keeping individuals detained and recommending release of most persons in
immigration detention.15
Releasing the most vulnerable people, such as Plaintiffs, would also reduce the burden on
regional hospitals and health centers. Ex. 2 ¶ 47-48 (Mishori Decl.). In case of an outbreak at a
detention center, those institutions would bear the brunt of having to treat infected individuals from
detention centers and would have fewer medical resources available for the general population. Id.
Governments worldwide have also recognized the threat posed by the spread of COVID-19 among
detained and incarcerated populations and have released detainees for that reason. For example,
Iran temporarily released more than 80,000 detainees to curb the spread of the virus.16 Id. ¶ 30. In
the United States, several jurisdictions including Los Angeles and Chicago have also released
detained individuals for the same reasons.17 Id.
V. Plaintiffs Are Vulnerable to Serious Illness or Death If Infected by COVID-19 and Must Be Released from Custody.
Plaintiffs in this case are individuals who are particularly vulnerable to serious illness or
death if they contract COVID-19 and who are currently detained at the Maryland facilities as they
await adjudication of their immigration cases.
15 Letter from Dr. Scott Allen and Dr. Josiah Rich, Medical Experts for DHS, to House Comm. on Homeland Sec. (Mar. 19, 2020), available at https://www.documentcloud.org/documents/6816336-032020-Letter-From-Drs-AllenRich-to-Congress-Re.html#document/p4/a557238; Catherine Shoichet, Doctors Warn of “Tinderbox Scenario” If Coronavirus Spreads in ICE Detention, CNN.com, (Mar. 20, 2020), available at https://www.cnn.com/2020/03/20/health/doctors-ice-detention-coronavirus/index.html. 16 Parisa Hafezi, Iran Temporarily Frees 85,000 From Jail Including Political Prisoners, Reuters (Mar. 17, 2020), available at https://www.reuters.com/article/us-health-coronavirus-iran-prisoners/iran-temporarily-frees-85000from-jail-including-political-prisoners-amid-coronavirus-idUSKBN21410M. 17 Michael Rezendes & Robin McDowell, New York City Urged to Release Detainees From Rikers Island and Other Jails After 38 Test Positive for Coronavirus, Time.com (Mar. 22, 2019), available at https://time.com/5807909/newyork-city-coronavirus-jails/; Maura Dolan, Alene Tchekmedyian & Paige St. John, California Releases More Jail Inmates Amid Coronavirus Crisis, Los Angeles Times (Mar. 20, 2020), available at https://www.latimes.com/california/story/2020-03-20/california-releases-more-jail-inmates-amid-coronavirus-crisis; David Struett, Cook County Jail Releases Several Detainees ‘Highly Vulnerable’ to Coronavirus, Chicago SunTimes, available at https://chicago.suntimes.com/coronavirus/2020/3/17/21183289/cook-county-jail-coronavirusvulnerable-detainees-released-covid-19.
11

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 12 of 27

Mauricio Coreas. Mr. Coreas is a 52-year-old citizen of El-Salvador who is currently

detained at the Howard County Detention Center. Ex. 5 ¶¶ 5-6 (Bakst Decl.). In addition to being

over 50, Mr. Coreas suffers from Type 2 diabetes. Id. ¶ 6. Mr. Coreas is critically vulnerable to

serious illness or death from COVID-19 because of his diabetes. Ex. 2 ¶ 40 (Mishori Decl.).

A

C

Mr.

C is a 54-year-old citizen of Guatemala who

is currently detained at the Worcester County Detention Center. Ex. 6 ¶¶ 5-6 (Bakst Decl.). He

suffers from hypertension and prostate problems, including a prior prostate infection. Id. ¶ 6. He

takes three prescription medications to treat those conditions. Id. Mr. G

C

has

sustained numerous traumatic injuries throughout his life to his head and other parts of his body.

Id. ¶ 7. He has had several operations as a result. Id. These injuries have caused chronic pain and

mental health conditions, including brain injury, memory loss, and limited cognitive functioning.

Id.

Mr. G

C is critically vulnerable to serious illness or death from COVID-19

because of his hypertension and his numerous physical and mental health conditions. Id. ¶ 10; Ex.

2 ¶ 41 (Mishori Decl.).

LEGAL STANDARD

Motions for temporary restraining orders and preliminary injunctions are governed by the

same four-factor test:. Courts consider whether plaintiffs have shown: (1) a likelihood of success

on the merits; (2) that they are likely to suffer irreparable harm in the absence of such relief; (3)

that the balance of equities tips in plaintiffs’ favor; and (4) that an injunction is in the public

interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008); see also Centro Tepeyac v.

Montgomery Cty., 722 F.3d 184, 188-89 (4th Cir. 2013) (en banc) (outlining Winter standard).

12

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 13 of 27
To show a likelihood of success on the merits, plaintiffs “need not show a certainty of success.”
Pashby v. Delia, 709 F.3d 307, 321 (4th Cir. 2013).
ARGUMENT
I. Plaintiffs Are Likely to Succeed on the Merits. a. Plaintiffs’ Continued Detention Violates Their Constitutional Right to Reasonable Safety Because It Constitutes Impermissible Punishment.
The government has an affirmative duty to provide conditions of reasonable health and
safety to the people it holds in its custody. As the Supreme Court has made clear,
[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being . . . . The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment . . . . DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989). Under the
Fifth Amendment, those in civil detention are afforded greater protections than those imprisoned due to a criminal conviction,18 and at least the same protections as pretrial detainees.
Some circuits have held that civil detainees are entitled to conditions of confinement that are
superior to those of criminal pretrial detainees, see Jones v. Blanas, 393 F.3d 918, 933-34 (9th
Cir. 2004). Because a civil detainee is “entitled to ‘more considerate treatment’ than his
criminally detained counterparts,” the Ninth Circuit held that “a presumption of punitive
conditions arises where the individual is detained under conditions identical to, similar to, or
more restrictive than those under which pretrial criminal detainees are held.” Id. at 932, 934
(citing Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982)). Although the Fourth Circuit has not
18 Many of the cases discussed in this Motion involve the protections of the Eighth Amendment, which applies to those who are incarcerated pursuant to a criminal conviction. As explained below, see infra Sec. I.a.i, the Plaintiffs here are civil detainees and are entitled to greater protections than are convicted persons under the Eighth Amendment.
13

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 14 of 27
had occasion to rule on this issue, the same standard should apply in this case. Should the Court decide not to resolve this issue, Plaintiffs’ claims succeed even on the higher standard set for pretrial detainees.
i. Plaintiffs, As Civil Detainees, May Not Be Punished. Immigration detainees, even those with prior criminal convictions, are civil detainees held pursuant to civil immigration laws. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Their constitutional protections while in custody are thus derived from the Fifth Amendment, which provides protection greater than the Eighth Amendment. “Civil detainees ‘are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.’” Heyer v. United States Bureau of Prisons, 849 F.3d 202, 209 n.5 (4th Cir. 2017) (quoting Youngberg v. Romeo, 457 U.S. 307, 322 (1982)); see Brown v. Harris, 240 F.3d 383, 388 (4th Cir. 2001) (“[T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law.” (quoting Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977))). The Eighth Amendment, which applies to persons convicted of criminal offenses, allows punishment as long as it is not cruel and unusual, but the Fifth Amendment’s due process protections do not allow punishment at all. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”); Nelson v. Collins, 659 F.2d 420, 425 (4th Cir. 1981). To establish that a particular condition or restriction of detention constitutes impermissible punishment, a petitioner must show either (1) an expressed intent to punish; or (2) a lack of a reasonable relationship to a legitimate governmental purpose, from which an intent to punish may be inferred. See Wolfish, 441 U.S. at 538; Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988). Absent an explicit intention to punish a pretrial detainee, a court “must evaluate the
14

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 15 of 27

evidence and ascertain the relationship between the actions taken against the detainee and the

custodian’s supporting rationale.” Williamson v. Stirling, 912 F.3d 154, 178 (4th Cir. 2018).

“That inquiry turns on whether the actions taken may validly be attributed to an alternative,

nonpunitive rationale, and whether they appear ‘excessive in relation to the alternative purpose

assigned.’” Id. (citations omitted).

ii. Plaintiffs’ Confinement Constitutes Punishment Because It Is Not Reasonably Related to a Legitimate Government Purpose.

The threat of serious illness and death from COVID-19 is not reasonably related to and

vastly outweighs any government interest in Plaintiffs’ confinement. As set forth previously,

each of the Plaintiffs suffers from underlying health conditions that make them especially

susceptible to severe illness or death if they contract COVID-19. Mr. Coreas suffers from

diabetes, and Mr. G

C

uffers from hypertension and numerous physical and metnal

disabilities. The Maryland detention centers are not equipped to take adequate measures that

would prevent them from contracting COVID-19. Both Mr. Coreas and Mr.

C are

critically vulnerable to severe illness or death from COVID-19. Under these circumstances, the

government’s decision to keep Plaintiffs detained in conditions where they are extremely vulnerable

to severe illness and death from COVID-19 is clearly excessive in relation to any interest they may

have in Plaintiffs’ continued detention.

iii. Defendants May Not Act With Deliberate Indifference to a Substantial Risk of Harm.
In order to establish a violation of the Eighth Amendment, convicted persons must show

“deliberate indifference” on the part of prison officials. Farmer v. Brennan, 511 U.S. 825, 828

(1994). In Jones v. Blanas, the Ninth Circuit held that that a civil detainee need not establish

“deliberate indifference” on the part of government officials in order to make out a substantive

due process claim regarding conditions of confinement. 393 F.3d at 934. The “deliberate

15

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 16 of 27
indifference” standard should not apply here because Plaintiffs are civil detainees who retain greater liberty protections than those charged or convicted of crimes. See id; Youngberg, 457 U.S. at 321-24. The Fourth Circuit has not ruled on whether the deliberate indifference standard applies to a civil detainee – and this Court should follow the Ninth Circuit and not apply it to the present case. However, if this Court decides not to resolve this issue in this case, it should find that Defendants acted with deliberate indifference to the health and safety of Plaintiffs.
The Fourth Circuit has held that a pretrial detainee necessarily “makes out a due process violation if he shows ‘deliberate indifference to serious medical needs’ . . . because no legitimate nonpunitive goal is served by a denial or unreasonable delay in providing medical treatment where the need for such treatment is apparent.” Martin v. Gentile, 849 F.2d 863, 871 (4th Cir. 1988) (citation omitted). In order to show that defendants violated the Eighth Amendment, a plaintiff must show that (1) the plaintiff was exposed to a substantial risk of serious harm, and (2) the defendants knew of or disregarded that substantial risk to the plaintiff’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834, 837–38 (1994); Thompson v. Virginia, 878 F.3d 89, 9798 (4th Cir. 2017).
iv. Plaintiffs Are Exposed to a Substantial Risk of Serious Harm. For the first prong, a plaintiff “must establish a serious deprivation of his rights in the form of a serious or significant physical or emotional injury” or substantial risk of injury. Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir. 2014). Such a claim “may be based on a defendant’s conduct in exposing an inmate to an unreasonable risk of future harm.” Smith v. Carpenter, 316 F.3d 178, 188 (2d Cir. 2003). Therefore, conditions that pose an unreasonable risk of future harm violate the Eighth Amendment’s prohibition against cruel and unusual punishment, and thus a fortiori the Fifth Amendment’s prohibition against any form of punishment, even if that harm has not yet come to pass. In Helling v. McKinney, 509 U.S. 25
16

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 17 of 27
(1993), the Supreme Court held that correctional officials may not ignore conditions that are “very likely to cause serious illness and needless suffering” in the future, and that such prospective harm may form the basis of an Eighth Amendment claim, even where the prisoner has “no serious current symptoms.” Id. at 33. The Court in Helling specifically recognized that the risk of contracting a communicable disease could constitute such an “unsafe, life-threatening condition.” Id. at 33; see also id. at 34 (citing with approval Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974), which held that prisoners were entitled to relief under the Eighth Amendment when they showed, inter alia, “the mingling of inmates with serious contagious diseases with other prison inmates”).
In this case, Plaintiffs face a substantial risk of severe illness or death from an outbreak of COVID-19 in Maryland detention facilities. First, there is currently a quarantine in place at the Worcester County Detention Center. Ex. 4 ¶¶ 10-12 (Lopez Decl.). Second, COVID-19 is unlike any other contagious or communicable disease to which detainees may be exposed.19 See Ex. 2 ¶¶ 6-15 (Mishori Decl.). Third, based on COVID-19 outbreaks in other countries and in other detention centers in the United States, it is only a matter of time until the disease spreads into detention facilities that are not yet aware of an outbreak in their facilities.20 Ex. 2 ¶¶ 30-31 (Mishori Decl.). In fact, COVID-19 has already begun to spread to detention centers in the United States, with 21 detainees and 17 employees now confirmed positive for COVID-19 at
19 Letter from Dr. Scott Allen and Dr. Josiah Rich, Medical Experts for DHS, to House Comm. on Homeland Sec. (Mar. 19, 2020), available at https://www.documentcloud.org/documents/6816336-032020-Letter-From-Drs-AllenRich-to-Congress-Re.html#document/p4/a557238. 20 See Hannah Summers, 'Everyone Will Be Contaminated': Prisons Face Strict Coronavirus Controls, The Guardian (Mar. 23, 2020), available at https://www.theguardian.com/global-development/2020/mar/23/everyonewill-be-contaminated-prisons-face-strict-coronavirus-controls.
17

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 18 of 27
Rikers Island jail in New York City.21 Finally, ICE’s response to COVID-19 is inadequate. ICE is not conducting the screening and testing of detainees, staff, officials, contractors, vendors and other care and service providers that is needed to contain an outbreak. Given the general lack of available testing, it would be impossible for detention facilities to consistently screen and test everyone for new, asymptomatic infection. Ex. 2 ¶¶ 17-18 (Mishori Decl.). ICE’s plan to segregate individuals who meet the CDC’s criteria for epidemiologic risk of exposure to COVID-19 is inadequate to contain an outbreak. Id. ¶¶ 23-24, 36. Furthermore, as the Northern District of California has recognized, “screening people based on observable symptoms is just a game of catch up” because some COVID-19 carriers can be asymptomatic or not show symptoms for weeks after exposure. In re. Extradition of Alejandro Toledo Manrique, No. 19mj-71055, 2020 WL 1307109 (N.D. Cal. March 19, 2020) (ordering release on bond in part because government’s COVID-19 management plan did not “say anything about testing” for COVID-19). In fact, ICE’s preparedness plan for contagious diseases was determined to be insufficient in 2019 by DHS’s own Inspector General.22 By the time ICE recognizes that there is a coronavirus outbreak in the detention facilities in which Plaintiffs are held , it will be too late for Plaintiffs.
v. Defendants Have Disregarded a Substantial Risk of Serious Harm to Plaintiffs.
The second prong of the Eighth Amendment standard requires the plaintiff to establish that the prison or detention official involved had “a sufficiently culpable state of mind”
21 See 21 Inmates, 17 Employees Test Positive for COVID-19 on Rikers Island: Officials, NBC New York (Mar. 22, 2020), available at https://www.nbcnewyork.com/news/coronavirus/21-inmates-17-employees-test-positive-forcovid-19-on-rikers-island-officials/2338242/. 22 See Office of Inspector General, ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards, 1 (Jan. 29, 2019), available at https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf.
18

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 19 of 27
amounting to “deliberate indifference to inmate health or safety.” Farmer, 511 U.S. at 834. Evidence establishing a culpable state of mind requires actual knowledge of an excessive risk to the detainee’s safety, or evidence that detention officials were aware of facts from which an inference could be drawn that a substantial risk of serious harm exists and that the inference was drawn. Id. at 837. A plaintiff may “prove an official’s actual knowledge of a substantial risk ‘in the usual ways, including inference from circumstantial evidence’” so that “‘a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.’” Raynor v. Pugh, 817 F.3d 123, 128 (4th Cir. 2016).
It is clear that ICE has actual knowledge of the excessive risk that the coronavirus presents to the safety of those in ICE custody. ICE has created policy guidance outlining its response to the virus.23 The agency has also announced it will delay enforcement actions to arrest fewer immigrants and use alternatives to detention as a response to the COVID-19 outbreak.24 As early as February 25, 2020, Dr. Scott Allen and Dr. Josiah Rich, medical experts to the Department of Homeland Security, shared concerns about the specific risk to immigrant detainees as a result of COVID-19 with the agency. These experts warned of the danger of rapid spread of COVID-19 in immigration detention facilities and recommended release of most immigrant detainees.25 In the last several weeks, ICE has received numerous letters from
23 ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, available at https://www.ice.gov/covid19. 24 See Maria Sacchetti and Arelis R. Hernández, ICE to Stop Most Immigration Enforcement Inside the U.S., Will Focus on Criminals During Coronavirus Outbreak, The Washington Post (Mar. 18, 2020), available at https://www.washingtonpost.com/national/ice-halting-most-immigration-enforcement/2020/03/18/d0516228-696c11ea-abef-020f086a3fab_story.html. 25 See, e.g., Letter from Dr. Scott Allen and Dr. Josiah Rich, Medical Experts for DHS, to House Comm. on Homeland Sec. (Mar. 19, 2020), available at https://www.documentcloud.org/documents/6816336-032020-LetterFrom-Drs-Allen-Rich-to-Congress-Re.html#document/p4/a557238.
19

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 20 of 27
advocates, medical professionals, and Members of Congress emphasizing the increased risk
faced by vulnerable populations in ICE detention facilities.26
There have also been many news articles highlighting the risk of coronavirus outbreaks in
ICE facilities.27 The federal government itself has issued warnings about the particular risk of
COVID-19 for those who are elderly or who have certain medical conditions, including those
from which Plaintiffs suffer.28 Despite the fact that ICE is aware of the substantial risk faced by
Plaintiffs, all of whom have underlying medical conditions that increase their risk of serious
illness or death if they contract COVID-19, ICE continues to detain Plaintiffs in conditions
where there is a heightened public health risk for the spread of the virus. The measures ICE has
implemented thus far are clearly inadequate; Plaintiffs have reported that they have yet to receive
guidance or education about COVID-19 and they continue to live and interact in close quarters
despite the risk of infection. Ex. 5 ¶ 8 (Bakst Decl.); Ex. 6 ¶ 9 (Bakst Decl.).
Thus, as the Court recognized in Helling, the Constitution “require[s] a remedy” that
ensures protection of Plaintiffs’ safety. Helling, 509 U.S. at 33.
b. The Court Has Authority to Order Plaintiffs’ Release as the Sole Effective Remedy for the Constitutional Violation.
26 Letter from 763 non-governmental organizations to Matthew T. Albence, Acting Director of ICE (Mar. 19, 2020), available at https://www.detentionwatchnetwork.org/sites/default/files/ICE%20Response%20to%20Coronavirus%20for%20Peo ple%20Detained%20-%20Organizational%20Sign%20on%20Letter%20-%20Final.pdf; Catherine E. Shoichet, Doctors Warn of 'Tinderbox Scenario' if Coronavirus Spreads in ICE Detention, CNN (Mar. 20, 2020), available at https://www.cnn.com/2020/03/20/health/doctors-ice-detention-coronavirus/index.html; Letter from Rep. Carolyn Maloney and Rep. Jamie Raskin to Acting Secretary of DHS Chad Wolf (Mar. 11, 2020), available at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2020-0311.CBM%20and%20JR%20to%20Wolf-DHS%20re%20COVID-19.pdf. 27 See, e.g., Abigail Hauslohner, Nick Miroff & Matt Zapotosky, Coronavirus Could Pose Serious Concern in ICE Jails, Immigration Courts, The Washington Post (Mar. 12, 2020), available at https://www.washingtonpost.com/immigration/coronavirus-immigration-jails/2020/03/12/44b5e56a-646a-11ea845d-e35b0234b136_story.html. 28 Are You at Higher Risk for Severe Illness?, Centers for Disease Control and Prevention (accessed Mar. 23, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications.html.
20

