CLOSED,HABEAS,COVID-19,MTP
U.S. District Court Southern District of Mississippi (Western) CIVIL DOCKET FOR CASE #: 5:20-cv-00106-DCB-MTP

Espinoza et al v. Witte et al Assigned to: District Judge David C. Bramlette, III Referred to: Magistrate Judge Michael T. Parker Cause: 28:2241 Petition for Writ of Habeas Corpus (Federal)

Date Filed: 04/16/2020 Date Terminated: 08/04/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus Alien Detainee Jurisdiction: U.S. Government Defendant

Petitioner Leyanis Tamayo Espinoza

represented by Cliff Johnson MACARTHUR JUSTICE CENTER - University Director, University of Mississippi School of Law 481 Chucky Mullins Drive University, MS 38677 662-915-6863 Email: cjohnson@macarthurjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ghita Schwarz - PHV CENTER FOR CONSTITUTIONAL RIGHTS New York 666 Broadway, 7th Floor New York, NY 10012 212/614-6445 Fax: 212/614-6499 Email: gschwarz@ccrjustice.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Guadalupe Victoria Aguirre PHV CENTER FOR

CONSTITUTIONAL RIGHTS New York 666 Broadway, 7th Floor New York, NY 10012 212-614-6439 Fax: 212-614-6439 Email: laguirre@ccrjustice.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew S. Vogel - PHV NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave. NW, Suite 200 Washington, DC 20007 504-569-5650 Fax: 617-227-5495 Email: matt@nipnlg.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya - PHV NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave. NW, Suite 200 Washington, DC 20007 202-656-4788 Fax: 617-227-5495 Email: sirine@nipnlg.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Angelo Guisado - PHV CENTER FOR CONSTITUTIONAL RIGHTS New York 666 Broadway, 7th Floor New York, NY 10012 212-614-6454

Petitioner Edilia Del Carmen Martinez

Fax: 212-614-6499 Email: aguisado@ccrjustice.org PRO HAC VICE ATTORNEY TO BE NOTICED
Baher Azmy - PHV CENTER FOR CONSTITUTIONAL RIGHTS New York 666 Broadway, 7th Floor New York, NY 10012 212-614-6427 Fax: 212-614-6499 Email: bazmy@ccrjustice.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Cliff Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Guadalupe Victoria Aguirre PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew S. Vogel - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE

Petitioner Jose Ruben Lira Arias

ATTORNEY TO BE NOTICED
Angelo Guisado - PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Baher Azmy - PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Cliff Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Guadalupe Victoria Aguirre PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew S. Vogel - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Angelo Guisado - PHV (See above for address) PRO HAC VICE

Petitioner Viankis Maria Yanes Pardillo

ATTORNEY TO BE NOTICED
Baher Azmy - PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Cliff Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Guadalupe Victoria Aguirre PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew S. Vogel - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Angelo Guisado - PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Baher Azmy - PHV (See above for address)

Petitioner Ndikum Keshia Angu Anjoh
Petitioner

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Cliff Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Guadalupe Victoria Aguirre PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew S. Vogel - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Angelo Guisado - PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Baher Azmy - PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Anthony Baptiste
Petitioner Linda Chuo Fru

represented by Cliff Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Guadalupe Victoria Aguirre PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew S. Vogel - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Angelo Guisado - PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Baher Azmy - PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Cliff Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Respondent
Dianne Witte in her official capacity as Interim New Orleans Field Office Director, U.S. Immigration and Customs Enforcement TERMINATED: 04/20/2020

Ghita Schwarz - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Guadalupe Victoria Aguirre PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew S. Vogel - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya - PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Angelo Guisado - PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Baher Azmy - PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Respondent
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 TERMINATED: 04/20/2020
Respondent
Immigration and Customs Enforcement TERMINATED: 04/20/2020
Respondent
Shawn Gillis in his official capacity as Warden, A.C.C.D.C.

represented by Angela Givens Williams-Federal Gov U. S. ATTORNEY'S OFFICE Jackson 501 East Court Street Suite 4.430 Jackson, MS 39201 601/973-2822 Fax: 601/965-4032 Email: Angela.Williams3@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/16/2020
04/16/2020

# Docket Text
1 PETITION for a Writ of Habeas Corpus and COMPLAINT for Injunctive and Declaratory Relief against Matthew T. Albence, Shawn Gillis, Immigration and Customs Enforcement and Dianne Witte ( Filing fee $ 400 paid; receipt number 0538-4254123) filed by Anthony Baptiste, Edilia Del Carmen Martinez, Viankis Maria Yanes Pardillo, Ndikum Keshia Angu Anjoh, Leyanis Tamayo Espinoza, Linda Chuo Fru and Jose Ruben Lira Arias. (Attachments: # 1 Civil Cover Sheet)(ND) (Entered: 04/16/2020)
2 Summons Issued as to Shawn Gillis, Matthew T. Albence, Immigration and Customs Enforcement and Dianne Witte. (Attachments:

04/16/2020 04/16/2020
04/16/2020 04/20/2020
04/23/2020 04/24/2020 04/27/2020

# 1 Summons Matthew T. Albence, # 2 Summons ICE, # 3 Summons Dianne Witte)(ND) (Entered: 04/16/2020)
3 MOTION for Temporary Restraining Order by Ndikum Keshia Angu Anjoh, Jose Ruben Lira Arias, Anthony Baptiste, Leyanis Tamayo Espinoza, Linda Chuo Fru, Edilia Del Carmen Martinez, Viankis Maria Yanes Pardillo (Johnson, Cliff) (Entered: 04/16/2020)
4 AFFIDAVIT in Support re 3 MOTION for Temporary Restraining Order filed by Leyanis Tamayo Espinoza (Attachments: # 1 Exhibit Declaration of Leyanis Tamayo Espinoza, # 2 Exhibit Declaration of Edilia Del Carmen Martinez, # 3 Exhibit Declaration of Jose Ruben Lira Arias, # 4 Exhibit Declaration of Ndikum Keshia Angu Anjoh, # 5 Exhibit Declaration of Viankis Maria Yanes Pardillo, # 6 Exhibit Declaration of Anthony Baptiste, # 7 Exhibit Declaration of Linda Chuo Fru, # 8 Exhibit Declaration of Dr. Lydia Bazzano, # 9 Exhibit Declaration of Dr. Jaimie Meyer, # 10 Exhibit Orders & Opinions Releasing Individuals from Immigration Detention)(Johnson, Cliff) (Entered: 04/16/2020)
5 MEMORANDUM in Support re 3 MOTION for Temporary Restraining Order filed by Ndikum Keshia Angu Anjoh, Jose Ruben Lira Arias, Anthony Baptiste, Leyanis Tamayo Espinoza, Linda Chuo Fru, Edilia Del Carmen Martinez, Viankis Maria Yanes Pardillo (Johnson, Cliff) (Entered: 04/16/2020)
6 ORDER, Dianne Witte, Matthew T. Albence, and Immigration and Customs Enforcement are hereby removed as Respondents. Respondent Warden Shawn Gillis shall file an answer or other responsive pleading in this case within 20 days of the service of a copy of this Order. Dianne Witte, Matthew T. Albence and Immigration and Customs Enforcement terminated. Signed by Magistrate Judge Michael T. Parker on 4/20/2020. (LDR) (Entered: 04/20/2020)
7 ACKNOWLEDGMENT OF SERVICE Executed as to Shawn Gillis (Civil Process Clerk)served on 4/21/2020, answer due 5/11/2020. (PKM) (Entered: 04/23/2020)
8 ACKNOWLEDGMENT OF SERVICE Executed as to Shawn Gillis served on 4/22/2020, answer due 5/12/2020. (PKM) (Entered: 04/24/2020)
9 ACKNOWLEDGMENT OF SERVICE Executed as to Shawn Gillis (Attorney General of the United States) served on 4/24/2020, answer due 5/14/2020. (PKM) (Entered: 04/27/2020)

04/27/2020

Set/Reset Hearings: Telephone Conference set for 4/27/2020 02:00 PM before Magistrate Judge Michael T. Parker. Counsel shall dial 1.888.273.3658, code 1055457 to connect to the call. (MMc) (Entered: 04/27/2020)

04/27/2020

Minute Entry for proceedings held before Magistrate Judge Michael T. Parker: Telephone Conference held on 4/27/2020. The parties discussed a briefing schedule. An order will be entered. PARTICIPANTS: Cliff Johnson for plaintiff; Angela Williams for respondent. (KPM) (Entered: 04/27/2020)

04/27/2020

10 Scheduling ORDER re Motion for Temporary Restraining Order 3 and request for preliminary injunction. Response due 4/30/2020. Reply due 5/6/2020. Signed by Magistrate Judge Michael T. Parker on April 27, 2020. (MMc) (Entered: 04/27/2020)

04/28/2020

11 MOTION for Matthew S. Vogel to Appear Pro Hac Vice (Paid $100 PHV fee; receipt number 0538-4262103) by Ndikum Keshia Angu Anjoh, Jose Ruben Lira Arias, Anthony Baptiste, Leyanis Tamayo Espinoza, Linda Chuo Fru, Edilia Del Carmen Martinez, Viankis Maria Yanes Pardillo (Johnson, Cliff) (Entered: 04/28/2020)

04/28/2020

12 MOTION for Sirine Shebaya to Appear Pro Hac Vice (Paid $100 PHV fee; receipt number 0538-4262122) by Ndikum Keshia Angu Anjoh, Jose Ruben Lira Arias, Anthony Baptiste, Leyanis Tamayo Espinoza, Linda Chuo Fru, Edilia Del Carmen Martinez, Viankis Maria Yanes Pardillo (Johnson, Cliff) (Entered: 04/28/2020)

04/29/2020

13 NOTICE of Appearance by Angela Givens Williams-Federal Gov on behalf of Shawn Gillis (Williams-Federal Gov, Angela) (Entered: 04/29/2020)

04/29/2020

14 MOTION for Jeremy Jong to Appear Pro Hac Vice (Paid $100 PHV fee; receipt number 0538-4262718) by Ndikum Keshia Angu Anjoh, Jose Ruben Lira Arias, Anthony Baptiste, Leyanis Tamayo Espinoza, Linda Chuo Fru, Edilia Del Carmen Martinez, Viankis Maria Yanes Pardillo (Johnson, Cliff) (Entered: 04/29/2020)

04/30/2020

15 RESPONSE in Opposition re 3 MOTION for Temporary Restraining Order filed by Shawn Gillis (Attachments: # 1 Exhibit 1-Hagan Decl. I, # 2 Exhibit 2-Hagan Decl. II, # 3 Exhibit 3-Gillis Decl.)(WilliamsFederal Gov, Angela) (Entered: 04/30/2020)

04/30/2020

16 MOTION for Guadalupe Victoria Aguirre to Appear Pro Hac Vice (Paid $100 PHV fee; receipt number 0538-4264608) by Ndikum Keshia Angu Anjoh, Jose Ruben Lira Arias, Anthony Baptiste, Leyanis Tamayo

Espinoza, Linda Chuo Fru, Edilia Del Carmen Martinez, Viankis Maria Yanes Pardillo (Johnson, Cliff) (Entered: 04/30/2020)

04/30/2020

17 MOTION for Baher Azmy to Appear Pro Hac Vice (Paid $100 PHV fee; receipt number 0538-4264610) by Ndikum Keshia Angu Anjoh, Jose Ruben Lira Arias, Anthony Baptiste, Leyanis Tamayo Espinoza, Linda Chuo Fru, Edilia Del Carmen Martinez, Viankis Maria Yanes Pardillo (Johnson, Cliff) (Entered: 04/30/2020)

04/30/2020

18 MOTION for Angelo Guisado to Appear Pro Hac Vice (Paid $100 PHV fee; receipt number 0538-4264612) by Ndikum Keshia Angu Anjoh, Jose Ruben Lira Arias, Anthony Baptiste, Leyanis Tamayo Espinoza, Linda Chuo Fru, Edilia Del Carmen Martinez, Viankis Maria Yanes Pardillo (Johnson, Cliff) (Entered: 04/30/2020)

04/30/2020

19 MOTION for Astha Sharma Pokharel to Appear Pro Hac Vice (Paid $100 PHV fee; receipt number 0538-4264613) by Ndikum Keshia Angu Anjoh, Jose Ruben Lira Arias, Anthony Baptiste, Leyanis Tamayo Espinoza, Linda Chuo Fru, Edilia Del Carmen Martinez, Viankis Maria Yanes Pardillo (Johnson, Cliff) (Entered: 04/30/2020)

04/30/2020

20 MOTION for Ghita Schwarz to Appear Pro Hac Vice (Paid $100 PHV fee; receipt number 0538-4264615) by Ndikum Keshia Angu Anjoh, Jose Ruben Lira Arias, Anthony Baptiste, Leyanis Tamayo Espinoza, Linda Chuo Fru, Edilia Del Carmen Martinez, Viankis Maria Yanes Pardillo (Johnson, Cliff) (Entered: 04/30/2020)

04/30/2020

21 MOTION for Brittany Thomas to Appear Pro Hac Vice (Paid $100 PHV fee; receipt number 0538-4264617) by Ndikum Keshia Angu Anjoh, Jose Ruben Lira Arias, Anthony Baptiste, Leyanis Tamayo Espinoza, Linda Chuo Fru, Edilia Del Carmen Martinez, Viankis Maria Yanes Pardillo (Johnson, Cliff) (Entered: 04/30/2020)

05/04/2020

22 ORDER denying 11 Motion to Appear Pro Hac Vice; denying 12 Motion to Appear Pro Hac Vice; denying 14 Motion to Appear Pro Hac Vice. Signed by Magistrate Judge Michael T. Parker on May 4, 2020. (MMc) (Entered: 05/04/2020)

05/04/2020

23 ORDER denying 16 Motion to Appear Pro Hac Vice; denying 17 Motion to Appear Pro Hac Vice; denying 18 Motion to Appear Pro Hac Vice; denying 19 Motion to Appear Pro Hac Vice; denying 20 Motion to Appear Pro Hac Vice; denying 21 Motion to Appear Pro Hac Vice. Signed by Magistrate Judge Michael T. Parker on May 4, 2020. (MMc) (Entered: 05/04/2020)

05/04/2020 24 ATTACHMENT re 12 MOTION for Sirine Shebaya to Appear Pro Hac Vice (Paid $100 PHV fee; receipt number 0538-4262122) Corrected

Certificate of Good Standing by Ndikum Keshia Angu Anjoh, Jose Ruben Lira Arias, Anthony Baptiste, Leyanis Tamayo Espinoza, Linda Chuo Fru, Edilia Del Carmen Martinez, Viankis Maria Yanes Pardillo (Johnson, Cliff) (Entered: 05/04/2020)

05/05/2020

25 ATTACHMENT re 11 MOTION for Matthew S. Vogel to Appear Pro Hac Vice (Paid $100 PHV fee; receipt number 0538-4262103), 22 Order on Motion to Appear Pro Hac Vice,, Corrected Certificate of Good Standing by Ndikum Keshia Angu Anjoh, Jose Ruben Lira Arias, Anthony Baptiste, Leyanis Tamayo Espinoza, Linda Chuo Fru, Edilia Del Carmen Martinez, Viankis Maria Yanes Pardillo (Johnson, Cliff) (Entered: 05/05/2020)

05/05/2020

TEXT ONLY ORDER granting pro hac vice admission of Sirine Shebaya and Matthew S. Vogel upon registering for electronic filing. No further written order will issue. Signed by Magistrate Judge Michael T. Parker on May 5, 2020 (KPM) (Entered: 05/05/2020)

05/06/2020

26 REPLY to Response to Motion re 3 MOTION for Temporary Restraining Order filed by Ndikum Keshia Angu Anjoh, Jose Ruben Lira Arias, Anthony Baptiste, Leyanis Tamayo Espinoza, Linda Chuo Fru, Edilia Del Carmen Martinez, Viankis Maria Yanes Pardillo (Attachments: # 1 Attachment Declaration of Cliff Johnson, # 2 Exhibit Exhibit 11, # 3 Exhibit Exhibit 12, # 4 Exhibit Exhibit 13, # 5 Exhibit Exhibit 14, # 6 Exhibit Exhibit 15, # 7 Exhibit Exhibit 16, # 8 Exhibit Exhibit 17, # 9 Exhibit Exhibit 18, # 10 Exhibit Exhibit 19, # 11 Exhibit Exhibit 20)(Johnson, Cliff) (Entered: 05/06/2020)

05/11/2020 27 ANSWER to 1 Complaint, by Shawn Gillis.(Williams-Federal Gov, Angela) (Entered: 05/11/2020)

05/13/2020

28 ATTACHMENT re 23 Order on Motion to Appear Pro Hac Vice, 20 MOTION for Ghita Schwarz to Appear Pro Hac Vice (Paid $100 PHV fee; receipt number 0538-4264615) Certificate of Good Standing dated May 12, 2020 by Ndikum Keshia Angu Anjoh, Jose Ruben Lira Arias, Anthony Baptiste, Leyanis Tamayo Espinoza, Linda Chuo Fru, Edilia Del Carmen Martinez, Viankis Maria Yanes Pardillo (Johnson, Cliff) (Entered: 05/13/2020)

05/13/2020

29 ATTACHMENT re 23 Order on Motion to Appear Pro Hac Vice,,,,,,,,,,, 16 MOTION for Guadalupe Victoria Aguirre to Appear Pro Hac Vice (Paid $100 PHV fee; receipt number 05384264608) Certificate of Good Standing dated May 12, 2020 by Ndikum Keshia Angu Anjoh, Jose Ruben Lira Arias, Anthony Baptiste, Leyanis Tamayo Espinoza, Linda Chuo Fru, Edilia Del Carmen Martinez, Viankis Maria Yanes Pardillo (Johnson, Cliff) (Entered: 05/13/2020)

05/13/2020

Set Hearing as to 3 MOTION for Temporary Restraining Order . (Telephonic Motion Hearing set for 5/19/2020 10:00 AM before District Judge David C. Bramlette III.) (lda) (Entered: 05/13/2020)

05/14/2020

TEXT ONLY ORDER granting pro hac admission of Guadalupe Victoria Aguirre and Gita Schwarz upon registering for electronic filing. No further written order will issue. Signed by Magistrate Judge Michael T. Parker on May 14, 2020 (KPM) (Entered: 05/14/2020)

05/15/2020

30 ATTACHMENT re 23 Order on Motion to Appear Pro Hac Vice,,,,,,,,,,, 18 MOTION for Angelo Guisado to Appear Pro Hac Vice (Paid $100 PHV fee; receipt number 0538-4264612) Certificate of Good Standing Dated May 12, 2020 by Ndikum Keshia Angu Anjoh, Jose Ruben Lira Arias, Anthony Baptiste, Leyanis Tamayo Espinoza, Linda Chuo Fru, Edilia Del Carmen Martinez, Viankis Maria Yanes Pardillo (Johnson, Cliff) (Entered: 05/15/2020)

05/15/2020

31 ATTACHMENT re 17 MOTION for Baher Azmy to Appear Pro Hac Vice (Paid $100 PHV fee; receipt number 0538-4264610), 23 Order on Motion to Appear Pro Hac Vice,Certificate of Good Standing Dated May 13, 2020 by Ndikum Keshia Angu Anjoh, Jose Ruben Lira Arias, Anthony Baptiste, Leyanis Tamayo Espinoza, Linda Chuo Fru, Edilia Del Carmen Martinez, Viankis Maria Yanes Pardillo (Johnson, Cliff) (Entered: 05/15/2020)

05/18/2020

TEXT ONLY ORDER granting pro hac admission of Angelo Guisado and Baher Azmy upon registering for electronic filing. No further written order will issue. Signed by Magistrate Judge Michael T. Parker on May 18, 2020 (KPM) (Entered: 05/18/2020)

05/19/2020

Minute Entry for proceedings held before District Judge David C. Bramlette, III: Motion Hearing held on 5/19/2020 re 3 MOTION for Temporary Restraining Order filed by Leyanis Tamayo Espinoza, Linda Chuo Fru, Jose Ruben Lira Arias, Edilia Del Carmen Martinez, Ndikum Keshia Angu Anjoh, Viankis Maria Yanes Pardillo, Anthony Baptiste. PARTICIPANTS: Ghita Schwarz, Cliff Johnson, Attorneys for the Plaintiffs; Angela Givens Williams, AUSA. The Court heard from the parties on the Motion for Temporary Restraining Order. The Court will file a Memorandum Opinion and Order ruling on the Motion. The parties may submit additional facts on the Motion prior to the Court's ruling. Court Reporter/Transcriber Candice Crane, Telephone Number : 601-608-4187. (lda) (Entered: 05/19/2020)

05/22/2020

32 RESPONSE in Support re 3 MOTION for Temporary Restraining Order with supplemental authority filed by Ndikum Keshia Angu Anjoh, Anthony Baptiste, Leyanis Tamayo Espinoza, Linda Chuo Fru, Edilia Del Carmen Martinez (Attachments: # 1 Exhibit District Court order in

Dada v. Witte, # 2 Exhibit District Court order in Coreas v. Bounds)(Schwarz - PHV, Ghita) (Entered: 05/22/2020)

05/26/2020

TEXT ORDER ONLY: Petitioners have filed a Supplemental Authority in Support of their Motion for Temporary Restraining Order [ECF No. 32]. The Government has five (5) days from the entry of this Text Order to respond. Signed by District Judge David C. Bramlette, III on 05/26/2020 (sl) (Entered: 05/26/2020)

06/01/2020

33 Response in Opposition re 3 MOTION for Temporary Restraining Order by Ndikum Keshia Angu Anjoh, Jose Ruben Lira Arias, Anthony Baptiste, Leyanis Tamayo Espinoza, Linda Chuo Fru, Edilia Del Carmen Martinez, Viankis Maria Yanes Pardillo (Johnson, Cliff) filed by Shawn Gillis (Attachments: # 1 Exhibit 1-Gillis Declaration, # 2 Exhibit 2-CDC Guidance)(Williams-Federal Gov, Angela) (Entered: 06/01/2020)

06/03/2020 34 ORDER denying 3 Motion for TRO. Signed by District Judge David C. Bramlette, III on 06/03/2020 (sl) (Entered: 06/03/2020)

06/11/2020

35 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motions Proceedings held on May 19, 2020 before Judge David C. Bramlette, III. Court Reporter/Transcriber Candice Crane, Telephone Number : 601608-4187. NOTICE RE : REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no Notice is filed, the transcript will be made electronically available to the public without redaction after 90 calendar days. The policy is located on the court website at www.mssd.uscourts.gov. 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 through PACER. Redaction Request due 7/2/2020. Redacted Transcript Deadline set for 7/13/2020. Release of Transcript Restriction set for 9/9/2020. (CC) (Entered: 06/11/2020)

08/04/2020

36 STIPULATION of Dismissal by Ndikum Keshia Angu Anjoh, Jose Ruben Lira Arias, Anthony Baptiste, Leyanis Tamayo Espinoza, Linda Chuo Fru, Edilia Del Carmen Martinez, Viankis Maria Yanes Pardillo (Johnson, Cliff) (Entered: 08/04/2020)

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5:20-cv00106-DCBMTP
1.10

 
 Case 5:20-cv-00106-DCB-MTP Document 1 Filed 04/16/20 Page 1 of 48 
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

LEYANIS TAMAYO ESPINOZA EDILIA DEL CARMEN MARTINEZ JOSE RUBEN LIRA ARIAS VIANKIS MARIA YANES PARDILLO NDIKUM KESHIA ANGU ANJOH ANTHONY BAPTISTE LINDA CHUO FRU Adams County Detention Center 20 Hobo Fork Road Natchez, MS 39120,
Petitioners-Plaintiffs,
v.
DIANNE WITTE, in her official capacity as Interim New Orleans Field Office Director, U.S. Immigration and Customs Enforcement 1250 Poydras, Suite 325 New Orleans, LA 70113;
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, 500 12th St., S.W. Washington, DC 20536;
SHAWN GILLIS, in his official capacity as Warden, Adams County County Detention Center 20 Hobo Fork Road Natchez, MS 39120;
Respondents-Defendants.

PETITION FOR A WRIT OF HABEAS CORPUS AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
Civil Action No. _5_:_2_0_-c_v_1_0_6_-_D_C_B_-_M_TP

Case 5:20-cv-00106-DCB-MTP Document 1 Filed 04/16/20 Page 2 of 48

Cliff Johnson cliff.johnson@macarthurjustice.org MACARTHUR JUSTICE CENTER at the UNIVERSITY OF MISSISSIPPI SCHOOL OF LAW 481 Chucky Mullins Drive University, MS 38677 662.915.6863
Sirine Shebaya* sirine@nipnlg.org Matthew S. Vogel * matt@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Avenue NW, Suite 200 Washington, DC 20007 718.419.5876

Baher Azmy* bazmy@ccrjustice.org Ghita Schwarz* gschwarz@ccrjustice.org Angelo Guisado* aguisado@ccrjustice.org Guadalupe V. Aguirre* laguirre@ccrjustice.org Astha Sharma Pokharel* asharmapokharel@ccrjustice.org Brittany Thomas* bthomas@ccrjustice.org CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 11201 212.614.6427

Jeremy Jong** jermjong@gmail.com 3527 Banks Street New Orleans, LA 70119 504.475.6728

Counsel for Petitioner-Plaintiffs *pro hac vice applications forthcoming ** admission application forthcoming

April 16, 2020

Case 5:20-cv-00106-DCB-MTP Document 1 Filed 04/16/20 Page 3 of 48 
PETITION FOR A WRIT OF HABEAS CORPUS AND COMPLAINT FOR INJUNCTIVE RELIEF
INTRODUCTION 1. This case presents a request for immediate relief on behalf of seven PetitionerPlaintiffs (“Plaintiffs”), who are highly vulnerable to serious injury and death if they contract COVID-19, the lethal disease that is sweeping the globe. Respondent-Defendants (“Defendants”) are holding Plaintiffs in Adams County Detention Center (“Adams”), a civil immigration detention facility in Natchez, Mississippi. The coronavirus feeds on precisely the unsafe, congregate conditions in which Plaintiffs are being held, putting Plaintiffs at imminent risk of contracting the lethal COVID-19 disease. 2. The risks and consequences of COVID-19 cannot be overstated. COVID-19 has reached global pandemic status. As of April 12, 2020, nearly 1.7 million individuals worldwide have confirmed diagnoses of COVID-19 and more than 100,000 individuals worldwide have died.1 Those numbers are growing exponentially, with more than 85,000 new cases worldwide in a 24hour period between April 11 and April 12 alone.2 In the United States, more than 579,000 have confirmed cases, and more than 22,000 have died.3 By the time the Court reads this complaint, there will be more diagnoses, and more death, with no end in sight. 3. As of April 15, 2020, there were 3360 COVID-19 cases in Mississippi and, according to ICE, 5 known positive cases within Adams. In Louisiana, on the border with Natchez,
1 World Health Org., Coronavirus Disease 2019 (COVID-19) Situation Report – 83, Apr. 12, 2020, available at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200412-sitrep-83-covid19.pdf?sfvrsn=697ce98d_4.
2 Id. 3 Center for Disease Control, Cases in U.S. (Apr. 15, 2020), available at https://www.cdc.gov/coronavirus/2019ncov/cases-updates/cases-in-us.html.

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where the Adams facility is located, there are 21,951 COVID-19 cases.4 The number of infected people is rising exponentially. 122 people in Mississippi and 1103 people in Louisiana have died from the disease.5
4. The Adams facility is under the jurisdiction and direction of the regional ICE Field Office located in New Orleans, which has jurisdiction over detention facilities in Mississippi, Louisiana and Alabama. As of April 15, 2020, ICE reports that Adams already has 5 confirmed cases of detained people with COVID-19, and that facilities nationwide with 89 cases of COVID19 among detained people nationwide, including 14 at 7 different facilities within the New Orleans Field Office’s jurisdiction, and 13 cases of COVID-19 among employees at the Alexandria Staging Facility, also within the New Orleans Field Office’s jurisdiction.6 Because ICE does not engage in regular testing, all of these numbers must be assumed to be far higher. The New Orleans ICE Field Office regularly transfers individuals from one of these facilities to another, and continues to make such transfers and receive transfers from other parts of the United States even since the COVID19 outbreak.7
4 Louisiana Department of Health, Coronavirus (COVID-19) (Apr. 15, 2020), http://ldh.la.gov/coronavirus/; Mississippi State Department of Health, Coronavirus Disease 2019 (COVID-19) (Apr. 15, 2020), https://msdh.ms.gov/msdhsite/_static/14,0,420.html..
5 Louisiana Department of Health, Coronavirus (COVID-19) (Apr. 15, 2020), http://ldh.la.gov/coronavirus/; Mississippi State Department of Health, Coronavirus Disease 2019 (COVID-19) (Apr. 15, 2020), https://msdh.ms.gov/msdhsite/_static/14,0,420.html.
6 Immigration and Customs Enforcement, ICE Guidance on COVID-19, Confirmed Cases, (Apr. 15, 2020), https://www.ice.gov/coronavirus. The Natchez Democrat reports that an employee of the facility also has COVID19. See Scott Hawkins, Adams County Correctional Facility now has 6 COVID-19 cases, Natchez Democrat (Apr. 15, 2020, available at https://www.natchezdemocrat.com/2020/04/15/adams-county-correctional-facility-now-has-6covid-19-cases/.
7 See, e.g., Yeganeh Torbati, Dara Lind & Jack Gillum, In a 10-Day Span, ICE Flew This Detainee Across the Country Nine Times, ProPublica (Mar. 27, 2020), available at https://www.propublica.org/article/coronavirus-iceflights-detainee-sirous-asgari (documenting transfer of man through several facilities, including those within jurisdiction of New Orleans Field Office).
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5. There are outbreaks in the communities in which each of these facilities are located, including Adams County, which has 64 cases and three reported deaths.8 The growth of coronavirus cases in detention, jail and prison systems has been staggering, posing threats not only to those detained but also to staff and the communities they live in.9 Immediate relief is necessary before the coronavirus ignites across the immigration detention facilities that dot the Mississippi Delta, including the Adams County Detention Center.
6. Plaintiffs fear for their lives because they have medical conditions that make them vulnerable to serious injury or death should they be infected with COVID-19. And for good reason: they are trapped in a facility that can only be described as a breeding ground for the disease, and where infection has already broken out and will work toward its inevitable spread across the entire population. Despite warnings and pleas for release from public health experts and advocates, Defendants have chosen to continue to confine Plaintiffs in close proximity, without adequate soap and/or hand sanitizer; to admit and transfer individuals without COVID-19 testing or screening; to refuse to implement cleaning and protection procedures adequate to combat COVID-19; and to resist releasing even the most medically vulnerable individuals. The conditions and treatment at Adams have created a dangerous situation that threatens their lives, as well as the well-being of staff, others in the surrounding community, and the general public.
7. There is no known treatment for or vaccine against COVID-19, and there is no known cure. The only known effective measures to reduce the risk of COVID-19 are to prevent
8 Mississippi State Department of Health, Coronavirus Disease 2019 (COVID-19) (Apr. 15, 2020), https://msdh.ms.gov/msdhsite/_static/14,0,420.html.
9 Kevin Johnson, Coronavirus outbreak: hundreds of infected, quarantined inmates challenging priosn and jail officials, USA Today (Apr. 9 2020), available at https://www.usatoday.com/story/news/politics/2020/04/09/coronavirus-hits-workers-inmates-jails-prisonsthreatened/2968807001/.
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infection through social distancing and vigilant hygiene. Yet “social distancing” is a meaningless term in Adams and other ICE detention centers, where detainees are in constant close contact with each other and with facility staff. Increased and vigilant hygiene is similarly unavailable under the conditions at Adams and other facilities.
8. Several recent federal court rulings ordering release have explained the health risks—to those who are detained, staff, and the outside community at large—created by large prison and detention populations. See, e.g., Jimenez v. Wolf, No. 18-10225-MLW (D. Mass. Mar. 26, 2020) (ordering release of detained immigrant in the midst of the COVID-19 pandemic and noting that “being in a jail enhances risk” and that in jail “social distancing is difficult or impossible”); Basank v. Decker, No. 1:20-cv-02518-AT (S.D.N.Y. Mar. 26, 2020) (ordering the release of ten people from three immigration detention facilities in New Jersey because “confining vulnerable individuals . . . without enforcement of appropriate social distancing and without specific measures to protect their delicate health ‘pose[s] an unreasonable risk of serious damage to [their] future health’”) (internal citation omitted); Thakker v. Doll, No. 1:20-cv-00480-JEJ, 2020 WL 1671563, at *8 (M.D. Pa. Mar. 31, 2020) (ordering release of 13 people from three immigration detention facilities in Pennsylvania because “preventative measures” against the “grave consequences” of COVID-19 cannot be practiced in “tightly confined, unhygienic spaces”); Fraihat v. Wolf, No. ED CV 20-00590 TJH (KSx) (C.D. Cal. Mar. 30, 2020) (ordering release of individual from immigration detention facility because COVID-19 “can spread uncontrollably with devastating results in a crowded, closed facility”); United States v. Ramos, No. 18-CR300009-FDS, 2020 WL 14778307, at *1 (D. Mass. Mar. 25, 2020) (stating that “it is not possible for a medically vulnerable inmate . . . to isolate himself in this institutional setting as recommended by the CDC, and guards and newly arrested individuals must enter the facility on a daily basis”);
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Coronel v. Decker, No. 20-cv-2472 (AJN), 2020 WL 1487274, at *3 (S.D.NY. Mar. 27, 2020) (noting that “being in immigration detention places petitioners at significantly higher risk of contracting COVID-19”); United States v. Kennedy, No. 18-20315, 2020 U.S. Dist. LEXIS 53359, at * (E.D. Mich. Mar. 27, 2020) (stating that the CDC “acknowledged that correctional detention facilities ‘present unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors.’”).
9. Recognizing the urgency of this situation, judges, prosecutors and correctional authorities across the country have been ordering releases to protect individuals and the public health. Law enforcement officials in New Orleans, Los Angeles, New York City, Chicago, Oakland, New Jersey, Cleveland, Nashville, Houston, San Antonio, Charlotte, and numerous other jurisdictions are releasing thousands of individuals in both civil and criminal detention and incarceration, because of the threat COVID-19 poses inside jails, prisons, and detention centers. On March 22 the New Jersey Supreme Court issued a consent order for the presumptive release of approximately 1,000 persons by March 26. That same day, Attorney General Barr issued a directive to the Board of Prisons urging reduction of the prison population through the use of home confinement, and on April 3, he urged “dispatch” and particular prioritization for three federal prison facilities, including the Federal Correctional Institution in Oakdale, Louisiana.10
10. On March 24, the Los Angeles County Sheriff’s Department in California had released approximately 1,700 persons from county jails in response to COVID-19. Sentencing judges in Michigan have released over 500 people from county jails in the Detroit area, as of April 1. On April 2, the Hawaii Supreme Court appointed a “special master” to coordinate potential
10 See William Barr, Prioritization of Home Confinement as Appropriate in Response to COVID-19 Pandemic, Mar. 26, 2020, available at https://www.politico.com/f/?id=00000171-1826-d4a1-ad77-fda671420000; William Barr, Increasing Use of Home Confinement at Facilities Most Affected by COVID-19, Apr. 3, 2020, available at https://www.politico.com/f/?id=00000171-4255-d6b1-a3f1-c6d51b810000.
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releases between public defenders and prosecutors. Also by April 2, 710 persons were released from Allegheny County jail in Pennsylvania upon approval from the district court administrator. In Boulder County, Colorado, the District Attorney’s office has released more than 100 persons to reduce jail populations in light of COVID-19 as of April 4. By April 10, Mobile Metro Jail had decreased its population from 1,580 to 1,100 to prevent exposure of COVID-19 to particularly vulnerable populations. On April 13, almost a quarter of the persons previously in pre-trial detention in Stanislaus County Jail in California were released due to concerns over COVID-19.
11. Such releases not only protect the people with the greatest vulnerability to serious illness and death from COVID-19, they also protect all those in custody or working in a prison, jail, or detention center, and reduce the burden on the surrounding region’s health care infrastructure, as they lessen the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time. This is particularly significant here, as the rural communities in which Adams and other detention facilities within the New Orleans Field Office’s jurisdiction are located have very limited health care infrastructure.
12. By contrast, Defendants’ response to the threats the pandemic poses to immigrants has been abysmal and haphazard. Following public outcry, on March 17, 2020, ICE issued a statement that it would modify its enforcement efforts in apparent recognition of the need for alternatives to detention to protect public health.
13. The next day, however, in response to a lawsuit for the release of vulnerable ICE detainees in Washington state, the agency showed a deep failure to appreciate the urgency and threat the COVID-19 pandemic presents, stating that “Plaintiffs’ assertion that detention per se
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poses an increased risk of health complications or death from COVID-19 is purely speculative.”11 ICE’s head-in-the-sand response to the threats of this pandemic will prove deadly to Plaintiffs if it is not remedied through this Court’s intervention.
14. On March 19, 2020, two medical experts for the Department of Homeland Security’s Office of Civil Rights and Civil Liberties sent a whistleblower letter to Congress, to highlight “the need to implement immediate social distancing to reduce the likelihood of exposure to detainees, facility personnel, and the general public,” and arguing that “it is essential to consider releasing all detainees who do not pose an immediate risk to public safety.”12 On multiple occasions since at least February 25, 2020, these experts had sounded the alarm within the agency about the impending risks to the health of those in immigration detention and the public at large unless swift mitigation measures, including releasing persons in immigration detention, are taken.
15. Inside Adams and other facilities in the New Orleans Field Office’s jurisdiction, Defendants are not consistently adhering to the measures the ICE claims it is taking. For example, Defendants have brought new individuals in and out of Adams and other regional facilities without any screening, testing, or mandatory quarantine period, and continue to transfer individuals between detention centers without such protective measures.
16. This echoes a concern of the two DHS medical experts, who say that “the track record of ICE facilities implementing [early screening, testing, isolation and quarantine] protocols historically has been inconsistent.” Moreover, even if ICE was consistently taking these precautions, the DHS experts have explained that they will not be enough without rapidly releasing
11 Respondents-Defendants’ Opposition at 8, Dawson v. Asher, ECF No. 28, Case No. 20-0409 (W.D. Wash. Mar. 18, 2020). 12 Letter from Scott A. Allen, MD and Josiah Rich, MD, MPH to Congressional Committee Chairpersons, dated Mar. 19, 2020, available at https://assets.documentcloud.org/documents/6816336/032020-Letter-From-Drs-AllenRich-to-Congress-Re.pdf (emphasis in original).
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those who do not pose an immediate danger to public safety. Defendants stubbornly refuse to heed the advice of public health experts, including their own. As Judge John E. Jones, III, sitting in the Middle District of Pennsylvania, said in terms equally applicable to the Adams Detention Facility, “it is not a matter of if COVID-19 will enter Pennsylvania prisons, but when it is finally detected therein.” Thakker v. Doll, No. 1:20-CV00480 (M.D. Pa. Mar. 31, 2020) at 8 (emphasis in original).
17. Plaintiffs, who cannot be subject to any form of punitive detention, are at risk of serious injury and death because of Defendants’ flawed choices and the conditions in their detention facilities. Defendants’ failure to follow public health guidance endangers the lives of those they have chosen to detain. The only way to effectively inhibit the spread of the coronavirus and to protect Plaintiffs and others from the risks posed by COVID-19 infection is to immediately release Plaintiffs, so that they can actually adhere to the guidance from public health experts and take the necessary steps to protect themselves.
18. Defendants cannot justify continuing to subject Plaintiffs to extraordinary risk of illness and death with any legitimate government objective, particularly in light of the alternatives available to them to supervise Plaintiffs. The danger posed by Plaintiffs’ detention during the current outbreak of COVID-19 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) (emphasis in original). Plaintiffs bring this action to remedy grave violations of their constitutional rights that imminently threaten them with serious illness and death.
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19. Unless this Court intervenes to order the release of the Plaintiffs, they, along with many other detained individuals and entire communities, will face dramatically increased chances of contracting COVID-19, becoming seriously ill, and dying.
JURISDICTION AND VENUE 20. This action arises under the Due Process Clauses of the Fifth Amendment to the United States Constitution, the federal habeas corpus statute, 28 U.S.C. § 2241, and the Rehabilitation Act, 29 U.S.C. § 701 et seq. 21. This Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 2241 (habeas corpus), 28 U.S.C. § 1331 (federal question), and Article I, Section 9, clause 2 of the United States Constitution (the Suspension Clause). 22. Venue is proper in the Southern District of Mississippi pursuant to 28 U.S.C. § 2241(d) and pursuant to 28 U.S.C. § 1391(b) and (e). Petitioner-Plaintiffs are in the legal custody of Respondent-Defendant Dianne Witte, who is the Interim ICE New Orleans Field Office Director. The New Orleans Field Office is responsible for carrying out ICE’s immigration detention operations at all Louisiana, Mississippi, and Alabama detention centers that house detained immigrants. The Adams facility in which Petitioner-Plaintiffs are detained, and over which Defendant Gillis is the custodian, is located in this District.
PARTIES Petitioner-Plaintiffs
23. Petitioner-Plaintiff Leyanis Tamayo Espinoza is a 46-year-old woman and Cuban national who is currently detained by ICE at the Adams County Detention Center in Natchez, Mississippi. She suffers from diabetes, hypertension, chronic renal issues, and malnutrition. She
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relies on oral medication for her diabetes care. She is therefore at high risk of severe illness or death if she contracts COVID-19. If released, she will reside with her cousin in Miami, Florida.
24. Petitioner-Plaintiff Edilia Del Carmen Martinez is a 53-year-old woman and El Salvadoran national who is currently detained by ICE at the Adams County Detention center in Natchez, Mississippi. She suffers from diabetes, which causes dizziness that has become frequent while she has been detained, as well as kidney issues and chronic knee pain. She is therefore at high risk of severe illness or death if she contracts COVID-19. If released, she would live with her friend in Merced, California.
25. Petitioner-Plaintiff Jose Ruben Lira Arias is a 46-year-old man and Venezuelan national and is currently detained by ICE at the Adams County Detention Center in Natchez, Mississippi. He suffers from diabetes and hypertension. Since his detention, he has experienced higher than normal blood sugar levels. He is therefore at high risk of severe illness or death if he contracts COVID-19. If released, he would live in a shelter called Casa Marianella in Austin, Texas.
26. Petitioner-Plaintiff Viankis Maria Yanes Pardillo is a 59-year-old woman and Cuban national who is currently detained by ICE at the Adams County Detention Center in Natchez, Mississippi. She suffers from epilepsy, has suffered numerous seizures while in detention, and has a history of hospitalization. Particularly due to her age, she is therefore at high risk of severe illness or death if she contracts COVID-19. If released, she will reside with her daughter in Kentucky.
27. Petitioner-Plaintiff Ndikum Keshia Angu Anjoh is a 19-year-old woman and Cameroonian national who is currently detained by ICE at the Adams County Detention Center in Natchez, Mississippi. She suffers from chronic respiratory distress. She is therefore at high risk of
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severe illness or death if she contracts COVID-19. If released, she will reside with her aunt in Arlington, Texas.
28. Petitioner-Plaintiff Anthony Baptiste is a 59-year-old man and national of Trinidad & Tobago who is currently detained by ICE at the Adams County Detention Center. He suffers from hypertension, pre-diabetes, and limited mobility as a result of a car accident prior to his detention. Due to his age and health conditions, he is at very high risk of severe illness or death if he contracts COVID-19. If released, he will live with his friend in Brooklyn, New York, where his immigration case is pending.
29. Petitioner-Plaintiff Linda Chuo Fru is a 26-year-old woman and Cameroonian national who is currently detained by ICE at the Adams County Detention Center. She suffers from diagnosed Hepatitis B, high blood pressure, and other conditions for which she is receiving no treatment while detained at Adams. She is therefore at grave risk of severe illness or death if she contracts COVID-19. If released, she will live with her cousin in Dallas, Texas. Respondent-Defendants
30. Respondent-Defendant Dianne Witte is the Interim ICE New Orleans Field Office Director. The New Orleans Field Office is responsible for carrying out ICE’s immigration detention operations at all Louisiana, Mississippi, and Alabama detention centers that house detained immigrants, including all of Petitioner-Plaintiffs. Defendant Witte is a legal custodian of Petitioner-Plaintiffs. She is sued in her official capacity.
31. 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 Petitioner-Plaintiffs. He is sued in his official capacity.
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32. 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 Petitioner-Plaintiffs.
33. Respondent-Defendant Shawn Gillis is the Warden of the Adams County Detention Center, where Petitioner-Plaintiffs Ms. Tamayo Espinoza, Ms. Martinez, Mr. Lira Arias, Ms. Yanes Pardillo, Ms. Anjoh, Mr. Baptiste, and Ms. Fru are detained. Respondent-Defendant Gillis is a legal custodian of Petitioner-Plaintiffs. He is sued in his official capacity.
FACTUAL BACKGROUND A. COVID-19 Is an Unprecedented and Lethal Global Pandemic. 34. COVID-19 is a disease caused by a novel coronavirus that has reached global pandemic status. 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 1.7 million deaths in the worst projections.13 35. President Trump has projected, optimistically, that the United States will experience up to 200,000 coronavirus-related deaths.14
13 See James Glanz, et al., Coronavirus Could Overwhelm U.S. without Urgent Action, Estimates Say, N.Y. Times, Mar. 20, 2020, available at https://www.nytimes.com/interactive/2020/03/20/us/coronavirus-model-usoutbreak.html; Sheri Fink, Worst-Case Estimates for U.S. Coronavirus Deaths, N.Y. Times, Mar. 13, 2020, available at https://www.nytimes.com/2020/03/13/us/coronavirus-deaths-estimate.html.
14 See Rebecca Ballhause et al., White House Extends Social-Distancing Guidelines Until End of April, The Wall Street Journal, Mar. 30, 2020, available at https://www.wsj.com/articles/coronavirus-deaths-top-30-000-as-chinaopens-up-province-where-it-began-11585466594?mod=hp_lead_pos1 (“So, if we can hold that down, as we’re saying to 100,000—it’s a horrible number—maybe even less, but to 100,000 — so we have between 100,000 to 200,000 — we all together have done a very good job,” the president said.”).
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36. 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. Due to this, President Trump issued guidelines for U.S. citizens, recommending that all individuals “avoid nonessential travel, going to work, eating at bars and restaurants, or gathering in groups of more than 10” at least until April 30, 2020 and perhaps until June.15 Its symptoms include fever, cough, and shortness of breath.16
37. People can also spread COVID-19 but be asymptomatic,17 making testing or seclusion of only those who are symptomatic an ineffective solution.
38. 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.
39. 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.
40. Younger and healthy individuals who contract COVID-19 may require supportive care. And those who develop serious complications will need advanced support, including highly
15 Michael D. Shear, Trump Extends Social Distancing Guidelines Through End of April, N.Y. Times, Mar. 29, 2020, available at https://www.nytimes.com/2020/03/29/us/politics/trump-coronavirus-guidelines.html.
16 Centers for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19) https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html.
17 A study in Iceland, where COVID-19 testing is widespread, found that about half those who tested positive have no symptoms. Jason Gale, Coronavirus Cases Without Symptoms Spur Call for Wider Tests, Bloomberg, Mar. 22, 2020, available at https://www.bloomberg.com/news/articles/2020-03-22/one-third-of-coronavirus-cases-mayshow-no-symptom-scmp-reports.
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specialized equipment that is in very limited supply, and an entire team of care providers giving 24-hour care, 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, particularly at unsafe and under-resourced ICE detention facilities.
41. 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.
42. There is no vaccine against COVID-19, nor is there any known medication to prevent or cure infection from the virus.
43. 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 frequently washing hands with soap and water and disinfecting commonly touched areas, are the only known effective measures to prevent infection. In addition, those who are symptomatic, or who have come into contact with those who have tested positive for the virus, are advised to self-quarantine, removing themselves entirely from physical contact with others to as to prevent spread of the virus for a period of up to 14 days.
44. None of these practices are possible in detention facilities, where large numbers of people are housed in close quarters in congregate settings, with minimal access to sinks, showers, toilets, water, personal hygiene and facility cleaning supplies.
B. COVID-19 is Exceedingly Dangerous for Individuals Like Petitioner-Plaintiffs, Who Have Underlying Health Concerns.
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45. Older individuals and those with certain medical conditions face dramatically higher 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.
46. Individuals detained in immigration detention centers 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 diabetes, lung disease, kidney disease, or other illness.
47. Petitioner-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 Adams in Natchez, Mississippi.
48. Leyanis Tamayo Espinoza is 46 years old and suffers from diabetes, hypertension, chronic renal issues, and malnutrition. These conditions qualify as disabilities under the Rehabilitation Act..
49. Edilia Del Carmen Martinez is 53 years old and suffers from diabetes, which qualifies as a disability under the Rehabilitation Act.
50. Jose Ruben Lira Arias is 46 years old and suffers from diabetes and hypertension which qualify as disabilities under the Rehabilitation Act..
51. Viankis Maria Yanes Pardillo is 49 years old and suffers from epilepsy. She has suffered numerous seizures while in detention, and has a history of hospitalization. Her medical condition qualifies as a disability under the Rehabilitation Act.
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52. Ndikum Keshia Angu Anjoh is 19 years old and suffers from chronic respiratory distress, which qualifies as a disability under the Rehabilitation Act.
53. Anthony Baptiste is 59 years old and suffers from hypertension and pre-diabetes, He had been receiving disability benefits due to injuries suffered in a car accident prior to his detention, and these additional conditions qualify as disabilities under the Rehabilitation Act.
54. Linda Chuo Fru is 26 years old and suffers from Hepatitis B, high blood pressure, and other conditions that are untreated in detention. Hepatitis B and hypertension qualify as disabilities under the Rehabilitation Act.
C. The Adams Facility, Like the Other Facilities Under the Jurisdiction of the Regional ICE Field Office, is a Ticking Time Bomb Already Exposed to Coronavirus; The Facility Does Not and Cannot Meet Public Health Standards to Prevent Widespread Infections Inside the Facilities and Are Deliberately Indifferent to the Known Health Risks
55. The Adams County Detention Center is located in Mississippi near the Louisiana border and falls under the jurisdiction of the New Orleans ICE Field Office directed by Respondent-Defendant Witte. States in the Mississippi Delta region are experiencing a coronavirus outbreak and public officials have put in place a number of significant restrictions on public gatherings, including by closing down schools, bars, restaurants, and other public places, limiting the size of public gatherings, and, in some cases, issuing ‘shelter in place’ orders, requiring residents to remain in their homes.
56. As of April 13, 2020, there were 3087 confirmed COVID-19 cases in Mississippi and 21,518 in Louisiana, on the border with Adams County.18 The number of infected people is
18 Louisiana Department of Health, Coronavirus (COVID-19) (Apr. 14, 2020), http://ldh.la.gov/coronavirus/; Mississippi State Department of Health, Coronavirus Disease 2019 (COVID-19) (Apr. 13, 2020), https://msdh.ms.gov/msdhsite/_static/14,0,420.html.
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rising dramatically, with the highest number of deaths thus far recorded on April 11, 2020.19 One
hundred eleven people in Mississippi and 1013 people in Louisiana have died from the disease.20 57. These data include cases in all of the counties in which these facilities are located.
There are 62 cases in Adams County, Mississippi,21 one of whom is Adams County Sheriff Travis
Patten.22 58. As of April 1, 2020, Mississippi had the highest hospitalization rate for COVID-19
in the nation, and availability of protective equipment, testing, ICU beds, and ventilators are
estimated to fall far short of the projected need.23 There is an immediate and impending threat that
the coronavirus will spread uncontrollably in rural Mississippi, where scarcity of hospital beds is
particularly acute.24 59. Given the shortage of COVID-19 tests in the United States, generally, these
detention facilities cannot currently conduct aggressive, widespread testing to identify and track
all COVID-19 cases. 60. It is thus equally impossible for detention facilities to consistently and adequately
screen detained individuals and staff for new, asymptomatic infection.
19 Live Updates: Missississippi has largest increase in coronavirus deaths so far on April 11, Sun-Herald, Apr. 11, 2020, available at https://www.sunherald.com/news/coronavirus/article241934951.html
20 Louisiana Department of Health, Coronavirus (COVID-19) (March 31, 2020), http://ldh.la.gov/coronavirus/; Mississippi State Department of Health, Coronavirus Disease 2019 (COVID-19) (Apr. 14, 2020), https://msdh.ms.gov/msdhsite/_static/14,0,420.html; Alabama Department of Public Health, Coronavirus Disease 2019 (COVID-19) (Apr. 13, 2020), http://alabamapublichealth.gov/infectiousdiseases/2019-coronavirus.html.
21 Mississippi State Department of Health, Coronavirus Disease 2019 (COVID-19) (Apr. 13, 2020), https://msdh.ms.gov/msdhsite/_static/14,0,420.html.
22 Patrice Clark, Adams County Sheriff Tests Positive for Coronavirus, WLBT, Mar. 29, 2020, available at https://www.msn.com/en-us/news/us/adams-county-sheriff-tests-positive-for-coronavirus/ar-BB11Ssk2.
23 Erica Hensley, Mississippi has nation’s highest COVID-19 hospitalization rate, Mississippi Today, Apr. 1, 2020, available at https://mississippitoday.org/2020/04/01/mississippi-has-nations-highest-covid-19-hospitalizationrate/
24 Jerry Mitchell, Coronavirus in Mississippi: Health Care cuts costing lives, former UMMC Chancellor says, Clarion-Ledger, Apr. 11, 2020, available at https://www.clarionledger.com/story/news/2020/04/11/coronavirushealth-care-cuts-mississippi-costing-lives-former-ummc-chancellor-dan-jones/5135008002/
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61. In the absence of any ability to conduct widespread testing, there is no way to be certain that COVID-19 is not already widespread in these facilities. And given the rapid spread of COVID-19 throughout Louisiana, Mississippi, and Alabama, and daily entry of staff and guards from the community, and the continued influx and transfer of new people into detention facilities on a weekly or even daily basis, it is only a short matter of time before the disease becomes widespread among people detained in close, unsanitary conditions.
62. According to Dr. Jaimie Meyer, Assistant Professor of Medicine at Yale School of Medicine and a specialist in infectious diseases in the context of jails and prisons, an outbreak in these 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.”
63. Conditions in these detention centers make rapid spread of COVID-19 very likely. Detained individuals are housed in close quarters and in large groups. Detained individuals in these facilities 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 with small numbers of showers 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. Many guards and staff do not wear masks or gloves, and at Adams detained individuals were not provided with masks until April 13, 2020, when some detained people received one mask each.
64. Detained individuals are left to clean the sleeping areas, bathrooms, and common areas with spray bottles and re-used rags at Adams. Detained people are not provided with protective equipment to clean. Additionally, alcohol-based hand sanitizers are unavailable at
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Adams, and while there are signs instructing people to wash hands, but there is no effort to educate detained people about frequency or method.
65. Because of conditions like these, outbreaks of infectious diseases are extremely common in confined detention centers such as these and have resulted in the hospitalization or death of some individuals. Detained persons like Petitioner-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.”25 Individuals who are detained cannot protect themselves by social distancing and vigilant hygiene as they could in the community. Congregate settings such as ICE detention centers 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. Indeed, in Mississippi, more than half of reported COVID-19 deaths have occurred in the congregate settings of long-term nursing homes.26
66. Therefore, a coronavirus brought into a detention facility will quickly spread among the dense group of detained individuals, including individuals, like Petitioner-Plaintiffs, who are at high risk of severe illness or death from COVID-19.
67. Moreover, ICE’s detention centers are also ill-equipped to manage an infectious disease outbreak. Adams does not have 24-hour medical care with onsite physicians. Further, the medical systems in the rural communities surrounding Adams have limited capacity to provide emergency and intensive medical care.
25 Keri Blakinger & 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 (describing, for example, limited access to hand sanitizer and other precautionary measures).
26 Mississippi State Department of Health, Coronavirus Disease 2019 (COVID-19) (Apr. 12, 2020), https://msdh.ms.gov/msdhsite/_static/14,0,420.html
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68. Adams does not have negative pressure isolation units, meaning that it does not have any capacity to truly isolate spread of the disease through airborne respiratory droplets. Putting infected individuals in solitary confinement is an 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.
69. Further, like other facilities in the jurisdiction of the New Orleans Field Office, Adams has continued to allow new detained people to enter and leave the facility, exposing those within the detention centers to close contact with potential new carriers. For example, PetitionerPlaintiffs Ms. Anjoh and Ms. Fru were among 40 women transferred from a detention facility in Texas to Adams on or about March 3, 2020, and a new group of detained women have arrived since.
70. 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.27 As of April 15, 2020, ICE has reported that 89 detained people and 21 staff at ICE facilities have confirmed cases of COVID-19. 5 detained people at Adams have confirmed cases. Given patterns at other prisons and jails around the country, these numbers are likely to rise precipitously. For example, on Friday, March 20, 2020 New York City officials had confirmed just one case at their jail facilities. The next day, they confirmed 19. Two days later, there were 38.28 By March 25, 2020, Rikers Island alone had 52
27 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/everyone-willbe-contaminated-prisons-face-strict-coronavirus-controls.
28 A.P., Coronavirus: 38 Test Positive in New York City Jails, Including Rikers Island, The Guardian, Mar. 22, 2020, available at https://www.theguardian.com/us-news/2020/mar/22/coronavirus-outbreak-new-york-city-jailsrikers-island.
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confirmed cases. As of April 8, 2020, it has over 165 confirmed cases amongst those who are incarcerated, and there are roughly 288 confirmed cases among jailed people, 488 among the correctional staff, and 78 among the jail’s health care workers. Seven employees of the jail have died.29 Louisiana has seen six federal Bureau of Prisons (“BOP”) fatalities at the BOP facility in Oakdale, Louisiana.30 In March, after the Louisiana Department of Corrections reported that seven incarcerated people in Oakdale had confirmed cases, officials there have stopped testing for the virus due to its “sustained transmission.”31
71. Despite these widespread warnings, the detention facilities across the country and within the jurisdiction of the ICE’s New Orleans Field Office, including Adams, remain woefully unprepared and incapable of taking necessary precautions to protect people in their custody against a life-threatening illness.
D. ICE’s Response to COVID-19 Is Insufficient to Prevent the Spread of This LifeThreatening Disease and Is Contrary to the CDC Infectious Disease Guidance ICE is Required to Follow.
72. ICE sets standards for facilities that detain individuals in ICE custody, including Adams. National Detention Standards for immigration detention facilities were first promulgated in 2000 and renamed and reissued by ICE as Performance-Based National Detention Standards
29 See Jan Ransom, Jailed On a Minor Parole Violation, He Caught the Virus and Died, April 9, 2020 , available at https://www.nytimes.com/2020/04/09/nyregion/rikers-coronavirus-deaths-parolees.html. .
30 Kimberly Kindy, Inside the deadliest federal prison, the seeping coronavirus creates fear and danger, Apr. 10, 2020, available at https://www.washingtonpost.com/national/inside-the-deadliest-federal-prison-the-seepingcoronavirus-creates-fear-and-danger/2020/04/09/deeceb6e-75b4-11ea-a9bd-9f8b593300d0_story.html.
31 Nicholas Chrastil, Louisiana Federal Prison No Longer Testing Symptomatic Inmates for Coronavirus Due to ‘Sustained Transmission’, The Lens, Mar. 31, 2020, available at https://thelensnola.org/2020/03/31/louisianafederal-prison-no-longer-testing-symptomatic-inmates-for-coronavirus-due-to-sustainedtransmission/?utm_source=The+Lens&utm_campaign=c001b3be4dEMAIL_CAMPAIGN_2020_03_31_05_46&utm_medium=email&utm_term=0_bbcdaba031-c001b3be4d407119417.
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(“PBNDS”) in 2008. ICE again reissued these standards in 2011 and revised them in December 2016.
73. The PBNDS govern the prisons ICE uses to hold civil detainees, including service processing centers, contract detention facilities, and state or local government facilities used by ERO to detain people for more than 72 hours pursuant to intergovernmental service agreements.32