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 21 of 27
“A district court enjoys wide discretionary authority in formulating remedies for constitutional violations.” Smith v. Bounds, 813 F.2d 1299, 1301 (4th Cir. 1987). Moreover, “[w]hen necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011).
This principle is well-established. For example, in cases involving prisons and jails, federal courts have repeatedly ordered the release of detained persons when necessary to remedy constitutional violations caused by overcrowding. See, e.g., Duran v. Elrod, 713 F.2d 292, 29798 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (concluding that court did not exceed its authority in directing release of low-bond pretrial detainees as necessary to reach a population cap); Mobile Cty. Jail Inmates v. Purvis, 581 F. Supp. 222, 224-25 (S.D. Ala. 1984) (concluding that district court properly exercised remedial powers to order a prison’s population reduced to alleviate unconstitutional conditions and noting other cases); Inmates of the Allegheny Cty. Jail v. Wecht, 565 F. Supp. 1278, 1297 (W.D. Pa. 1983) (order to reduce overcrowding “is within our power to correct the constitutional violations”); Brenneman v. Madigan, 343 F. Supp. 128, 139 (N.D. Cal. 1972) (“If the state cannot obtain the resources to detain persons . . . in accordance with minimum constitutional standards, then the state simply will not be permitted to detain such persons.”).
In a published order, the Ninth Circuit sua sponte ordered release from immigration detention in light of the COVID-19 crisis. See, e.g., Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir. Mar. 23, 2020) (Order) (“[I]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that Petitioner be immediately released from detention and that removal of Petitioner be stayed pending final disposition by this court.”). Several courts have also ordered
21

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 22 of 27
the release of individuals in the federal criminal system. See, e.g., United States v. Stephens, 1:15-cr-00095 (AJN), Doc. No. 2798 (S.D.N.Y. March 19, 2020) (explaining that “the unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic has become apparent” and that “inmates may be at a heightened risk of contracting COVID-19 should an outbreak develop”); United States v. Barkman, 3:19-cr-0052-RCJ-WGC, 2020 U.S. Dist. LEXIS 45628 (D. Nev. March 17, 2020) (modifying intermittent confinement as a condition of probation due to the COVID-19 pandemic); In re. Extradition of Alejandro Toledo Manrique, 2020 WL 1307109 (N.D. Cal. March 19, 2020) (ordering release on bond despite government assertions that facility has preparedness plan in place and no cases have been confirmed); United States v. Raihan, No. 20-cr-68 (BMC) (JO), Dkt. No. 20 at 10:12-19 (E.D.N.Y. Mar. 12, 2020) (deciding to continue a criminal defendant on pretrial release rather than remand to the Metropolitan Detention Center in part due to risk of COVID-19).
Similarly, in this case, the release of Plaintiffs from detention is the only effective remedy for the constitutional violation they face. Preventive measures, such as social distancing, may be effective in the community, but are impossible to implement in the detention setting. Ex. 2 ¶¶ 1921, 33-36 (Mishori Decl.). Plaintiffs continue to live and undertake activities with other detainees in close quarters, and are unable to maintain the necessary hygiene and social distancing measures that could protect them from the disease. Ex. 4 ¶ 4 (Lopez Decl.); Ex. 5 ¶ 4 (Bakst Decl.); Ex. 6 ¶ 4 (Bakst Decl.).
For the foregoing reasons, Plaintiffs are likely to succeed on the merits of their claim that their continued detention violates their Fifth Amendment due process right to reasonable safety in government custody.
II. The Remaining Factors Weigh Heavily in Favor of Granting a Temporary Restraining Order.
22

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 23 of 27
a. Plaintiffs Are Likely to Suffer Irreparable Harm Absent the Temporary Restraining Order.
Plaintiffs will suffer irreparable harm if they are not immediately released. See Winter, 555 U.S. at 20. A plaintiff must show that the irreparable harm she faces in the absence of relief is “neither remote nor speculative, but actual and imminent.” Direx Israel, Ltd. v. Breakthrough Medical Group, 952 F.2d 802, 812 (4th Cir. 1991) (citation omitted). Furthermore, the Fourth Circuit has held that “the denial of a constitutional right” itself “constitutes irreparable harm for purposes of equitable jurisdiction.” Ross v. Meese, 818 F.2d 1132, 1135 (4th Cir. 1987).
Plaintiffs will suffer irreparable harm absent immediate relief. Plaintiffs have underlying medical conditions that increase their likelihood of severe illness or death if they contract COVID-19. Ex. 2 ¶ 39 (Mishori Decl.); Ex. 5 ¶¶ 6-7 (Bakst Decl.); Ex. 6 ¶¶ 6-10 (Bakst Decl.). Public health experts have concluded that people with these characteristics in institutional settings such as immigration detention centers are at grave risk of severe illness and death. More than 3,000 medical health professionals have urgently requested that ICE immediately release immigration detainees in their custody, and two doctors who are medical experts for the Department of Homeland Security have sent a warning to Congress that keeping immigration detainees detained poses “an imminent risk to the health and safety of immigration detainees” and to the general public.29 Finally, Plaintiffs have also established that their continued confinement violates their Fifth Amendment rights and, as such, have made a clear showing that they would be irreparably harmed if they continue to be detained.
b. The Public Interest and Balance of Equities Weigh Heavily in Plaintiffs’ Favor.
29 Catherine E. Shoichet, Doctors Warn of 'Tinderbox Scenario' if Coronavirus Spreads in ICE Detention, CNN (Mar. 20, 2020), available at https://www.cnn.com/2020/03/20/health/doctors-ice-detention-coronavirus/index.html.
23

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 24 of 27
The final two factors generally “merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009); see Kravitz v. U.S. Dep’t of Commerce, 366 F. Supp. 3d 681, 755 (D. Md. 2019). The balance of harms and public interest weigh strongly in favor of granting a temporary restraining order. See Winter, 555 U.S. at 24. In contrast to the irreparable injury facing plaintiffs, the government will not be injured by an injunction. As the Fourth Circuit has recognized, a governmental entity “is in no way harmed by issuance of a preliminary injunction which prevents it from enforcing a regulation, which . . . is likely to be found unconstitutional. . . . Surely, upholding constitutional rights serves the public interest.” Newsom ex rel. Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003); Legend Night Club v. Miller, 637 F.3d 291, 302-03 (4th Cir. 2011) (“[T]he State . . . is in no way harmed by issuance of an injunction that prevents the state from enforcing [unlawful] restrictions.”). Because Plaintiffs’ continued detention is unconstitutional and unlawful, both the balance of the equities and the public interest weigh in favor of emergency relief.
III. The Court Should Not Require Plaintiffs to Provide Security Prior to Issuing a Temporary Restraining Order.
Federal Rule of Civil Procedure 65(c) provides that “The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” However, “the district court retains the discretion to . . . waive the security requirement.” Pashby v. Delia, 709 F.3d 307, 332 (4th Cir. 2013) (citation omitted). District courts routinely exercise this discretion to require no security in cases brought by indigent and/or incarcerated people. See, e.g., Beck v. Hurwitz, 380 F. Supp. 3d 479, 485 (M.D. N.C. 2019) (federal prisoner); Toussaint v. Rushen, 553 F. Supp. 1365, 1383 (N.D. Cal.
24

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 25 of 27
1983) (state prisoners); Orantes–Hernandez v. Smith, 541 F. Supp. 351, 385 n. 42 (C.D. Cal. 1982) (detained immigrants). This Court should do the same here.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court grant the motion for a temporary restraining order and order their immediate release from custody.

Dated: March 24, 2020

Respectfully submitted,

/s/ Sirine Shebaya Sirine Shebaya (Bar No. 07191) sirine@nipnlg.org Amber Qureshi (Bar No. 21218) amber@nipnlg.org Matthew Vogel matt@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave, NW, Suite 200 Washington, DC 20007 Tel: (202) 656-4788 Fax: (617) 227-5495
David C. Fathi* dfathi@aclu.org Eunice H. Cho* echo@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL PRISON PROJECT 915 15th Street N.W. 7th Floor Washington, DC 20005 (202) 548-6616
Michael Tan* mtan@aclu.org Omar Jadwat* ojadwat@aclu.org

Adina Appelbaum* CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR) COALITION 1612 K Street NW Suite 204 Washington, DC 20006 (202) 899-1412 adina@caircoalition.org
Nicholas T. Steiner, Esq. (Bar No. 19670) AMERICAN CIVIL LIBERTIES UNION OF MARYLAND FOUNDATION 3600 Clipper Mill Road, Suite 350 Baltimore, MD 21211 (410) 889-8550 steiner@aclu-md.org
Stephen B. Kang* AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 (415) 343-0783 skang@aclu.org

25

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 26 of 27 AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2600
*pro hac vice application forthcoming Counsel for Petitioners-Plaintiffs
26

Case 8:20-cv-00780 Document 2-1 Filed 03/24/20 Page 27 of 27

CERTIFICATE OF SERVICE I hereby certify that on March 24, 2020, I electronically filed the foregoing document and accompanying memorandum of law, exhibits, and proposed order with the Clerk of the Court using the CM/ECF system. I further certify that I have mailed Respondents-Defendants a copy of this document and the accompanying proposed order via certified, first class mail on March 24, 2020. In addition, I have emailed copies of these documents to the following email addresses at the U.S. Attorney’s Office for the District of Maryland: allen.loucks@usdoj.gov thomas.corcoran@usdoj.gov neil.white@usdoj.gov

Dated: March 24, 2020

/s/ Sirine Shebaya Sirine Shebaya (Bar No. 07191) National Immigration Project of the National Lawyers Guild 2201 Wisconsin Ave, NW, Suite 200 Washington, DC 20007 Tel: (202) 656-4788 Fax: (617) 227-5495 sirine@nipnlg.org

 
 Case 8:20-cv-00780-TDC Document 57 Filed 04/03/20 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

MAURICIO COREAS and ANGEL GUZMAN CEDILLO,
Petitioners,
v.
DONNA BOUNDS, in her official capacity as Warden, Worcester County Detention Center, JACK KAVANAUGH, in his official capacity as Director, Howard County Detention Center, JANEAN OHIN, in her official capacity as Acting Baltimore Field Office Director, U.S. Immigration and Customs Enforcement, MATTHEW T. ALBENCE, in his official capacity as Deputy Director and Senior Official performing the duties of the Director of the U.S. Immigration and Customs Enforcement, and IMMIGRATION AND CUSTOMS ENFORCEMENT,
Respondents.

Civil Action No. TDC-20-0780

ORDER For the reasons set forth in the accompanying Memorandum Opinion, it is hereby ORDERED that: 1. Petitioners’ Motion for a Temporary Restraining Order, ECF No. 2, is DENIED
WITHOUT PREJUDICE.

Case 8:20-cv-00780-TDC Document 57 Filed 04/03/20 Page 2 of 2
2. Petitioners may RENEW the Motion, without leave of the Court, in the event of (1) evidence that a detainee or staff member at Howard County Detention Center (“HCDC”) or Worcester County Detention Center (“WCDC”) has COVID-19; (2) the failure of Respondents to file a Testing Certification by Wednesday, April 8, 2020, attesting that HCDC and WCDC have COVID-19 tests and will administer a test to any individual at HCDC or WCDC with suspected COVID-19 symptoms; (3) the postponement of a Petitioner’s currently scheduled immigration hearing; or (4) other materially changed circumstances. Any renewed Motion will be handled on an extremely expedited basis and may be decided without a hearing.
3. Respondents are ORDERED to (1) immediately inform the Court and Petitioners of any evidence that a detainee or staff member at HCDC or WCDC has COVID-19; and (2) immediately provide to the Court and Petitioners, upon execution, the abovedescribed Testing Certifications as to both HCDC and WCDC.

Date: April 3, 2020

/s/ Theodore D. Chuang THEODORE D. CHUANG United States District Judge

2

 
 Case 8:20-cv-00780-TDC Document 74 Filed 04/27/20 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

MAURICIO COREAS and ANGEL GUZMAN CEDILLO,
Petitioners,
v.
DONNA BOUNDS, in her official capacity as Warden, Worcester County Detention Center, JACK KAVANAUGH, in his official capacity as Director, Howard County Detention Center, JANEAN OHIN, in her official capacity as Acting Baltimore Field Office Director, U.S. Immigration and Customs Enforcement, MATTHEW T. ALBENCE, in his official capacity as Deputy Director and Senior Official performing the duties of the Director of the U.S. Immigration and Customs Enforcement, and IMMIGRATION AND CUSTOMS ENFORCEMENT,
Respondents.

Civil Action No. TDC-20-0780

ORDER On April 26, 2020, in response to the Government’s report that a nurse at Howard County Detention Center (“HCDC”) has tested positive for COVID-19, ECF No. 71, Petitioners filed an Amended Complaint adding one petitioner, ECF No. 72, and a Renewed Motion for a Temporary Restraining Order relating to both HCDC and Worcester County Detention Center (“WCDC”), ECF No. 73. Having reviewed the filings, it is hereby ORDERED that:

Case 8:20-cv-00780-TDC Document 74 Filed 04/27/20 Page 2 of 3
1. The Renewed Motion for a Temporary Restraining Order, ECF No. 73, is DENIED WITHOUT PREJUDICE. The Court’s Case Management Order provides that “[n]o motions may be filed without first seeking a Pre-Motion Conference with the Court.” Case Management Order § II.A.1, ECF No. 62. The Court’s April 3, 2020 Order, ECF No. 57, granted Petitioners leave to renew their initial Motion, ECF No. 2, in the event that an individual detained in or working at a particular facility tested positive for COVID-19. Where there has been a reported case at HCDC only, but Petitioners’ Renewed Motion relates to both HCDC and WCDC and seeks to add a new petitioner relating to WCDC, the Renewed Motion was not authorized by the April 3 Order and failed to comply with the procedures in the Case Management Order. Moreover, a Motion for a Temporary Restraining Order relating to both facilities is not warranted where the Government is already on notice such that there is no basis to seek relief without giving the Government notice or an opportunity to respond.
2. Petitioners may refile a Motion for a Preliminary Injunction as to HCDC only. Petitioners may also submit a Notice of Intent to File a Motion for a Preliminary Injunction as to WCDC, pursuant to the Court’s Case Management Order.
3. Petitioners shall refile the Amended Complaint and include as exhibits the documents, articles, or webpages referenced in the text or footnotes that the parties wish the Court to consider. If such items are not attached as exhibits, neither the source documents nor the text relying on those documents will be considered. Likewise, any documents, articles, or webpages referenced in any renewed Motions and affidavits to those Motions must be included as exhibits if they and the discussion relating to them are to be considered.
2

Case 8:20-cv-00780-TDC Document 74 Filed 04/27/20 Page 3 of 3
4. If Petitioners wish to file a single combined Motion, they may wait until after the Case Management Conference on the proposed WCDC Motion. Any combined Motion must clearly separate the facts and arguments relating to the two different facilities.
5. A Case Management Conference is scheduled for today, April 27, 2020, at 2:00 p.m. Call-in information will be circulated separately.

Date: April 27, 2020

/s/ Theodore D. Chuang THEODORE D. CHUANG United States District Judge

3

 
 Case 8:20-cv-00780-TDC Document 91 Filed 05/04/20 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

MAURICIO COREAS, ANGEL GUZMAN CEDILLO and WILLIAM KEMCHA,
Petitioners,
v.
DONNA BOUNDS, in her official capacity as Warden, Worcester County Detention Center, JACK KAVANAUGH, in his official capacity as Director, Howard County Detention Center, JANEAN OHIN, in her official capacity as Acting Baltimore Field Office Director, U.S. Immigration and Customs Enforcement, MATTHEW T. ALBENCE, in his official capacity as Deputy Director and Senior Official performing the duties of the Director of the U.S. Immigration and Customs Enforcement, and IMMIGRATION AND CUSTOMS ENFORCEMENT,
Respondents.

Civil Action No. TDC-20-0780

ORDER Upon review of the parties’ briefs on the Renewed Motion for a Preliminary Injunction filed by Petitioners Angel Guzman Cedillo and William Kemcha, ECF No. 79, the Court finds that the following information is relevant and material to the resolution of the Motion. Accordingly, it is hereby ORDERED that:

Case 8:20-cv-00780-TDC Document 91 Filed 05/04/20 Page 2 of 2
1. Respondents shall PRODUCE for in camera review the following information by Tuesday, May 5, 2020: a. All medical records covering the period from March 1, 2020 to the date of this Order for all inmates or detainees at Worcester County Detention Center (“WCDC”) who, during any part of this time period, stayed overnight in the medical housing area, an isolation cell, or any location other than their assigned cells, for any medical reason. b. An affidavit from the Medical Director of WCDC or the Warden of WCDC affirming under penalty of perjury that the submitted records represent all records satisfying these criteria.
2. The required medical records shall be FILED under seal, ex parte, and in an unredacted form. Each inmate’s or detainee’s set of medical records covering the relevant time period shall be filed as a separate exhibit.

Date: May 4, 2020

/s/ Theodore D. Chuang THEODORE D. CHUANG United States District Judge

2

 
 Case 8:20-cv-00780-TDC Document 94 Filed 05/07/20 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

MAURICIO COREAS, ANGEL GUZMAN CEDILLO and WILLIAM KEMCHA,
Petitioners,
v.
DONNA BOUNDS, in her official capacity as Warden, Worcester County Detention Center, JACK KAVANAUGH, in his official capacity as Director, Howard County Detention Center, JANEAN OHIN, in her official capacity as Acting Baltimore Field Office Director, U.S. Immigration and Customs Enforcement, MATTHEW T. ALBENCE, in his official capacity as Deputy Director and Senior Official performing the duties of the Director of the U.S. Immigration and Customs Enforcement, and IMMIGRATION AND CUSTOMS ENFORCEMENT,
Respondents.