74. The PBNDS, among other things, govern the medical standards for each detention facility dedicated to housing individuals in ICE custody.33
75. The PBNDS are supposed to “ensure[] that detainees have access to appropriate and necessary medical, dental and mental health care, including emergency services.” PBNDS §4.3. (“Medical Care”). Facilities are required to have plans to address the management of infectious and communicable diseases that include “control, treatment and prevention strategies.” PBNDS §4.3 (V)(C)(3).
76. The PBNDS also mandate that “Center for Disease Control and Prevention (“CDC”) guidelines for the prevention and control of infectious and communicable diseases shall be followed.” PBNDS §4.3 (II)(10) (emphasis added).
77. In March 2020, in response to the COVID-19 outbreak, the CDC issued several guidelines in order to prevent the spread of COVID-19.34
32 ICE Performance-Based Detention Standards 2011 (“PBNDS”), available at https://www.ice.gov/detentionstandards/2011.
33 PBNDS, § 4.3 (“Medical Care”), available at https://www.ice.gov/doclib/detention-standards/2011/4-3.pdf. 34 See CDC Guideline, Gatherings and Community Events, March 2020, available at https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/index.html; CDC guideline, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, March 2020, available at https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html.
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78. In order to limit the spread of COVID-19, the CDC has recommended that gatherings be limited to 50 people or less, canceling all “gatherings of more than 10 people for organizations that serve higher-risk population,” and warns that “the density of attendees within a confined area,” increases the risk of spreading the virus.35 These guidelines recommend that individuals remain 6 feet away from one another.
79. Additionally, on or about March 23, 2020, the CDC issued guidance for detention facilities “including…federal and state prisons, local jails, and detention centers.”36
80. The CDC guidance states that “[i]ncarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced” and warns that “[t]here are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress… and incarcerated/detained persons may have medical conditions that increase their risk of severe disease from COVID-19.” 37
81. Further, the CDC guidance mandates that detention facilities “[e]nsure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies… are on hand and available… provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing…” and emphasizes the need for social distancing as a mechanism for preventing the transmission of COVID-19.38
35 Center for Disease Control, Gatherings and Community Events, March 2020, available at https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/index.html. See also Implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission, March 2020, available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/community-mitigation-strategy.pdf
36 Center for Disease Control, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, March 2020, available at https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html.
37 Id. 38 Id.
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82. The CDC has also warned that individuals who are 65 and older or who have an array of underlying conditions, including individuals with asthma, blood disorders, heart disease, lung conditions, and those with compromised immune systems, are at a higher risk of developing serious complications if they were to contract COVID-19.39
83. ICE issued an “Interim Reference Sheet on 2019-Novel Coronavirus (COVID-19)” and has established a webpage entitled “ICE Guidance on COVID-19.” On April 10, 2020, ICE’s Enforcement and Removal Office, (“ERO”) issued a “COVID-19 Pandemic Response Requirements” outlining recommendations for detention facilities.40 These documents (collectively the “ICE Protocols”) will not protect Petitioner-Plaintiffs. The protocols also do not address imminent shortages of medical supplies and staffing or education of detained people and staff about the virus, amongst other critical issues. Nor do they implement the CDC’s guidelines for the management of the novel coronavirus in correctional and detention settings.
84. For example, ERO’s Pandemic Response Requirements urge that facilities “adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response.” (Pandemic Response Requirements at 9). But the CDC guidelines for correctional and detention facilities urge that “that “staff and incarcerated/detained people performing cleaning wear PPE.”41 Cleaning staff, typically detained people themselves, are not provided with personal protective equipment (“PPE”) for cleaning at Adams. ERO further states that “social distancing may not be
39 Center for Disease Control, Coronavirus Disease 2019 (COVID-19): People who are at higher risk for severe illness (Mar. 26, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-athigher-risk.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fspecificgroups%2Fpeople-at-higher-risk.html.
40 ERO COVID-19 Pandemic Response Requirements (Apr. 10, 2020), available at https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf.
41 Center for Disease Control, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), available at https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html.
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possible in congregate settings such as detention facilities,” and instead, it recommends a number of alternative measures including directing detained people to “avoid congregating in groups of 10 or more, employing social distancing strategies at all times.” (Pandemic Response Requirements at 13). This is not possible at Adams.
85. The ICE Protocols do not even offer an effective way to determine who 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-mj-71055, 2020 WL 1307109 (N.D. Cal. March 19, 2020) (ordering release on bond in part because the government’s management plan did not “say anything about testing”).
86. ICE has temporarily suspended social visitation in all detention facilities. But staff, contractors, and vendors continue to arrive and leave the detention centers. In addition, people are frequently transported to, from, and between facilities.
87. Anything short of aggressive screening and testing of all detained individuals, staff, officials and other care and service providers who enter the facility is insufficient to prevent infection. Neither ICE nor custodians at Adams (nor for that matter the custodians of any facilities within the jurisdiction of the New Orleans Field Office) have the resources necessary to engage in such measures, especially considering the shortage in available tests.
88. 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 rooms to the rest of the facility and because asymptomatic people also transmit the disease. Further, there is substantial evidence that ICE’s
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COVID-19 protocols are not being followed in detention centers throughout the country, including Adams, and that, as has historically been the case, ICE is otherwise failing to provide an adequate response to the threat of infectious outbreaks, exacerbating the risk of harm to Petitioner-Plaintiffs.
89. ICE has failed to follow the CDC guidelines designed to prevent the spread of COVID-19 in Adams and other facilities under the jurisdiction of the New Orleans ICE Field Office.
90. In Adams, where Petitioner-Plaintiffs are detained, common spaces have over 100 people gathered at one time, and much of the staff does not wear masks or gloves. There is no space for social distancing, with sick people isolated rarely if ever. Dorms are cleaned only once per day, sometimes without bleach, and detained people have sometimes not had enough soap to wash hands. Food is provided on dirty plates and utensils, and the water is not clean. In the six weeks there have been at least two large transfers of detained women into the facility from other ICE detention facilities.
91. In Adams, ICE has failed to provide enough cleaning materials or frequency of cleaning to prevent spread of illness from surfaces; has not provided gloves or protective gear for detained people or most staff, and has provided one mask each to some detained people only this week; and has transferred new people into the facilities within the last several weeks, after the outbreak of COVID-19 began, all in violation of CDC guidelines.
92. Importantly, the COVID-19 pandemic—and ICE’s unreasonable response to it— will significantly strain ICE’s already broken medical care system. Long before the COVID-19 outbreak, numerous public reports, including by DHS itself, have identified serious and substantial flaws in ICE’s medical care system. For example, a 2017 OIG report that assessed care at certain ICE facilities identified “lack of cleanliness and limited hygienic supplies” as well as “long waits
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for the provision of medical care[.]”42 Other reports echo these alarming findings about
substandard medical care in ICE facilities.43 93. 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 detained individuals in Louisiana against outbreaks of chicken pox and
mumps.44 94. 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”) 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.”45
42 DHS Office of the Inspector General, Concerns About ICE Detainee Treatment and Care at Detention Facilities, OIG-18-32 at 7 (Dec. 11, 2017), https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-32Dec17.pdf.
43 See, e.g., U.S. Gov’t Accountability Off., GAO-16-23: Immigration Detention: Additional Actions Needed to Strengthen Mgmt. and Oversight of Detainee Med. Care (Feb. 2016), available at https://www.gao.gov/assets/680/675484.pdf; Human Rts. Watch et al.,, Code Red: The Fatal Consequences of Dangerously Substandard Med. Care in Immigration Detention, at 15, 19, 25, 46 (June 2018), available at https://www.hrw.org/sites/default/files/report_pdf/us0618_immigration_web2.pdf; J. David McSwane, ICE Has Repeatedly Failed to Contain Contagious Diseases, Our Analysis Shows. It’s a Danger to the Public, PROPUBLICA (Mar. 20, 2020), available at https://www.propublica.org/article/ice-has-repeatedly-failed-to-contain-contagiousdiseases-our-analysis-shows-its-a-danger-to-the-public.
44 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.
45 See DHS Office of Inspector General, ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards, OIG-19-18, at 1 (Jan. 29, 2019), available at https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf.
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95. 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. . . . with some deficiencies remaining unaddressed for years.”46
96. 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 new people they arrest in the field.47 But the agency still has no plan to release vulnerable individuals who are currently in custody,48 and has not stopped bringing new people into the detention centers.
97. 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 Adams, Defendants cannot prevent the spread of COVID-19 at Adams.
E. The Consensus of Public Health Experts Is That Individuals Most Vulnerable to COVID-19 Should Immediately Be Released to Protect them From Serious Illness or Death.
46 See DHS Office of the Inspector General, ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements, OIG-18-67, at 1 (June 26, 2018), available at https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67-Jun18.pdf.
47 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.
48 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-isignoring-recommendations-to-release-immigrant-detainees-to-slow-the-spread-of-coronavirus/.
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98. 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 consistently recommended the release of vulnerable detained individuals from custody.
99. As early as February 25, 2020, Dr. Scott Allen and Dr. Josiah Rich, medical experts to the Department of Homeland Security, shared concerns with the agency about the specific risk to detained immigrants as a result of COVID-19. 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.”49
100. 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 detained individuals to curb the spread of the virus.50 In the United States, several jurisdictions including Los Angeles, New York, and Chicago have also released detained individuals for the
49 Letter from Scott A. Allen, MD and Josiah Rich, MD, MPH to Congressional Committee Chairpersons, dated Mar. 19, 2020, available at https://assets.documentcloud.org/documents/6816336/032020-Letter-From-Drs-AllenRich-to-Congress-Re.pdf.
50 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-frees85000-from-jail-including-political-prisoners-amid-coronavirus-idUSKBN21410M.
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same reasons.51 In New Orleans, Orleans Parish Sheriff Marlin Gusman has released individuals
and called upon the courts to do so as well.52 101. Releasing the most vulnerable people, such as Petitioner-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 have fewer medical resources available for the general population. 102. ICE has the authority to release individuals from custody on medical grounds and
has routinely exercised its authority to release particularly vulnerable detained individuals like
Petitioner-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.”53
51 Jan Ransom & Alan Feuer, We’re Left for Dead: Fears of Virus Catastrophe at Rikers Jail, New York Times (Mar. 30, 2020), available at https://www.nytimes.com/2020/03/30/nyregion/coronavirus-rikers-nyc-jail.html; 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/californiareleases-more-jail-inmates-amid-coronavirus-crisis; David Struett, Cook County Jail releases several detainees ‘highly vulnerable’ to coronavirus, Chicago Sun-Time (Mar. .17, 2020), available at https://chicago.suntimes.com/coronavirus/2020/3/17/21183289/cook-county-jail-coronavirus-vulnerable-detaineesreleased-covid-19.
52 The Orleans Parish Sheriff’s Office has released at least 23 individuals from the Orleans Justice Center, the parish jail. WDSU Digital Team, Orleans Parish Sheriff’s Office releases some inmates with minor charges under COVID-19 plan, WDSU (Mar. 19, 2020), available at https://www.wdsu.com/article/orleans-parish-sheriffs-officereleases-some-inmates-with-minor-charges-under-covid-19-plan/31788756#. Orleans Parish Sheriff Marlin Gusman has also called on the judges of the Orleans Parish Criminal District Court to release individuals. Letter from Orleans Parish Sheriff Marlin N. Gusman to Hon. Robin Pittman, Deputy Chief Judge, Orleans Parish Criminal District Court (Mar. 26, 2020), available at https://www.documentcloud.org/documents/6819741-Letter-FromSheriff-Gusman-to-Judge-Pittman.html.
53 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-ice-detainees/608536/; Camilo Montoya-Galvez, “Powder kegs”: Calls 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-detentionoutbreak/.
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LEGAL FRAMEWORK A. Petitioner-Plaintiffs have a Substantive Due Process Right to Protection from Serious
Illness and Potentially Lethal Harm. 103. Because Petitioner-Plaintiffs are in federal civil immigration detention, their constitutional rights flow from the procedural and substantive guarantees of the Fifth Amendment. Hare v. City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996); Ortega v. Rowe, 796 F.2d 765, 767 (5th Cir. 1986). 104. When the government holds individuals in its custody, it assumes the affirmative obligation to provide for their basic human needs, including medical care, reasonable safety, and protection from harm. DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 200 (1989); Hare, 74 F.3d at 650 (5th Cir. 1996). A government “transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause” when it fails to satisfy its “affirmative duty to protect.” DeShaney, 489 U.S. at 200. 105. “Under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” Hare, 74 F.3d at 651. See also Foucha v. Louisiana, 504 U.S. 71, 80 (1992). Therefore, persons detained civilly, including in immigration detention like Petitioner-Plaintiffs, are entitled to “more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Youngberg v. Romeo, 457 U.S. 307, 322 (1982); In re Kumar, 402 F. Supp. 3d 377, 384 (W.D. Tex. 2019). A person detained civilly has due process rights that are “at least as great as the Eighth Amendment protections available to a convicted prisoner.” Hare., 74 F.3d at 639 (citations omitted). 106. Courts have held that an immigration detainee’s due process rights should be evaluated at an even higher standard than that of pretrial detainees. In re Kumar, 402 F. Supp. 3d
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at 384; Jones v. Blanas, 393 F.3d 918, 933 (9th Cir. 2004). But at the very least, the standard applicable in the pretrial criminal detention context applies here.
107. The government violates the due process rights of a person in civil detention when the conditions of his or her confinement “amount[s] to punishment.” Garza v. City of Donna, 922 F.3d 626, 632 (5th Cir. 2019), cert. denied sub nom. Garza v. City of Donna, Texas, 140 S. Ct. 651 (2019). If “a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.” Bell v. Wolfish, 441 U.S. 520, 539 (1979); accord Hare, 74 F.3d at 640 (5th Cir. 1996).
108. To show that a condition of confinement amounts to punishment, the detained person need not demonstrate an official subjectively or maliciously intends to punish; instead “intent may be inferred from the decision to expose the detainee to an unconstitutional condition.” Shepherd v. Dallas Cty., 591 F.3d 445, 452 (5th Cir. 2009). “[E]ven where a State may not want to subject a detainee to inhumane conditions of confinement or abusive jail practices, its intent to do so is nevertheless presumed when it incarcerates the detainee in the face of such known conditions and practices.” Hare, 74 F.3d at 644. “A pervasive pattern of serious deficiencies” that subjects a detainee to the risk of serious injury, illness or death “amounts to unconstitutional punishment.” Shepherd, 591 F.3d at 454. Such a pattern is evidenced by, for example, failing to provide adequate means to control a known risk of serious infections. Duvall v. Dallas Cty., Tex., 631 F.3d 203, 208 (5th Cir. 2011).
109. In addition, it is cruel and unusual punishment under the Eighth Amendment, and therefore necessarily a violation of the Fifth Amendment’s Due Process Clause that is applicable here, for a federal official to show “deliberate indifference to a substantial risk of serious harm” to
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a detainee. Doe v. Robertson, 751 F.3d 383, 385 (5th Cir. 2014) (citing Farmer v. Brennan, 511 U.S. 825 (1994)); Hare, 74 F.3d at 649. This occurs, for example, when officials “know[] of and disregard[] an excessive risk to inmate health or safety.” Doe v. Robertson, 751 F.3d at 388.
110. A detained person “does not need to show that death or serious illness has yet occurred to obtain relief,” instead, they need only “show that the conditions pose a substantial risk of harm to which… officials have shown a deliberate indifference.” Gates v. Cook, 376 F.3d 323, 339 (5th Cir. 2004). Federal custodians may not ignore “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).
111. Specifically, housing detained persons in crowded conditions where they are at risk of infectious disease is unconstitutional, even when it “is not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed.” Helling v. McKinney, 509 U.S. at 33 (citing Hutto v. Finney, 437 U.S. 678, 682 (1978)). Nor can officials “be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33.
112. Despite their awareness of the rapid spread of COVID-19, the importance of social distancing and sanitary practices for its prevention, the threat that it poses to the lives of those who, like Petitioner-Plaintiffs, have certain underlying medical conditions, and the impossibility of protecting Petitioner-Plaintiffs who are held in ICE detention centers, Defendants continue to detain Petitioner-Plaintiffs. This amounts to a punitive condition of confinement or, at the very least, deliberate indifference to a substantial risk of serious harm to Petitioner-Plaintiffs – either of which suffices to show a due process violation and compels an order of release.
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B. ICE Lacks a Constitutionally Sufficient Purpose for Continued Detention of Medically Vulnerable Individuals. 113. Non-criminal confinement “constitutes a significant deprivation of liberty that
requires due process protection,” and, thus, the government “must have ‘a constitutionally adequate purpose for the confinement.’” Jones v. United States, 463 U.S. 354, 361 (1983) (quoting O’Connor v. Donaldson, 422 U.S. 563, 574 (1975)); see also Foucha, 504 U.S. at 80 (“We have always been careful not to ‘minimize the importance and fundamental nature’ of the individual’s right to liberty.” (quoting United States v. Salerno, 481 U.S. 739, 750 (1987)).
114. Due process requires that the nature and duration of a noncriminal confinement bear “some reasonable relation to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738 (1972); Brown v. Taylor, 911 F.3d 235, 243 (5th Cir. 2018).
115. The only legitimate purpose, consistent with due process, for federal civil immigration detention is to prevent flight risk and ensure the detained person’s attendance for a legal hearing adjudicating their status or potential removal, or to otherwise ensure the safety of the community. Zadvydas v. Davis, 533 U.S. 678, 699 (2001).
116. The purpose of ensuring attendance at a merits hearing is fundamentally eviscerated where detained persons, such as Petitioner-Plaintiffs are exposed to coronavirus, symptomatic, seriously ill, or even dead. Continued detention in such circumstances is arbitrary, purposeless restraint entirely inconsistent with the principle of proportionality at the heart of due process.
117. Once an otherwise valid basis for detention no longer applies, substantive due process requires the state to release the detained person. Foucha, 504 U.S. at 86 (ordering petitioner’s release from commitment to mental institution because there was no longer any evidence of mental illness); Kansas v. Hendricks, 521 U.S. 346, 363-64 (1997) (upholding statute
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requiring civil confinement for sex offenders in part because it provided for immediate release once an individual no longer posed a threat to others).
C. Petitioner-Plaintiffs’ Continued Detention Violates Procedural Due Process 118. Where a governmental action limits a fundamental right, here freedom from
detention, heightened scrutiny is applied, and the governmental action will be upheld only if it is necessary to promote a compelling governmental interest. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 721 (1997); Cooper v. Oklahoma, 517 U.S. 348, 363 (1996)) (“Due process places a heightened burden of proof on the State in civil proceedings in which the individual interests at stake . . . are both particularly important and more substantial than mere loss of money.”) (internal citations and quotations omitted). In addition to demonstrating a “compelling interest” in detention, the government must show that the detention is narrowly tailored, i.e., “implemented in a manner that is ‘carefully limited’ and ‘narrowly focused.’” Reno v. Flores, 507 U.S. 292, 302 (1993) (quoting Foucha, 504 U.S. at 81).
119. In addition to substantive limits on detention, detained persons must “be afforded adequate procedures ensuring against erroneous confinement.” Demore v. Kim, 538 U.S. 510, 566, n. 22 (2003) (Souter, J. concurring). See id. at 551 (“the substantive demands of due process necessarily go hand in hand with the procedural.”); Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (Noncriminal detention must be subject to “strong procedural protections.”). At bottom, Fifth Amendment’s Due Process Clause requires proportionality in government conduct. See, e.g., BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996); Austin v. United States, 509 U.S. 602, 606 (1993).
120. The government’s only legitimate interest in Petitioner-Plaintiffs’ continued detention – either to minimize flight risk pending trial or removal or to prevent danger to the community, Zadvydas, 533 U.S. at 690 – is no longer applicable. Yet the purportedly legitimate
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government purposes for detention simply fall away when someone is facing lethal harm. Continued detention despite changed circumstances that render the basis of detention null, is the height of arbitrariness. See Reno v. Flores, 507 U.S. at 343 (“a blanket rule that simply presumes that detention is more appropriate than release to responsible adults is not narrowly focused on serving that interest.).
121. The remote location of Adams and current restrictions on visitation and contact at all ICE facilities due to the pandemic significantly reduce, and in some cases eliminate, meaningful access to counsel and the courts, for vulnerable people facing the extremely high stakes of immigration proceedings and the need to prepare highly fact-intensive applications for bond and parole adjudications. Given restrictions on counsel and the adjudicative process, many removal proceedings have or likely will be suspended. And, a hearing weeks or months from this date may be no relief at all, because Petitioners may contract COVID-19 and die. See Hernandez v. Sessions, 872 F.3d 976, 993 (9th Cir. 2017) (“[T]here is a significant risk that the individual will be needlessly deprived of the fundamental right to liberty.”) At the same time, there are more “narrowly focused” means to ensure Petitioner-Plaintiffs’ appearance in legal proceedings, which do not subject them to the dangers of detention, for example, supervised or conditional release would suffice to meet the government’s interest without subjecting Petitioner-Plaintiffs to severe danger.
122. The Government also cannot establish that it has a compelling interest in keeping Petitioner-Plaintiffs detained. Each Plaintiff has a severe medical ailment and is immunocompromised. Given that the only established method to protect oneself from the virus is to self-isolate, the likelihood of a post-release danger to the community from elderly or ill persons
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is infinitesimal and cannot justify the maximal deprivation of liberty – detention – with a resulting risk of serious illness or death
123. Under normal circumstances, at least some of the Petitioner-Plaintiffs would be able to seek either initial or changed-circumstances bond hearings in the immigration courts, see 8 U.S.C. § 1226(a)(1)-(2), or could petition for release on parole. 8 U.S.C. § 1182(d)(5)(A). However, these are not normal circumstances. As alleged supra, because of the circumstances generated by the pandemic Petitioner-Plaintiffs’ access to counsel is sparse, if at all, and the immigration courts charged with reviewing challenges to detention are struggling to manage caseloads, hold timely hearings, and consider relevant evidence. This is a quintessential procedural due process violation. Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.”).
124. The bond, parole and removal proceedings may be civil in nature, but they have the highest possible stakes for Plaintiffs-Petitioners. Padilla v. Kentucky, 559 U.S. 356, 373 (2010) (“The severity of deportation. . . underscores how critical it is” for immigrants to have effective counsel). The remedy for the deprivation of Petitioner-Plaintiffs’ procedural due process rights is outright release, if not release pending future bond hearings and parole considerations once immigration proceedings regain regularity.
D. Habeas Is a Broad, Flexible Remedy That Authorizes Courts to Order Release from Unlawful Detention Conditions as Law and Equity Requires. 125. Petitioner-Plaintiffs seek relief under the federal habeas statute, 28 U.S.C. § 2241,
which is itself infused with long-standing common law equitable principles. See 28 U.S.C. § 2241(c)(3) (the writ extends to those prisoners “in custody in violation of the Constitution or laws
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or treaties of the United States”). “Habeas is at its core a remedy for unlawful executive detention.” Munaf v. Geren, 553 U.S. 674, 693 (2008).
126. Habeas invests in federal courts broad, equitable authority to “dispose of the matter as law and justice require,” 28 U.S.C. § 2243, as the “very nature of the writ demands that it be administered with the initiative and flexibility.” Harris v. Nelson, 394 U.S. 286, 292 (1969); see Boumediene v. Bush, 553 U.S. 723, 780 (2008) (“Habeas is not ‘a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose.’”) (quoting Jones v. Cunningham, 371 U.S. 236, 243 (1963)).
127. Accordingly, the illegality of custody under the “Constitution or laws . . . of the United States” may stem from the fact of detention and the duration of detention – what is often referred to as the “historical core” of habeas – and, as courts have recognized, for unlawful placement or conditions of detention. See Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (habeas challenging “living conditions and disciplinary measures” is “cognizable in federal habeas corpus”); See also Aamer v. Obama, 742 F.3d 1023, 1031-38 (2014) (surveying history, purpose and Supreme Court jurisprudence and “the weight of the reasoned precedent in the federal Courts of Appeal” relating to habeas and concluding “habeas corpus tests not only the fact but also the form of detention.”). Here, because Petitioner-Plaintiffs seek relief from detention conditions that cannot be remediated or improved, their challenge cannot be deemed a challenge to conditions of confinement of the kind that some courts find lie outside of habeas; because the only available remedy in these circumstances is release, their claims challenge the unlawful fact of detention and sits a the core of habeas.
128. A court is fully empowered to remediate the particular illegality here – an outbreak of lethal and unavoidable virus that threatens petitioners and violates their constitutional rights to
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be free from arbitrary and punitive detention – by ordering their release. Habeas corpus is, “above all, an adaptable remedy,” Boumediene, 553 U.S. at 780, and federal courts retain “broad discretion in conditioning a judgment granting habeas relief . . . ‘as law and justice require’.” Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (quoting 2243). That authority includes an order of release, Boumediene, 553 U.S. at 779, so as “to insure that miscarriages of justice within [the writ’s] reach are surfaced and corrected.” Harris, 395 U.S. at 291.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF: VIOLATION OF FIFTH AMENDMENT RIGHT TO SUBSTANTIVE DUE PROCESS 129. Petitioner-Plaintiffs reallege and incorporate by reference the foregoing paragraphs.
130. The Due Process Clause of the Fifth Amendment guarantees persons in civil immigration detention the right to reasonable safety and to be free from punitive conditions of confinement, and requires that the government have a constitutionally adequate, non-punitive purpose for continued detention. These requirements are violated when a condition of detention is not reasonably related to a legitimate government objective and when government officials are deliberately indifferent to a substantial risk of harm to the detainee.
131. Defendants continue to detain Petitioner-Plaintiffs, whose underlying health conditions render them particularly vulnerable to contracting COVID-19, spreading it to others, and suffering serious injury or death as a result.
132. The conditions of detention in the LaSalle, Winn, Richwood, Adams and Etowah facilities increase Petitioner-Plaintiffs’ risk of contracting COVID-19. There have been cases of COVID-19 reported in the parishes or counties where each of these facilities are located. Defendants have not, and could not possibly, implement social distancing measures that are
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required to prevent the rapid spread of COVID-19 in these facilities. Defendants also have not implemented any adequate hygiene practices as recommended by the CDC.
133. Defendants have failed in their obligation to adequately protect Petitioner-Plaintiffs from exposure to COVID-19. This puts Petitioner-Plaintiffs at a substantial risk of serious illness or death.
134. Defendants know about the prevalence of COVID-19 in Louisiana, and the risk that it poses to individuals with certain underlying conditions. Under these circumstances, PetitionerPlaintiffs’ continued detention by Defendants amounts to deliberate indifference to a substantial risk of harm to Petitioner-Plaintiffs.
135. Defendants’ exposure of Petitioner-Plaintiffs to this substantial risk of serious illness or death amounts to punishment.
136. Petitioner-Plaintiffs’ ongoing confinement lacks a reasonable relationship to any legitimate government purpose. Petitioner-Plaintiffs do not pose a danger or a flight risk, and these considerations alone are insufficient to countervail the severe risk of severe illness or even death that Petitioner-Plaintiffs face if they are not released.
137. Absent judicial relief in the form of release from detention, Petitioner-Plaintiffs are suffering and will continue to suffer irreparable harm.
SECOND CLAIM FOR RELIEF: VIOLATION OF FIFTH AMENDMENT RIGHT TO PROCEDURAL DUE PROCESS
138. Petitioner-Plaintiffs reallege and incorporate by reference the foregoing paragraphs.
139. The Due Process Clause of the Fifth Amendment guarantees persons in immigration detention the fundamental right to freedom from confinement. To justify a denial of
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this right, there must be a compelling governmental interest that is narrowly tailored, and detainees must be afforded adequate procedures that ensure against erroneous confinement.
140. The weight of the government’s interests in ensuring a lack of flight risk and preventing danger to the community is severely diminished during the pendency of the pandemic. Further, mandating Petitioner-Plaintiffs’ continued detention at risk of death during a global pandemic is grossly disproportionate to the government’s interests. Furthermore, it is not sufficiently tailored, fails to account for reasonable alternatives, and denies Petitioner-Plaintiffs the right to be meaningfully heard.
141. To ensure adequate procedural protections exist, the extraordinary circumstances alleged justify this Court’s intervention to order Petitioner-Plaintiffs’ outright release during the pendency of the COVID-19 crisis, or at least release until immigrations proceedings regain regularity, at which point it may order bond hearings and requests for parole.
142. Absent judicial relief in the form of release from detention, Petitioner-Plaintiffs are suffering and will continue to suffer irreparable harm.
THIRD CLAIM FOR RELIEF: HABEAS AUTHORITY TO ORDER RELEASE FROM UNLAWFUL DETENTION
143. Petitioner-Plaintiffs reallege and incorporate by reference the foregoing paragraphs.
144. The Court has broad, equitable authority under the habeas statute, 28 USC 2241, 2243 and the common law, to dispose of Petitioners-Plaintiffs’ cases as law and justice require, based on the unique facts and circumstances of their cases, in order to remedy Petitioners’ unlawful conditions of detention.
145. The Court should exercise this authority to grant Petitioner-Plaintiffs’ habeas corpus petition and to fashion any and all additional relief, necessary to effectuate Petitioner-
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Plaintiffs’ expeditious release from unlawful detention. In the absence of such relief, PetitionerPlaintiffs are suffering and will continue to suffer irreparable harm.
FOURTH CLAIM FOR RELIEF: VIOLATION OF THE REHABILITATION ACT (FAILURE TO PROVIDE REASONABLE ACCOMMODATION TO PERSONS WITH DISABILITIES) 146. Petitioner-Plaintiffs reallege and incorporate by reference the foregoing paragraphs. 147. 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). 148. 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). 149. The removal process is a benefit administered by DHS and Petitioner-Plaintiffs are entitled to participate in the removal process. The services, programs, and activities within the detention centers where DHS detains Petitioner-Plaintiffs receive substantial federal financial assistance.
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150. Petitioner-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.
151. By exposing them to a heightened risk of contracting COVID-19, Defendants are preventing Petitioner-Plaintiffs from participating in the removal process by reason of their disability.
152. By failing to take account of their special vulnerability to severe illness or death if they were to contract COVID-19, Defendants are preventing Petitioner-Plaintiffs from participating in the removal process by reason of their disability.
153. By failing to provide Petitioner-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 Petitioner-Plaintiffs.
154. The only available “reasonable accommodation” that would mitigate PetitionerPlaintiffs’ 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.
155. Defendants’ ongoing detention of Petitioner-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.
156. For these reasons, Defendants’ ongoing detention of Petitioner-Plaintiffs violates the Rehabilitation Act.
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PRAYER FOR RELIEF WHEREFORE, Petitioner-Plaintiffs request that this Court:
a. Issue a writ of habeas corpus and order Petitioner-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 a temporary restraining order or preliminary and permanent injunctive relief ordering Defendants to immediately release Petitioner-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 Petitioner-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 Petitioner-Plaintiffs any other and further relief this Court deems just and proper.
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Dated: April 16, 2020

Respectfully submitted,
s/ Cliff Johnson Cliff Johnson cliff.johnson@macarthurjustice.org MACARTHUR JUSTICE CENTER at the UNIVERSITY OF MISSISSIPPI SCHOOL OF LAW 481 Chucky Mullins Drive University, MS, 38677 662.915.6863
Baher Azmy* bazmy@ccrjustice.org Ghita Schwarz* gschwarz@ccrjustice.org Angelo Guisado* aguisado@ccrjustice.org Guadalupe V. Aguirre* laguirre@ccrjustice.orgAstha Sharma Pokharel* asharmapokharel@ccrjustice.org Brittany Thomas* bthomas@ccrjustice.org CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 11201 212.614.6427
Sirine Shebaya* sirine@nipnlg.org Matthew S. Vogel * matt@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Avenue NW, Suite 200 Washington, DC 20007 718.419.5876

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Case 5:20-cv-00106-DCB-MTP Document 1 Filed 04/16/20 Page 48 of 48 Jeremy Jong* jermjong@gmail.com 3527 Banks Street New Orleans, LA 70119 504.475.6728 Counsel for Petitioner-Plaintiffs *pro hac vice applications forthcoming
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 Case 5:20-cv-00106-DCB-MTP Document 5 Filed 04/16/20 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

Leyanis TAMAYO ESPINOZA, Edilia del Carmen MARTINEZ, Jose Ruben LIRA ARIAS, Viankis Maria YANES PARDILLO, Ndikum Keshia Angu ANJOH, Anthony BAPTISTE, Linda Chuo FRU,

Civil Action No.: 5:20-cv106-DCB-MTP

Petitioner-Plaintiffs,

ORAL ARGUMENT REQUESTED

v.

Dianne WITTE, Matthew T. ALBENCE, IMMIGRATION AND CUSTOMS ENFORCEMENT, and Shawn GILLIS,

Respondent-Defendants.

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

Case 5:20-cv-00106-DCB-MTP Document 5 Filed 04/16/20 Page 2 of 28

TABLE OF CONTENTS INTRODUCTION ...........................................................................................................................1

FACTUAL BACKGROUND ..........................................................................................................2

I.

COVID-19 Is an Unprecedented and Lethal Global Pandemic .....................................2

II.

COVID-19 is Exceedingly Dangerous for Individuals Like Plaintiffs, Who Have

Underlying Health Concerns..........................................................................................3

III.

Relevant ICE Detention Facilities Are Ticking Time Bombs; They Do Not, and

Cannot, Meet Public Health Standards to Prevent Widespread Infections....................4

IV.

ICE’s Response to COVID-19 Is Insufficient to Prevent the Spread of This Life-

Threatening Disease.......................................................................................................5

V.

The Consensus of Public Health Experts Is That Individuals Most Vulnerable to

COVID-19 Should Immediately Be Released to Protect Them From Serious Illness or

Death ..............................................................................................................................7

ARGUMENT ...................................................................................................................................9

I.

Plaintiffs Will Suffer Irreparable Harm In the Absence of a Temporary Restraining

Order ............................................................................................................................10

II.

Plaintiffs Are Likely to Succeed On Their Due Process Claims .................................12

A. Plaintiffs’ Continued Detention Violates Their Due Process Right to Protection from Harm and To Be Free From Punitive Conditions .........................................12
B. Continuing Detention Constitutes Deliberate Indifference to a Substantial Risk of Serious Harm .........................................................................................................14
C. ICE Lacks A Constitutionally Adequate Purpose For Continued Detention.........17 D. Plaintiffs Are Likely To Prevail On Their Claim That Continued Detention
Violates Procedural Due Process ...........................................................................18

III. The Balance of The Equities and The Public Interest Tilts Sharply In Favor of Plaintiffs’ Release ........................................................................................................19

IV. Immediate Release Is The Only Effective Remedy For Plaintiffs’ Unlawful Detention, Which The Court Has Ample Authority To Order ....................................21

V.

The Court Should Not Require Plaintiffs To Provide Security Prior To Issuing A

Temporary Restraining Order ......................................................................................24

CONCLUSION ...........................................................................................................................24