Civil Action No. TDC-20-0780

ORDER For the reasons set forth in the accompanying Memorandum Opinion and in Coreas v. Bounds, No. TDC-20-0780, 2020 WL 1663133 (D. Md. Apr. 3, 2020), it is hereby ORDERED that: 1. The Renewed Motion for a Preliminary Injunction filed by Petitioners Angel
Guzman Cedillo and William Kemcha (“Petitioners”), ECF No. 79, is GRANTED.

Case 8:20-cv-00780-TDC Document 94 Filed 05/07/20 Page 2 of 3
2. Guzman Cedillo and Kemcha shall be RELEASED from Worcester County Detention Center within 24 hours of this Order, on the following conditions: a. Guzman Cedillo shall reside at 1032 University Boulevard, Apartment 102, Silver Spring, Maryland. b. Kemcha shall reside at 13151 Larchdale Road, Apartment 10, Laurel, Maryland. c. Petitioners shall self-quarantine at their respective addresses for the first 14 days following their release. Thereafter, they may not travel outside of Maryland, Virginia, or Washington, D.C. without the advanced permission of U.S. Immigration and Customs Enforcement (“ICE”). d. Petitioners shall be subject to location monitoring, at the discretion of ICE. e. Petitioners shall appear, either in person or telephonically, as required by ICE upon reasonable notice, including at any hearing in their immigration proceedings and for removal if ordered. f. Petitioners shall assist ICE in obtaining necessary travel documents for them, including that Kemcha shall comply with the requirements relating to travel documents set forth in ECF No. 86-4. g. Guzman Cedillo shall comply with the terms of supervised release set in United States v. Guzman, No. ELH-19-0139 (D. Md.), including reporting to his assigned United States Probation Officer, by telephone if necessary, within 72 hours of release from ICE custody. Guzman Cedillo shall provide ICE with the officer’s name, address, and telephone number, and the reporting requirements.
2

Case 8:20-cv-00780-TDC Document 94 Filed 05/07/20 Page 3 of 3
h. To the extent that either Petitioner is subject to any other form of court supervision, such as probation or parole, he shall report to the assigned probation officer or parole officer within five business days of release, by telephone if necessary, and shall follow all reporting and supervision requirements mandated by that office, and provide ICE with the officer’s name, address, and telephone number, and the reporting requirements.
i. Petitioners shall not commit any federal, state, or local crime and shall comply with all government orders relating to the COVID-19 pandemic.
j. Petitioners shall not associate with known gang members or individuals engaged in criminal activity and shall not be associated with gang or criminal activities.
k. Petitioners shall continue to follow any existing doctor’s orders relating to physical or mental health, including taking prescribed medications.
3. No bond will be required of Guzman Cedillo or Kemcha.

Date: May 7, 2020

/s/ Theodore D. Chuang THEODORE D. CHUANG United States District Judge

3

 
 Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 1 of 44

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

MAURICIO COREAS et al.
Petitioners,
V.
DONNA BOUNDS, in her official capacity as Warden^ Worcester County Detention Center,et al.
Respondents.

Civil Action No.TDC-20-0780

ALPHA IBRAHIM BAH MANSARAY, Petitioner,
V.
JACK KAVANAGH et al. Respondents.

Civil Action No. TDC-20-1304

MEMORANDUM OPINION
Petitioners Mauricio Coreas, Jose Quinteros Hernandez, Julio Navarro Martinez, Angel Guzman Cedillo, William Kemcha, and Wilson Ramos Reyes have filed a civil class action (^"^Coreas")in which they seek release from detention pursuantto a writ ofhabeas corpus ofa class of all medically vulnerable detainees held in Maryland detention facilities under the authority of United States Immigration and Customs Enforcement("ICE"),on the grounds that the COVID-19 pandemic has resulted in unconstitutional conditions ofconfinement at those facilities. This case has been consolidated with a Petition for a Writ of Habeas Corpus filed by Petitioner Alpha Ibrahim Bah Mansaray (^'"Mansaraf^), who seeks his release from immigration detention on

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 2 of 44
similar grounds. Pending before the Court is Petitioners' Motion for Class Certification and
Expedited Bail Hearings. The Motion is fully briefed, and the Court held a hearing on the Motion on September 2,2020. For the reasons set forth below,the Motion will be GRANTED IN PART
and DENIED IN PART. BACKGROUND
Relevant background facts and procedural history are setforth in this Court's memorandum opinions and memorandum order addressing earlier motions for preliminary injunctions filed by certain Petitioners. See Coreas v. Bounds{Coreas I), F. Supp. 3d. ,2020 WL 1663133,*15(D. Md.Apr.3,2020); Coreas v. Bounds{Coreas11), F. Supp.3d. ,2020 WL 2201850,*1 (D. Md. Apr. 30,2020); Coreas v. Bounds{Coreas III), F. Supp. 3d. ,2020 WL 2292747, *1-3(D. Md. May 7,2020). The Court incorporates those opinions and orders into this opinion and sets forth below only those additional facts relevant to the resolution ofthe pending Motion. 1. Pre-Class Petition History
Petitioners Mauricio Coreas, then an ICE detainee held at the Howard County Detention Center("HCDC")in Jessup, Maryland,and Angel Guzman Cedillo("Guzman Cedillo"),then an ICE detainee held at the Worcester County Detention Center("WCDC")in Snow Hill,Maryland, filed this suit on March 24, 2020 along with a Motion for a Preliminary Injunction seeking their immediate release from immigration detention. They argued that, given their respective medical vulnerabilities, their detention at HCDC and WCDC (collectively, "the Detention Facilities") during the COVID-19 pandemic violated their rights to substantive due process under the Fifth Amendmentto the United States Constitution,both because ICE,HCDC,and WCDC officials had acted with deliberate indifference to their health and safety and because their detention constituted impermissible punishment of civil detainees not reasonably related to a legitimate government

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 3 of 44
purpose. The Court found significant deficiencies in the conditions of confinement and the Detention Facilities' efforts to mitigate the risk presented by COVID-19,including alack oftesting for COVID-19, a failure to implement systematic social distancing protocols, and a lack of any procedures to address the heightened risk to detainees with certain medical conditions. Coreas I, 2020 WL 1663133, at *11. Nevertheless, the Court denied without prejudice the Motion for a Preliminary Injunction based on the lack of evidence that the coronavirus was present in either HCDC or WCDC. Id. at *10-14. In so ruling,however,the Court noted that ifevidence emerged as to one of the Detention Facilities that the coronavirus had entered the facility, or that Respondents were failing to test individuals with symptoms consistent with COVID-19,it would find that the continued detention of detainees in that facility with conditions that place them at high risk for death or severe illness from COVID-19("high-risk detainees"), such as Coreas and Guzman Cedillo, likely violated the Constitution. Id. at *13.
Subsequently, a nurse at HCDC tested positive for COVID-19, Coreas II, 2020 WL 2201850, at *1, and at least one immigration detainee at WCDC was identified as having symptoms ofCOVID-19 but was not tested for the coronavirus,CoreasIII, 2020 WL 22921Al,at *2. After filing an Amended Complaint adding as a Petitioner William Kemcha, a high-risk detainee at WCDC,Petitioners filed renewed Motions for Preliminary Injunctions as to all three Petitioners. Relying on its previous analysis, the Court issued preliminary injunctions ordering the release ofCoreas,Guzman Cedillo,and Kemcha pending their immigration hearings. Coreas II, 2020 WL 2201850, at *3; Coreas III, 2020 WL 2292747, at *6.
On May 26, 2020, Mansaray filed his Petition for a Writ of Habeas Corpus seeking his release from HCDC on the grounds that HCDC's failure to adequately protect him, a high-risk detainee,from the threat ofCOVID-19 violated his constitutional rights.

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 4 of 44
II. The Class Petition
On May 29,2020,Petitioners filed a Second Amended Class Action Petition for a Writ of
Habeas Corpus ("the Class Petition") which added Quintero Hernandez, Navarro Martinez, and
Ramos Reyes as Petitioners. The Class Petition seeks certification of a class defined as "All
persons who are or will in the future be held in ICE detention in Maryland who are age 50 or older or who have medical conditions that place them at heightened risk ofsevere illness or death from COVID-19." Class Pet. 1107,ECF No. 105. It also requests certification ofa"Howard County
Subclass" defined as"All persons who are or will in the future be in ICE detention at the Howard County Detention Center who are age 50 or older or who have medical conditions that place them at heightened risk ofsevere illness or death from COVID-19,"id.^ 108,and a"Worcester County Subclass"defined as"All persons who are or will in thefuture be in ICE detention atthe Worcester County Detention Center who are age 50 or older or who have medical conditions that place them at heightened risk ofsevere illness or death from COVID-19,"id. Tf 109. The pending Motion for Class Certification and Expedited Bail Hearingsfollowed. On July 1,2020,while this Motion was being briefed,the Court consolidated Coreas and Mansdray.
Petitioners are all current or former ICE detainees at HCDC or WCDC. They all assert that they are high-risk detainees in that they have certain risk factors that they believe place them at high risk for severe illness or death if they contract COVID-19. Coreas, who was detained at HCDC before this Court ordered his release pending his immigration hearing pursuant to a preliminary injunction, suffers from diabetes. Quintero Hernandez is currently detained at HCDC and is 56 years old. Navarro Martinez, who was detained at HCDC before his release on May 26, 2020 after an immigration judge granted his application for relief from removal, suffers from

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 5 of 44
severe gastritis,chronic heart pain,and a possible undiagnosed heart condition. Mansaray,who is currently detained at HCDC,previously suffered from pneumonia and has hypertension.
Guzman Cedillo,who was detained at WCDC before this Court ordered his release pending his immigration hearing pursuant to a preliminary injunction, suffers from hypertension, prostate problems, and chronic pain. Kemcha, who was detained at WCDC before this Court ordered his release under the same circumstances, suffers from a compromised immune system, high blood
pressure,and lymphedema. Ramos Reyes,who was detained at WCDC before he was released on June 5, 2020 after an immigration judge granted his application for relief from removal, suffers from hypertension and diabetes.
As in the original Petition,Petitioners argue in the Class Petition that,in light oftheir highrisk status and the allegedly deficient mitigation measures to address the COVID-19 pandemic, their continued detention is unconstitutional because Respondents have acted with deliberate indifference to their health and safety,and the conditions ofconfinement amount to impermissible punishment. They also argue thattheir detention underthe presentconditions,particularly the lack of special measures to protect high-risk detainees, constitutes a denial of reasonable accommodations oftheir disabilities, in violation ofthe Rehabilitation Act of 1973,29 U.S.C. §§ 701-796(2018). In particular.Petitioners focus on the close quarters in which they are housed in HCDC and WCDC,the lack offrequent sanitation and disinfecting,the frequent turnover in staff who may be carrying the coronavirus, the limited medical resources and facilities in both HCDC and WCDC,the limited guidance on,and capacity for,testing for COVID-19,and ICE'sfailure to release a large number of detainees to address overcrowding.

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 6 of 44
III. Independent Review
Since the Court's rulings on the Motions for Preliminary Injunctions in which the Court found significant deficiencies in the Detention Facilities' mitigation measures, Respondents have
reported thatthey have taken additional mitigation measures at both HCDCand WCDC,including issuing masks to staffand detainees,requiring certain staffto use these masks and other personal
protective equipment ("PPE") imder certain circumstances, and increasing sanitation in the Detention Facilities. They reported that at WCDC,ICE detainees are now all housed in single
cells.
On July 17,2020,with the agreementofthe parties,the Court appointed Dr.Fred Rottnek, Professor and Director ofCommunity Medicine at Saint Louis University and the former Medical
Director and Lead Physician for the Corrections Medicine Division of the Saint Louis County
DepartmentofHealth,as anindependentexpertcharged with conducting a review ofthe Detention
Facilities' policies and practices in response to the COVID-19 pandemic, as well as the existing
conditions at both facilities. To prepare his expert report. Dr. Rottnek reviewed records from HCDC and WCDC, in particular, each facility's process notes memorializing actions taken to address COVID-19, medical records for certain detainees, and relevant filings in this case. He also conducted an in-person visit to WCDC on July 31, 2020 and a separate visit to HCDC on August 1, 2020, during which he inspected the Detention Facilities' medical clinics, medical isolation units,housing units,detainee common rooms,central booking,and other common spaces such as kitchens and recreation rooms. Dr. Rottnek also spoke with various ICE detainees, as well as certain pretrial detainees and sentenced inmates in state criminal cases (collectively, "state

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 7 of 44
detainees"),during his visits to both Detention Facilities.' As to standards ofevaluation,he relied primarily on the Centers for Disease Control and Prevention("CDC")Interim Guidance on the Management of Coronavirus Disease 201 (COVID-19) in Correctional Detention Facilities, as well as on several other resources discussing COVID-19 management in general and COVID-19
management in correctional facilities in particular. A. Screening and Testing
Based on his review.Dr.Rottnek has concluded that both Detention Facilities have adopted screening protocols consistent with CDC guidelines. Staff and newly arriving detainees are verbally screened with questions aboutsymptoms,receive temperature checks,use hand sanitizer, and at HCDC pass over a disinfecting floor mat. At both facilities, visitors are limited to attorneys for detainees. For new detainees, HCDC requires a negative test from the sending facility or will quarantine the individual upon arrival,and it will not accept detainees from a facility with positive cases. Both facilities have adequate plans to quarantine new detainees.
Dr. Rottnek found that both Detention Facilities have put in place diagnostic testing protocols consistent with CDC guidelines to administer COVID-19 tests to any symptomatic detainees. As discussed below, both Detention Facilities have also conducted multiple rounds of universal surveillance testing, but neither has yet developed a specific plan for regular surveillance testing going forward. Although Dr. Rottnek was informed that there had been three rounds of
' Although Petitioners have alleged that certain HCDC ICE detainees were improperly warned
by Officer Rosa Savage that providing negative information to Dr. Rottnek could cause the ICE contract to end and the detainees to be transferred to distant facilities. Dr. Rottnek stated at the hearing that all the HCDC detainees that he requested to interview were made available, and there is no evidence that any ofthose detainees were the individuals allegedly wamed by Savage,so the Court finds that even if such conduct occurred, it did not materially impact Dr. Rottnek's
conclusions. 7

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 8 of 44
surveillance testing at WCDC as of July 31, 2020, there has been no reporting provided on the
results oftwo ofthose rounds. B. Medical Care
For any detainees who test positive for COVID-19, HCDC and WCDC have adopted similar 14-day isolation and quarantine policies that are consistent with CDC guidelines. At WCDC, detainees who test positive are quarantined in cells in the air conditioned medical unit, whose cells are solid doors rather than bars. AtHCDC,detainees who test positive are isolated in a large dormitory unit set aside for that purpose. Neither facility has negative-pressure isolation rooms. The conditions in both the WCDC medical unit cells and the HCDC quarantine dormitory are comparable to conditions in other parts of the facilities, with appropriate access to showers,
clean clothing, clean linens, and phone calls. Although some detainees reported slow responses to medical requests, according to Dr.
Rottnek, the medical staffing levels and medical facilities are adequate for the jail populations. While the Detention Facilities appear to be providing adequate medical care to detainees with medical conditions that place them at high risk for severe illness from COVID-19,neither facility has any specific protocols or procedures in place to provide special protection or accommodations to those detainees. Dr.Rottnek noted that the lack ofair conditioning at WCDC could potentially exacerbate chronic conditions. He also identified some lapses in medical documentation at
WCDC.
C. Social Distancing Asto social distancing measures,atthe time ofDr.Rottnek's visit, both facilities continued to have occupancy rates under capacity, with HCDC housing approximately 175 total detainees
out of a capacity of 474, and WCDC housing approximately 166 detainees out of a capacity of

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 9 of 44
500. In light of this limited population, WCDC has been able to house the 25 ICE detainees in
single cells except for those deemed to need a cellmate by mental health providers. Although HCDC also reported single occupancy for ICE detainees other than as recommended by mental health providers, certain ICE detainees told Dr. Rottnek that double occupancy in the ICE unit is common. Some ICE detainees are in dormitory rooms with multiple beds, but those beds were
spaced more than six feet apart. At the hearing, Dr. Rottnek noted that the ICE units in both
Detention Facilities were more crowded than the other parts ofthosefacilities,such thatexpanding the number of units designated for ICE detainees is 'possible and advisable. Both Detention Facilities have dayrooms large enough to enable social distancing for detainees, but Dr. Rottnek observed that many detainees were not practicing such distancing, nor was such distancing consistently enforced by staff. Similarly, although detainees had been provided with masks and are required to wear them when outside their cells, Dr. Rottnek observed that they wore them inconsistently, and the use of masks was not regularly enforced by staff. Though detainees
reported that masks had been exchanged only once a week,masks for both staffand detainees are now in adequate supply, and at least at WCDC, are replaced twice a week. Both Detention
Facilities had signage in both English and Spanish instructing detainees to socially distance and to wear masks, but that signage appeared to have been recently installed in preparation for Dr.
Rottnek's visit.
As to detainee and staff interaction. Dr. Rottnek noted that at both Detention Facilities, officers work with either ICE detainees or state detainees during a shift and do not move between the populations,but staffassigned to ICE detaineesfor one shift may be assigned to state detainees for their next shift, and vice versa. Medical staff work with both populations.