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INTRODUCTION
Today’s global pandemic of the COVID-19 virus is the worst the world has seen since 1918.1 Public health experts have warned that the only effective way to reduce the risk of severe
illness or death for vulnerable individuals is sustained social distancing and vigilant hygiene.
Such measures are impossible to achieve in crowded detention centers. For this reason, health
care professionals – including two of the Department of Homeland Security’s own medical
experts – have urgently called for the release of detained immigrants, particularly elderly or medically vulnerable ones.2 Yet, Respondent-Defendants (“Defendants”) continue to detain
close to one thousand individuals at the Adams County Detention Center (“Adams”) in Natchez,
Mississippi, including those at severe risk of serious illness or death, despite the ready
availability of release, including under community-based alternatives to detention.
Petitioner-Plaintiffs (“Plaintiffs”) are seven individuals detained at Adams, who, due to
their age and/or pre-existing medical conditions, are particularly vulnerable to serious illness or
death if infected by COVID-19. While they are detained, it will be impossible to engage in
necessary social distancing practices to protect themselves and others; they are vulnerable to
infection because they eat, sleep and otherwise commingle in tight proximity to others and
because sanitary conditions in these facilities are poor.
1 On April 1, 2020, Plaintiffs, along with thirteen other medically vulnerable individuals in immigration detention, filed a petition and motion for a temporary restraining order in the Eastern District of Louisiana, requesting the relief that Plaintiffs request here. Complaint, Dada v. Witte, No. 2:20-cv-01093 (E.D. La. Apr. 1, 2020), ECF No. 1; Plaintiffs’ Memorandum in Support of Motion for a Temporary Restraining Order, Dada v. Witte, No. 2:20-cv01093 (E.D. La. Apr. 1, 2020), ECF No. 2-1. Because the ICE Field Office in New Orleans has jurisdiction over the Adams County Detention Center, Plaintiffs argued that the ICE Field Office Director – as the “immediate custodian” – was the proper respondent, and that the Eastern District of Louisiana was the proper jurisdiction. Plaintiffs’ Reply in Support of Motion for a Temporary Restraining Order at 6-9, Dada v. Witte, No. 2:20-cv-01093 (E.D. La. Apr. 4, 2020), ECF No. 9. However, the court declined to determine that the ICE Field Office Director was the immediate custodian, and therefore declined to exercise jurisdiction and dismissed “the claims without prejudice to refiling them in the appropriate district court.” Dada v. Witte, No. 2:20-cv-01093 (E.D. La. Apr. 5, 2020) (order dismissing without prejudice). Plaintiffs now request emergency relief in this court. 2 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.
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Even with the measures ICE is implementing to attempt to limit the spread of COVID-19, immigration detention centers are a hotbed for spread of the virus, which broadly endangers public health and will strain vulnerable hospital systems. For at-risk individuals like Plaintiffs, protection from the virus is a matter of life or death. 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. Release is the only meaningful way to protect Plaintiffs from grave, irreparable harm, and this Court, like many others that have already acted, is fully authorized to order it.
FACTUAL BACKGROUND I. COVID-19 Is an Unprecedented and Lethal Global Pandemic.
COVID-19 is a highly contagious disease easily transmitted through respiratory droplets, especially when one is within six feet of an infected individual. Declaration of Jaimie Meyer ¶ 20. It can result in severe and widespread damage to lungs, heart, liver, or other organs and in many cases results in death. Id. ¶ 21. A patient’s condition can seriously deteriorate within days.3
Those who develop serious complications will need advanced medical support. Id. ¶ 22. This level of support is especially difficult to provide for detained individuals. See id. ¶¶ 16, 3233. The need for advanced medical care and the likelihood of death are much greater from COVID-19 infection than from influenza. See Id. ¶ 19.
There is no vaccine against COVID-19, nor any known medication to prevent or treat infection from the virus. Id. ¶ 19. The only effective measure to reduce the risk of infection and
3 Centers for Disease Control and Prevention, “Clinical Presentation” Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) (Mar. 31, 2020) available at https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html.
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thus severe illness or death to vulnerable individuals is to enforce regular social distancing
(remaining physically separated from known or potentially infected individuals) and vigilant
hygiene, including frequently washing hands with soap and water. See Id. ¶¶ 9-12.
II. COVID-19 is Exceedingly Dangerous for Individuals Like Plaintiffs, Who Have Underlying Health Concerns.
Older individuals and those with certain medical conditions face greater chances of
serious illness or death from COVID-19. Id. ¶¶ 21. Certain underlying medical conditions
increase the risk of serious COVID-19 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. Id.; Declaration of Lydia Bazzano ¶ 8. Individuals detained in immigration detention
centers, including those detained at Adams, are also more susceptible to experiencing
complications from infectious diseases than the population at large. Meyer Decl. ¶ 14. This is
especially true for the following Plaintiffs, with underlying conditions such as diabetes, lung
disease, kidney disease, or other illness. Id. ¶ 13.
භ Leyanis Tamayo Espinoza suffers from diabetes, hypertension, chronic renal issues, and malnutrition. Tamayo Espinoza ¶¶ 1, 3-8, 13, 19. Her medical conditions put her at high risk of complications if she contracts COVID-19. Bazzano Decl. ¶ 16(b). She has a place to live if released. Tamayo Espinoza Decl. ¶ 20.
භ Edilia Del Carmen Martinez is 53 years old and suffers from diabetes, Martinez Decl. ¶¶ 23, putting her at high risk of complications if she contracts COVID-19. Bazzano Decl. ¶ 16(c). She has a place to live if released. Martinez Decl. ¶ 1.
භ Jose Ruben Lira Arias is 46 years old and suffers from uncontrolled diabetes and hypertension. Lira Arias Decl. ¶¶ 3-4. He is at high risk of complications if he contracts COVID-19. Bazzano Decl. ¶ 16(a).
භ Viankis Maria Yanes Pardillo is 49 years old and suffers from epilepsy, and has suffered numerous seizures while in detention. Yanes Pardillo Decl. ¶¶ 4-8. Her neurologic condition puts her at high risk of complications if she contracts COVID-19. Bazzano Decl. ¶ 16(d). She has a place to live if released. Yanes Pardillo Decl.. ¶ 14..
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භ Ndikum Keshia Angu Anjoh is 19 years old and suffers from chronic respiratory distress and has a throat injury, which puts her at high risk of complications if she contracts COVID19. Bazzano Decl. ¶ 16(e). She has a place to live if released. Anjoh Decl. ¶ 11.
භ Anthony Baptiste is 59 years old and suffers from hypertension and untreated pre-diabetes. Baptiste Decl. ¶¶ 1, 5-7, 11. His age combined with these conditions put him at very high risk of complications if he contracts COVID-19. Bazzano Decl. ¶ 16(f). He has a place to live if released. Baptiste Decl. ¶ 1.
භ Linda Chuo Fru is 26 years old and has untreated Hepatitis B and high blood pressure. Fru Decl. ¶¶ 1, 2-3, 5-6. These conditions put her at high risk of complications if she contracts COVID-19. Bazzano Decl. ¶ 16(g). She has a place to live if released. Fru Decl. ¶ 13.
III. Relevant ICE Detention Facilities Are Ticking Time Bombs; They Do Not, and Cannot, Meet Public Health Standards to Prevent Widespread Infections.
The Adams facility is located in Natchez, Mississippi near the Louisiana border.4 As of
April 15, 2020, there were 3,360 confirmed COVID-19 cases in Mississippi, and 122 deaths.5
Five individuals detained at Adams have been diagnosed with COVID-19.6
Detention centers present a particularly high risk of outbreaks, which is exemplified by
the skyrocketing numbers of cases in New York City jails, Meyer Decl. ¶¶ 7-17, and in a federal
prison in Louisiana.7 The only effective way to prevent infection is to practice proper hygiene
and, crucially, social distancing: maintaining a distance of at least six feet between oneself and
others. Id. ¶¶11, 20. But Plaintiffs describe conditions in these facilities that render it impossible
to practice social distancing: Plaintiffs describe crowded conditions, including 120 people
sharing one dorm, 10 phones, and 10 showers. Tamayo Espinoza Decl. ¶ 17; Martinez Decl. ¶ 8;
Lira Arias Decl. ¶ 7. To make matters worse, Defendants have not adopted adequate mitigation
4 Detention Facility Locator, U.S. Immigration and Customs Enforcement, available at https://www.ice.gov/detention-facilities. 5 Mississippi State Department of Health, Coronavirus Disease 2019 (COVID-19) (April 15, 2020), available at https://msdh.ms.gov/msdhsite/_static/14,0,420.html#Mississippi. 6 ICE Guidance on COVID19 - Confirmed Cases, U.S. Immigration and Customs Enforcement (April 15, 2020), available at https://www.ice.gov/coronavirus. 7 Kevin Johnson, Prisoners sue for release from troubled federal prison where coronavirus has killed 5 inmates. USA Today, Apr. 6, 2020, available at https://www.usatoday.com/story/news/politics/2020/04/06/fed-prisonersfear-virus-sue-release-troubled-prison/2954519001/.
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measures: detained individuals are routinely transferred between facilities (Tamayo Espinoza Decl. ¶ 18; Fru Decl. ¶ 4; Anjoh Decl. ¶ 6), staff at detention centers do not wear masks or gloves (Martinez Decl. ¶ 7; Lira Arias Decl. ¶ 5; Fru Decl. ¶ 10; Anjoh Decl. ¶ 9), and Plaintiffs have inadequate access to soap or hand sanitizer. (Yanes Pardillo Decl. ¶ 10; Lira Arias Decl. ¶ 9; Tamayo Espinoza Decl. ¶ 14). Plaintiffs also describe instances where individuals who are ill – including those presenting symptoms consistent with COVID-19 – are not isolated or treated. (Tamayo Espinoza Decl. ¶ 8; Lira Arias Decl. ¶ 10; Anjoh Decl. ¶ 6; Fru Decl. ¶ 5).
There are already five confirmed COVID-19 cases at Adams and nine additional cases at Louisiana detention facilities under the jurisdiction of the New Orleans ICE Field Office.8 Once one person in a detention facility contracts the virus, it spreads quickly because individuals in detention centers live, sleep, eat, and use the bathroom in close proximity with others, which “make it difficult if not impossible to contain transmission.” Bazzano Decl. ¶ 14. And, given the daily entry of staff and guards from the community, and the continued influx and transfer of dozens of new people into detention facilities on a daily or weekly basis (see, e.g., Tamayo Espinoza Decl. ¶ 18; Fru Decl. ¶ 4; Anjoh Decl. ¶ 6) it is only a short matter of time before the disease becomes widespread throughout Adams.
IV. ICE’s Response to COVID-19 Is Insufficient to Prevent the Spread of This LifeThreatening Disease.
As these conditions show, Defendants have not and cannot ensure mitigation of COVID19 in ICE detention facilities. Bazzano Decl. ¶ 15. While ICE policy is to test and isolate those who are at high epidemiologic risk, this is insufficient: not everyone who contracts the virus is symptomatic, and few detention centers have negative pressure rooms, which are required to prevent spread of the virus from the isolated individual’s room to others. Meyer Decl. ¶ 14;
8 ICE Guidance on COVID19 - Confirmed Cases, U.S. Immigration and Customs Enforcement (April 15, 2020), available at https://www.ice.gov/coronavirus.
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Matter of Extradition of Toledo Manrique, No. 19MJ71055MAG1TSH, 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020) (“symptoms of COVID-19 can begin to appear 2-14 days after exposure, so screening people based on observable symptoms is just a game of catch up”).
On April 10, 2020, ICE’s Enforcement and Removal Office, (“ERO”) issued a document entitled “COVID-19 Pandemic Response Requirements” (“PRR”) outlining recommendations for detention facilities to contain the spread of the disease.9 For example, the PRR urges that facilities “adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response,”10 which in turn urge that “staff and incarcerated/detained people performing cleaning wear PPE.”11 However, as Plaintiff Ms. Fru describes, they are not provided with personal protective equipment (“PPE”) for cleaning at Adams. (Fru Decl. at ¶ 8). The PRR further states that “social distancing may not be possible in congregate settings such as detention facilities,” and instead, it recommends a number of alternative measures including directing detained people to “avoid congregating in groups of 10 or more, employing social distancing strategies at all times.”12 Based on Plaintiffs’ descriptions of crowded conditions, this is not possible at Adams. Further, although ICE has temporarily suspended social visitation in all detention facilities, staff, contractors, and vendors continue to arrive and leave the detention centers.13 Meyer Decl. ¶ 8. 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 adequately screen detained persons and staff for new, asymptomatic infection. Id. ¶ 30. Anything short of
9 ERO COVID-19 Pandemic Response Requirements (Apr. 10, 2020), available at https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf. 10 Id. at 9. 11 for Disease Control, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), available at https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html. 12 Id. at 13. 13 ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, available at https://www.ice.gov/covid19.
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aggressive screening and testing of detained individuals, staff, officials and other care and service providers who enter the facility is insufficient to prevent infection. Neither ICE nor the Adams facility have the resources necessary to engage in such an effort. Id. ¶¶ 25-30; Bazzano Decl. ¶ 19.
Importantly, the COVID-19 pandemic—and ICE’s unsatisfactory response to it—will significantly strain ICE’s already broken medical care system, while the medical system in surrounding areas is expected to soon be overloaded, significantly reducing the capacity to provide emergency, life-saving medical care to all. Bazzano Decl. ¶¶ 7-9. Long before the COVID-19 outbreak, numerous reports, including by the Department of Homeland Security itself, have identified serious and substantial flaws in ICE’s medical care system.14
V. The Consensus of Public Health Experts is That Individuals Most Vulnerable to COVID-19 Should Immediately Be Released to Protect them From Serious Illness or Death.
Public health experts with experience addressing detention issues have recommended the release of vulnerable individuals from detention. Two DHS medical experts formally warned Congress of the severe public health risks of keeping individuals detained and recommended release of most persons in immigration detention, stating that “acting immediately will save lives not of only those detained, but also detention staff and their families, and the community-at-
14 DHS Office of the Inspector General, Concerns About ICE Detainee Treatment and Care at Detention Facilities, OIG-18-32 at 7 (Dec. 11, 2017), https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-32Dec17.pdf. See also, e.g., U.S. Gov’t Accountability Off., GAO-16-23: Immigration Detention: Additional Actions Needed to Strengthen Mgmt. and Oversight of Detainee Med. Care (Feb. 2016), available at https://www.gao.gov/assets/680/675484.pdf; Human Rts. Watch et al., Code Red: The Fatal Consequences of Dangerously Substandard Med. Care in Immigration Detention, at 15, 19, 25, 46 (June 2018), available at https://www.hrw.org/sites/default/files/report_pdf/us0618_immigration_web2.pdf; J. David McSwane, ICE Has Repeatedly Failed to Contain Contagious Diseases, Our Analysis Shows. It’s a Danger to the Public, PROPUBLICA (Mar. 20, 2020), available at https://www.propublica.org/article/ice-has-repeatedly-failed-tocontain-contagious-diseases-our-analysis-shows-its-a-danger-to-the-public.
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large.”15 A former Acting Director of ICE 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.”16
Releasing medically vulnerable people such as Plaintiffs would also reduce the burden on
regional hospitals and health centers. Meyer Decl. ¶¶16, 35-37. 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. ¶16. The U.S. Department of Justice has recognized the threat posed by the
spread of COVID-19 in prisons; on March 26, 2020, Attorney General Barr issued a directive to
the Board of Prisons urging reduction of the prison population through the use of home
confinement, and on April 3, he urged “dispatch” and particular prioritization for three federal
prison facilities with COVID-19 outbreaks, including the Federal Correctional Institution in
Oakdale, Louisiana.17 Across the United States, several jurisdictions including New Orleans, Los
Angeles, New York, and Chicago have released detained individuals for the same reasons.18
15 Letter from Dr. Scott Allen and Dr. Josiah Rich, to House Comm. on Homeland Sec., Mar. 19, 2020, available at https://www.documentcloud.org/documents/6816336-032020-Letter-From-Drs-Allen-Rich-to-CongressRe.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/doctorsice-detention-coronavirus/index.html. 16 John Sandweg, I Used to Run ICE. We Need to Release the Nonviolent Detainees, The Atlantic Monthly (Mar. 22,
2020), available athttps://www.theatlantic.com/ideas/archive/2020/03/release-ice-detainees/608536/.
17 See William Barr, Prioritization of Home Confinement as Appropriate in Response to COVID-19 Pandemic, Mar. 26, 2020, available at https://www.politico.com/f/?id=00000171-1826-d4a1-ad77-fda671420000; William Barr, Increasing Use of Home Confinement at Facilities Most Affected by COVID-19, Apr. 3, 2020, available at https://www.politico.com/f/?id=00000171-4255-d6b1-a3f1-c6d51b810000. 18 WDSU Digital Team, Orleans Parish Sheriff’s Office releases some inmates with minor charges under COVID19 plan, WDSU (Mar. 19, 2020), available at https://www.wdsu.com/article/orleans-parish-sheriffs-office-releasessome-inmates-with-minor-charges-under-covid-19-plan/31788756#; Jan Ransom & Alan Feuer, We’re Left for Dead: Fears of Virus Catastrophe at Rikers Jail, New York Times (Mar. 30, 2020), available at https://www.nytimes.com/2020/03/30/nyregion/coronavirus-rikers-nyc-jail.html; 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-Time (Mar. .17, 2020), available at
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Dr. Meyer has concluded that “[r]educing the size of the population in jails and prisons can be crucially important to reducing the level or risk both for those within those facilities and for the community at large. Meyer Decl. ¶ 35. Dr. Meyer recommends “that individuals who are already in [ICE facilities] be evaluated for release,” and that “[t]his is more important still for individuals with preexisting conditions.” Id. ¶¶ 35-36. In light of Plaintiffs’ medical conditions, Dr. Bazzano has determined that Plaintiffs face a substantial risk of complications as a result of continued detention. Bazzano Decl. ¶ 16 (a)-(g).
ARGUMENT Under Rule 65 of the Federal Rules of Civil Procedure, a movant is entitled to temporary restraining order to preserve the status quo—here, the health and lives of Plaintiffs—by showing: (1) a substantial likelihood of success on the merits of their claims for relief; (2) a substantial threat of in irreparable injury absent the injunction; (3) that the threatened injury outweighs any damage that injunction may cause the opposing party; and (4) that the injunction will not disserve public interest. Lake Charles Diesel, Inc. v. General Motors Corp, 328 F.3d 192, 195 (5th Cir. 2003). The Court likewise has wholly independent authority under habeas corpus, 28 U.S.C. § 2241, to order immediate release from unconstitutional confinement. There is voluminous evidence in the record showing that Plaintiffs are particularly vulnerable to severe illness and death, through highly likely exposure to the surging COVID-19 virus. The evidence demonstrating the serious risk they face to their health, including a risk of death, constitutes the clearest form of irreparable harm that the law recognizes. In contrast, Defendants can identify no sufficiently countervailing interest in continuing to subject those in civil immigration detention to such a grave health risk. In the last two weeks, dozens of courts
https://chicago.suntimes.com/coronavirus/2020/3/17/21183289/cook-county-jail-coronavirus-vulnerable-detaineesreleased-covid-19.
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have recognized as much and ordered detained persons released. Because subjecting persons in civil immigration detention to such dangerous conditions of confinement is punitive as well as deliberately indifferent to the known risks Plaintiffs face, and because continued detention in the face of such risks serves no legitimate nonpunitive government interest, Plaintiffs are likely to succeed on the merits of their substantive due process claims. And, because Plaintiffs face significant practical limitations on procedures to vindicate their fundamental right to be free from unjustified detention, they are likely to succeed on their procedural due process claim.
Detaining these vulnerable individuals for civil immigration purposes contrary to expert consensus that they face substantial risk of illness or death represents the height of arbitrary detention and compels judicial intervention. Plaintiffs’ lives are at stake. I. PLAINTIFFS WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF A
TEMPORARY RESTRAINING ORDER “[P]erhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered.” Trinity USA Operating, L.L.C. v. Barker, 844 F. Supp. 2d 781, 786 (S.D. Miss. 2011) (quotations omitted). The Fifth Circuit requires only a “substantial threat” of irreparable injury, DSC Commc’ns Corp. v. DGI Techs., Inc., 81 F.3d 597, 600 (5th Cir.1996), which is defined as “harm for which there is no adequate remedy at law,” such as monetary damages. Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579, 585 (5th Cir. 2013). Without emergency relief from this Court, Plaintiffs face a substantial threat of imminent and irreparable injury, including death—harms no court can otherwise remediate. See In re Bahadur, 2020 WL 956362, at *14 (W.D. Tex. Feb. 27, 2020); Turner v. Epps, 842 F. Supp. 2d 1023, 1028 (S.D. Miss. 2012), vacated on other grounds, 460 Fed. App’x 322 (5th Cir. 2012),
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(referring to “death itself” as the “single most irreparable harm of all). Short of death, Plaintiffs are at grave risk of contracting or exacerbating severe and potentially long-term medical conditions, Meyer Decl. ¶¶ 21, 28-29, which also establishes irreparable harm. See, e.g., M.R. v. Dreyfus, 697 F.3d 706, 729 (9th Cir. 2012); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996); see also Unknown Parties v. Johnson, No. CV-15-00250-TUC (DCBx), 2016 WL 8188563, at *15 (D. Ariz. No. 18, 2016), aff’d sub nom Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017) (irreparable harm where evidence demonstrated “medical risks associated with . . . being exposed to communicable diseases”).
Given their medical vulnerabilities, even those Plaintiffs who survive COVID-19 are at risk of long-term ailments including neurologic damage and the loss of respiratory capacity, and may require extensive rehabilitation or profound reconditioning. And, short of release, there are no sufficient measures—preventative or palliative—that Defendants can implement to protect Plaintiffs, from crowded, unsanitary conditions. Bazzano Decl. ¶¶ 16-18. Medical experts conclude that COVID-19 poses unprecedented threats to the safety of these individuals—and those who come in contact with them, including ORR and ICE staff, healthcare providers, and local populations—and must be released. Meyer Decl. ¶¶ 35-37; Bazzano Decl. ¶¶ 16-18.
Plaintiffs can also satisfy demonstrate irreparable harm through a showing, see infra Section II, that Defendants have violated their constitutional rights. See Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 295 (5th Cir. 2012); Castillo v. Barr, CV 20-00605 TJH (AFMx), ECF No. 32 (concluding that “[a] civil detainee’s constitutional rights are violated if a condition of his confinement places him at substantial risk of suffering serious harm, such as the harm caused by a pandemic”).
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II. PLAINTIFFS ARE LIKELY TO SUCCEED ON THEIR DUE PROCESS CLAIMS
A. Plaintiffs’ Continued Detention Violates Their Due Process Right To Protection From Harm And To Be Free From Punitive Conditions.
When the State holds individuals in its custody, the Constitution imposes an obligation to
provide for their basic human needs, including medical care and reasonable safety. DeShaney v.
Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 199–200 (1989).
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.
Id. (citations omitted); accord Hare v. City of Corinth, Miss., 135 F.3d 320, 326 (5th Cir. 1998).
Because they are in civil detention, Plaintiffs have a right to be free from punitive
conditions of detention in ICE facilities. A person in civil immigration detention has due process
rights that are similar to those of a person detained in pretrial detention prior to adjudication of guilt, Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000).19 At a minimum, due process
mandates that those in civil detention not be punished. Hare, 74 F.3d at 639. See also Foucha v.
Louisiana, 504 U.S. 71, 80 (1992). While the Eighth Amendment protects individuals in prison
from punishment that rises to “cruel and unusual,” the Due Process Clause protects individuals in
detention from any punishment.
A condition of detention amounts to impermissible punishment when “it is not reasonably
related to a legitimate goal,” if it is “excessive” in relation to a legitimate goal,” or if it is
19 Some courts have held that individuals in immigration detention have greater protections than those in pretrial detention because immigration detention does not implicate penological interests associated with criminal confinement or suspicion. In re Kumar, 402 F. Supp. 3d 377, 384 (W.D. Tex. 2019); Jones v. Blanas, 393 F.3d 918, 933 (9th Cir. 2004). The Kumar court applied the Youngberg civil commitment standard to the immigration detention context, which asks whether “defendants’ conduct was ‘such a substantial departure from accepted professional judgment, practice, or standards in the care and treatment of this plaintiff.’” Youngberg v. Romeo, 457 U.S. 307, 314 (1982). There can be no professional medical or penological judgment that could reasonably support the continued detention of medically compromised individuals in immigration detention in crowded, precarious conditions that subject them to a high risk of contagion, illness or death.
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otherwise “arbitrary or purposeless”—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.” Bell v. Wolfish, 441 U.S. 520, 539 (1979); Hare, 74 F.3d at 640. To make this showing, an individual in detention need not demonstrate the defendant’s subjective or malicious intent to punish. Shepherd v. Dallas Cty., 591 F.3d 445, 452 (5th Cir. 2009). “[E]ven where a State may not want to subject a detainee to inhumane conditions of confinement or abusive jail practices, its intent to do so is nevertheless presumed when it incarcerates the detainee in the face of such known conditions and practices.” Hare, 74 F.3d at 644. “A pervasive pattern of serious deficiencies” that subjects an individual in detention to the risk of serious injury or death likewise amounts to punishment. Shepherd, 591 F.3d at 454.
In Shepherd, the Fifth Circuit found that a “jail’s evaluation, monitoring, and treatment of inmates with chronic illness was [...] grossly inadequate due to poor or non-existent procedures and understaffing of guards and medical personnel,” that “serious injury and death were the inevitable results of the jail's gross inattention to the needs of inmates with chronic illness,” and that this amounted to punishment. Shepherd, 591 F.3d at 454. Similarly, in Duvall, the Fifth Circuit affirmed a jury’s finding that Dallas County had an unconstitutionally punitive custom or policy when it allowed infections of Methicillin-Resistant Staphylococcus Aureus (MRSA) to be present in a jail, and failed to take necessary measures for eradication. Duvall v. Dallas Cty., Tex., 631 F.3d 203, 208-209 (5th Cir. 2011).
Given the cramped, unsanitary, and irremediable conditions in ICE detention facilities, Plaintiffs face a demonstrably substantial risk of contracting COVID-19. Once they are exposed, they are all vulnerable to severe illness or death, either because of their age, or because they have underlying medical conditions, including: hypertension, diabetes, compromised immune system,
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chronic renal issues, liver disease, and respiratory disorders. Continued detention of Plaintiffs is an imminent threat to their lives that is clearly excessive in relation to any purported government goal, and therefore amounts to punishment.
B. Continuing Detention Constitutes Deliberate Indifference to a Substantial Risk of Serious Harm.
In addition to affirmatively imposing punitive conditions of confinement, supra Section II(A)(2), an official violates the Due Process Clause if the official has “acted or failed to act with deliberate indifference to the detainee's needs.” Hare, 74 F.3d at 648.20 Courts find deliberate indifference when a detained person can show: (1) “that he is incarcerated under conditions posing a substantial risk of serious harm,” and (2) “that the official was deliberately indifferent to inmate health or safety.” Hare, 74 F.3d at 648 (citing Farmer v. Brennan, 511 U.S. 825 (1994)). Under the second prong, the Fifth Circuit asks whether the official “knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Jones v. Texas Dep't of Criminal Justice, 880 F.3d 756, 759 (5th Cir. 2018). The Fifth Circuit holds that a detained person “does not need to show that death or serious illness has yet occurred to obtain relief. He must show that the conditions pose a substantial risk of harm.” Gates v. Cook, 376 F.3d 323, 339 (5th Cir. 2004) (emphasis added). In Gates, where individuals on Death Row challenged overheated temperatures as violating the Eighth Amendment, the Fifth Circuit upheld a finding that the plaintiffs faced a substantial risk of serious harm based on expert testimony substantiating a likelihood of death. Cook, 376 F.3d at 339. But showing a likelihood of actual death is not required. As the Supreme Court ruled, housing individuals in crowded conditions where they are at risk of infectious disease is unconstitutional even when it “is not alleged that the likely harm would occur immediately and even though the possible
20 Any condition that violates the Eighth Amendment rights of individuals who are in prison, necessarily amounts to punishment of individuals in civil immigration detention and thereby violates the due process rights of Plaintiffs.
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infection might not affect all of those exposed,” and prison officials cannot be “deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993). See also Gates v. Collier, 501 F.2d 1291, 1300 (5th Cir. 1974) (prison conditions, including the fact that “inmates with serious contagious diseases are allowed to mingle with the general prison population,” violate the Eighth Amendment).
In light of their medical vulnerability and the impossibility of enforcing appropriate social distancing and sanitation measures, see supra, Factual Background Sec. II-V, Plaintiffs’ continued detention puts them at substantial risk of serious harm. Courts across the country sitting in jurisdictions with palpable COVID-19 spread have recognized the heightened risk to individuals in detention and have ordered their release. See, e.g., Thakker v. Doll, No 1:20-cv00480-JEJ, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020) (ordering the release of 13 medically vulnerable people from immigration detention to avoid an “unconscionable and possibly barbaric result.”)21 The substantial risk of serious harm to individuals in detention is imminent.
Defendants have actual knowledge of this substantial risk and are deliberately indifferent to it. The risk of COVID-19 to the health and lives of medically vulnerable individuals is frontpage national and local news on a daily basis and, at this point, utterly obvious. See Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999) (“A prison official’s knowledge of a substantial risk
21 See also, e.g., Malam v. Adducci, No. 2:20-cv-10829-JEL-APP, 2020 WL 1809675 (E.D. Mich. Apr. 9, 2020) (opinion and order granting in part plaintiff-intervenors’ motion for a TRO); Malam v. Adducci, No. 2:20-cv-10829JEL-APP, 2020 WL 1672662 (E.D. Mich. Apr. 5, 2020) (opinion and order granting in part plaintiffs’ motion for a TRO); Hope v. Doll, No. 1:20-cv-00562-JEJ (M.D. Pa. Apr. 7, 2020);; Fraihat v. Wolf, ED CV 20-00590 TJH (KSx) (C.D. Cal. Mar 30, 2020); Coronel v. Decker, No. 1:20-cv-02472-AJN, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020); Calderon v. Wolf, No. 18-10225 (MLW) (D. Mass. Mar. 26, 2020); Jovel v. Decker, No. 1:20-cv-00308GBD-SN, 2020 WL 1502038 (S.D.N.Y. Mar. 24, 2020); Basank v. Decker, No. 1:20-cv-02518-AT, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020); Xochihua-Jaimes v. Barr, 18-71460, 798 Fed. Appx. 52 (9th Cir. Mar. 24, 2020); In the Matter of the Request to Commute or Suspend County Jail Sentences, Case No. 84230 (N.J. Mar. 22, 2020). Those cases that are not available on electronic databases are attached to the Declaration of Cliff Johnson as Exhibit 10.
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of harm may be inferred by the obviousness of the substantial risk”). ICE’s Guidance on
COVID-19 recognizes these risks, and ICE’s prohibition on social visitation demonstrates a
recognition of the importance of social distancing.22 Medical experts from within DHS itself
have described the risk of this virus to those in immigration detention.23 ICE has received
numerous letters from experts, Members of Congress, and non-governmental organizations
alerting it to the risk of COVID-19.24 Persons in immigration detention have protested against
the conditions that render them vulnerable during this pandemic.25 The World Health
Organization and the U.S. Centers for Disease Control have emphasized the risk of this disease,
its infectiousness, and its severity in those with underlying medical conditions.26 There are daily
news articles about the death toll of COVID-19 and its impact on those with underlying medical
conditions, particularly those in detention.27 In the face of this overwhelming evidence,
Defendants’ continued detention of Plaintiffs amounts to deliberate indifference.
22 ICE Guidance on COVID-19, U.S. Immigration and Customs Enforcement, https://www.ice.gov/covid19. 23 Catherine E. Shochet, 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. 24 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; 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. 25 Alejandro Lazo, Protests, Hunger Strikes Erupt Over Coronavirus in Immigration Detention. The Wall Street Journal, Mar. 27, 2020, available at https://www.wsj.com/articles/protests-hunger-strikes-erupt-over-coronavirus-inimmigration-detention-11585320903. 26 Information for Healthcare Professionals: COVID-19 and Underlying Conditions, Center for Disease Control (accessed Mar. 27, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/hcp/underlying-conditions.html; Coronavirus disease 2019 (COVID-19) Situation Report – 51, World Health Organization (accessed Mar. 31, 2020), available at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200311-sitrep-51-covid19.pdf?sfvrsn=1ba62e57_4. 27 See, e.g., Ana Ceballos, Two inmates at NW Florida prison die of COVID-19. State officials kept deaths secret. Miami Herald (Apr. 15, 2020), available at https://www.miamiherald.com/news/state/florida/article242039436.html; Jaimie Meyer, Carlos Franco-Paredes, Parveen Parmar, Faiza Yasin, Matthew Gartland, Comment: COVID-19 and the coming epidemic in U.S. immigration centers, The Lancet (Apr. 15, 2020) available at https://www.thelancet.com/action/showPdf?pii=S1473-3099%2820%2930295-4 (noting particular risk in “rural and semi-rural settings where many ICE detention facilities are located”)...
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C. ICE Lacks A Constitutionally Adequate Purpose For Continued Detention. Civil confinement “constitutes a significant deprivation of liberty that requires due
process protection,” and, thus, the government “must have ‘a constitutionally adequate purpose for the confinement.’” Jones v. United States, 463 U.S. 354, 361 (1983) (quoting O’Connor v. Donaldson, 422 U.S. 563, 574 (1975)). Accordingly, courts must ensure that the nature and duration of confinement bear “some reasonable relation to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738 (1972); Brown v. Taylor, 911 F.3d 235, 243 (5th Cir. 2018). Once a valid basis for detention no longer exists, substantive due process requires the state to release the person. Foucha, 504 U.S. at 86 (ordering petitioner’s release from commitment to mental institution because there was no longer any evidence of mental illness); accord Kansas, 521 U.S. at 363-64.
Continuing to detain Plaintiffs in conditions that impose a substantial risk of illness or death eviscerates any legitimate purpose for their detention. The Supreme Court has held hat immigration detention is permissible to ensure the immigrant’s participation in their removal proceedings, to prevent flight, and to otherwise protect the community. Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Demore v. Kim, 538 U.S. 510, 528 (2003). 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. If Plaintiffs are released, ICE can ensure that they attend immigration proceedings through supervised release. In contrast, continued detention puts Plaintiffs at substantial risk of serious illness or death, thereby jeopardizing Plaintiffs’ ability to attend or meaningfully participate in immigration proceedings. And, as explained below, there is no credible argument that community safety requires their continued detention—instead, it compels the opposite.
C. Plaintiffs Are Likely To Prevail On Their Claim That Continued Detention Violates Procedural Due Process
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When a governmental action limits a fundamental due process right to be free from detention, see Foucha, 504 U.S. at 80, Demore v. Kim, 538 U.S. 510, 561 (2003) (Souter, J., dissenting) (collecting cases), Hernandez v. Sessions, 872 F.3d 976, 981 (9th Cir. 2017), heightened scrutiny is applied. The action will be upheld only if the government shows it is necessary to promote a compelling governmental interest, Washington v. Glucksberg, 521 U.S. 702, 721 (1997); Cooper v. Oklahoma, 517 U.S. 348, 363 (1996), and is implemented in a manner that is “carefully limited” and “narrowly focused.” Foucha, 504 U.S. at 81. The fundamental substantive rights afforded to those in civil detention28 mandate “strong procedural protections.” Zadvydas v. Davis, 533 U.S. 678, 691 (2001); Demore v. Kim, 538 U.S. 510, 551 (Souter, J., dissenting) (“the substantive demands of due process necessarily go hand in hand with the procedural”). At a minimum, procedural due process requires the right to be heard “at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
Absent immediate injunctive relief, Defendants will provide either no procedural protections or wholly deficient ones. As explained, the government’s only legitimate interest in Plaintiffs’ continued detention—either to minimize flight risk pending removal proceedings or to prevent danger to the community, Zadvydas, 533 U.S. at 690—has been eviscerated by the pandemic because the likelihood of Plaintiffs’ severe illness or death renders a meaningful removal proceeding a nullity. See supra Factual Background Sec. II-V. This is a core procedural due process violation, Mathews, 424 U.S. at 333, as other courts faced with similar coronavirus spread in their respective jurisdictions have recognized. See Coronel v. Decker, CV 20-2472 (AJN), 2020 WL 1487274 at *9-10 (S.D.N.Y Mar. 27, 2020); Jovel v. Decker, No. CV 20-308 (GBD) (SN), 2020 U.S. Dist. LEXIS 52095, at *12-*16 (S.D.N.Y. Mar. 24, 2020). At the same
28 Multiple courts have ruled that civilly detained individuals are afforded greater pretrial protections than their criminally-charged counterparts. See note 8, supra.
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time, there are more “narrowly focused” means to ensure Plaintiffs’ appearance in legal proceedings, which do not subject them to the dangers of detention, including supervised or conditional release29 that would suffice to meet the government’s interest without subjecting Plaintiffs to severe danger.
Without immediate injunctive relief, Plaintiffs would have to attempt to safeguard their own constitutional rights before a court charged to consider only flight risk and dangerousness, not exigent threats to life and safety. See Zadvydas, 533 U.S. at 690; In re Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006) (setting forth nine non-health-related factors IJ is to consider in setting bond). To safeguard Plaintiffs’ procedural due process rights, this Court should order their outright release or a “narrowly focused” means to ensure future court appearances, such as supervised or conditional release. See Reno v. Flores, 507 U.S. 292, 343 (1993) (Stevens, J. dissenting) (“a blanket rule that simply presumes that detention is more appropriate than release to responsible adults is not narrowly focused on serving that interest.”).
III. THE BALANCE OF THE EQUITIES AND THE PUBLIC INTEREST TILTS SHARPLY IN FAVOR OF PLAINTIFFS’ RELEASE
Where, as here, the Government is a party to the case, the third and fourth injunction factors—the balance of the equities and the public interest—merge. Nken v. Holder, 556 U.S. 418, 435 (2009); El Paso Cty., Texas v. Trump, 407 F. Supp. 3d 655, 665 (W.D. Tex. 2019). As an initial matter, the public interest is served by the protection of constitutional rights. See Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 280 (5th Cir. 1996); Cohen v. Coahoma Co., 805 F. Supp. 398, 408 (N.D. Miss. 1992).
29 See, e.g., Immigration: Progress and Challenges in the Management of Immigration Courts and Alternatives to Detention Program, U.S. Government Accountability Office, Sep. 18, 2018, https://www.gao.gov/products/GAO18-701T; Alternatives To Detention: Improved Data Collection and Analyses Needed to Better Assess Program Effectiveness, U.S. Government Accountability Office, (Nov. 13, 2014), https://www.gao.gov/products/GAO-15-26.
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In addition, an injunction would also protect public health and safety, paramount considerations that weigh heavily in favor of an injunction. See Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445, 472 (5th Cir. 2017); see also Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005) (referring to “public health” as a “significant public interest”); Pashby v. Delia, 709 F.3d 307, 331 (4th Cir. 2013) (“the public interest in this case lies with safeguarding public health”); Bianco v. Globus Med., Inc., No. 2:12-CV-00147-WCB, 2014 WL 1049067, at *11 (E.D. Tex. Mar. 17, 2014) (citing cases); U.S. v. Barkman, No. 3:19-cr-0052-RCJ-WGC, 2020 U.S. Dist. LEXIS 45628, at *4 (D. Nev. Mar. 17, 2020) (identifying risk of individuals carrying coronavirus into jails and noting that “[t]he men and women incarcerated at Washoe County Detention Facility are a part of our community and all reasonable measures must be taken to protect their health and safety.”).
The balance of equities also strongly tilts in Plaintiffs’ favor. As the Central District of California just held in ordering the release of detained children, “the public’s interest in preventing outbreaks of COVID-19 among families and children in ICE or ORR custody that will infect ICE and ORR staff, spread to others in geographic proximity, and likely overwhelm local healthcare systems tips the balance of equities sharply in Plaintiffs’ favor.” Flores v. Barr, No. CV 85-4544-DMG (AGRx), ECF. 740 at 12 (C.D. Cal. Mar. 28, 2020). See also, Thakker v. Doll, No 1:20-cv-00480-JEJ, 2020 WL 1671563 at *9 (M.D. Pa. Mar. 31, 2020) (“Efforts to stop the spread of COVID-19 and promote public health are clearly in the public’s best interest, and the release of these fragile Petitioners from confinement is one step further in a positive direction.”). Because Plaintiffs present no risk to community safety, the comparative burden to the government in releasing Plaintiffs is nominal. Release not only saves the government time and money, it reduces detention center density, decreasing the chances of COVID-transmission
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to both detained persons and staff, and avoids correspondingly escalating medical costs. Even if it did not tangibly benefit the government, the risk of catastrophic medical consequences would still tilt the equities in Plaintiffs’ favor. See Hernandez, 872 F.3d at 996 (“Faced with such a conflict between financial concerns and preventable human suffering, we have little difficulty concluding that the balance of hardships tips decidedly in plaintiffs’ favor.”). IV. IMMEDIATE RELEASE IS THE ONLY EFFECTIVE REMEDY FOR
PLAINTIFFS’ UNLAWFUL DETENTION, WHICH THE COURT HAS AMPLE AUTHORITY TO ORDER. The Court has ample authority under 28 U.S.C. § 2241and independently under Rule 65 to issue the release of detained persons—a remedy that has been ordered by numerous courts across the country. Habeas invests in federal courts broad, equitable authority to “dispose of the matter as law and justice require,” 28 U.S.C. § 2243, as the “very nature of the writ demands that it be administered with the initiative and flexibility.” Harris v. Nelson, 394 U.S. 286, 292 (1969). While it is clear in this Circuit that habeas authorizes challenges to the fact or duration of detention, there is more ambiguity about whether habeas – as compared to traditional civil rights remedies against state officials such as 42 U.S.C. 1983 – authorizes challenges to conditions of confinement. See Poree v. Collins, 866 F.3d 235, 244 (5th Cir. 2017) (observing that “the Supreme Court has not foreclosed” habeas challenges for conditions claims and “declin[ing] to address whether habeas is available only for fact or duration claims.”); Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (habeas challenging “living conditions and disciplinary measures” is “cognizable in federal habeas corpus”). In any event, this habeas petition does not challenge conditions of confinement in the way this purported distinction imagines. Plaintiffs are not seeking judicial intervention in order to alleviate harsh conditions; it is precisely because there is no judicial possibility of remediating their unconstitutional confinement that they are challenging
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the very fact of their confinement. As such, they seek “relief from unlawful imprisonment or custody.” Pierre v. United States, 525 F.2d 933, 935-36 (5th Cir. 1976); see also Poree, 866 F.3d at 244 (petition seeking transfer to facility with less restrictive conditions “properly sounds in habeas.”). See also Malam v. Adducci, No. 2:20-cv-10829-JEL-APP, 2020 WL 1672662 at *3 (E.D. Mich. Apr. 5 2020) (“where a petitioner claims no set of conditions would be sufficient to protect her constitutional rights, her claim should be construed as challenging the fact, not conditions, of her confinement and is therefore cognizable in habeas.”). Habeas confers “broad discretion in conditioning a judgment granting habeas relief . . . ‘as law and justice require’.” Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (quoting 28 U.S.C 2243). That authority includes an order of release, Boumediene, 553 U.S. at 779, so as “to insure that miscarriages of justice . . . are surfaced and corrected.” Harris, 395 U.S. at 291.
Separately, under Rule 65 and a court’s inherent equitable authority to remedy unconstitutional government conduct, courts may issue “orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011). See also Duran v. Elrod, 713 F.2d 292, 297- 98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (affirming order releasing low-bond individuals in pretrial detention as necessary to reach a population cap); Mobile Cty. Jail Inmates v. Purvis, 581 F. Supp. 222, 224-26 (S.D. Ala. 1984) (exercising remedial powers to order a prison’s population reduced to alleviate unconstitutional conditions.)
In the midst of this unprecedented public health crisis, numerous other courts considering the plight of detained individuals have similarly ordered release. See Hope v. Doll, No. 1:20-cv00562-JEJ (M.D. Pa. Apr. 7, 2020) (ordering petitioners’ release, reasoning “[w]e have before us clear evidence that the protective measures in place in the York and Pike County prisons are not working. We can only expect the number of positive COVID-19 cases to increase in the coming
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days and weeks, and we cannot leave the most fragile among us to face that growing danger unprotected.”); Thakker v. Doll, No 1:20-cv-00480-JEJ, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020) (ordering petitioners’ release as ICE detention centers “are plainly not equipped to protect Petitioners from a potentially fatal exposure to COVID-19. While this deficiency is neither intentional nor malicious, should we fail to afford relief to Petitioners we will be a party to an unconscionable and possibly barbaric result.”); Xochihua-Jaimes v. Barr, 18-71460, Doc. No. 53 (9th Cir. Mar. 23, 2020) (sua sponte order of immediate release immigration detention due to rapidly escalating health crisis); U.S. v. Stephens, No. 15-cr-95 (AJN), 2020 WL 1295155 at *2-3 (S.D.N.Y. Mar. 31, 2020) (granting emergency motion for reconsideration of bail in light of COVID-19 pandemic); United States v. Raihan, No. 20-cr-68-BMC- JO, E.C.F. No. 20, Proc. At 10:12-19 (E.D.N.Y. Mar. 12, 2020) (“[t]he more people we crowd into that facility, the more we’re increasing the risk to the community”).30
V. 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, “Rule 65(c) invests the district court with discretion as to the amount of security required, if any.” Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003) (internal quotation marks and citation omitted). District courts routinely
30 Courts maintain this authority to order those detained in violation of their due process rights released, notwithstanding § 1226(c). See Cabral v. Decker, 331 F. Supp. 3d 255, 259 (S.D.N.Y. 2018) (collecting cases). see also Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001) (where a case presents “extraordinary circumstances . . . that make the grant of bail necessary to make the habeas remedy effective,” federal courts have the inherent authority to release individuals from immigration detention pending final disposition of their claims); Leslie v. Holder, 865 F. Supp. 2d 627, 639 (M.D. Pa. 2012) (“extraordinary circumstances” warranting immigrant’s release on habeas); Sanchez v. Winfrey, No. CIV.A.SA04CA0293RFNN, 2004 WL 1118718, at *3 (W.D. Tex. Apr. 28, 2004) (same).
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exercise this discretion to require no security in cases brought by indigent and/or incarcerated people. See, e.g., 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, Plaintiffs respectfully request that this Court grant the motion for a temporary restraining order and order their immediate release from custody.

Dated: April 16, 2020 Respectfully submitted,

/s/ Cliff Johnson Cliff Johnson Cliff.Johnson@macarthurjustice.org MACARTHUR JUSTICE CENTER at the UNIVERSITY OF MISSISSIPPI SCHOOL OF LAW 481 Chucky Mullins Drive University, MS 38677 662.915.6863

Sirine Shebaya* sirine@nipnlg.org Matthew S. Vogel* matt@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 718.419.5876
Jeremy Jong* jermjong@gmail.com 3527 Banks St

Baher Azmy* bazmy@ccrjustice.org Ghita Schwarz* gschwarz@ccrjustice.org Angelo Guisado* aguisado@ccrjustice.org Lupe Aguirre* laguirre@ccrjustice.org Astha Sharma Pokharel* asharmapokharel@ccrjustice.org Brittany Thomas* bthomas@ccrjustice.org CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor

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New Orleans, LA 70119 504.475.6728

New York, NY 11201 212.614.6427
*pro hac vice application forthcoming Counsel for Petitioners-Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on April 16, 2020, I electronically filed the foregoing document and accompanying motion, exhibits, and proposed order with the Clerk of the Court using the CM/ECF system. I further certify that I spoke with AUSA Angela Williams on the telephone and advised her of this filing on April 16, 2020, prior to its filing. In addition, I have emailed copies of these documents to AUSA Williams at the following email address at the U.S. Attorney’s Office for the Southern District of Mississippi: Angela.Williams3@usdoj.gov

Dated: April 16, 2020

/s/ Cliff Johnson Cliff Johnson Cliff.Johnson@macarthurjustice.org MacArthur Justice Center University of Mississippi School of Law 481 Chucky Mullins Drive University, MS 38677

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 Case 5:20-cv-00106-DCB-MTP Document 15 Filed 04/30/20 Page 1 of 16

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION

TAMAYO ESPINOZA, ET AL.

PETITIONERS-PLAINTIFFS

V.

CIVIL ACTION NO: 5:20-CV-106-DCB-MTP

SHAWN GILLIS, in his official capacity as Warden of Adams County Detention Center

RESPONDENT-DEFENDENT

RESPONSE IN OPPOSITION TO MOTION FOR TEMPORARY RESTRAINING ORDER
Plaintiffs-Petitioners1 Leyanis Tamayo Espinoza, Edilia del Carmen Martinez, Joe Ruben Lira Arias, Ndikum Keshia Angu Anjoh, Anthony Baptist and Linda Chao Fru (collectively “Petitioners”) filed a petition for habeas relief pursuant to 28 U.S.C. § 2241 and a complaint for injunctive and declaratory relief seeking the release of all petitioners from the custody of the Adams County Detention Center (ACDC), where they are being housed as detainees of the Immigration and Customs Enforcement (ICE). Petitioners argue that their continued detention, in light of the COVID-19 pandemic, violates their Fifth Amendment rights because they have underlying health conditions and/or age that make COVID-19 a serious health and safety risk.
Petitioners have moved for a temporary restraining order.2 Warden Shawn Gillis respectfully moves the Court to deny Petitioners’ motion. Petitioners have not demonstrated (1) a substantial likelihood of success on the merits, (2) irreparable harm, or (3) that their interests outweighs the public interest in maintaining immigration law and process.

1 Petitioner Viankis Maria Yanes Pardillo has been granted asylum. See Hagan Decl. I ¶ 11, Ex. 1. She was released on April 29, 2020, and thus, her petition is moot. 2 This response will also address whether Petitioners are entitled to a preliminary injunction inasmuch as the standard is the same.
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BACKGROUND Petitioners here are being held by ICE at ACDC, a contract facility, pending removal proceedings. None of the petitioners has received a final order of removal, and their cases are at varying stages. Petitioners challenge their detention because of COVID-19, contending that the ACDC’s precautions are insufficient to protect their health and safety. However, ACDC has taken a number of precautions and steps to reduce the incidence of COVID-19 in the facility. A. Petitioners’ Status
None of the Petitioners have received a final order of removal.
Tomayo Espinoza is a 46 year old native and Citizen of Cuba. Hagan Decl. I ¶ 8, Ex. 1. Martinez is a 52 year old native and citizen of El Salvador. Id. ¶ 9. Arias is a 46 year old native and citizen of Venezuela. Id. ¶ 10. Anjoh is a 19-year old native and citizen of Cameroon. Id. ¶ 12. Fru is a 26 year old native and citizen of Cameroon. Id. at 14. At varying times, each of these petitioners applied for admission to the United States, and ICE determined that they were inadmissible pursuant to Section 212(a)(7)(A)(i)(1) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(7)(A)(i)(1).3 Id. at ¶¶ 8-10, 12, 14. ICE issued each an Expedited Removal order, and took them into custody. Id. At varying times, ICE also issued each a Notice to Appear in immigration court. Their appearances are scheduled for May 1, 2020 (Tomayo Espinoza and Fru), May 4, 2020 (Martinez), May 5, 2020 (Lira Arias), and May 11, 2020 (Anjoh). Id.
Baptiste is a 59 year old native and citizen of Trinidad and Tobago. Id. ¶ 13. He was admitted to the United States in 1978. Id. On April 24, 2017, ICE encountered Baptiste and
3 In short, this section provides that immigrants without proper documentation are not admissible.
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determined that he was removable from United States because he was convicted of controlled substance related offense. Id. On the same day, ICE took him into custody. Id. On May 4, 2018, an immigration judge ordered Baptiste removed from the United States to Trinidad and Tobago. Id. His case is pending appeal to the United States Court of Appeals for the Fifth Circuit. Id.
B. ACDC’s COVID-19 Protocols and Precautions
Since the beginning of the COVID-19 pandemic, ICE epidemiologists have been “tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to field staff on screening and management of potential exposure among detainees.” Hagan Decl. II ¶ 7, Ex. 2. With respect to testing ICE and ACDC follows the guidelines issued by the Centers for Disease Control (CDC). Id. ¶ 8.
ACDC performs medical intake screenings of any detainee entering the facility. Hagan Decl. ¶ 10, Ex. 2. They are assessed for fever, respiratory illness and are asked questions to discern exposure to COVID-19. Id. ACDC isolates and tests detainees who present symptoms of COVID-19. Id. ¶ 11. If there is known exposure to COVID-19, a detainee is placed in cohorts, housing all exposed detainees together, with restricted movement for a period of fourteen (14) days. Id. ¶ 12. Any detainee who exhibits symptoms of fever or respiratory illness is referred to a medical provider for evaluation. Id. The facility has six (6) medical holding cells and two negative pressure observation rooms. Id. ¶ 13.
As of 9 a.m. on April 28, 2020, there were two (2) detainees with suspected cases of COVID-19, who are being housed in isolation and on medical observation. Hagan Decl. II ¶ 14. There were twelve (12) confirmed cases of COVID-19 among detainees, one of whom was transferred to a local hospital while the remaining eleven (11) are receiving treatment at the
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facility. Id. Individuals with confirmed cases are being housed in separate, contained units or in negative pressure rooms. Id. ACDC tests detainees consistent with CDC guidelines for testing. Gillis Decl. ¶ 6. Of the six (6) regular housing units, only one has had positive or suspected cases of COVID-19. Id. ¶ 7. And none of the petitioners/plaintiffs here are housed in that unit. Id. If someone is suspected of or has been diagnosed with COVID-19, there are housed in an isolation pod, and there meals and medical services take place within that pod only. Id. ¶ 8.
ACDC has also implemented social distancing guidelines. In living quarters, the number of individuals in each pod has been reduced to allow for social distancing. Gillis Decl. ¶ 1, Ex. 3. In areas where ACDC could not move items to create social distancing, there are educational materials regarding social distancing in multiple languages. Id. Female detainees are housed in single-cell units, while male detainees are housed in dormitory style units. Id. But because of the decreased capacity of the dormitory style units, there are enough beds available to encourage social distancing. Id. In the dining halls, ACDC directs detainees to maintain six feet distance in lines, and has decreased the number of individuals who are called to eat at the same time to ensure social distancing. Id. ACDC has also marked chairs in the dining halls so that detainees are socially distanced while eating. Id. ACDC has closed recreational areas that are too small to allow for social distancing, and only allows pods to recreate separately in the largest recreational area where they can maintain social distancing. Id.
ACDC has also taken other precautions such as increased sanitation frequency and efforts, providing hand-sanitizer, masks and other protective equipment to staff, and providing cleaning solution to detainee workers. Hagan Decl. II ¶ 16; Gillis Decl. ¶ 3. ACDC has increased the amount of liquid soap available and increased the frequency of cleaning cycles. Gillis Decl. ¶ 3. In addition to bleach, ACDC uses a chemical that kills COVID-19 to clean
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throughout the facility. Id. High contact areas are cleaned every hour. Id. In areas where detainees are suspecting of having COVID-19 are housed, items are cleaned in between each use. Id. There is also hand sanitizer throughout the facility. Id.
Moreover, since April 13, 2020, ACDC has provided masks to all detainees and staff. Gillis Decl. ¶ 5. In housing areas where detainees are suspected of having COVID-19, the staff entering the area wears full personal protective equipment (PPE). Id. And only certain staff can enter the areas where individuals have or are suspected of having COVID-19. Id. ACDC also monitors its gloves and other PPE to ensure it has sufficient amounts. Id.
The facility has also ceased all social visits. Hagan Decl. II Id. ¶ 17. For legal visits, non-contact visits are encourages and all legal visitors must wear gloves, masks and eye protection to limit the possible spread of COVID-19. Gillis Decl. ¶ 10. It has also suspended services such as the barbershop and congregational programs. Id.
Additionally, all staff and vendors are screened for body temperatures before they enter the facility. Hagan Decl. II ¶ 18; Gills Decl. ¶ 9. Anyone with responses to questions or a body temperature that suggests exposure to COVID-19 is not allowed to enter the facility. Id. Further, if an employee is not allowed to work because of the screening process, the employee is sent home with full pay. Id. Thus, there is no incentive for an employee to provide inaccurate answers.
The facility also provides educational information to staff and detainees on COVID-19. Hagan Decl. II ¶ 20; Gillis Decl. ¶¶ 2, 4. There are posters throughout the facility in multiple languages regarding effective efforts to slow the spread of COVID-19. Gillis Decl. ¶ 2.
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C. Petitioners’ Allegations Petitioners claim that they have certain conditions that put them at higher risk of serious illness or death if they contract COVID-19. Petitioner Tamayo Espinoza claims to suffer from diabetes, hypertension, chronic renal issues and malnutrition. Pet. Mem. (ECF No. 5) at 5. Petitioner Martinez claims to be 53 years old and suffering from diabetes. Id. Petitioner Lira Arias claims to have uncontrolled diabetes and hypertension. Id. Petitioner Pardillo claims to suffer from epilepsy. Id. Petitioner Anjoh claims to suffer from chronic respiratory issues and has a throat injury. Id. at 6. (It is worth noting that this statement in Petitioners’ Memorandum is based on a physician’s declaration, but Anjoh’s declaration only says that she has had trouble breathing since she was young and has to breathe through her mouth. Anjoh Decl. (ECF No. 4-4 ¶ 3.) Petitioner Baptiste claims to be a 59 year old who suffers from hypertension and untreated pre-diabetes. Pet. Mem. (ECF No. 5) at 6. Petitioner Fru claims to have untreated Hepatitis B and high blood pressure. Id. Petitioners also complain about detention centers in general and ACDC in particular. Pet. Mem. at 6. They contend that it is impossible to socially distance in detention centers. Id. They claim that the facility is crowded and that 120 people share one dorm. Id. They also claim that the mitigation efforts of ACDC are inadequate. Id. Without specifics, they also claim that individuals who present with COVID-19 symptoms are not isolated or treated. Id. at 7. As noted above, the Warden disputes the claims regarding the precautions taken by the facility. Petitioners claim that the precautions taken at ACDC are not sufficient to slow the spread of COVID-19. Id. However, as noted above, ACDC is following CDC guidelines and implementing standards and precautions developed by epidemiologists with ICE.
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STANDARD OF REVIEW Under well-settled Fifth Circuit precedent, a temporary restraining order is an extraordinary remedy that should not be granted unless the movant establishes the following four elements by a preponderance of the evidence: “(1) there is a substantial likelihood of success on the merits; (2) there is a substantial threat that irreparable injury will result if the injunction is not granted; (3) the threatened injury outweighs the threatened harm to the defendant; and (4) granting the preliminary injunction will not disserve the public interest.” Karaha Bodas Co. v. Perusahaan Pertambangan, 335 F.3d 357, 363 (5th Cir. 2003). A TRO, like all injunctive relief, is an extraordinary remedy requiring the movant to unequivocally show the need for its issuance. Sepulvado v. Jindal, 729 F.3d 413, 417 (5th Cir. 2013), cert. denied, 134 S. Ct. 1789 (2014) (internal citations and quotations omitted). The party moving for a TRO must carry the burden as to all four elements before a TRO may be considered. Cf. Voting for America, Inc. v. Steen, 732 F.3d 382, 386 (5th Cir. 2013) (internal quotations and citations omitted). A preliminary injunction is an extraordinary remedy. Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985). It should only be granted if the movant has clearly carried the burden of persuasion on all four prerequisites. Id. The decision to grant a preliminary injunction is to be treated as the exception rather than the rule. Id. (citing State of Texas v. Seatrain Inter. S.A., 518 F.2d 175, 179 (5th Cir. 1975)).
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ARGUMENT
A. Petitioners have not shown a “substantial likelihood of success on the merits” as required to obtain a TRO that alters the status quo because this Court lacks jurisdiction over their claims. i. Petitioners are unlikely to succeed on the merits because they cannot invoke habeas to challenge the conditions of their confinement.
Petitioners invoke habeas corpus to challenge the constitutionality of their conditions of confinement and seek release. But habeas corpus is not a means by which to challenge conditions of confinement. The “sole function” of habeas is to “grant relief from unlawful imprisonment or custody and it cannot be used properly for any other purpose.” Pierre v. United States, 525 F.2d 933, 935–36 (5th Cir. 1976).
The Fifth Circuit, and district courts within this Circuit, have long recognized that habeas corpus actions are the proper vehicle to “challenge the fact or duration of confinement,” whereas allegations that challenge an individual’s “conditions of confinement” are “properly brought in civil rights actions.” Schipke v. Van Buren, 239 F. App’x 85–86 (5th Cir. 2007); accord Poree v. Collins, 866 F.3d 235, 243 (5th Cir. 2017) (noting the “instructive principle [is] that challenges to the fact or duration of confinement are properly brought under habeas, while challenges to the conditions of confinement are properly brought under [civil rights actions]”) (citations omitted); Hernandez v. Garrison, 916 F.2d 291, 293 (5th Cir. 1990) (holding that claims of overcrowding, denial of medical treatment, and access to an adequate law library were not proper subjects of a habeas corpus petition); Sarres Mendoza v. Barr, 2019 WL 1227494, at *2 (S.D. Tex. 2019) (denying Honduran detainee’s motion for leave to amend because proposed claims concerning “conditions of confinement may not be brought in a habeas corpus proceeding, and are actionable, if at all, in a civil rights action”).
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The Fifth Circuit highlighted the key distinction in Rourke v. Thompson: a plaintiff “cannot avail himself of the writ of habeas corpus when seeking injunctive relief unrelated to the cause of his detention.” 11 F.3d 47, 49 (5th Cir. 1993) (citing Pierre v. United States, 525 F.2d 933, 935 (5th Cir. 1976) (“Simply stated, habeas is not available to review questions unrelated to the cause of detention.”)) (emphasis added). Petitioners’ argument comes face to face with this admonition from the Fifth Circuit. Petitioners do not challenge the cause of their detention—rather, they expressly claim that their habeas challenge is to remedy alleged unlawful conditions of detention. The Fifth Circuit has foreclosed this precise argument.
Admittedly, there is currently disagreement among the district courts within Fifth Circuit on this issue with respect to COVID-19 cases.
Some courts have ruled that the type challenges raised by Petitioners here are not cognizable under habeas statutes. A court in the Western District of Louisiana dismissed similar claims for immediate release brought under § 2241(a). Livas v. Myers, Action No. 2:20-cv00422 (W.D. La. April 22, 2020). In Livas, the petitioners, federal inmates at Oakdale penitentiary filed a Writ of Habeas Corpus under § 2241(a), Injunctive, and Declaratory relief seeking their immediate release from detention in light of the COVID-19 presence there. Id. Specifically, Petitioners “[sought] to represent a class of all current and future people in postconviction custody… including a subclass of persons who, by reason of age or medical condition, are particularly vulnerable to injury or death if they were to contract COVID-19.” Id. at 7. They alleged that due to the conditions present at Oakdale, it would be “virtually impossible” to mitigate the risk of infection of COVID-19 which violated their constitutional right to treatment and medical care. Id. Importantly, the petitioners did not challenge their classification or placement but sought release under § 2241 “because of the extraordinary conditions caused by
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COVID-19.” Id. at 15. The federal respondents argued in opposition that the habeas relief was not available under a challenge to conditions of confinement and thus the court lacked jurisdiction. Id. at 16. The court agreed, citing the lack of any Fifth Circuit or Supreme Court precedent permitting conditions of confinement claims under § 2241. Id.
Similarly, a court in the Southern District of Texas recently denied an immigrant detainee’s similarly styled habeas motion based on fear of potential COVID-19 exposure. See Sacal-Micha v. Longoria, Action No. 1:20-cv-37, 2020 WL 1518861 (S.D. Tex. Mar. 27, 2020). Sacal-Micha correctly found that allegations related to the inadequacy of COVID- 19 mitigation and avoidance measures “are part and parcel of the conditions in which the facility maintains custody over detainees.” Id. at *4. Surveying Fifth Circuit precedent, Sacal-Micha concluded that “[d]istrict courts have . . . den[ied] a habeas petition based solely on alleged inadequate conditions of incarceration.” Id. Therefore, even if this court were inclined to find the existence of civil-rights violations in the petitioners’ conditions of confinement, release from custody under a § 2241(a) habeas writ wouldn’t be the appropriate remedy. But see Barrera v. Wolf, Civ. Action No. 4:20-cv-1241, ECF Doc. No. 41 (S.D. Tex. Apr. 17, 2020) (finding that COVID-19 challenge to detention could properly be brought in a habeas petition).
In a recent Report and Recommendation, Magistrate Judge Parker held that a detainee appeared to “blend” the concepts of habeas relief versus claims involving conditions of confinement, and although Judge Parker allowed the motion to be brought within an existing habeas proceeding, the Court ultimately denied any habeas relief. Sheikh v. Gillis, Action No. 5:19-cv-134-DCB-MTP, ECF Doc. No. 19 (S.D. Miss. Apr. 29, 2020). Judge Parker concluded: “While the undersigned is sympathetic to the many challenges faced by individuals with pre-
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existing medical conditions during this health crisis, it appears that ACDC has taken meaningful steps to protect the detainees housed at that facility.” Id. at 5.
Fifth Circuit precedent supports the conclusion that actions of this type, complaining about the conditions within the facility, are conditions of confinement claims and should be brought as civil rights actions.
ii. Petitioners are unlikely to succeed on the merits because they cannot demonstrate that ICE’s precautionary measures amount to deliberate indifference in violation of petitioners’ due process rights.
As petitioners are civil detainees, their conditions of confinement claims are, like pretrial detainees, governed by the due-process clause. See Hare v. City of Corinth, 74 F.3d 633, 638-639 (5th Cir. 1996) (en banc); see also Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004) (evaluating conditions of confinement claim of civil detainee under Fifth Amendment). In Hare, the Fifth Circuit created two standards for conditions-of-confinement claims depending on the nature of the allegation. The court held “that the episodic act or omission of a state jail official does not violate a [civil] detainee’s due process right to medical care . . . unless the official acted or failed to act with subjective deliberate indifference.”
Alternatively, “[c]onstitutional attacks on general conditions, practices, rules, or restrictions of pretrial confinement,” or “jail condition cases,” are governed by the reasonable relation test articulated in Bell v. Wolfish, 441 U.S. 520 (1979). The Supreme Court held in Bell that so long as the challenged condition is “reasonably related to a legitimate governmental objective” it passes constitutional muster. Id. at 539. “[I]solated examples of illness, injury, or death, standing alone, cannot prove that conditions of confinement are constitutionally adequate. Nor can the incidence of diseases or infections, standing alone, . . . since any densely populated residence may be subject to outbreaks.” Shepherd v. Dallas Cty., 591 F.3d 445, 454 (5th. Cir.
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2009). A detainee does not establish a case simply by alleging that the detention center has disease or infection present. “Rather, a detainee . . . must demonstrate a pervasive pattern of serious deficiencies in providing for his basic human needs.” Id. Petitioners do not choose a theory and instead seem to allege both simultaneously.
In defining the deliberate-indifference standard, the Supreme Court clarified in Helling v. McKinney that while “accidental or inadvertent failure to provide adequate medical care to a prisoner would not violate the [constitution], ‘deliberate indifference to serious medical needs of prisoners’ violates the [constitution] because it constitutes the unnecessary and wanton infliction of pain contrary to contemporary standards of decency.” 509 U.S. 25, 32 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976).
“Deliberate indifference is an extremely high standard.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). “Deliberate indifference in the context of failure to provide reasonable medical care means that: (1) the prison officials were aware of facts from which an inference of substantial risk of serious harm could be drawn; (2) the officials actually drew that inference; and (3) the officials’ response indicated that they subjectively intended that harm occur.” Thompson v. Upshur County., Texas, 245 F.3d 447, 458–59 (5th Cir. 2001). A prisoner claiming deliberate indifference must allege that government officials “refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.” Davidson v. Texas Dept. of Criminal Justice, 91 F. App’x 963, 965 (5th Cir. 2004). Further, “deliberate indifference cannot be inferred merely from a negligent or even a grossly negligent response to a substantial risk of serious harm.” See Thompson, 245 F.3d at 459–60.
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Here, Petitioners’ allegations do not support either a “pervasive pattern of serious deficiencies in providing for basic human needs” or a “wanton disregard for serious medical needs.” Petitioners’ allegations focus on the fact that they are detained with others in typical detention-facility conditions and cannot exercise social distancing. But, as the Fifth Circuit has noted, “any densely populated residence may be subject to outbreaks,” and the existence of a disease does not state a constitutional violation. Shepherd, 591 F.3d at 454.
Should Petitioners’ claims be characterized as a jail-condition case governed by Bell, they still fail as detention is reasonably related to the Government’s legitimate interest in preorder detention of aliens to prevent absconding and, in the cases of criminal aliens, to protect the community. In the immigration context, the Supreme Court has consistently upheld the constitutionality of detention, citing the Government’s legitimate interest in protecting the public and preventing aliens from absconding into the United States and never appearing for their removal proceedings. See Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018); Demore v.Kim , 538 U.S. 510, 520–22; Zadvydas v. Davis, 533 U.S. 678, 690–91 (2001). Nor is detention pending removal process an excessive means of achieving those interests. The Supreme Court for over a century has affirmed detention as a “constitutionally valid aspect of the deportation process.” Demore, 538 U.S. at 523 (listing cases).
ACDC has taken steps to reduce the risk that COVID-19 will be introduced into the facility by screening all necessary visitors and has taken steps to reduce a potential spread by isolating those who may have been exposed or who are showing potential COVID-19 symptoms. Additionally, all COVID-19 positive detainees are isolated and treated consistent with CDC guidelines. In addition, ACDC has taken steps to educate its staff and detainees regarding social distancing and has made adjustments to its facility operations to encourage social distancing.
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While the methods implemented by ICE may not be perfect, they are not so wanton so as to constitute deliberate indifference to the medical needs of its detainees. On these facts, Petitioners cannot show a constitutional violation. See Sacal-Micha, 2020 WL 1815691, at *6. (“But ultimately, Sacal does not assert that Respondents are doing nothing to protect him, other detainees, and staff members from COVID-19, but only that Respondents are not doing enough. . . . Courts have refused to provide habeas relief even when the claimed inadequacies allegedly placed the petitioner in grave peril.”).
B. Petitioners are not likely to suffer irreparable harm in the absence of preliminary relief.
The Supreme Court’s “frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (emphasis in original). “To seek injunctive relief, the plaintiff must show a real and immediate threat of future or continuing injury apart from any past injury.” Aransas Project v. Shaw, 775 F.3d 641, 648 (5th Cir. 2014). “Speculative injury is not sufficient; there must be more than an unfounded fear on the part of the applicant.” Hurley v. Gunnels, 41 F.3d 662 (5th Cir. 1994) (quoting Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985)).
Petitioners argue that only release from the detention will dissolve the heightened risk of adverse consequences from COVID-19 due to their health issues. These assertions are wholly speculative. Petitioners do not explain how they will suffer irreparable harm in the absence of an order requiring their release, given that their existing medical care would be interrupted if it ended as a consequence of their combined releases.
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While some Petitioners allege that they have housing arrangements should they be released, such arrangements would require interstate travel. See Pets.’ Decls. (ECF Nos. 4-1 to 4-7). Moreover, it cannot be overlooked that the detention facility provides medical care at no cost to detainees, including Petitioners. By reason of their detention, they have greater access to medical care than many in the general public. Ordering their release would leave Petitioners without their present access to health care and could put some or all of them at greater risk of serious complications in the event that they contract COVID-19. As stated above, Petitioners’ position is based entirely on their fear of exposure to COVID-19, but Petitioners can be isolated while in detention.
C. The balance of equities and the public interest weigh in the Warden’s favor.
It is well-settled that the public interest in enforcement of United States immigration laws is significant. Landon v. Plasencia, 459 U.S. 21, 34 (1982) (“The government’s interest in efficient administration of the immigration laws at the border is also weighty.”); United States v. Martinez- Fuerte, 428 U.S. 543, 556-58 (1976); Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981) (“The Supreme Court has recognized that the public interest in enforcement of the immigration laws is significant.”); see also Nken v. Holder, 556 U.S. 418, 435 (2009) (“There is always a public interest in prompt execution of removal orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and permit[s] and prolong[s] a continuing violation of United States law.” (internal quotation marks omitted)).
Concerns about exposure to COVID-19 are, of course, shared by all. However, an order directing ICE to release Petitioners into the United States—especially considering that one of the petitioners has a criminal history, see discussion supra—is contrary to the safety of the American
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public. Given the vast expanse and indiscriminate nature of Petitioners’ requested order, the balance of interests clearly favors the Warden especially considering the status of immigration proceedings—many hearings are imminent. The disruptive effect of such an order would long survive the COVID-19 pandemic. Moreover, the public interest is best served by allowing orderly medical processes and protocols to be implemented by government professionals (which again, include the same type of medical experts represented in Petitioners’ papers). See Youngberg v. Romeo, 457 U.S. 307, 322-23 (1982) (urging judicial deference and finding presumption of validity regarding decisions of medical professionals concerning conditions of confinement). This type of burden and attendant harm, and its potential impact on ICE operations nationwide, is too great to be permissible at this preliminary stage.
CONCLUSION
For all of the foregoing reasons, the Warden respectfully requests that the Court deny Petitioners’ TRO motion (and any motion for a preliminary injunction) seeking their immediate release from custody.