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 10 of 44
D. Hygiene Overall,both Detention Facilities were clean and well-maintained. At both,cells have their own sinks and toilets, which the detainees are responsible for cleaning themselves. Detainees are
also responsible for cleaning the common areas in their units. Each morning,they are provided a mop,bucket,brushes,and CDC-approved disinfectant cleaning agent. Detainees also have access to diluted bleach ^d paper towels for cleaning during the day. Detainees at both Detention Facilities are given soap for free, and those at WCDC also have access to liquid soap dispensers and hand dryers. Both Detention Facilities have installed hand sanitizer dispensers, with WCDC installing them inthe vestibule ofhousing units,and HCDCinstalling them throughoutthe facility, including in the housing units. Although both Detention Facilities have adequate amounts of cleaning supplies, detainees reported some inconsistency in receiving those supplies.
£. Conclusions
Based on his inspection, Dr. Rottnek ultimately concluded that both HCDC and WCDC had implemented numerous,positive measures to mitigate the risk ofCOVID-19,including those relating to the screening, quarantining and isolation, diagnostic testing, and medical care ofthose
who may have COVID-19, and those relating to the provision of masks and cleaning supplies to ICE detainees. He has stated that both Detention Facilities have administrators who are "takpng] the risk of COVID-19 seriously," and that they are at the "opposite end of the spectrum" from other detention facilities that he has inspected in his expert capacity that had "horrific" conditions reflecting a"disregard for the well-being"ofdetainees. Rottnek Rep.at 2,ECF No.165; Sept.2, 2020 Hr'g.Tr.at64,ECF No.190. Dr.Rottnek believesthateach facility could do more to enforce social distancing, which remains the best line of defense against COVID-19, and to ensure consistency in providing detainees with cleaning supplies. He noted in particular that HCDC
10

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 11 of 44
would benefitfrom thinning outthe population ofICE detainees by moving some to other parts of the facility. In addition, Dr. Rottnek has concluded that there is a "pressing need" for each Detention Facility to formally develop and document their COVID-19 protocols, as each facility instead currently has only a running log of its actions as documentation for its policies and practices. Rottnek Rep. at 2. Ultimately, however. Dr. Rottnek has concluded that "[c]urrent efforts seem to working at current census,current staffing,and current testing protocols." Id. at 2.
As to high-risk detainees, Dr. Rottnek has stated that from a public health perspective, "there is no way short ofrelease to protect the medically vulnerable from grave risk ofimminent infection and death." Rottnek Rep. at 21. He therefore encourages enforcement of CDC guidelines, reductions in the overall jail population to improve social distancing, and the release orrelocation ofmedically vulnerable detaineesto allow them to maintain social distancing. During the hearing,Dr.Rottnek clarified that although there is no way to guarantee the safety ofmedically vulnerable detainees,the risk to them can be mitigated ifthere is surveillance testing atthe facility, they are provided with masks, they are afforded proper cleaning and hygiene, and they are relocated within the facility as necessary to allow them to maintain social distance and then specifically directed to socially distance from others. Sept. 2,2020 Hr'g. Tr. at 49-50.
IV. COVID-19 Testing
Both before and since Dr. Rottnek's inspections of the Detention Facilities, Respondents
have reported on and conducted COVID-19 tests ofdetainees and staffat HCDC and WCDC. As
ofthe week ofAugust 5,2020,HCDC had conducted six rounds ofuniversal surveillance testing. On June 23 and 24,2020,all HCDC ICE detainees, state detainees, and staff were tested. All 27 ICE detainees at HCDC tested negative for COVID-19,but one ofthe 152 state detainees and one staff member tested positive. The positive state detainee was isolated, and all state detainees in
11

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 12 of 44
the wards in which he had been housed, which are separate from the ICE detainees' housing units, were quarantined. The staffmember was placed on isolation athome. The second round oftesting, completed on June 30,2020, again revealed that none ofthe 23 ICE detainees tested positive for COVID-19,nor did any ofthe 148 state detainees. In the third round oftesting,conducted during the week of July 14, 2020, no ICE detainees tested positive, but one state detainee, and two staff members did. A fourth round oftesting was conducted the following week,the week ofJuly 21, 2020, with the results revealing that none ofthe 27 ICE detainees tested positive for COVID-19, one state detainee tested positive, and no staff members tested positive. A fifth round of testing during the week ofJuly 29,2020 returned only one positive test,for the same state detainee who had tested positive in the previous round. A sixth round oftesting conducted during the week of August 5,2020 returned no positive test results.
Separate from the universal surveillance testing, HCDC learned that three staff members tested positive in tests conducted through other means: one,a nurse who works atHCDC one day per week,tested positive on April 25,2020, and a nurse'and a correctional officer tested positive on or about May 27,2020. Because the last two rounds ofuniversal testing have returned no new infections, HCDC currently has no plans for another round of universal testing.
At WCDC,four staff members reported positive tests conducted through their medical providers in late May 2020: three officers tested positive on or about May 26, 2020, and fourth employee,an off-duty officer,tested positive on or about May 31,2020. WCDC then conducted a round of universal testing during the week of June 1, 2020, which resulted in all 122 ICE detainees and state detainees testing negative for COVID-19, but six of the 99 staff members testing positive. All 10 staff who tested positive were removed fi-om duty for 14 days and not
\
permitted to return to work until after they had received two negative tests. Additional individual
12

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 13 of 44
WCDC staffor contractors reported positive tests on or about July 27,2020,August20,2020,and August 24,2020.
On August24,2020,a newly arrived ICE detainee self-reported that he had tested positive
for COVID-19 three weeks before his arrival at WCDC. WCDC was unable to obtain
documentation ofthose results. The detainee was asymptomatic,but based on his statements, he was quarantined and given twice-daily temperature and vital signs checks. WCDC also quarantined an inmate who had been transported to WCDC with the detainee. WCDC has stated that it now plans to isolate all new ICE detainees and state detainees in a single cell for seven days, administer a COVID-19 test, and not release the individual into the general population until a negative test result is received.
On or about September 1,2020,WCDC conducted another round ofuniversal surveillance testing. That testing revealed that all WCDC staff, inmates,and detainees,including the detainee who self-reported a positive test, were negative for COVID-19. WCDC then reported that a single officer tested positive on or about September 11, 2020, and on September 14, 2020 reported that another single officer had tested positive. These two officers were not permitted to retum to work and will not do so until they receive two negative tests. Finally, on September 17, 2020, WCDC reported that in a third documented round ofuniversal surveillance testing, all ICE detainees and state detainees tested negative, with the exception ofone state detainee whose test was misplaced and will need to be retested. All staff tested negative with the exception of one officer with an inconclusive result who was retested and will be isolated at home until a negative result is received.
13

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 14 of 44

DISCUSSION
Petitioners request(1)certification of a class action seeking the release of high-risk ICE

detainees from the Detention Facilities; and(2)expedited bail reviews. The Court will address the

two issues separately.

I.

Class Certification

At the outset, the Court notes that, though Respondents assert that "class action suits brought in a habeas corpus action are 'ordinarily disfavored,'" Opp'n Mot.Class Cert,at 17,ECF

No. 118(quoting Rodriguez v. Hayes,591 F.3d 1105, 1117(9th Cir. 2010)), there is substantial

precedent for pursuing habeas actions on a class basis. See Rodriguez v. Hayes, 591 F.3d 1105,

1117 (9th Cir. 2010)("[T]he Ninth Circuit has recognized that class actions may be brought

pursuant to habeas corpus.");Bonner v. Cir. Ct, ofCity ofSt. Louis,526 F.2d 1331, 1335 n.4(8th Cir. 1975)("Habeas case class actions are allowed in this circuit."); Diaz v. Hott,297 F.Supp.3d 618,626-28(E.D. Va. 2018)(certifying a class action brought through a habeas petition), affd

sub nom. Guzman Chavezv. Hott,940F.3d 867(4th Cir.2019),cert,grantedsub nom.onseparate

question, Albence v. Chavez, No. 19-897, 2020 WL 3146678 (U.S. June 15, 2020). Indeed,

numerous federal courts across the nation have certified, provisionally or otherwise, class actions brought by immigration detainees through habeas petitions during the ongoing COVID-19

pandemic. See, e.g.. Gomes v. Acting Sec'y, U.S. Dep't ofHomelandSec.,No.20-453-LM,2020 WL 2113642,at *2-4(D.N.H. May 4,2020);Zepeda Rivas v. Jennings,445 F. Supp.3d 36,38-

39(N.D. Cal. Apr.29,2020);Savino v. Souza, F."Supp.3d ,2020 WL 1703844,at *4,*8

(D.Mass. Apr.8,2020). The Court may therefore consider both the Class Petition and the Motion.

14

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 15 of 44
A. Legal Standard A class action allows representative parties to prosecute not only their own claims, but also
the claims ofother individuals which present similar issues. Thorn v. Jefferson-PilotLife Ins. Co., 445 F.3d 311,318 (4th Cir. 2006). The use of a class action is primarily justified on the grounds of efficiency, because it advances judicial economy to resolve common issues affecting all class members in a single action. See id. Because ofthe need to protect the rights ofabsent plaintiffs to assert different claims and ofdefendants to assert facts and defenses specific to individual class members, courts must, before certifying a class, conduct a "rigorous analysis" of whether a proposed class action meets the requirements of Federal Rule of Civil Procedure 23. Id. Courts have wide discretion to certify a class based on their familiarity with the issues and potential difficulties arising in class action litigation. See, e.g., Ward v. Dixie Nat7Life Ins. Co.,595 F.3d
164, 179(4th Cir. 2010).
A plaintiffhas the burden to show that all ofthe necessary prerequisites for a class action have been met. Gunnells v. Healthplan Servs., Inc., 348 F.3d 417,458(4th Cir. 2003). In order to be certified, a class must satisfy all four elements of Rule 23(a): numerosity, commonality, typicality, and adequacy. Fed. R. Civ. P. 23(a). If the named plaintiff satisfies each of these requirements,the Court must still find that the proposed class action fits into one ofthe categories of class action under Rule 23(b) in order to certify the class. Where Petitioners invoke Rule 23(b)(2), they must establish that "the party opposing the class has acted or refused to act on groundsthatapply generally to the class,so that finalinjunctive reliefor corresponding declaratory reliefis appropriate respecting the class as a whole." Fed. R.Civ.P.23(b)(2).
Importantly, a decision on whether these prerequisites are satisfied is not a preliminary assessment ofthe underlying merits ofthe claim. See Eisen v. Carlisle & Jacquelin,417 U.S. 156,
15

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 16 of 44
178(1974)("In determining the propriety ofa class action,the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met."(quoting Miller v. Mackey Int'l, 452 F.2d 424,427(5th Cir. 1971))). Nevertheless,"Rule 23 does not set forth a mere pleading standard." Wal-Mart Stores, Inc. V. Dukes,564 U.S. 338,350(2011). "A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties,common questions oflaw or fact, etc." Id;see EQTProd. Co. V. Adair,764F.3d 347,357(4th Cir.2014)(holding thatthe party seeking class certification"must present evidence that the putative class complies with Rule 23").
Finally, because Petitioners also seek certification of two subclasses, the Court will also assess whether these subclasses are certifiable. "When appropriate, a class may be divided into subclasses that are each treated as a class under this rule." Fed. R. Civ. P. 23(c)(5). Subclasses must independently satisfy each ofthe requirements set outin Rule 23(a)and(b). See Johnson v. Meriter Health Servs. Emp.Ret.Plan,702F.3d 364,368(7th Cir. 2012)(holding thatthere is"no objeetion" to having multiple subclasses in one class action so long as each subclass "otherwise satisfies the requirements for certifying a class,so that each could be the plaintiffclass in aseparate class action"); Belts v. Reliable Collection Agency, Ltd, 659 F.2d 1000, 1005 (9th Cir. 1981) (holding that subclasses must independently satisfy Rule 23's requirements).
B. Standing and Mootness Before turning to the Rule 23 factors, the Court must first address whether Artiele III of
the United States Constitution poses a barrier to Petitioners' proposed class. Article III limits the judicial power ofthe federal courts to actual"Cases"and "Controversies." U.S.' Const, art. Ill, § 2, el. 1. This clause has given rise to the separate, though related, doctrines of standing and
16

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 17 of 44
mootness. Under the doctrine ofstanding,plaintiffs mustprove thatthey have"suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision." Hollingsworth v. Perry, 570 U.S. 693, 704 (2013). Under the doctrine of mootness,"[wjhen a case or controversy ceases to exist, the litigation is
moot,and the court's subject matterjurisdiction ceases to exist also." S.C. Coastal Conservation
League v. U.S. Army Corps of Eng'rs, 789 F.3d 475, 482 (4th Cir. 2015). Both of these requirements apply to representative plaintiffs in class actions. See Baehr v. Creig Northrop Team, B.C.,953 F.3d244,252(4th Cir.2020)("The strictures ofArticle III standing are no lessimportant in the context ofclass actions.");see also United States v. Sanchez-Gomez,138 S. Ct. 1532, 1538 (2018)("Normally a class action would be mootifno named classrepresentative with an unexpired claim remained at the time ofclass certification.").
Here,Respondents argue that all ofPetitioners either lack standing or have had their claims rendered moot such that the Court cannot certify the proposed class. As to standing,they argue that Quinteros Hernandez lacks standing because "his only 'medical condition' is that he is 56 years old—thisis notariskfactor." Opp'n Mot.Class Certat31. This argumentconfuses standing with the merits of Quinteros Hernandez's claim. Even assuming that being 56 years old does not formally place an individual at a high risk of death or serious illness from COVID-19, Quinteros Hernandez has still properly alleged an injuiy-in-fact based on his continued incarceration under allegedly unconstitutional conditions arising from a failure to address the threat posed by the COVID-19 pandemic. This injury is traceable to Respondents and would be redressed by an order from this Court granting release or ordered remedial action. See Spokeo,Inc. v. Robins,136 S. Ct. 1540,1547(2016). He therefore has standing.
17

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 18 of 44
Respondents further argue that the remaining named Petitioners—Coreas, Guzman Cedillo, Kemcha,Navarro Martinez,and Ramos Reyes—have all had their claims rendered moot by their individual releases. Coreas,Guzman Cedillo,and Kemcha were all released pending their immigration hearings by orders ofthis Courtissued in conjunction with the granting ofpreliminary injunctions. See Apr. 30,2020 Prelim.Inj. If 1,ECF No.88; May 7,20| 20 Ord. 2,ECF No. 94. They have therefore received only interim relief. "[Tjhe findings offact and conclusions oflaw
made by a court granting a preliminary injunction are not binding at trial on the merits." Univ. of Texas V. Camenisch,A5\ U.S.390,395(1981)(intemal citation omitted);.yeea/.soMomi'v. Hoffa, 361 F.3d 177, 189(3d Cir. 2004)("[A] decision on a preliminary injunction is, in effect, only a prediction about the merits ofthe case."(quoting United States v. Local 560, IBT,974 F.2d 315, 330(3d Cir.1992))). Because the Court mustrevisit this reliefoh the merits and may revoke their
releases,the claims ofCoreas,Guzman Cedillo,and Kemcharemain live controversies and are not
moot.
Navarro Martinezand Ramos Reyes,by contrast, were both granted relieffrom deportation and were released on May 26,2020 from HCDC and on June 5,2020from WCDC,respectively. ICE has waived its right to appeal the decision regarding Ramos Reyes, but it is not clear whether ICE has also waived its right to appeal the decision regarding Navarro Martinez. In such circumstances, at least where there is no sign of collateral consequences, their claims are now moot. See Spencer v. Kemna,523 U.S. 1,7(1998)(holding that claims of a prisoner are moot after release from inc^ceration or parole and in the absence ofa"collateral consequence" ofthe conviction).
The Class Petition and the Motion may nevertheless proceed. First, there is at least one named Petitioner from each ofHCDC and WCDC who has a live claim. As to HCDC,Coreas and
18

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 19 of 44
Quinteros Hernandez have live claims, as does Mansaray, who is currently incarcerated at HCDC and is a high-risk detainee based on his medical condition ofhypertension. As to WCDC,Guzman Cedillo and Kemcha have live claims. Moreover, it is well-settled that under certain circumstances, individuals such as Navarro Martinez and Ramos Reyes can serve as class representatives for purposes of class certification even after their own claims have been rendered moot. In County ofRiverside v. McLaughlin,500 U.S.44(1991),the United States Supreme Court confronted a class action challenge to the probable cause determination procedures implemented by a California county. Id. at 47,49. The Court noted that the named plaintiffs' claims became moot before the class was certified by the district court but nevertheless held that where a claim is "so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires," the mootness ofa named plaintiffs claim before class certification does not moot the class action. Id. at 51-52 (quoting United States Parole Comm'n v. Geraghty,445 U.S. 388,399(1980)). "In such cases, the 'relation back' doctrine is properly invoked to preserve the merits of the case for judicial
resolution." Id. at 52.
Here, Petitioners' claims are inherently transitory because based on the nature of immigration proceedings, their detention can suddenly end before a court can rule on a class certification motion. Just days after joining this case as a named plaintiff, Ramos Reyes was released based on a favorable ruling by the immigration court. Kemcha, who joined this case on April 26,2020,had been scheduled for removal on April 1,2020 and was granted a reprieve only two days before, on March 30, 2020, when the airline canceled his flight due to concerns about COVID-19. In similar circumstances, courts have held that immigration detention is sufficiently inherently transitory for the exception to mootness to apply. For example, in Nielsen v. Preap,
19

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 20 of 44
139 S. Ct. 954 (2019), a plurality of the Supreme Court applied this principle to a class of immigration detainees that had "claim[ed] that they would be harmed by detention without a hearing pending a decision on their removal" and concluded that "the fact that a class 'was not certified until after the named plaintiffs' claims had become moot does not deprive us of jurisdiction' when,as in these cases,the harms alleged are transitory enough to elude review." Id. at 963(quoting Cty. ofRiverside,500 U.S.at 52)(plurality opinion). "Because this type ofinjury ends as soon as the decision on removal is made,it is transitory." Id. Similarly,the United States Court of Appeals for the District of Columbia Circuit applied this same exception to mootness in a class action brought by another group ofimmigration detainees,this time pregnant minors who entered the United States alone without lawful immigration status, because "[t]he claims at issue likely will, or at least might, end quickly," as there were several potential events that might result in the plaintiffs' release from custody. J.D. v. Azar,925 F.3d 1291, 1299, 1311 (D.C. Cir. 2019) (per curiam);see also Lyon v. U.S. Immigration & CustomsEnft,300 F.R.D.628,639(N.D.Cal. 2014)(holding that immigration detainees' class claims were inherently transitory because "the length ofdetention cannot be ascertained at the outset and may be ended before class certification by various circumstances"), modified sub nom. Lyon v. U.S. Immigration & Customs Enft, 308 F.R.D.203(N.D.Cal. 2015).
The Courttherefore finds that claims such as those ofNavarro Martinez and Ramos Reyes are inherently transitory such that the Motion for Class Certification could "relate[] back to the filing ofthe complaint." Genesis Healthcare Corp. v. Symczyk,569 U.S.66,71 n.2(2013)(citing Cty. ofRiverside, 500 U.S. at 51-52). Where Navarro Martinez was released before the filing of the Class Petition, his claim cannot support the class claim as to HCDC under the relation back doctrine. But the doctrine may be applied to Ramos Reyes's claim, which was included in the
20

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 21 of 44
Class Petition before he was released, such that even if Guzman Cedillo and Kemcha were not proper named plaintiffs with live claims relating to WCDC,the class claim as to WCDC could proceed based on Ramos Reyes's now moot claim.
C. Rule 23(a) 1. Numerosity
To satisfy the numerosity requirement, the proposed class must be so numerous that "joinder ofall members is impracticable." Fed.R.Civ.P.23(a)(1). In assessing this prerequisite, "numbers alone are not controlling," and a district court should consider"all ofthe circumstances ofthe case." Ballard v. Blue Shield ofS.W. Va., Inc., 543 F.2d 1075, 1080(4th Cir. 1976). The burden is on the plaintiffs to show that other class members exist and that their joinder is impracticable. See Wal-Mart Stores, Inc., 564 U.S. at 351; Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349,356-57(3d Cir. 2013);Poindexter v. Teuhert,462 F.2d 1096, 1097(4th Cir. 1972)(per curiam).
Here, at the time of the filing of the Class Petition, the overall class consisted of 29 members, whieh included 12 identified members of the HCDC Subclass and 17 identified
members ofthe WCDC subclass. The United States Court of Appeals for the Fourth Circuit has upheld the certification ofa class with as few as 18 members. Cypress v. Newport News Gen. & Nonsectarian Hosp.Ass'n,375 F.2d 648,653(4th Cir. 1967). Although as a numerical matter the sizes of the subelasses are at the lower end of certified classes, the Court finds that under the circumstances ofthis case,numerosity is satisfied. Although the numbers have since declined to a total of12 overall class members,the Court appropriately considers the number ofputative class members at the time of the filing of the Class Petition. Cf. Cty. ofRiverside, 500 U.S. at 51-52
21

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 22 of 44
(applying the "relation back" doctrine to a class action where the claims at issue were "inherently transitory").
First, both subclasses are defined to include any future high-risk ICE detainees at HCDC or WCDC. "[T]he fact that the class includes unknown,unnamed future members... weighs in favor of certification." Pederson v. La. State Univ., 213 F.3d 858, 868 n.ll (5th Cir. 2000). In Cypress^ for example,the Fourth Circuit held that although a class of18 African American doctors in one region who had been denied staffmembership at the local hospital on the basis ofrace was sufficiently large on its own to satisfy numerosity,the class would likely also satisfy numerosity because the class could also be understood to contain members who had not yet moved to the area but who would like to do so if the challenged discriminatory policy were struck down. Cypress, 375 F.2d at 651-52,653 & n.9. In J.D., the court rejected the argument that numerosity was not satisfied where in a given year there were only 18 unaccompanied minors seeking an abortion while in federal immigration custody in part because "classes including future claimants generally meet the numerosity requirement due to the frmpracticality ofcounting such class members,much less joining them.'" J.D., 925 F.3d at 1322(quoting 1 Rubenstein, Newberg on Class Actions § 3:15(5th ed.2011)). Although the number ofputative class members has declined with the recent releases of several ICE detainees, Respondents have reported on at least one new ICE detainee received at WCDC who arrived on August 24,2020 and reportedly had previously tested positive for COVID-19. With the number of ICE detainees and thus putative class members likely to fluctuate over time. Petitioners' assertion that the subclasses include future immigration detainees as the Detention Facilities supports a finding ofnumerosity.
Second,joinder is impractical because ofthe special characteristics ofthe class members. As immigration detainees who may lack legal status and could be removed from the United States
22

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 23 of 44
at any time, they are inherently "transient," lack sophistication, and do not always speak English well. See Daud Decl. 7-8, Mot. Preliminary Injunction Ex. 74, ECF No. 79-6 (describing the need for a translator for an immigration detainee); Benevente-Perez Med. Records at 3, Mot. Prelim. Inj. Ex.75,ECF No.81 (describing an immigration detainee's use ofa translator). These characteristics support a finding of numerosity. See Brito v. Barr, 395 F. Supp. 3d 135, 144 n.3 (D. Mass.2019)(finding joinder impracticable for numerosity purposes in part because the class of immigration detainees were "transient" and lacked English language skills and the ability to secure counsel); Mondragon v. Scott Farms, Inc., No. 17-356-FL, 2019 WL 6125928, at *4 (E.D.N.C. Nov. 18, 2019)(finding joinder of migrant worker class members impracticable for purposes of numerosity based in part of their lack of English ability and their lack of sophistication). Such detainees likely also have limited financial resources and lack the ability to retain counsel to bring their own cases, which courts have also found to make joinder impracticable. See Robidowc v. Celani, 987 F.2d 931, 936 (2d Cir. 1993)(finding numerosity based in part on the fact that potential class members were "economically disadvantaged"); Brito, 395 F. Supp. 3d at 144 n.3 (relying in part on class members' lack of access to counsel); Coleman ex rel. Bunn v. Dist. of Columbia, 306 F.R.D. 68, 80-82 (D.D.C. 2015) (finding joinder impracticable in part based on class members' lack offinancial resources); Scott v. Clarke,61 F. Supp. 3d 569,584(W.D. Va. 2014)(finding numerosity based in part on the class of prisoners' lack of access to counsel to pursue challenges to allegedly inadequate medical care).
Third, the fact that both subclasses seek injunctive relief implicates another factor which courts have held to support a finding of numerosity where the class is relatively small, as "the defendant will not be prejudiced ifthe plaintiffproceeds on a class action basis, as opposed to an individual basis, because the requested relief generally will benefit iiot only the claimant but all
23

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 24 of 44
other persons subject to the practice under attack." JVeiss v. York Hosp., 745 F.2d 786, 808(3d Cir. 1984);Penn. Pub. Sch. Emps.'Ret. Sys. v. Morgan Stanley & Co.,772 F.3d 111, 120(2d Cir. 2014). In Jackson v. Danberg,240 F.R.D. 145(D. Del. 2007),for example,the court held that a class of16 current and all future death row inmates in Delaware was sufficiently numerous in part because "the numerosity requirement has been relaxed in cases like this where injunctive and declaratory relief is sought by the class." Id. at 147.
To be sure,as Respondents note,some factors makejoinder appear less impracticable: the class members are geographically concentrated, they can be identified and served without much difficulty, and the efficiency gains of proceeding on a class basis are somewhat mitigated by the fact that Petitioners have requested individualized bail hearings for each class member. Even accepting these points in Respondents'favor,none ofthem are dispositive,and taken together they do not outweigh the factors detailed above demonstrating the impracticability ofjoinder. The Court therefore finds that numerosity is satisfied.
2. Commonality Commonality requires that a class have "questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). This prerequisite "requires the plaintiff to demonstrate that the class
members 'have suffered the same injury.'" Wal-Mart Stores, Inc., 564 U.S. at 349-50 (quoting Gen. Tel. Co. ofSw. v. Falcon, 457 U.S. 147, 157 (1982)). The claim arising from this shared injury must be sufficiently similar "that it is capable of classwide resolution—which means that determination ofits truth or falsity will resolve an issue that is central to the validity ofeach one
ofthe claims in one stroke." Id. at 350.
Here, Petitioners argue that, although the proposed class encompasses class members detained in multiple facilities, all ofthe putative class members have suffered the same injury—
24

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 25 of 44
"they have been or will be detained in Maryland with insufficient protection while at heightened risk ofserious illness or death from COVID-19," Mot.Class Cert,at 8,ECFNo.116-1—and raise the same claim in response to that injury—^that their continued detention violates their Fifth Amendment rights. Although the Class Petition refers at length to the conditions ofconfinement at the two Detention Facilities as the source of the constitutional violation, it also implicates at least one overarching policy imposed by ICE as one of the sources of the harm. Specifically, Petitioners allege that"ICE's official guidance on COVID-19 does not state under whatconditions detainees would be tested" and "does not offer an effective way to determine who even has the virus." Class Pet. 50-51. Thus,Petitioners have identified a common question—^whetherICE's policy of not requiring detention facilities to follow a testing protocol of some kind renders the
conditions ofconfinementforICE detainees in the Detention Facilities unconstitutional—^that it is
capable ofclasswide resolution and the determination ofwhich"willresolve an issue thatis central to the validity ofeach one ofthe claims in one stroke." Wal-Mart Stores, Inc., 564 U.S. at 350. The significance ofthis question is illustrated by Respondents' acknowledgment at the hearing on the Motion that any testing at the Detention Facilities is based on decisions and choices made by County authorities and not pursuant to any directives or mandates from ICE.
Courts have found that where class plaintiffs attack an overarching policy,the fact that the challenged policy is applied across multiple facilities does not defeat commonality. In Parsons v. Ryan,754 F.3d 657(9th Cir. 2014), for example, the court upheld the certification of a class of prisoners that spanned 10 prisons in Arizona. Id. at 662. The court found that the proposed class satisfied the commonality requirement because the challenge was to "policies and practices of statewide and systemic application" relating to medical, dental, and mental health care, as well as confinementin isolation cells, by the Arizona Department ofCorrections rather than conditions in
25

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 26 of 44
individual facilities. Id. at 662, 676. Where a single common question "will do" to meet this requirement, the Court finds that commonality has been established. Wal-Mart Stores, Inc., 564
U.S. at 359.
Nevertheless,this case is most appropriately analyzed through the two subclasses proposed by Petitioners, consisting of the high-risk ICE detainees at HCDC and WCDC, respectively. Indeed, courts have found that a class action may comprise multiple subclasses even where no overarching certifiable class has been established. See Shook v. Bd. ofCty. Comm'rs ofElPaso,
543 F.3d 597, 606-07(10th Cir. 2008)(holding that where a district court had determined that
there were too many variations in the mental health needs ofinmates to allow for a single class alleging unconstitutional mental health treatment at a prison, the district court could have addressed this flaw by sua sponte authorizing subclasses that each complied with Rule 23's requirements);Klayv. Humana,Inc.,382F.3d 1241,1261,-62(11th Cir.2004)(holding that where there were variationsin state laws precluding asingle class ofdoctors alleging breaches ofcontract by health maintenance organizations that systematically underpaid physicians for their services, subclasses could be certified covering class members applying the same legal standards), abrogatedinparton othergrounds byBridge v.Phoenix Bond&Indent. Co.,553 U.S.639(2008).
The subclasses are warranted because while Petitioners themselves focus on the on-the-
ground conditions when they assert that"[a]ll ofthe proposed class members are being or will be
subjected to the same conditions,"Mot.Class Cert,at8,the actual conditions atHCDC and WCDC
appear to differ in certain ways. The two facilities differ on such issues as whether and how they accept new detainees, how crowded the facilities are as compared to their capacity limits, the number ofdetainees in a cell or dormitory,the facility's specific cleaning protocols,and to what extent COVID-19 has breached the facility. CoreasI,2020 WL 1663133,at *4-5, 10-11; Coreas
26

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 27 of 44
77,2020 WL 2201850,at *2; CoreasIII,2020 WL 2292747,at *3-4. Even though ICE may have a deficient overall policy relating to testing and other mitigation measures, the reality of how the Detention Facilities have filled that vacuum also differs, with WCDC relying on guidance from the Worcester County Health Department to determine when to conduct tests, and with HCDC relying on guidance from the Howard County Health Department as the basis for its decisions relating to testing and other mitigation procedures. Indeed,previously in this litigation,the Court has treated the Detention Facilities as each presenting different claims, noting that "the facts relating to the Detention Facilities are of particular importance to the Court's analysis." Coreas 7,
2020 WL 1663133, at *10.
Despite these variations, the subclasses each satisfy commonality on their own. The subclasses each present as to the individual facility at issue the common question of whether the HCDC or WCDC policies and procedures relating to issues such as testing, screening, social distancing, sanitation, and treatment of high-risk detainees reveal deliberate indifference to detainee health and safety, and impose impermissible punishment, that renders the conditions of confinement unconstitutional as to high-risk ICE detainees. Resolution ofwhether the conditions at each facility are unconstitutional"will resolve an issue that is central to the validity ofeach one
ofthe claims in one stroke." Wal-MartStores, Inc.,564 U.S. at 350. Respondents' claim that the class members' entitlement to relief will turn on individual
factors like the risk that each individual poses to public safety does not alter this conclusion. This argument misunderstands the nature ofconditions-of-confinementconstitutional claims,which are ordinarily assessed without regard to the criminal history ofthe individuals subjected to them. See, e.g., Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016)(holding that "[pjrisoners alleging that they have been subjected to unconstitutional conditions of confinement" must show "the
27

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 28 of 44
deprivation alleged [was], objectively, sufficiently serious" and "prison officials acted with a sufficiently culpable state of mind"). Several courts addressing similar claims have found the commonality requirement to be satisfied for classes of immigration detainees challenging the conditions oftheirshared facility in lightofthe risks ofCOVID-19 based on thecommon questions
of whether the conditions involve "deliberate indifference" and a "substantial risk of serious
harm." See, e.g.^SavinOj,2020 WL 1703844,at*7(noting that variation among the detainees does not defeat commonality because "[a]t bottom, a common question oflaw and fact in this case is whether the government must modify the conditions of confinement—or, failing that, release a critical mass of Detainees—such that social distancing will be possible and all those held in the facility will not face a constitutionally violative "substantial risk of serious harm" (citations omitted)); Zepeda Rivas, 445 F. Supp. 3d at 38-39 (finding commonality based on the question whether detainees at a facility "are being exposed to an unreasonable risk of infection" from COVip-19 due to a lack ofsocial distancing even though the reliefcould include releasing certain detainees by prioritizing those with serious health risks who are not a danger to the community). For these reasons,the commonality requirement is satisfied.
3. Typicality
As for typicality, the class representative's claim and defenses must be "typical of the claims or defenses of the class" in that prosecution of the claim will "simultaneously tend to advance the interests ofthe absent class members." Fed. R. Civ. P. 23(a)(3);Deiter v. Microsoft Corp., 436 F.3d 461, 466 (4th Cir. 2006). The named plaintiffs claim "cannot be so different from the claims of absent class members that their claims will not be advanced by" proof of the plaintiffs own individual claim. Deiter,436 F.3d at 466-67. In analyzing this question,a court compares the class representative's claims and defenses to those of the absent class members.
28

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 29 of 44
considers the facts needed to prove the class representative's claims, and determines the extent to which those facts would also prove the claims ofthe absent class members. Id. at 467. The claims
do not have to be factually or legally identical, but the class claims should be fairly encompassed by those of the named plaintiffs. Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 344 (4th Cir. 1998); Parsons, 754 F.3d at 685 (stating that claims are typical if they are "reasonably coextensive with the claims of absent class members and "need not be substantially identical"(quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020(9th Cir. 1998))).
Here, the named Petitioners' claims are typical of the overall class and those of their respective subclasses because they allege the same claim and injury—a constitutional violation arising from an unreasonable risk to their health posed by the COVID-19 pandemic and Respondents' inadequate response to it—and seek the same relief on the basis of that injury, specifically, release from detention. The named Petitioners include individuals who are allegedly at high riskfor serious illnessfrom COVID-19 who are detained at,orsubjectto return to detention at,both Detention Facilities: Coreas,Quinteros Hem^dez,and Mansaray atHCDC,and Guzman Cedillo,Kemcha,and Ramos Reyes at WCDC. The differences identified by Respondents are not material for purposes of typicality. Although Petitioners have varying medical conditions, and Respondents argue that Quintero Hernandez's age is not a high-risk condition.Petitioners' claims are not primarily based on their specific medical conditions; rather, they assert that the conditions of confinement at HCDC and WCDC are unconstitutional as applied to all high-risk detainees, regardless of the specific risk factors that make them vulnerable. Where all named Petitioners' claims center on establishing that Respondents have failed to respond adequately to the COVID19 pandemic and have therefore subjected detainees to conditions of confinement that create an unreasonable risk to their health and safety,the efforts ofany particular Petitioner to advance this
29

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 30 of 44
claim by proving such unconstitutional conditions will "simultaneously tend to advance the interests ofthe absent class members." Deiter,436 F.3d at466. This is equally true ofthe named Petitioners who are presently released pending their immigration hearings pursuant to the preliminary injunctions, as those Petitioners are similarly incentivized to establish the unconstitutionality of the conditions in order to convert their preliminary relief into permanent relief. Thus, where the class representatives claims need not be "identical," Broussard, 155 F.3d at 344,and need only be "reasonably coextensive" with those ofabsent class members.Parsons, 754 F.3d at 685,Petitioners have satisfied the typicality requirement.
4. Adequacy Finally,the named plaintiffs must"fairly and adequately protect the interests ofthe class"
without a conflict ofinterest with the absent class members. Fed.R. Civ. P.23(a)(4); Ward,595 F.3d at 179-80. Even ifthere is a conflict ofinterest, it will not defeat the adequacy requirement when "all class members share common objectives[,] the same factual and legal positions, and .. .the same interest in establishing the liability of[defendants]." Ward,595 F.3d at 180(quoting Gunnells,348 F.3d at 430). Here,Respondents do not assert that there is any conflict ofinterest
between the named Petitioners and the rest ofthe class.
The adequacy prerequisite also requires consideration of "the competency of class counsel." Gen. Tel. Co. ofSw. v. Falcon,457 U.S. 147, 158 n.l3(1982). Petitioners' attorneys have introduced evidence oftheir expertise and experience, and Respondents have not contested their competence. The Court therefore finds that the adequacy requirement is satisfied. See Lloyd V. Gen. Motors Corp.,266 F.R.D.98,104(D.Md.2010)(finding that class counsel was adequate where "[cjlass counsel are highly experienced and have the intellectual and financial resources
necessary to prosecute a sophisticated class action").
30

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 31 of 44
D. Rule 23(b)(2)
Ifthe named plaintiffsatisfies each ofthe requirements under Rule 23(a),the Court must still find that the proposed class action fits into one ofthe categories ofclass actions under Rule 23(b) in order to certify the class. Petitioners seek to certify their proposed class under Rule 23(b)(2), which allows class certification where "the party opposing the class has acted or refused to act on grounds that apply generally to the class,so thaifinal injunctive reliefor corresponding declaratory reliefis appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). "The key to the(b)(2)class is the indivisible nature ofthe injunctive or declaratory remedy warranted— the notion that the conduct is such that it can be enjoined or declared unlawful only as to all ofthe class members or as to none ofthem." Wal-Mart Stores, Inc., 564 U.S. at 360(quoting Richard A. Nagareda, Class Certification in the Age ofAggregate Proof 84 N.Y.U. L. Rev. 97, 132 (2009)). "Rule 23(b)(2) applies only when a single injunction or declaratory judgment would
provide relief to each member of the class. It does not authorize class certification when each
individual class member would be entitled to a differentinjunction or declaratoryjudgment against
the defendant." Id.
Here,Petitioners have satisfied the first part ofthis provision in that Respondents'relevant action applies generally to all subclass members. In a comparable class action by inmates challenging the extreme temperatures in a Texasjail, the court held that"the same action/inaction by Defendants is the source ofany injury for the entire General Class and the subclasses" because:
All inmates, regardless of age or health, are subject to the same policy on climate control... all have the same heat-mitigation measures available to them ...and all are (allegedly) harmed in essentially the same way—i.e., by exposure to a substantial risk ofserious harm because ofexposure to excessive heat. Yates V. Collier, 868 F.3d 354,358,368(5th Cir. 2017). Likewise, Petitioners' class claims are based on Respondents'policies and actions or inactions in creating the conditions ofconfinement
31