Dated: April 30, 2020

Respectfully submitted,

D. MICHAEL HURST, JR. United States Attorney

By:

ANGELA GIVENS WILLIAMS

Assistant United States Attorney

MS Bar No. 102469

United States Attorney’s Office

501 East Court Street, Suite 4.430

Jackson, Mississippi 39201

Telephone: (601) 973-2820

Facsimile: (601) 965-4409

Email: angela.williams3@usdoj.gov

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 Case 5:20-cv-00106-DCB-MTP Document 26 Filed 05/06/20 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

Leyanis TAMAYO ESPINOZA, et al.,

Petitioners-Plaintiffs, v.

Civil Action No.: 5:20-cv-106-DCB-MTP
Judge David C. Bramlette Magistrate Judge Michael T. Parker

Warden Wayne GILLIS, Respondent-Defendant.

ORAL ARGUMENT REQUESTED

PETITIONERS’ REPLY IN SUPPORT OF THEIR MOTION FOR A TEMPORARY RESTRAINING ORDER

Case 5:20-cv-00106-DCB-MTP Document 26 Filed 05/06/20 Page 2 of 14

TABLE OF CONTENTS

SUPPLEMENTAL FACTS .............................................................................................................1

I.

COVID-19 Cases Have Risen Dramatically Throughout ICE Facilities, and ICE’s

Protocols for Containing the Spread Are Insufficient....................................................1

II.

COVID-19 Cases Have Tripled at Adams, and the Facility Cannot Implement

Effective Steps to Protect Petitioners.............................................................................2

ARGUMENT ...................................................................................................................................4

I.

The Court Has Jurisdiction Over the Habeas Claims Because the Only Remedy

Sought is Release, and it Independently Has Jurisdiction Under Rule 65.....................4

II.

Petitioners Are Likely to Succeed on Their Claim that Continued Detention is

Unconstitutional Under the Fifth Amendment ..............................................................6

III. Absent an Injunction, Petitioners Will Suffer Irreparable Harm, and the Public Interest in Public Health and Balance of Equities Favors Release ................................9

CONCLUSION ..............................................................................................................................11

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Plaintiff-Petitioners (Petitioners) seek modest relief under extraordinary circumstances. These six1 medically vulnerable Petitioners do not seek to set aside any criminal conviction or to challenge their removal here. For civil immigration detainees, the Fifth Amendment’s Due Process Clause requires that detention bear a reasonable relationship to a legitimate government interest. While Petitioners do not dispute that ICE has a legitimate interest in preventing flight and ensuring appearances in removal proceedings, Immigration and Custom’s Enforcement’s (ICE) own data show that those with attorneys appear nearly 100% of the time. In light of the potentially lethal danger Petitioners now face, and the ready availability of safe and oft-used alternatives to detention, Petitioners’ continued detention during this health crisis has become unreasonable.
When this action was filed, on April 16, 2020, ICE was reporting five cases of COVID-19 in Adams County Detention Center (“Adams”). That number has since tripled, and Respondents’ declarations show that 100% of those tested at Adams have tested positive. The actions the facility has taken have not stopped the spread of this uniquely dangerous disease. In these circumstances, only release can prevent irreparable harm. As courts in this Circuit and nationally have found,2 this court has authority via habeas to find a Due Process violation and order their release.
SUPPLEMENTAL FACTS I. COVID-19 Cases Have Risen Dramatically Throughout ICE Facilities, and ICE’s
Protocols for Containing the Spread Are Insufficient. The unprecedented impact of the coronavirus on public health is dramatically heightened in detention and correctional centers, where airborne transmission of viruses occurs through close
1 One of the six, Jose Ruben Lira Arias, had bond set at $15,000, and expects to post it on May 7, 2020. A seventh Petitioner, Viankis Maria Yanes Pardillo, won asylum on April 24, 2020 and has been released. 2 See, e.g. Vazquez-Berrera v. Wolf, No. 20-cv-1241, 2020 WL 1904497, at *5 (S.D. Tex. Apr. 17, 2020); Malam v. Adducci, No. 20-10829 (E.D. Mich. Apr. 20, 2020); Coronel v. Decker, No. 1:20-cv-02472-AJN, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020); Calderon Jimenez v. Wolf, No. 18-10225 (MLW), ECF No. 507 (D. Mass. Mar. 26, 2020); Basank v. Decker, No. 20 CIV. 2518, 2020 WL 1481503, at *4 (S.D.N.Y. Mar. 26, 2020).
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contact of large numbers of people, common showers, and open toilets. See Declaration of Homer
Venters, Ex. 11, ¶¶ 6(a), 10-11.3 On April 7, 2020, ICE reported 19 confirmed cases of COVID-
19 among detained people. Venters Decl. ¶ 8. One month later, the number has exploded to 705,
with only 1460 tested of the nearly 30,000 people in detention.4 Because ICE lacks the tests to
meet its needs,5 these numbers profoundly understate the true spread of the disease.
The dramatic spread of COVID-19 throughout the immigration detention system is not
surprising given the high rate of transmission in congregate settings. But ICE’s protocols have also
contributed to the crisis, because they fail to follow Center for Disease Control (“CDC”)
guidelines.6 For example, ICE continues to transfer detained persons among facilities, including
at Adams, and has not recommended social distancing in housing areas or in cells with bunkbeds.7
II. COVID-19 Cases Have Tripled at Adams, and the Facility Cannot Implement Effective Steps to Protect Petitioners.
As of May 5, 2020, ICE has reported 15 confirmed cases of COVID-19 at Adams.8 The
failure to take proper public safety measures, including conducting appropriate custody review to
release medically vulnerable people detained at Adams, threatens Petitioners’ lives.
First, the single most effective way to prevent Petitioners from contracting COVID-19 is
to release them, and ICE’s own protocols recommend custody review for high-risk people. Venters
3 Dr. Homer Venters is a physician and epidemiologist whose long experience with correctional health includes two years visiting immigration detention centers and conducting analyses of physical and mental health policies and procedures for people detained by the Department of Homeland Security. He has served as Chief Medical Officer for the NYC Jail Correctional Health Service, covering all 12 of New York City’s jails, and has managed several infectious disease outbreaks, including the H1N1 influenza in 2009. Venters Decl. ¶¶1-4. 4 ICE, COVID-19 Guidance (last visited May 6, 2020), https://www.ice.gov/coronavirus. 5 Press Release, U.S. House of Representatives Committee on Oversight and Reform, DHS Officials Refuse to Release Asylum Seekers and Other Non-Violent Detainees Despite Spread of Coronavirus (April 17, 2020) https://oversight.house.gov/news/press-releases/dhs-officials-refuse-to-release-asylum-seekers-and-other-nonviolent-detainees (discussing testimony of Acting ICE Director Matthew Albence). 6 CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (last visited May 6, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctionaldetention.pdf; Venters Decl. ¶¶ 17-25. 7 ECF Doc. 15-2 ¶¶ 10, 19; Fru Supp. Decl ¶ 3; Lira Arias Supp. Decl. ¶ 4. 8 ICE, COVID-19 Guidance (last visited May 6, 2020), https://www.ice.gov/coronavirus.
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Decl. ¶¶ 18, 35. Although by mid-April ICE had released approximately 700 individuals through its own review, Acting ICE Director Matthew T. Albence has stated that ICE would not release more in order to project that ICE “is enforcing our immigration laws.”9
ICE appears to have delegated such review to field directors and their staff, who are not medical professionals. Venters Decl. ¶ 17. Thus, although Petitioners suffer from documented and in some cases multiple risk factors for COVID-19,10 none has been recommended for release under ICE’s protocols or under a more recent process mandated by the class action lawsuit Fraihat v. ICE, EDCV 19-1546 JGB (SHKx), 2020 WL 1932570 (C.D. Cal. Apr 20, 2020), which requires ICE to review and conduct custody redeterminations for all medically vulnerable individuals. Any custody review that is occurring has not been meaningful for high-risk people like Petitioners.
The failure to conduct meaningful review is all the more damaging because the containment steps that Adams has taken have failed. Respondents assert that they are testing detained people when they report symptoms and their temperatures exceed 100.4. ECF Doc. 15-3 at ¶ 6. All those tested at the time of their declarations turned up positive for COVID-19. ECF Doc. 15-2 at ¶14. This fact indicates that the testing is not comprehensive enough to contain the spread of the coronavirus, which can be transmitted by asymptomatic people. Venters Decl. ¶ 8.
The increased cleaning measures that Respondent Gillis reports, ECF Doc. 15-3 ¶ 3, have not resulted in any hygiene improvement observable by the Petitioners.11 Petitioners state that they have received just one surgical mask about every two weeks, with no additional protective equipment to clean with.12 Staff who come in and out of the dormitories do not consistently wear
9 See ibid. n.5 (discussing Acting ICE Director Albence’s testimony before Congress). Compare Attorney General Barr’s recommendation to release vulnerable individuals from federal prison, ECF No. 5 at 8 and n. 17. 10 Ex. 8, Bazzano Decl. ¶ 16 (a)-(g). 11 See Ex. 14, Anjoh Supp. Decl. ¶ 4; Ex. 16, Fru Supp. Decl. ¶ 6; Ex. 18, Martinez Supp. Decl. ¶¶ 8-9; Ex. 19, Tamayo Espinoza Supp. Decl. ¶¶ 9-10. 12 See Ex. 16, Fru Supp. Decl. ¶ 6; Ex. 17, Lira Arias Supp. Decl. ¶ 3; Ex. 18, Martinez Supp. Decl. ¶ 5, Ex. 19, Tamayo Espinoza Supp. Decl. ¶ 5.
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masks or other protective equipment.13 The social distancing necessary to reduce transmission remains impossible. As the coronavirus continues to spread through Adams, Petitioners remain at high risk of severe harm.14
ARGUMENT Unlike traditional conditions of confinement cases in which plaintiffs assert bad motives and intentional misdeeds, Petitioners here rely on the unprecedented realities of COVID-19 to argue that the conditions and risk of infection at Adams in May 2020 require release. Conditions could be different months from now, but the harsh present realities of the pandemic make it impossible to keep these six vulnerable people safe at Adams. The Court has jurisdiction to release them under these narrow circumstances, and they are likely to succeed on their due process claims. I. The Court Has Jurisdiction Over the Habeas Claims Because the Only Remedy Sought is Release, and it Independently Has Jurisdiction Under Rule 65. Respondents fundamentally misunderstand the nature of Petitioners’ habeas claims under § 2241. First, the most recent analysis by the Fifth Circuit, which the Government cites but misapprehends, makes clear that the Circuit has not accepted a distinction between habeas challenges to the “fact or duration” of detention and habeas challenges to conditions of confinement. See Poree v. Collins, 866 F.3d 235, 244 (5th Cir. 2017).15
13 Ex. 14, Anjoh Supp. Decl. ¶ 2; Ex. 15, Baptiste Supp. Decl. ¶ 2; Ex. 16, Fru Supp. Decl. ¶ 5; Ex. 19, Tamayo Espinoza Supp. Decl. ¶ 3. 14 This Court’s Report & Recommendation in Sheikh v. Gillis, No. 5:19-cv-134, Doc 19 at 4 (S. D. Miss. Apr. 29, 2020) found that the pro se Petitioner had not argued that his detention was unconstitutional, and noted that Adams had taken “meaningful steps to protect” those detained. Petitioners respectfully submit that the evidence filed here and the dramatic increase in COVID-19 cases, demonstrates that these steps have not been effective. 15 In Poree v. Collins, the court noted that “the Supreme Court has not foreclosed” habeas challenges for conditions claims, and that Fifth Circuit caselaw has not accepted such a distinction. 866 F.3d 235, 244 (5th Cir. 2017) (citing Coleman v. Dretke, 409 F.3d 665, 670 (5th Cir. 2005). It then “declin[ed] to address whether habeas is available only for fact or duration claims,” id. See Vazquez Barrera, 2020 WL 1904497, at *3 (neither the Supreme Court nor the Fifth Circuit foreclosed habeas to address challenges to conditions).
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Even if such a distinction existed, Petitioners’ challenge sits at the core of the writ. Unlike in the cases Respondents rely on, Petitioners here do not seek to improve their conditions of confinement, see Resp. Br. 7.16 As the Southern District of Texas stressed in granting a similar TRO under § 2241, “[t]he mere fact that Plaintiffs’ constitutional challenge requires discussion of conditions in immigration detention does not necessarily bar such a challenge in a habeas petition.” Vazquez-Berrera, 2020 WL 1904497 at *4. See also Dada v. Witte, No. 1:20-CV-0458, Doc. 17 at 9 (W.D. La. Apr. 30, 2020) (Report and Recommendation) (“[T]he remedy for conditions claims is generally corrective. The remedy for fact claims, however, generally terminates the detention altogether, or alters it such that a new form of custody or control is imposed”) (Ex. 20 (a)). Here, Petitioners seek “accelerated release,” Carson v. Johnson, 112 F.3d 818, 820-21 (5th Cir. 1997). Habeas is the proper vehicle. See Poree, 866 F.3d at 244 (petition for transfer to less restrictive facility “properly sounds in habeas”).17
An emerging consensus of courts, including this Court, see Sheikh v. Gillis, No. 5:19-cv134, Doc. 19 at 4 (S. D. Miss. Apr. 29, 2020) (Report and Recommendation), reject attempts to characterize habeas challenges to continued detention due to COVID-19 risks as a prohibited conditions claim. Instead, courts are routinely finding similar challenges proper in habeas and ordering release. See Vazquez Berrera, 2020 WL 1904497, at *6; Malam v. Adducci, No. 2010829, 2020 WL 1672662, at *2–3 (E.D. Mich. Apr. 5, 2020); Coreas v. Bounds, No. 20-0780, 2020 WL 1663133, at *7 (D. Md. Apr. 3, 2020); Wilson v. Williams, No. 20 cv 794, Dkt. 22 at 10-
16 Schipke v. Van Buren, 239 F. App’x 85, 86 (5th Cir. 2007) (rejecting habeas where petitioner sought an order “modifying the conditions of her detention.”); Hernandez v. Garrison, 916 F.2d 291, 293 (5th Cir. 1990) (rejecting habeas petition seeking access to law library and better medical treatment); Sarres Mendoza v. Barr, 2019 WL 1227494, at *2 (S.D. Tex. 2019) (denying habeas for two billion dollar damages claim regarding conditions). 17 Unlike in traditional habeas cases in the criminal justice system, there is no forum for Petitioners to exhaust their requests, because discretionary decisions by ICE to deny release are not reviewable. Loa-Herrera v. DHS., 239 Fed.Appx. 875, 881 (5th Cir. 2007). In any case, ICE has denied five Petitioners’ requests for “parole.”
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11 (N.D. Ohio Apr. 22, 2020); Basank v. Decker, No. 20 CIV. 2518, 2020 WL 1481503, at *4 (S.D.N.Y. Mar. 26, 2020).18
Finally, this Court is independently authorized to order release under its inherent equitable power to issue injunctions and temporary restraining orders for constitutional violations. See Brown v. Plata, 563 U.S. 493 (2011); Ex Parte Young, 209 U.S. 123 (1908).
II. Petitioners Are Likely to Succeed on Their Claim that Continued Detention is Unconstitutional Under the Fifth Amendment.
Because Petitioners are civil immigration detainees, the court must evaluate the legality of the conditions of their detention under the Fifth Amendment’s reasonable-relationship test set forth in Bell v. Wolfish, 441 U.S. 520 (1979). Contrary to Respondents’ suggestion, the Eighth Amendment deliberate indifference standard governing conditions claims brought by convicted persons is not applicable. Dada, No. 1:20-cv-00458, doc. 17 at 20 (Fifth Amendment claims brought by individuals in immigration detention “are subject to the reasonable relationship test, not the deliberate indifference standard.”); Vazquez Barrera, 2020 WL 1904497, at *5 (same).
Respondents nevertheless assert that Petitioners’ continued detention is reasonable because “detention pending removal” is not excessive in relation to the government’s general interest “to prevent absconding and, in the cases of criminal aliens, to protect the community.” Resp. Br. 13. This abstract argument does not match reality. The relevant inquiry is not whether detention in the ordinary course is excessive in relation to any purported governmental interest; we are not living in ordinary times. See, e.g., Alcantara v. Archambeault, No. 1:20-cv-76 (DMS), at *16 (C.D. Cal.
18 The more recent cases Respondents cite are inapposite. In Livas v. Myers, Judge Doughty did not hold that the Fifth Circuit does not accept conditions claims in habeas; he merely held the court had simply had no power to order release of individuals criminally detained. No. 20-CV-422, Doc. 30 at 12 (W.D. La. Apr. 22, 2020). In Sacal-Micha v. Longoria, No. 20-CV-37, 2020 WL 1518861 (S.D. Tex. Mar. 27, 2020), the court did not have the benefit of fulsome briefing on the state of Fifth Circuit law regarding the purported duration-conditions distinction, or on why the claims there related to the duration of detention. In addition, six weeks ago there was not substantial evidence before the court about conditions in the Texas facility; here, by contrast, the undisputed evidence demonstrates, that circumstances at Adams for these petitioners cannot be improved – that is, habeas release is the only remedy.
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May 1, 2020) (“the current circumstances [in ICE detention with rapid spread of COVID-19]… are anything but normal.”) (Ex. 20(b)). Reasons for detention must be forward-looking to support a continuing legitimate purpose. Foucha v. Louisiana, 504 U.S. 71 (1992). Thus, the relevant inquiry for this Court today, is whether continued detention during COVID-19, which exposes Petitioners to the substantial risk of serious illness or death, is excessive.19 See Vazquez Barrera, 2020 WL 1904497 at *6 (“[r]equiring medically vulnerable individuals to remain in a detention facility where they cannot properly protect themselves from transmission of a highly contagious virus with no known cure is not rationally related to a legitimate government objective.”).
ICE’s purportedly legitimate interest in community safety and preventing flight is particularly excessive here since the interests can be fully served absent detention. First, there is no evidence that any Petitioner poses any threat to the community. Five of the six are asylum seekers; the sixth has been a lawful permanent resident for more than four decades, removable only because of a 1992 non-violent marijuana conviction.20 See Declaration of Laila Hlass, Ex. 12, ¶¶ 10-12 (explaining that ICE uses its discretion under 8 U.S.C. § 1226(a) to detain asylum seekers determined to have a “credible fear” of persecution, and detains lawful permanent residents, often years after they have served their sentences, pursuant to 8 U.S.C §1226(c)).
Second, the chances of Petitioners absconding, particularly given pandemic-related travel restrictions, are virtually nonexistent. ICE data reveals that non-detained immigrants who are represented by attorneys, as Petitioners are, appear at every scheduled immigration hearing at a rate of 97%. See Declaration of Aaron Reichlin-Melnick, Ex. 13, ¶¶ 6, 17-18. Finally, because
19 Shepherd and Duvall asked not whether pretrial detention in itself served a legitimate government purpose, but “whether legitimate governmental purpose was served by the allowance of the MRSA infection to be present in the […] jail,” Duvall v. Dallas Cty., Tex., 631 F.3d 203, 207 (5th Cir. 2011), or whether “the inadequate medical conditions of which Shepherd complains were reasonably related to a legitimate government purpose.” Shepherd v. Dallas Cty., Tex., No. CIV.A. 305CV1442-D, 2008 WL 656889, at *7 (N.D. Tex. Mar. 6, 2008). 20 Ex. 15, Baptiste Supp. Decl. ¶ 1. Non-citizens who have lived in the U.S. for more than 10 years appear at nondetained immigration hearings 91.2% of the time. Ex. 13 ¶ 18.
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“ICE has many other means besides physical detention to monitor noncitizens and ensure that they are present at removal proceedings and at time of removal,” including routine check-ins, Vazquez Barrera, 2020 WL 1904497 at *6, detention is excessive under the circumstances.
Ignoring the devastating impact of COVID-19, and misinterpreting Shepherd v. Dallas County, 591 F.3d 445, 454 (5th Cir. 2009), Respondents assert that “the existence of a disease does not state a constitutional violation.” Resp. Br. at 13. But the Fifth Circuit has held that allowing the presence of a bacterial infection in a jail and failing to take adequate protective measures results in unconstitutionally punitive conditions under the Bell standard. Duvall, 631 F.3d at 208-209. Moreover, in the real world, the current pandemic is not mere “incidence of disease or infection, standing alone.” Shepherd, 591 F.3d at 453. “Our currently exigent circumstances, in which our communities are engulfed by a novel and highly contagious disease, are unlike any ‘incidence of disease’ that our society has faced in generations.” Vazquez Barrera, 2020 WL 1904497 at *6. Because of the distinct risks that COVID-19 poses to Petitioners, and the impossibility of sufficiently preventative measures, Respondents are “leaving them unduly exposed to contracting the virus,” justifying their release. Dada, No. 1:20-cv-00458, doc. 17 at 21 (Ex. 20(a)).
Even under the deliberate indifference standard, which applies to “episodic acts or omissions,” Petitioners’ continued detention is unlawful. See Hare v. City of Corinth, Miss., 74 F.3d 633 (5th Cir. 1996). ICE has put Petitioners at risk of exposure to COVID-19, subsequent serious illness or death. This risk cannot be mitigated by its halting remedial measures. Despite minimal testing, Adams has 15 confirmed cases of COVID-19, with 100% of those tested for COVID-19 returning positive tests. Respondents’ remedial steps are ineffective or lacking. Venters Decl. ¶¶ 30-34, and Petitioners continue to report unsanitary conditions and medical unresponsiveness. Compare ECF 5 at 4-5, with ECF 15-3 ¶¶ 5, 8 and nn. 11-13 supra.
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III. Absent an Injunction, Petitioners Will Suffer Irreparable Harm, and the Public Interest in Public Health and Balance of Equities Favors Release.
To sustain a finding of irreparable harm, one need only show that there is a “significant threat of injury from the impending action [and] that the injury is imminent.” See Humana, Inc. v. Jacobson, 804 F.2d 1390, 1394 (5th Cir. 1986). In addition to Petitioners' showing of constitutional harm, Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 295 (5th Cir. 2012), the imminent risk establishes irreparable harm. Vazquez Barrera, 2020 WL 1904497, at *6 (“Given Plaintiffs’ vulnerabilities to serious illness . . . and the serious and imminent risk of infection if they remain in immigration detention, Plaintiffs have shown irreparable harm.”).
A court “need not await a tragic event” to afford injunctive relief. Helling v. McKinney, 509 U.S. 25, 33 (1993). Ample evidence shows that Petitioners’ continued detention places them at risk of imminent injury—if not death, lasting and severe medical complications. See ECF. Doc. 4-8 ¶¶ 8, 16(a)-(g). The only effective ICE protocol—that the government review the custody of high-risk individuals for release, Venters Decl. ¶ 21—has been effectively ignored, as ICE has repeatedly denied Petitioners’ parole applications of Petitioners despite their serious risk factors and the absence of evidence of dangerousness. The palliative measures that Adams offers as an alternative not only have been implemented sporadically, see nn. 11-13 supra, but also miss the crucial steps of widespread surveillance, testing and social distancing. Venters Decl. ¶¶ 31, 34-35. Release is therefore the only feasible option to safeguard the health of these vulnerable individuals and to mitigate the threats to the safety of staff and the local population. See ECF. Doc. 4-8 ¶¶ 79; 16-18; ECF. Doc. 4-9 ¶¶ 35-37. This Court should reject the claim that Petitioners would be safer in the Adams infectious hotspot, rather than with sponsors who can help them shelter in place.
An injunction is also in the public interest. The asserted interest in enforcing immigration law is an insufficient counterweight to the grave public health consequences here. ICE already
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routinely releases scores of immigrants—even those with criminal convictions—without negative consequences.21 ICE also “has a number of alternative tools available to it to ensure enforcement, which it is free to use,” including “ICE’s conditional supervision program.” Vazquez Barrera, 2020 WL 1904497 at *7.22 See also Dada No. 1:20-cv-00458 Doc. 17 at *26 (Ex. 21(a)). Respondents are not bound to detain Petitioners—especially not during a global pandemic.
Releasing Petitioners would also promote public health and safety, considerations that weigh in the movant’s favor. See Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445, 472 (5th Cir. 2017). Multiple courts have ordered detained individuals released citing the public’s interest in mitigating outbreaks, which spread to correctional officers and other staff members, their families, and the public. See Dada, No. 1:20-cv-00458, Doc. 17 at *27; Vazquez Barrera, 2020 WL 1904497 at *7 (“[A]n outbreak among the . . . detainee population will inevitably spread through the surrounding community . . . [and] will put additional strain on hospitals and health care resources in the community.”). Petitioners’ release is in the public interest.
Finally, this petition seeks only the release of these medically vulnerable individuals. Any future case must be presented separately to the Court and will be decided based on the unique health conditions of any future petitioners and the status of the pandemic at the time the Court renders such decisions. This is a narrow case that can and should be decided on narrow grounds.
21 See, e.g,,TRAC Immigration, Detainees Leaving ICE Detention from the El Paso Service Processing Center (last visited May 6, 2020), https://trac.syr.edu/immigration/detention/201509/EPC/exit/ (“ICE also has discretionary authority to "parole" individuals . . . with serious medical conditions . . . and individuals whose parole is considered by ICE in the ‘public interest.’”); see 8 U.S.C. § 1182(d)(5)(A). 22 This alternative supervision program is highly effective, with a 99% attendance rate at all immigration court hearings and a 95% attendance rate at final hearings among supervised individuals. U.S. Gov’t Accountability Office, GAO-15-26, Alternatives to Detention: Improved Data Collection and Analyses Needed to Better Assess Program Effectiveness 30 (Nov. 2014), https://www.gao.gov/assets/670/666911.pdf.
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CONCLUSION For the foregoing reasons, Petitioners respectfully request that this Court grant the motion for a temporary restraining order and order their immediate release from custody.