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 32 of 44
at HCDC and WCDC during the COVID-19 pandemic, which Respondents have necessarily imposed on all class members,as well as HCDC Subclass members and WCDC subclass members,
respectively.
Respondents challenge the second part of Rule 23(b)(2), arguing that injunctive relief is not "appropriate respecting the class as a whole," Fed. R. Civ. P. 23(b)(2), because "different subsets ofputative class members may be entitled to relief where others would not"since it is not clear that all subclass members would be subject to release, the remedy necessarily sought in a habeas petition, through a single injunction. Opp'n Mot. Class Cert, at 24. Upon a finding that a class or subclass is.subjected to unconstitutional policies or conditions ofconfinement, however, the Court could order certain global relief short of immediate release of all ICE detainees that would benefit all class members and thus satisfy Rule 23(b)(2), such as "an injunction ordering the government to reduce crowding of[djetainees." Savino,2020 WL 1703844, at *8; see also Quadrelli v. Moniz,No.20-10685-ADB,2020 WL 3051778,at*7(D.Mass.June 8,2020)(same); Zepeda Rivas^ 445 F. Supp. 3d at 38 ("There is nothing about the procedural posture of this lawsuit—such as the fact that it seeks habeas relief or that it is on behalf of immigration detainees—^that precludes provisional class certification."). Because there is available relief that would benefit the entire class or an entire subclass. Rule 23(b)(2) is satisfied. The Court will
therefore grant the Motion as to class certification. II. Expedited Bail Hearings
In light of what Petitioners contend are unconstitutional conditions of confinement, they ask this Court to hold expedited bail hearings for class members. Petitioners assert that such hearings are within this Court's inherent authority when entertaining a habeas petition, and that the use of such authority is warranted here because Petitioners have alleged a substantial
32

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 33 of 44
constitutional claim on which they have a high probability of success, and there are presently extraordinary circumstancesjustifying class members'immediate release. Respondents argue that
this Court lacks statutory authority to release immigration detainees on bail, and that even if it has
authority to conduct bail hearings, Petitioners have failed to demonstrate extraordinary
circumstances warranting such action. A. Legal Authority The Court has already held that Petitioners may, through a habeas petition, seek their
release on the grounds that their confinement under the present circumstances ofthe COVID-19 pandemic violates their constitutional rights. Coreas/,2020 WL 1663133,at *6-7. Respondents nevertheless argue that this Court may not conduct bail reviews as part ofits overall consideration ofthe habeas petitioninthe absence ofexplicitstatutory authority to do so. Itisfirmly established, however,thatfederal courts have inherentauthority to grant bail to habeas petitioners,even absent express statutory authority. See, e.g., Mapp v. Reno,241 F.3d 221,223(2d Cir. 2001);Lucas v. Hadden,790 F.2d 365,367(3d Cir. 1986);Baker v. Sard,420 F.2d 1342, 1343(D.C. Cir. 1969) (holding that on a claim of illegal detention, "the court's jurisdiction to order release as a final disposition of the action includes an inherent power to grant relief pendente lite, to grant bail or release, pending determination ofthe merits");see also UnitedStates v. EUely,276 F. App'x 270, 270(4th Cir. 2008)(referencing the standard for release on bail ofa prisoner pending a collateral attack on the conviction). In Mapp,the court applied this principle to immigration detainees and held that federal courts have the inherent authority to grant bail to habeas petitioners detained by the Immigration and Naturalization Service("INS"),the predecessor agency to ICE,for violations ofthe Immigration andNationality Act("INA"). Mapp,2A\ F.3dat223("We hold thatthe federal courts have the same inherent authority to admit habeas petitions to bail in the immigration context
33

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 34 of 44

as they do in criminal habeas cases."). Where Respondents can identify no contrary authority other

than a 100-year-old case refusing to grant bail to an immigration detainee charged with violating

the now-obsolete Chinese Exclusion Act because that Act did not expressly authorize it, Chin Wah

V. Colwell, 187 F.592,594(9th Cir. 1911),the Court finds their position wholly unpersuasive.

Although Mapp acknowledges that a court's inherent authority to grant bail could be

narrowed or removed by Congress, Respondents have identified no provision in the INA or

elsewhere that has done so. While the INA contains a provision providing that the Attorney

General's"discretionaryjudgment"regarding the application of8 U.S.C.§ 1226,which grants the

Attorney General the authority to render decisions on the arrest, detention, and release of

immigrants who may be subject to removal,"shall not be subject to review," 8 U.S.C.§ 1226(e),

this provision precludes only such exercises of discretion and does not bar constitutional

challenges. See Demorev.Kim,538 U.S.510,516-17

see also Jennings v. Rodriguez, 138

S. Ct. 830,841 (2018)(finding that § 1226(e) did not bar a constitutional challenge to the INA

statutory scheme,because the extent ofthe Government's detention authority was not"a matter of

discretionary judgment"). In discussing a related but distinct bar onjudicial review in 8 U.S.C.§

1252(a)(2), the Supreme Court held that such limitations extend only to those decisions that

Congress expressly identified in the statute as subject to the Attorney General's discretionary

authority. Kucana v. Holder,558 U.S. 233,246-47(2010). Notably,in Mapp,the court found

that the Government had acknowledged that § 1226(e) did not preclude federal courts from

exercising their inherent authority to release on bail habeas petitioners in immigration detention.

Mapp,241 F.3d at 228.

Although the Fourth Circuit has not directly ruled on whether federal courts have the

inherent authority to grant bail in immigration habeas cases, it has,in holding that a district court

34

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 35 of 44

had the authority to review the constitutionality ofa transfer ofimmigration detainees from one

facility to another,relied on the general "presumption favoringjudicial review"ofadministrative

actions and the principle stated in Kucana that the INA's statutory bars to judicial review apply

only to actions pursuant to "discretionary authority explicitly conferred in the statute." Reyna v.

Hott,921 F.3d 204,209-10(4th Cir. 2019)(citing Kucana v. Holder,558 U.S.233,237,246-47

(2010)). Where the Fourth Circuit generally presumes that it has the authority to review actions

taken under the INA and views statutory bars to its review narrowly, the Court finds that

Respondents' position that district courts are barred from rendering bail determinations in a habeas

case absent explicit statutory authority in the INA is incompatible with these principles.

Thus,guided by Mapp and Reyna,this Courtfindsthat it has the authority to engage in bail

reviews for class members on the question of whether they should not be subjected to continued

detention during the pendency of this case in light of likely unconstitutional conditions of

confinement arising from the COVID-19 pandemic as applied to them. Such determinations are

not reviews of the original discretionary bail determinations by the Attorney General under the

INA but would instead consist ofexamining the conditions ofthe Detention Facilities, as applied

to individual medical and other high-risk conditions, and assessing whether the present

circumstances warrant bail pending a final determination on the constitutionality of detention.

As noted by Petitioners, federal courts have held that they may conduct bail reviews of

individual ICE detainees who have filed habeas petitions alleging unconstitutional detention in

light ofthe COVID-19 pandemic. See, e.g., Zepeda Rivas, 445 F.Supp.3dat41;

v. Sauza,

2020 WL 1703844, at *8-9; Yanes v. Martin, F. Supp. 3d ,2020 WL 3047515, at *5-6

(D.R.I. June 2,2020);see also Galan-Reyes v. Acoff, F. Supp.3d ,2020 WL 2497133, at

*2(S.D. 111. May 14, 2020)(in a constitutional challenge based on conditions of confinement

35

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 36 of 44
during the COVID-19 pandemic, rejecting the argument that review of an ICE detainee's habeas
petition was precluded by § 1226(e) because the claim was a direct challenge to "Respondents' legal authority to continue his detention"and granting bail);Jeferson V. G. v. Decker,No.CV 203644(KM),2020 WL 1873018, at *4,*9(D.N.J. Apr. 15, 2020)(in a constitutional challenge based on conditions ofconfinement during the COVlD-19 pandemic,rejecting the argument that the eourt was statutorily barred from granting bail by § 1226(e) and releasing the petitioner on bond). But see Beltran v. Wolf, F. Supp.3d ,2020 WL 4187912,at *3(N.D.Texas,July
20,2020)(citing § 1226(e)to conclude that "to the extent that Petitioner asks the Court to either order his release to bond or review the immigration court's denial of bond, the Court lacks the authority to consider these requests").
Having concluded that this Court may entertain Petitioners' request for bail hearings, the
Court turns to the standards for such release in the habeas context. In order to be released on bail
pending resolution of a habeas petition, a petitioner must show (1) "substantial constitutional claims on which he has a high probability ofsuccess";and(2)"exceptional circumstances making a grant of bail necessary for the habeas remedy to be effective." United States v. Eliely, 276 F. App'x 270,270(4th Cir. 2008)(citing Lee v. Jabe,989 F.2d 869,871 (6th Cir. 1993),and Galley V. Callaway,496 F.2d 701,702(5th Cir. 1974));see also Mapp,241 F.3d at226(holding that"a habeas petitioner should be granted bail only in unusual cases, or when extraordinary or exceptional circumstances exist which make the grant ofbail necessary to makethe habeasremedy effective"(citation omitted)).
B. High Probability ofSuccess
Petitioners seek release from the Detention Facilities based on the claim that as high-risk detainees,they are presently subjected to unconstitutional conditions ofconfinement,in violation
36

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 37 of 44
ofthe Fifth and Fourteenth Amendments to the Constitution. This Court has previously construed the Petition as advancing two arguments: (1) that Respondents' efforts to address the risk of COVID-19 are so inadequate that they have failed to protect Petitioners from a known threat to their health and safety; and (2) that Petitioners' confinement during the COVID-19 pandemic amounts to impermissible punishment because they are civil detainees, not convicted and
sentenced criminals. See Coreas I, 2020 WL 1663133,at *7-13.
As to the health and safety claim, the Court has previously found that the applicable standard is whether Respondents have acted with deliberate indifference to their health and safety. See id. at *8-9. Under this standard, Petitioners must show that, objectively, there is substantial risk that they will suffer a serious or significant physical or emotional injury "resulting fi-om the prisoner's unwilling exposure to the challenged conditions." Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995)(quoting Strickler v. Waters,989 F.2d 1375,1381(4th Cir. 1993)). "[A]condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year" may violate the Constitution,even if"the complaining inmate shows no serious current symptoms." Helling v. McKinney, 509 U.S. 25, 33-34 (1993); Webb v. Deboo, 423 F.App'x299,300(4th Cir.2011). They must also show that,subjectively,Respondents acted with deliberate indifference to such a serious medical need, which occurs when an official "subjectively knows of and disregards an excessive risk to inmate health or safety." Jackson v. Lightsey, IIS F.3d 170, 178 (4th Cir. 2014)(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). "[T]he test is whether the guards know the[detainee]faces a serious danger to his safety and they could avert the danger easily yet they fail to do so." Brown v. N.C. Dep't ofCorr.,612 F.3d 720,723(4th Cir. 2010)(quoting Case v. Ahitow,301 F.3d 605,607(7th Cir.2002)). Ifthe requisite subjective knowledge is established, an official may avoid liability by responding
37

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 38 of 44
"reasonably to the risk,even ifthe harm ultimately was not averted." See Farmer v. Brennan,511
U.S. 825, 844(1994).
As to the impermissible punishment claim, civil detainees must show that either (1) the condition in question was imposed with the express intent to punish; or (2) it is not reasonably related to a legitimate, nonpunitive governmental objective, such that the intent to punish can be inferred. Matherly v. Andrews,859 F.3d 264,275(4th Cir. 2017). As to the second prong,"due
process requires thatthe conditions and duration ofconfinement...bear some reasonable relation to the purpose for which persons are committed." Id.
In Coreas /, the Court found that the Detention Facilities had certain notable deficiencies
in their response to COVID-19,including thatthere were no social distancing protocols;there was evidence ofa lack ofsufficient cleaning ofcommon spaces and provision ofcleaning supplies to detainees; there were no procedures to address the specific circumstances of high-risk detainees; and no steps had been taken to conduct testing for COVID-19. See Coreas/,2020 WL 1663133, at *10-13. As a result, the Court concluded that if there were any cases of COVID-19 among detainees or staff, these identified deficiencies would support a likely finding of deliberate indifference onthe part Respondents. M at*11. The Courtalsofound thatfor high-risk detainees, since they are not charged with crimes butface only civil status violations,the presence ofpositive cases ofCOVID-19 in the Detention Facilities while"they are particularly vulnerable to COVID19 because of the lack of ability to maintain distance from others" would likely render the conditions impermissibly punitive. Id. at *12.
Since those rulings, however, the conditions in the Detention Facilities have changed. Based on the observations and reporting by Dr. Rottnek, the Court finds that both Detention Facilities are generally clean and well-maintained,and they have adequate cleaning supplies,hand
38

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 39 of 44
sanitizer, and soap. As for social distancing measures, since Coreas /, the Detention Facilities
have instituted a requirement that detainees wear masks in common areas, and they provide such masks on a regular basis. According to Dr. Rottnek, dayrooms are large enough to enable social
distancing and have signage instructing detainees to maintain social distance from each other. As for cells, where both Detention Facilities remain below capacity and have fewer ICE detainees
than in April 2020, WCDC now has ICE detainees in single cells except for those with mental health issues who should notbe housed alone,and HCDC dormitoryrooms have beds spaced more than six feet apart. Although Dr. Rottnek recommends greater enforcement ofsocial distancing and designating additional housing units for ICE detainees to allow for even more distancing within common areas,the present conditions reflect specific improvement.
Another significant change isthe record relating to testing. According to Dr.Rottnek,both Detention Facilities have procedures in place, consistent with CDC guidelines, to conduct diagnostic testing of any individuals with suspected COVID-19. Both HCDC and WCDC have also engaged in surveillance testing. HCDC has tested all detainees and staff on,six different occasions between June and August 2020. Such testing resulted in four positive tests among state
detainees, at least two of which related to the same individual, and no positive tests among ICE detainees. Between the surveillance testing and outside testing, there have been six positive tests among staff. At WCDC,there have been at least three frill rounds ofsurveillance testing which
have identified no positive cases among state detainees or ICE detainees. Between the surveillance
testing and outside testing,there have been 15 staffmembers who havereceived positive tests,and one new ICE detainee reported that he tested positive before arriving. As to both Detention Facilities, the staff members who tested positive were quarantined at home and not allowed to return to work until they tested negative or were cleared by a doctor, the detainees with positive
39

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 40 of 44
tests were isolated, and, at least in some instances, members of their housing units were also quarantined. Although these results reflect that positive cases have existed among staff and state detainees at both Detention Facilities, there have been no cases of ICE detainees contracting COVID-19 at HCDC or WCDC. Thus,the positive tests among staffand state detainees have not catalyzed an outbreak or cases among ICE detainees, and the isolation and quarantine measures appear to be working satisfactorily. According to Dr. Rottnek, both the isolation and quarantine policies at both HCDC and WCDC are consistent with CDC guidelines.
Considering all ofthese measures,Dr.Rottnek has concluded thatthe administrators ofthe
Detention Facilities are"tak[ing]the risk ofCOVID-19 seriously"and that"[c]urrent efforts seem to be working at current census, current staffing, and current testing protocols." Rottnek Report
at 2.
There remain significant reasons for concern. As Dr. Rottnek has noted, enforcement of social distancing and mask usage remains inconsistent, and there is no formal plan for regular surveillance testing. Most importantly, there remain no specialized policies or procedures specifically designed to protect high-risk detainees, and Dr. Rottnek has stated, even with all of the measures in place,"there is no way short ofrelease to protect the medically vulnerable." Rep. at21. However,in lightoftheimprovementsto the mitigation measures atthe Detention Facilities, the institution ofsurveillance testing,and the expertopinion that the Detention Facilities are taking the COVID-19 outbreak seriously, the Court does not find a substantial probability or likelihood that Respondents are presently acting with deliberate indifference to serious medical needs. Even under Petitioners' proposed, lesser standard based on Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), see Coreas /, 2020 WL 1663133, at *8, that would not include a subjective component,
the Court reaches the same conclusion based on the combination of the low overall number of
40

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 41 of 44
detainees relative to facility capacity, the improved mitigation measures, the significant surveillance testing,and use ofisolation procedures that have apparently prevented any infections
among ICE detainees to date.
Likewise, although the information available as of Coreas 1 counseled that any positive cases would likely lead to an outbreak across a detention facility, the history to date suggests that with regular surveillance testing and the use of isolation and quarantine procedures, such an outbreak is not necessarily inevitable. This track record—reflecting that even with a small number of positive tests among staff and state detainees, no ICE detainee has tested positive in the over five months since Petitioners filed their claim despite the recently robust surveillance testing— necessitates a modified assessment of whether Petitioners are presently subjected to unconstitutional punishment. Moreover,where Dr.Rottnek has reported on new social distancing policies, has determined that the dayrooms are large enough to permit social distancing, and has identified the potential for more social distancing by moving ICE detainees within the Detention Facilities,the Court's prior conclusion that Petitioners were particularly vulnerable because ofthe "lack ofability to maintain distance from others," Coreas/,2020 WL 1663133,at *12,must now be qualified. Accordingly, the Court does not find that there is presently a substantial probability that in the absence of cases among ICE detainees, the limited number of positive tests to date among staff and state detainees has imposed such a threat to high-risk detainees as to transform their confinement into impermissible, unconstitutional punishment. Cf. Sys. Fed'n No. 91 Ry. Emp.Dept,AFL~C10 v. Wright,364 U.S.642,647(1961)(noting,in a case involving a motion to modify a consent decree,that"the court cannot be required to disregard significant changes in law or facts"); Zepeda Rivas v Jennings, _ F. Supp. 3d. 2020 WL 3055449, at *4-5 (N.D. Cal. June 9, 2020) (in a constitutional challenge to immigration detention in light of COVID-19,
41

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 42 of 44
altering the terms of preliminary relief based on improvements to conditions of confinement for ICE detainees during the course ofthe litigation).
C. Exceptional Circumstances
Exceptional circumstances are those that"mak[e]a grant ofbail necessary for the habeas remedy to be effective;" Eliely,216F.App'x at270. Exceptional circumstances may include"the raising ofsubstantial claims upon which the[petitioner]has ahigh probability ofsuccess,a serious deterioration ofhealth while incarcerated,and unusual delay in the appeal process." Cf. Salerno V. United States, 878 F. 2d 317, 317 (9th Cir. 1989) (discussing exceptional circumstances
warranting bail pending appeal in an extradition case). Based on the improved circumstances at HCDC and WCDC,as well as the fact that there
is now anearly six-month track record ofnoICE detainees contracting COVID-19 atthe Detention Facilities,the Court does notfind exceptional circumstances warranting bail determinations for all high-risk ICE detainees at this time. While Petitioners and the putative class members all assert thatthey have conditions that placethem athighrisk ofsevereillnessshould they contractCOVID-
19, the fact remains that during their detention, that harm has not come to fruition. See Lucas v.
Hadden,790F.2d 365,367(3rd Cir.1986)(finding"extraordinary circumstances"warranting bail
for a habeas petitioner who was"gravely ill" and was granted bail"on the condition that he enter
a hospital to seek necessary medical care")(citing Johnston v. Marsh, 227 F.2d 528 (3rd Cir. 1955)). With the reduced numbers of ICE detainees in the Detention Facilities, improved mitigation measures, and test results showing no cases among ICE detainees and revealing that limited numbers ofpositive tests among staffor state detainees have not led to a surge in cases at either Detention Facility, the Court cannot presently find that exceptional circumstances require bail hearings as the only way to protect the health and safety ofPetitioners. See Daum v. Eckert,
42

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 43 of 44
17-CV-239, 2020 WL 5040596, at *4 (E.D.N.Y. Aug. 26, 2020) (finding, where a habeas petitioner sought a bail hearing, no exceptional circumstances because petitioner "had ... not shown that the facility in which he is housed has failed to take appropriate steps to counteract the virus," where that facility had "implemented measures that are modeled on the CDC's guidance");
Houston V. Davis,No.3:18-CV-03119-G,2020 WL 3036616,at*2,n.5(N.D.Tex.June 5,2020)
(finding no exceptional circumstances warranting a bail hearing where the petitioner made no allegation that anyone at his detention facility had contracted COVID-19 or that the facility had failed to take reasonable measures to prevent the spread ofthe disease); cf. Carmen R. v. Decker, No. 20-3875, 2020 WL 2029337, at *13 (D. N.J. Apr. 28, 2020) (finding no exceptional circumstances in part because the facility ofdetention had "implemented a variety ofmeasures to combat the spread ofthe virus amongst detainees and staff). Accordingly,the Court will deny
the Motion as to bail hearings. The Court notes,however,that this determination is not a permanent one. It is not lost on
the Court that the vast majority of improvements, in mitigation measures, and the entire surveillance testing effort, did not materialize until after the filing of this case and the Courfs earlier rulings adverse to Respondents. Indeed, Dr. Rottnek found that many positive steps were implemented only inthe days priorto his inspections. IfRespondents do not maintain their newly
adopted policies relating to masks and social distancing and continue to stock and distribute
adequate supplies of cleaning materials and PPE, or if they fail to implement Dr. Rottnek's recommendations, particularly those relating to stronger enforcement of social distancing and mask policies,reallocatingICE detainees within the facilities to allow for greater social distancing both in cells and dayrooms, and adopting formal policies and procedures relating to COVID-19 mitigation, the Courfs assessment of the conditions may have to be modified again. Most
43

Case 8:20-cv-00780-TDC Document 193 Filed 09/18/20 Page 44 of 44

importantly, where the Court has relied significantly on the fact and results of the surveillance testing performed to date, if the Detention Facilities fail to follow up with a regular surveillance testing program,the Court's evaluation ofthe bail review question would be subject to revision. Accordingly,the Court will deny the Motion as to bail reviews without prejudice.
CONCLUSION
For the foregoing reasons, Petitioners' Motion for Class Certification and Expedited Bail Hearings will be GRANTED IN PART and DENIED IN PART. The Motion will be granted on the issue ofclass certification as to the overall class,the HCDC subclass,and the WCDC subclass. The Motion will be denied without prejudice on the issue of expedited bail hearings. A separate
Order shall issue.

Date: September 18,2020

THEODORE D. CHUANCT United States District

44

 
 Case 8:20-cv-00780-TDC Document 300 Filed 01/26/21 Page 1 of 20

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

MAURICIO COREAS et al,
Petitioners,
V.
DONNA BOUNDS,
in her official capacity as Warden^ Worcester County Detention Center^ et al.
Respondents.

Civil Action No.TDC-20-0780

ALPHA IBRAHIM BAH MANSARAY, Petitioner,
V.
JACK KAVANAGH et al. Respondents.

Civil Action No.TDC-20-1304

MEMORANDUM OPINION
Petitioners in this civil class action seeking release from U.S. Immigration and Customs Enforcement("ICE")detention pursuantto a writ ofhabeas corpus have filed a Second Emergency
Motion for Expedited Bail Hearings("the Second Bail Motion")in which they seek expedited bail hearings for members ofthe subclass consisting ofICE detainees atthe Howard County Detention Center("HCDC")in Jessup, Maryland who are age 50 or older or who have medical conditions that place them at heightened risk of severe illness or death from COVID-19. To provide
information relevant to the resolution of this Motion, and with the agreement of the parties, the Court directed an unannounced follow-up inspection of HCDC by Dr. Fred Rottnek, the parties'

Case 8:20-cv-00780-TDC Document 300 Filed 01/26/21 Page 2 of 20
agreed-upon expert, which occurred on January 2, 2021. Dr. Rottnek submitted a report on his inspection to the Court on January 11, 2021, and the parties submitted supplemental briefs on January 14,2021 to address Dr.Rottnek's findings. Neither side requests a hearing onthe Motion. Having reviewed the briefs and submitted materials,the Courtfinds no hearing necessary. See D. Md.Local R. 105.6. For the reasons set forth below,the Motion will be DENIED.
BACKGROUND
I. Case History Relevant background facts and procedural history are setforth in this Court's memorandum
opinions and orders addressing earlier motions filed by certain Petitioners. See Coreas v. Bounds {Coreas 7),451 F. Supp. 3d. 407,412-17(D. Md.Apr. 3,2020); Coreas v. Bounds {Coreas 11), 457F.Supp.3d.460,461-62(D.Md.Apr.30,2020);Coreas v. Bounds{CoreasHI),458 F.Supp. 3d. 352,354-57(D. Md. May 7,2020); Coreas v. Bounds{Coreas IV),2020 WL 5593338,*1-7 (D. Md. Sept. 18, 2020). The Court incorporates those opinions and orders herein and sets forth below only those additional facts relevant to the resolution ofthe pending Motion.
On March 24,2020,the original Petition was filed,along with a Motion for a Preliminary Injunction("the First Injunction Motion")seeking the original Petitioners'immediate releasefrom ICE detention at either HCDC or the Worcester County Detention Center("WCDC")in Snow Hill,Maryland based on alleged violations oftheir rights to substantive due process under the Fifth Amendment to the United States Constitution arising fi-om the COVID-19 pandemic. At the time of that filing, HCDC had taken few steps to limit the spread of COVID-19. Few if any social distancing measures had been implemented,there was no systematic disinfecting ofthe facility, and no COVID-19testing had been performed or even planned. See Coreas7,451 F.Supp.3d at 415. By April 2020, however, HCDC had begun screening all individuals entering the facility.

Case 8:20-cv-00780-TDC Document 300 Filed 01/26/21 Page 3 of 20
had ended all non-attorney visits,and had stopped receiving newICE detainees. Id. at424. Where HCDC was under capacity,housing 38ICE detaineesin aspace thatnormally would accommodate 100 detainees, and there were no actual cases ofCOVID-19 at HCDC,the Court denied the First Injunction Motion but noted that the onset ofcases ofCOVID-19 or a failure to institute a testing regimen could lead to a different result. Id. at 428. Thus, after a positive test at HCDC on April 23,2020,the Court granted Petitioners' Second Motion for a Preliminary Injunction("the Second Injunction Motion")and released the named Petitioner residing at HCDC. CoreasII,457F.Supp.
3d. at 462,464-65.
In May 2020, Petitioners filed a Motion for Class Certification and Expedited Bail Hearings ("the First Bail Motion") in which they reasserted their original arguments on the unconstitutionality of their continued detention and requested expedited bail hearings for class members. With the consent of the parties, the Court appointed Dr. Fred Rottnek, Professor and Director of Community Medicine at Saint Louis University and the former Medical Director and Lead Physician for the Corrections Medicine Division of the St. Louis County Department of Health, as an independent expert charged with reviewing the practices and conditions at HCDC and WCDC relating to COVID-19 and conducting inspections ofthose facilities. See CoreasIV,
2020 WL 5593338 at *3.
Following his August 1, 2020 visit to HCDC, Dr. Rottnek concluded that HCDC had implemented numerous,positive measures to mitigate the risk ofCOVID-19,including screening protocols and isolation and quarantine policies consistent with CDC guidelines; the provision of masks and cleaning supplies to detainees;and the adoption ofsocial distancing policies. Id. at*35. ICE detainees had beds spaced six feet apart and dayrooms large enough to enable social distancing. Id. at *18. At the same time, however, he noted that HCDC had inconsistent

Case 8:20-cv-00780-TDC Document 300 Filed 01/26/21 Page 4 of 20
enforcement ofmask and social distancing policies and did not have any specific protocolsin place to provide special protection for high-risk detainees. Id. at *5.
By the time ofthe inspection, HCDC had begun conducting tests for COVID-19. As of August2020,it had conducted six rounds ofuniversal surveillance testing—COVID-19 testing of all detainees and staffat HCDC—^resultingin six positive testsfor staffmembers and three positive tests for detainees, none of whom were ICE detainees. Id. at *6. Overall, Dr. Rottnek concluded that HCDC was "taking the risk of COVID-19 seriously" and that HCDC's "current efforts" were "working at current census, current staffing, and current testing" levels. Id. at *5. He recommended thatHCDC adoptformal COVID-19 policies,rather than merely keep arunning log of actions taken to respond to COVID-19; do more to enforce social distancing policies and to provide cleaning supplies consistently; and relocate some ICE detainees within the facility to increase social distancing among them. Id at *5. While stating that high-risk detainees could not be kept completely safe while in detention, he stated that the risk to them could be mitigated through regular surveillance testing, the provision of masks, proper cleaning and hygiene, and relocating ICE detainees within the facility as necessary to ensure social distancing. Id.
Based on the improvements and conditions identified by Dr. Rottnek, including the implementation of universal surveillance testing; the cleaning, social distancing, and mask policies; the sufficient spacing in the ICE detainee unit to allow for social distancing; and the continuing lack of cases of COVID-19 among the ICE detainee population, the Court concluded that Petitioners had failed to establish a high probability ofsuccess on their claim and thus denied the FirstBail Motion. Id. at *18-19. The Courtnevertheless identified severalissues ofcontinuing concern: inconsistent enforcement of social distancing and mask policies, the lack of a formal

Case 8:20-cv-00780-TDC Document 300 Filed 01/26/21 Page 5 of 20
plan for regular surveillance testing, and the continued lack of specialized policies or procedures for high-risk detainees. Hat *19.
II. Additional Evidence
Based on the submissions ofthe parties on the Second Bail Motion,and the results ofDr. Rottnek's unannounced inspection on January 2, 2021, the Court finds the following additional facts relating to the conditions at HCDC since the Court's ruling on the First Bail Motion.
A. Testing and Vaccinations Since the Court's ruling onthe First Bail Motion,HCDC has continued to conductperiodic universal surveillance testing. In consultation with the Howard County Health Department,HCDC has generally conducted weekly universal testing of detainees and staff but has conducted such
testing on a bi-weekly basis ifit has had two consecutive rounds oftests with no positive results. Dr. Rottnek finds this schedule and the testing procedures to be satisfactory.
Atthe end ofSeptember2020,around ofuniversal surveillance testing revealed no positive cases among detainees or staff. On October 8, 2020, an arrestee who had arrived at HCDC on October 7,2020 began exhibiting symptoms ofCOVID-19,was placed in isolation,and remained in isolation in the F-3 unit after he tested positive,a unitthat is separate from the mainjail building, has its own air supply,and has assigned staffwho do not workin other areas ofthejail. On October 13,2020,anotherinmate,who was still in the required quarantine after her October 9,2020 arrival, began exhibiting COVID-19 symptoms and so was moved into similar isolation in the F-1 unit. Before she tested negative,HCDC took the precautions ofreviewing with staffthe proper use of personal protective equipment ("PPE"), suspending all group activities, and scheduling the bleaching and electrostatic cleaning of the F units. Around October 26, 2020, an HCDC staff member tested positive for COVID-19, prompting HCDC to review surveillance video to

Case 8:20-cv-00780-TDC Document 300 Filed 01/26/21 Page 6 of 20
determine that the staff member had wom proper PPE and to conduct contact tracing. In another round ofuniversal testing on or about October 26,2020,all detainees and stafftested negative.
On November 7, 2020, after an HCDC staff member who had worked in the ICE units tested positive for COVID-19,HCDC consulted surveillance video to confirm that she had wom PPE during her time on duty,placed the ICE units on a 14-day quarantine,and conducted another round ofuniversal testing, which revealed only one positive test,for a criminal detainee who had been in arrival quarantine and had had no contact with ICE detainees.
On November 12,2020,a round ofuniversal surveillance testing resulted in positive tests for one staffmember,six criminal detainees,and one new ICE detainee still in arrival quarantine. All individuals who tested positive were placed in isolation, and the individuals in their housing units were quarantined. Anotherround ofuniversalsurveillance testing conducted duringthe week ofNovember 16,2020 had no positive results. Likewise,a round ofuniversal surveillance testing during the week ofNovember 23,2020 had no positive results.
On December 7, 2020, an individual who had entered HCDC as a criminal detainee but
had then been transferred into ICE detention in the West-6 housing unit began displaying
symptoms ofCOVID-19. The detainee was placed in isolation,and ICE detainees in West-6 were placed in quarantine. In the Second Bail Motion filed on December 8,2020,Petitioners asserted that HCDC stafftold them thatthe individual had tested positive. According to HCDC,however, that detainee tested negative on December 1 and December 8.
On or about December 10, 2020, during universal surveillance testing, six detainees and four staff members tested positive for COVID-19, including one ICE detainee, who was not exhibiting symptoms and had been in quarantine in a receiving unit and thus had not been in contact with other ICE detainees. All individuals with positive tests were isolated. On or about

Case 8:20-cv-00780-TDC Document 300 Filed 01/26/21 Page 7 of 20
December 18, 2020, HCDC reported that another five criminal detainees had tested positive, but no ICE detainees tested positive. HCDC placed those criminal detainees in isolation and quarantined their housing units. On December 21, 2020, HCDC reported that during universal surveillance testing on December 16, another seven criminal detainees tested positive, but no ICE detainees tested positive. Those seven individuals were placed in isolation and their housing units were quarantined. HCDC reported that individual staff members tested positive on or about December 21, December 23, and December 28, 2020. On December 30, 2020, HCDC reported that six criminal detainees tested positive during universal surveillance testing on December 23.
On January 7, 2021, HCDC reported that in universal surveillance testing conducted on December 31, 2020, one criminal detainee and one staff member tested positive and were in isolation. In universal surveillance testing on January 12,2021,there were no positive tests among
detainees.
On January 12, 2021, HCDC reported that it had begun administering vaccines to HCDC detainees and staff. Ofthe 189 detainees,40 received the firstoftwo vaccinations during the week of January 3, 2021. Five of these individuals were ICE detainees, three of whom were class members. Ofthe 147staffmembers,80received vaccinations. According to HCDC,all detainees, including ICE detainees, had approximately two weeks' notice, through messages on internal television screens and handouts, that vaccinations would be available, and they were able to sign up for a vaccination in advance or receive one on the day ofadministration without prior sign-up. Vaccinated detainees will receive the second dose in 28 days, and any detainee now wishing to receive the first dose may still request it.

Case 8:20-cv-00780-TDC Document 300 Filed 01/26/21 Page 8 of 20
B. New Procedures and Detainee Relocation
Following Dr. Rottnek's August 2020 inspection, HCDC made several changes to its procedures and housing arrangements. On September 21, 2020, HCDC issued Policy and Procedure # 1-823 ("the HCDC Policy"), formalizing many of its previously ad hoc COVID-19 practices relating to the screening ofdetainees,isolation and quarantining,COVID-19 testing,and the use ofPPE and masks. For example,the HCDC Policy requires screening new detainees for COVID-19through temperature checks and questioning,isolating detainees exhibiting symptoms, quarantining all new detainees for 14 days regardless ofsymptoms,and testing new detainees on their fifth day in quarantine. The HCDC Policy mandates isolation for any detainee who has COVID-19 symptoms and requires all staffin contact with such a detainee to wear full PPE. As to surveillance testing, the HCDC Policy provides that testing of all detainees will occur in accordance with the guidance of the Howard County Health Department and requires that any detainee testing positive for COVID-19 remain in quarantine until receiving two negative tests.
The HCDCPolicy also requiresthe issuance ofcloth masksand surgical masks andthe availability ofsoap,hand sanitizer,and cleaning supplies. By the time ofthe second inspection,however,this
policy document was again out of date in certain ways, such that it lacked an accurate statement ofthe current policy on providing N-95 masks.
According to HCDC Director Jack Kavanaugh, all detainees also now undergo daily,
recorded temperature checks, and any who present symptoms consistent with COVID-19 or who test positive are placed in an isolation unit. When staff members test positive for COVID-19,
video surveillance is reviewed to determine whether that staff member was wearing proper PPE
during contact with any detainees.

Case 8:20-cv-00780-TDC Document 300 Filed 01/26/21 Page 9 of 20
After a criminal detainee tested positive after a court appearance on or about November
17, 2020, HCDC instituted a procedure under which any detainees who left the facility for any
reason would be placed on a minimum of a 10-day quarantine upon their return. Then, on November 20,2020,HCDC decided not to accept any additional ICE detainees in light ofa new ICE requirement that ICE detainees must be quarantined upon entry separately fi-om criminal
detainees.
In late November 2020, after HCDC was awarded $105,000 in grant ftmds, HCDC purchased a Vytis Shield Barrier Coating System, which aids in long-term infection prevention, and an ultra-violet light decontamination system portal, which staff members would have to walk through in order to enter the facility. HCDC also contracted with an outside company for disinfectant spraying throughout the facility.
On December 7,in the aftermath ofthe transfer ofa criminal detainee to the ICE detention
unit in West-6 who then developed COVID-19 symptoms, Kavanaugh decided to divide and relocate the ICE detainees. The seven most high-risk ICE detainees were moved to F-2, a unit with single cells, and the remaining eight were moved to West-4, a dormitory with space for 34 detainees, and given bunks spaced six feet apart. Dr. Rottnek confirmed during his second inspectionthattheICE detainees in F-2have single cells. Dr.Rottnek hasconcluded thatalthough the dayroom in F-2 is smaller than the common space in West-6, with fewer detainees, "social distancing seems possible and was practiced." Rottnek Rep.at 13,ECF No.298. Both units were reasonably clean,butICE detainees reported to Dr.Rottnek thatthe toilets back up into the toilets
in other cells.
When this move occurred on December 8, three ICE detainees—Alpha Ibrahim Bah
Mansaray, Kabil Are, and another individual—^remained in West-6 as criminal detainees were

Case 8:20-cv-00780-TDC Document 300 Filed 01/26/21 Page 10 of 20
moved into that unit. According to HCDC,these detainees remained because they refused to move until December 10,when they were fiilly apprised ofthe move plan.
Overall, at the present time, HCDC has 200 detainees, less than halfits capacity of476. Almost all detainees are in single cells,with the exception ofsome who are in double cells because
ofpotential suicide risks. C. Hygiene and Social Distancing
According to Kavanaugh, HCDC is well-stocked with cleaning supplies, which are distributed regularly, and common areas are disinfected after every meal and at the end of every shift. Detainees may,but generally have not,submitted requests for or complaints about cleaning supplies. During his second inspection. Dr. Rottnek observed a clean intake area, with hand sanitizer and cleaning supplies available,as well as housing units with cleaning supplies. TheICE detainee units were generally clean, but the isolation unit was"messy,smelly,"had uneaten food left on the floor ofthe common area,and its toilet and shower area was "dirty." Rotmek Rep.at 19. Dr. Rottnek was told that when more detainees are in quarantine, there are fewer detainees available to conduct cleaning. Overall, other than the backed-up toilets in F-2,Dr.Rottnek found the sanitation measures adequate.
HCDC has directed all correctional officers to enforce the wearing of masks and social distancing and to report non-compliance, with a section relating to non-compliance now added to daily shift reports. Specifically, detainees are required to remain six feet apart and to wear masks,
which are distributed every two weeks and replaced more frequently if damaged. Kavanaugh asserts that he conducts spot checks on mask compliance by reviewing video footage and that ICE
detainees largely adhere to the mask policy, with all infraction notices to date issued to criminal
detainees. As for correctional staff, they are required to wear gloves,masks,and goggles or face
10

Case 8:20-cv-00780-TDC Document 300 Filed 01/26/21 Page 11 of 20
shields, with staff in medical or isolation units required to wear full PPE. As of December 14, 2020,following positive tests, Kavanaugh ordered that N-95 masks, previously provided only to detainees in isolation,be distributed to all detainees. The detaineesthus have both cloth or surgical masks and N-95 masks,and they are required to wear the N-95 masks whenever there are positive tests in the universal surveillance testing and must do so until the next round oftesting.
Though Dr. Rottnek observed that masks are readily available at this time, his interviews ofdetainees reflectthat detainees receive no more than one N-95 mask per week. Dr.Rottnek also observed that proper mask wearing remains inconsistent among staffand detainees. In particular, Dr. Rottnek observed that many staffin the kitchen area did not wear masks correctly, with their noses exposed.
Petitioners assert that since Dr. Rottnek's first inspection, HCDC has curtailed the enforcementofhygiene and social distancing measures. According to Petitioner Mansaray,HCDC stopped providing soap in August 2020, such that he has had to buy it at the commissary, more recently stopped providing adequate cleaning supplies, and provides new masks only every three weeks. Although HCDC counters that a search ofMansaray's ceil uncovered that he had multiple bars ofsoap,that finding is consistent with Mansaray's claim that he had to buy soap.
From interviews during his second inspection. Dr. Rottnek learned that around the time of the filing of the Second Bail Motion, cleaning at HCDC improved from cleaning every third or fourth day to every day, and that the provision of soap lapsed for some time between the inspections. Likewise,certain detainees reported that masks were previously hard to obtain,even though detainees now receive cloth, surgical, and N-95 masks.
Petitioners also contend that HCDC has not curtailed movement of staff between
populations,andICE detaineesreported to Dr.Rottnek thatstaffwearingPPE have come into their
11

Case 8:20-cv-00780-TDC Document 300 Filed 01/26/21 Page 12 of 20
unit wearing PPE that they wore in other areas of HCDC, possibly in the nearby isolation and quarantine units. They also report that some detainees wearing PPE, presumably reflecting that they should be in isolation or quarantine, are allowed near other detainees in the medical unit.
D. Expert Conclusions Dr.Rottnek continues to state,as he did after his first inspection,that'there is no way short of release to protect the medically vulnerable from grave risk ofimminent infection and death" because release is needed to allow them adequately to socially distance. Rottnek Rep.at 2. Atthe same time,Dr.Rottnek acknowledges that HCDC's screening,diagnostic testing,and sitrveillance testing practices are consistent with CDC guidelines and "seem to be working at this population," and that HCDC has taken "significant steps" since his first inspection on August 1, 2020 "to decrease the introduction and spread of coronavirus in the facility." Id. at 2, 13. These include maintaining a low census count of 200 detainees in a facility that can hold 476 detainees; maintaining adequate supplies of masks and cleaning supplies; conducting "robust" surveillance testing; making "appropriate use" of quarantine and isolation units; and arranging for the Vytis protective coating and UV entry portal. Id. at 2-3. He also deems the split ofICE detainees into two separate units to be "a positive change" that improves social distancing. Id. Despite the presence of positive tests, Dr. Rottnek acknowledges that "[s]ome infections are to be expected" in light ofthe test positivity rate in Howard County and notes that the lack ofhospitalizations and deaths reflects that"the facility's procedures are working adequately." Id. at 3. Going forward, Dr. Rottnek advises that HCDC take certain additional, corrective steps, including addressing toilet and plumbing issues; updating the written policies; enforcing policies on moving between units without changing PPE;improving cleaning, particularly in the isolation unit; enforcing more rigorously the wearing of masks by correctional officers; and posting
12

Case 8:20-cv-00780-TDC Document 300 Filed 01/26/21 Page 13 of 20
COVID-19 procedures and guidance. In his view,the "leadership in the facility understands and is taking significant efforts to mitigate introduction ... ofthe virus within the facility," but there is"some disconnect with frontline officers" who do not always implement policies as intended,in part because of"COVID-19 prevention/precaution fatigue." Rottnek Rep. at 19. In its response to Dr. Rottnek's report, HCDC has now committed'to resolve the issue with the toilets and to improve enforcementofprocedures relating to the wearing ofmasks and PPE,to clean the isolation unit, and to more widely disseminate information about COVID-19 procedures and test results.
DISCUSSION
In light of the recent number of positive tests at HCDC, Petitioners have renewed their Expedited Motion for Bail Hearings, asserting that, as detainees with high-risk conditions, their continued detention at HCDC subjects them to unconstitutional conditions of confinement necessitating their prompt release. This Court has previously eonstrued the Petition as advancing two arguments: (1)that Respondents' efforts to address the risk ofCOVID-19 are so inadequate that they have failed to protect Petitioners from a known threat to their health and safety; and(2) that Petitioners' confinement during the COVID-19 pandemic amounts to impermissible punishment because they are civil detainees, not convicted and sentenced criminal prisoners. See Coreas I, 451 F. Supp. 3d. at 421-30. I. Legal Standard
In order to be released on bail pending resolution of a habeas petition, a petitioner must show(1)"substantial constitutional claims on which he has a high probability ofsuccess";and(2) "exceptional circumstances making a grant of bail necessary for the habeas remedy to be effective." United States v. Eliely,276 F. App'x 270,270(4th Cir. 2008)(citing Lee v. Jabe,989 F.2d 869, 871 (6th Cir. 1993), and Galley v. Callaway,496 F.2d 701,702(5th Cir. 1974));
13

Case 8:20-cv-00780-TDC Document 300 Filed 01/26/21 Page 14 of 20
also Mapp v. Reno^ 241 F.3d 221,226(2d Cir. 2001)(holding that"a habeas petitioner should be granted bail only in unusual cases,or when extraordinary or exceptional circumstances exist which make the grant ofbail necessary to make the habeas remedy effective"(citation omitted)).
II. High Probability of Success As to the health and safety claim, the Court has previously found that the applicable
standard is whether Respondents have acted with deliberate indifference to Petitioners' health and safety. Coreas I, 451 F. Supp. 3d. at 421. Under this standard, Petitioners must show that, objectively, there is substantial risk that they will suffer a serious or significant physical or emotional injury "resulting from the prisoner's unwilling exposure to the challenged conditions." Shakka v. Smith,71 F.3d 162, 166 (4th Cir. 1995)(quoting Strickler v. Waters, 989 F.2d 1375, 1381 (4th Cir. 1993)). "[A] condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year" may violate the Constitution,even if"the complaining inmate shows no serious current symptoms." Helling v. McKinney,509 U.S. 25,33-34(1993); Webb v. Deboo,423 F. App'x 299,300(4th Cir. 2011). They must also show that, subjectively, Respondents acted with deliberate indifference to such a serious medical need, which occurs when an official "subjectively knows ofand disregards an excessive risk to inmate health or safety." Jackson v. Lightsey, 115 F.3d 170, 178 (4th Cir. 2014)(quoting Farmer v. Brennan,511 U.S. 825,837(1994)). "[T]he test is whether the guards know the [detainee]faces a serious danger to his safety and they could avert the danger easily yet they fail to do so." Brown V. N.C. Dep't ofCorr.,612 F.3d 720,723(4th Cir. 2010)(quoting Case v. Ahitow,301 F.3d 605, 607(7th Cir. 2002)). If the requisite subjective knowledge is established, an official may avoid liability by responding "reasonably to the risk, even ifthe harm ultimately was not averted." See Farmer v. Brennan,511 U.S. 825,844(1994).
14

Case 8:20-cv-00780-TDC Document 300 Filed 01/26/21 Page 15 of 20
upon consideration ofthe presentfactualrecord,the Court does notfind a high probability ofsuccess on the claim that Respondents have acted with deliberate indifference to the health and safety of Petitioners. Petitioners base their argument on the recent increase in positive cases, consisting ofapproximately 30cases among detaineesin November and December 2020,and what they see as continued failings on the part ofHCDC,namely imperfect cleaning and availability of cleaning supplies;inconsistent enforcement ofsocial distancing, mask,and PPE policies; and the lack of specific protocols relating to medically vulnerable detainees. During his inspection, Dr. Rottnek found evidence to support these concerns,including cleaning deficiencies in the isolation unit and backed-up toilets, detainees and staff not wearing masks properly, and allegations by detainees that soap and masks were not distributed widely until the Second Bail Motion was filed. In the Court's ruling on the First Bail Motion,however,the Court did not fmd a high probability of success on the merits even though at that time there remained, as identified by Dr. Rottnek, several issues ofcontinuing concern,including inconsistent enforcement ofsocial distancing and mask policies,the lack ofaformal plan for regular surveillance testing,and the continued lack of specialized policies or procedures for high-risk detainees. Coreas IV,2020 WL 5593338 at *19. Significantly, while some ofthese conditions persist, as noted by Dr. Rottnek, HCDC has since taken"significantsteps"to mitigate the introduction and spread ofCOVID-19,Rottnek Rep.at2, 13, including some measures that specifically address the areas of concem identified in his first report. These measures include adopting formal COVID-19 policies and a more regular schedule for universal surveillance testing, which Dr.Rottnek characterized as"robust,"id;tracking mask
compliance in written reporting and distributing N-95 masks to all detainees as of mid-December 2019; arranging for the Vytis protective coating and UV entry portal; and moving the most highrisk ICE detainees to their own separate unit with single cells. Most recently, HCDC took the
15

Case 8:20-cv-00780-TDC Document 300 Filed 01/26/21 Page 16 of 20
significant step of offering and providing vaccination to all detainees, including ICE detainees, who wanted to receive it. This last step is particularly meaningful where vaccination in Maryland
remains limited to only certain high-priority categories ofindividuals. Although Petitioners argue that many of these measures would not have occurred in the
absence ofthis litigation generally and the Second Bail Motion specifically, and this position is bolstered by some of the detainee accounts given to Dr. Rottnek, the measures are also fairly viewed as a response to the rising number ofpositive tests. The widespread distribution ofN-95 masks, the movement of high-risk ICE detainees to their own unit, and the initiation of
vaccinations are all highly significant actions that rebut the claim of deliberate indifference
because they constitute reasonable responses to the rising threat to health and safety. See Farmer, 511 U.S. at 844. Although reasonable responses need not be successful in order to avoid a finding of deliberate indifference, at this point these additional measures have coincided with a recent reduction in the number of overall positive cases—with only one detainee case as of December 31, 2020 and no positive tests among detainees as of January 12, 2021, after several rounds of testing with up to seven positive cases among detainees on each occasion. They also coincide with the continuing lack ofany positive cases among ICE detainees housed in the ICE units(West-6, West-4,and F-2)from September 2020 to the present. Under these circumstances,the Court does not find a high probability of success on the argument that, since the Court's ruling on the First Bail Motion,Respondents have acted with deliberate indifference to Petitioners' health and safety.
As for the impermissible punishment claim, civil detainees must show that either(1)the condition in question was imposed with the express intent to punish; or (2) it is not reasonably related to a legitimate, nonpunitive governmental objective, such that the intent to punish can be inferred. Matherly v. Andrews,859 F.Sd 264, 275 (4th Cir. 2017). On the second prong,"due
16

Case 8:20-cv-00780-TDC Document 300 Filed 01/26/21 Page 17 of 20
process requires thatthe conditions and duration ofconfinement...bear some reasonable relation
to the purpose for which persons are committed." Id. In ruling on the First Bail Motion,the Court concluded that in light of HCDC's institution of regular universal surveillance testing and appropriate isolation and quarantine procedures, an institutional headcount and living arrangements that affordedICE detainees the ability to be socially distant,and the presence ofonly a limited number ofpositive tests among state detainees and staff,there was not a high probability of success on the argument that the ICE detainees' confinement constituted a form of impermissible punishment. Coreas/E,2020 WL 5593338 at *19.
Although the substantial increase in the number of positive cases in November and December2020teststhat conclusion,the Court nevertheless continues to find thatthere is not high probability of success on this claim. First, the response to the growth in positive cases included measures designed to provide increased protection to detainees, particularly the ICE detainees, such as the provision ofN-95 mask to all detainees and the separation ofICE detainees into two units, with one providing single cells to the most high-risk detainees, to provide greater social distancing and isolation. Whether because ofthese measures or otherwise,the result to date has been that there still have been no positive cases among ICE detainees housed in the dedicated ICE units. The-only positive case of an ICE detainee was of a newly arrived detainee who tested positive while in quarantine and was thus identified before being sent to an ICE unit.
Second, although Petitioners argue with some force that the lack of positive cases within the ICE units is not a sustainable condition,the recent added measure ofproviding vaccinations to detainees who want them, including ICE detainees, is a highly significant new development that undermines the claim ofimpermissible punishment. The provision ofvaccinations,particularly at a time when they have been made available in Maryland to only the highest priority categories,is
17

Case 8:20-cv-00780-TDC Document 300 Filed 01/26/21 Page 18 of 20
inconsistent with a finding ofan intent to punish. See Matherly,859 F.3d at 275. Further, even accepting the fact that vaccinations do not provide immediate or certain protection, and that a second dose is required several weeks into the Jhiture, the provision of vaccinations reflects that the risk to Petitioners is now diminishing,such that the Court does not conclude that there is high probability ofsuccess on the claim that their conditions ofconfinement constitute impermissible
punishment. III. Exceptional Circumstances
Exceptional circumstances are those that"mak[e]a grant ofbail necessary for the habeas remedy to be effective." Eliely,276 F.App'x at270. Exceptional circumstances may include"the raising ofsubstantial claims upon which the[petitioner]has a high probability ofsuccess,a serious deterioration of health while incarcerated, and unusual delay in the appeal process." Cf. Salerno V. United States, 878 F. 2d 317, 317 (9th Cir. 1989) (discussing exceptional circumstances warranting bail pending appeal in an extradition case).
Beyond arguing that there is now a high probability of success on the merits. Petitioners have not identified any specific exceptional circumstances warranting bail determinations for all high-risk ICE detainees at this time. Other than the general claim of having high-risk conditions, they have not claimed that any detainees are presently so ill that immediate release must be considered. See Lucas v. Hadden, 790 F.2d 365, 367 (3d Cir. 1986)(finding "extraordinary circumstances" warranting bail for a habeas petitioner who was "gravely ill" and was granted bail "on the condition that he enter a hospital to seek necessary medical care") (citing Johnston v. Marsh,227 F.2d 528(3rd Cir. 1955)). As was the case on First Bail Motion,COVID-19 has not actually made its way into the ICE detainee population. Where Petitioners have identified no glaring deficiencies in HCDC's COVID-19 protocols, the Court cannot presently find that exceptional circumstances require bail hearings as the only way to protect the health and safety of
18

Case 8:20-cv-00780-TDC Document 300 Filed 01/26/21 Page 19 of 20
Petitioners. See Daum v. Eckert,17-CV-239,2020 WL 5040596,at *4(E.D.N.Y. Aug.26,2020) (finding, where a habeas petitioner sought a bail hearing, no exceptional circumstances because petitioner "had ... not shown that the facility in which he is housed has failed to take appropriate steps to counteract the virus," where that facility had "implemented measures that are modeled on the CDC's guidance"); cf. Carmen R. v. Decker,No.20-3875,2020 WL 2029337,at *13(D.N.J. Apr. 28,2020)(finding no exceptional circumstances in part because the facility ofdetention had "implemented a variety of measures to combat the spread of the virus amongst detainees and staff'). Accordingly,the Court will deny the Motion.
The Cotirt again notes, however, that this determination is not a permanent one. Where several detainees reported to Dr.Rottnek thatthe provision ofcleaning supplies and masks,as well as the enforcement of cleaning and social distancing policies, waned last fall and rebounded only with the additional scrutiny coinciding with the filing ofthe Second Bail Motion,there remains a real concern that HCDC will not maintain and improve on its mitigation measures as needed. Thus, the tool ofunannounced inspections,which HCDC voluntarily committed to permit"at any time," Kavanaugh Decl.K 31,ECF No.257-1,may be needed again. In order to avoid revisitation ofthis determination, HCDC must follow through and complete vaccinations of all detainees who agree to have one;continue robust surveillance testing and quarantine and isolation procedures; maintain its overall headcount at the current reduced levels, its policy of not receiving new ICE detainees during the COVID-19 pandemic, and its dedicated unit with single cells for high-risk ICE detainees; and maintain and improve upon the enforcement of mask, social distancing, and cleaning policies.
19

Case 8:20-cv-00780-TDC Document 300 Filed 01/26/21 Page 20 of 20
CONCLUSION
For the foregoing reasons, Petitioners' Renewed Motion for Expedited Bail Hearings will be DENIED. A separate Order shall issue.

Date: January 25,2021

THEODORE D. CHU, United States District J

20