Dated: May 6, 2020 Respectfully submitted,

s/ Cliff Johnson

Cliff Johnson Cliff.Johnson@macarthurjustice.org MacArthur Justice Center University of Mississippi School of Law 481 Chucky Mullins Drive University, MS 38677 662.915.6863
Sirine Shebaya** sirine@nipnlg.org Matthew S. Vogel** matt@nipnlg.org NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 718.419.5876
Jeremy Jong* jermjong@gmail.com 3527 Banks St New Orleans, LA 70119 504.475.6728

Baher Azmy* bazmy@ccrjustice.org Ghita Schwarz* gschwarz@ccrjustice.org Angelo Guisado* aguisado@ccrjustice.org Lupe Aguirre* laguirre@ccrjustice.org Astha Sharma Pokharel* asharmapokharel@ccrjustice.org Brittany Thomas* bthomas@ccrjustice.org CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012 212.614.6427
*pro hac vice application forthcoming **admitted pro hac vice Counsel for Petitioners-Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on May 6, 2020, I electronically filed the foregoing document and accompanying exhibits with the Clerk of the Court using the CM/ECF system. Notice of this filing will be sent to all counsel of record by operation of the Court’s electronic filing system. I also certify that there are no non-CM/ECF participants to this action.

Dated: May 6, 2020

s/ Cliff Johnson
MacArthur Justice Center University of Mississippi School of Law 481 Chucky Mullins Drive University, MS 38677

 
 Case 5:20-cv-00106-DCB-MTP Document 34 Filed 06/03/20 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

WESTERN DIVISION

LEYANIS TAMAYO ESPINOZA, et al.

PETITIONERS-PLAINTIFFS

Vs.

CIVIL ACTION NO. 5:20-cv-106-DCB-MTP

WARDEN SHAWN GILLIS

RESPONDENT-DEFENDANT

ORDER

THIS MATTER is before the Court on Petitioners’ Motion for a

Temporary Restraining Order. [ECF No. 3] This Motion was filed in

Petitioners’ ongoing habeas matter that challenges their continued

immigration detention. Petitioners allege their detention violates

28 U.S.C. § 2241. Having carefully considered the parties’

submission, the record, and the applicable law, the Court finds as

follows:

BACKGROUND

Petitioners filed their habeas petition alleging that their continued civil immigration detention violates their right to substantive and procedural due process under the Fifth Amendment to the United States Constitution and the right to be free from cruel and unusual punishment under the Eighth Amendment. [ECF No. 1] at 31–33. The petitioners are being held in the Adams County

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Detention Center (“ACDC”). Six petitioners remain in this suit1,
and the Habeas Petition describes them as follows:
Leyanis Tamayo Espinoza is 46 years old and suffers from diabetes, hypertension, chronic renal issues, and malnutrition. These conditions qualify as disabilities under the Rehabilitation Act. Edilia Del Carmen Martinez is 53 years old and suffers from diabetes, which qualifies as a disability under the Rehabilitation Act. Jose Ruben Lira Arias is 46 years old and suffers from diabetes and hypertension which qualify as disabilities under the Rehabilitation Act. Ndikum Keshia Angu Anjoh is 19 years old and suffers from chronic respiratory distress, which qualifies as a disability under the Rehabilitation Act. Anthony Baptiste is 59 years old and suffers from hypertension and pre-diabetes, He had been receiving disability benefits due to injuries suffered in a car accident prior to his detention, and these additional conditions qualify as disabilities under the Rehabilitation Act. Linda Chuo Fru is 26 years old and suffers from Hepatitis B, high blood pressure, and other conditions that are untreated in detention. Hepatitis B and hypertension qualify as disabilities under the Rehabilitation Act. The petitioners have not included medical records for the
individual petitioners. The medical history is provided by
declaration of the petitioners.
Upon receipt of the petitioners’ emergency § 2241 petition
and Motion for a Temporary Restraining Order (“TRO”), the Court
1 Petitioner Viankis Maria Yanes Pardillo has been granted asylum and was released on April 29, 2020, making her petition moot. [ECF No. 15] at n.1.
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held a telephonic conference and set a briefing schedule. On May 19, 2020, the Court held a telephonic hearing on the Motion. On May 22, 2020, the petitioners filed a Supplemental Authority in Support of their Motion for Temporary Restraining Order. The Government filed its response to the supplementation on June 1, 2020. The Motion is now ripe for disposition and, for the reasons discussed below, the Motion for a Temporary Restraining Order will be denied.
COVID-19
In recent months, COVID-19 has been declared a global health pandemic by the World Health Organization. See Williams v. Barr, 2020 WL 2193448, at *1 (M.D. Pa. May 6, 2020). “Humans have no immunity to the virus and, currently, there is no cure, vaccine, or known anti-viral treatment.” Id. The primary method for mitigating the spread of this virus is through social distancing, i.e., breaking the chain of transmission by staying, generally, at least six feet apart. See id.
“Most individuals who are infected develop mild or moderate respiratory symptoms and recover with no medical intervention, but in a minority of cases individuals experience serious illness or death.” Id. However, some populations – the elderly and those with underlying preexisting medical conditions – are more susceptible to developing serious illness or death. Id.
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ANALYSIS Temporary Restraining Order
Rule 65 of the Federal Rules of Civil Procedure sets out the general procedure for injunctive relief in federal courts. If there is an adversary hearing – as there was in this case – a temporary restraining order may be treated as a preliminary injunction. Courts look to four factors when evaluating whether a temporary restraining order or preliminary injunction is appropriate.
A temporary restraining order is an extraordinary and drastic remedy, that should not be granted unless the movant establishes the following elements: (1) there is a substantial likelihood of success on the merits; (2) there is a substantial threat that irreparable injury will result if the injunction is not granted; (3) the threatened injury outweighs the threatened harm to the defendant; and (4) granting the preliminary injunction will not disserve the public interest. Karaha Bodas Co. v. Perusahaan Pertambangan, 335 F.3d 357, 363 (5th Cir. 2003). The Fifth Circuit has repeatedly cautioned that “a preliminary injunction is an extraordinary remedy which should not be granted unless the party seeking it has ‘clearly carried the burden of persuasion on all four requirements.’” Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 196 (5th Cir. 2003)(citing Mississippi Power
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& Light Co. v. United Gas Pipeline, 760 F.2d 618, 621 (5th Cir. 1985).
Merits of Petitioners’ Claims
Before turning to the likelihood of success on the merits of the petitioners’ claims, the Court will quickly address the respondent’s contention that the petitioners may not seek their release from custody through a § 2241 habeas petition. While the petitioners are challenging the conditions of their confinement, a civil rights action, their requested relief is immediate release from detention.
Challenges to the duration of confinement should be brought as a habeas petitioner. See Preiser v. Rodriguez, 411 U.S. 475, 489 (1973) (The United States Supreme Court held that a challenge by a prisoner to the fact or duration of his confinement and seeking an immediate or earlier release from that confinement must be pursued through a habeas corpus proceeding rather than in an ordinary civil rights action); see also Davis v. Fechtel, 150 F.3d 486, 490 (5th Cir. 1998) (“Simply put, habeas claims involve someone's liberty, rather than mere civil liability.”); see also Cook v. Tex. Dep't of Criminal Justice Transitional Planning Dep't, 37 F.3d 166, 168 (5th Cir. 1994) (citations omitted)(finding claims that would entitle prisoner to accelerated release are not properly pursued in a § 1983 conditions of confinement case); Barrera v.
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Wolf, 2020 WL 1904497, at *4 (S.D. Tex. April 17, 2020) (“Because Plaintiff’s are challenging the fact of their detention as unconstitutional and seek relief in the form of immediate release, their claims fall squarely in the realm of habeas corpus”). Here, the requested relief, immediate release from detention, permits the petitioners to proceed with their habeas petition.
Turning to the merits of the claim, the Government argues that no constitutional violation has occurred. First, the Government asserts that the conditions of confinement do not amount to the unconstitutional punishment of a civil detainee, in violation of the Fifth Amendment. Second, the Government argues that Adams County Detention Center (“ACDC”) has not been deliberately indifferent to the petitioners’ medical needs.
i. Conditions of Confinement To succeed on their claim that the conditions at ACDC violate
the Constitution, petitioners must demonstrate that the conditions of confinement amount to punishment of the detainee. In making that determination, the Court must consider whether the conditions and restrictions of the detention center are rationally connected to a legitimate governmental objective. See Bell v. Wolfish, 441 U.S. 520, 539 (1979). If not, then the Court may infer that the purpose of the governmental action is unconstitutional punishment.
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The Supreme Court has recognized that ensuring the presence of detainees at their immigration hearings along with the effective management a detention facility once an individual is confined, constitutes legitimate governmental interests. See Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018); Demore v. Kim , 538 U.S. 510, 520–22; Zadvydas v. Davis, 533 U.S. 678, 690–91 (2001). Additionally, the Government has a legitimate interest in reducing the flight risk posed by prisoners facing removal. See GutierrezSoto v. Sessions, 317 F.Supp.3d 917, 931 (W.D. Tex. 2018). The petitioners do not assert that there is no legitimate government interest but claim that detaining the petitioners is not reasonably related to that interest in light of the pandemic sweeping the nation. To support their claims, petitioners point to two primary facts: (1) ICE detainees who are represented are almost guaranteed to show up for their immigration hearings, and (2) ICE has methods – alternative to detention – that can ensure its legitimate interests are met.
When viewed under Bell’s standard that the detention be rationally related to a legitimate government interest, the petitioners’ conditions of confinement do not amount to unconstitutional punishment. See e.g., Bell v. Wolfish, 441 U.S. 520 (1979). First, the Supreme Court has made it clear that the Government has a legitimate interest in preventing the petitioners from absconding and avoiding removal. Second, the petitioners’
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continued confinement is reasonably related to that legitimate governmental interest as it guarantees that the petitioners will attend their deportation proceedings. A well-reasoned opinion out of the Middle District of Pennsylvania found:
Although there are other methods that may help ensure that [the petitioners] compl[y] with deportation proceedings, detainment is the only method that guarantees the fulfillment of the Government’s goal. Moreover, the relevant question is not whether there are other, less restrictive methods at the Government’s disposal, or even whether the Government’s chosen course of action is the wisest or best way to proceed. The only limitation on the Government’s ability to act is that the chosen course of action be reasonably related to its legitimate goal. Here, that standard is clearly satisfied. See Williams, 2020 WL 2193448, at *5. This Court agrees with the Williams analysis. While there are other methods available to ICE that may be more appropriate considering the circumstances, it is not enough to defeat the reasonably related standard as set forth in Bell.
The conditions at ACDC do not negate the Court’s determination that the conditions of confinement do not amount to an unconstitutional punishment. Despite the unique concerns posed by detention facilities regarding the spread of this virus, CDC guidelines specifically contemplate that individuals will be confined within detention facilities during this pandemic.2 As
2 See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in
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such, the CDC has provided recommendations for detention facilities to mitigate the spread of COVID-19. ACDC has made numerous changes to its operating procedure in response to COVID19 and asserts that it is following CDC guidelines. The Court is not persuaded by the allegation that there is no course of action that ACDC can take to mitigate the spread of COVID-19. The petitioners claim that the mitigation efforts of ACDC are inadequate, which the Government disputes by presenting the following measures taken to combat the virus:
If a detainee has had known exposure to another individual with COVID-19, ACDC places them in a “cohort” with other exposed individuals for fourteen days and monitors them for fever and respiratory issues. [ECF No.15] at 3.
Importantly, ACDC is not overcrowded, but is operating at approximately one third (1/3) capacity. [ECF No. 15-1] at 3. The facility can hold 2,300 detainees but currently houses 832. [ECF No. 15-2] at 3. When a new detainee is brought to ACDC, they are screened for health issues and questioned about any exposure to COVID-19. [ECF No. 15] at 3. Additionally, all staff and vendors are screened for body temperatures before they enter the facility. Id. at 5. Anyone with responses to questions or a body temperature
Correctional and Detention Facilities, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance- correctional-detention.html (last visited May 11, 2020).
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that suggests exposure to COVID-19 is not allowed to enter the facility. Id. Further, if an employee is not allowed to work because of the screening process, the employee is sent home with full pay. Id. Thus, as the government asserts, there is no incentive for an employee to provide inaccurate answers. Id.
ACDC has also increased sanitation efforts to reduce the spread of the virus. ACDC has increased the amount of liquid soap available and increased the frequency of cleaning cycles. Id. at 4. In addition to bleach, ACDC uses a chemical that kills COVID19 to clean throughout the facility. Id. at 4–5. High contact areas are cleaned every hour. Id. at 5. In areas where detainees are suspecting of having COVID-19 are housed, items are cleaned in between each use. Id. There is also hand sanitizer throughout the facility. Id.
ACDC has also imposed a “no contact” requirement for essential professional visits at the facility and has suspended all in person social visitation and tours of the facility. Id. Since April 13, 2020, ACDC has provided masks to all detainees and staff. Id. In housing areas where detainees are suspected of having COVID-19, the staff entering the area wears full personal protective equipment (“PPE”). Id. And only certain staff can enter the areas where individuals have or are suspected of having COVID-19. Id.
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ACDC also monitors its gloves and other PPE to ensure it has sufficient amounts. Id.
Individuals with confirmed cases of COVID-19 are being housed in separate, contained units or in negative pressure rooms. Id. at 4. ACDC tests detainees consistent with CDC guidelines for testing. Id. As of the date of the Government’s response, only one of the six (6) regular housing units has had positive or suspected cases of COVID-19 and none of the petitioners/plaintiffs are housed in that unit. Id. If someone is suspected of or has been diagnosed with COVID-19, they are housed in an isolation pod, and their meals and medical services take place within that pod only. Id.
The petitioners assert that there have been situations in which symptomatic detainees were not treated or isolated. [ECF No. 5] at 7. However, upon reviewing the relevant declarations, the Court either found them to lack information or to describe a situation where ACDC offered treatment and isolated detainees who it suspected had contact with the virus. [ECF No. 4-1](detainee states that she believes she has a reoccurring fever, but medical staff took her temperature and told her it was fine); [ECF No. 43](describing a situation where two men from petitioner’s tank were potentially exposed to the virus and, later that day, ACDC removed the two men from the tank); [ECF No. 4-4](noting that a group of women transferred to ACDC were not allowed out of their
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dormitory, that the women ate in their dormitory instead of the dining hall, and that it appeared they were quarantined for “about two weeks”).
This is an ever-evolving situation in which ACDC, the CDC, and ICE are adapting and responding to the virus as more information comes to light. The measures enacted by the ACDC ensure that the petitioners’ conditions of confinement are not unconstitutionally overcrowded or unsanitary. It is true that detention facilities do not accommodate the type of social distancing that individuals may undertake in their homes. However, ACDC is operating far below its capacity, and the reality is that individuals will be confined within detention facilities during this pandemic.
ii. Deliberate Indifference to Medical Needs
When a prisoner alleges inadequate medical care, prison officials violate the Fifth Amendment when “they exhibit deliberate indifference to serious medical needs of prisoners.” See Williams, 2020 WL 2193448, at *6. Deliberate indifference is an extremely high standard to meet, and the plaintiff must satisfy the “subjective and objective” requirements of the Eighth Amendment inquiry. See Valentine v. Collier, 956 F.3d 797, 801 (5th Cir. 2020).
The plaintiff must show an objectively intolerable risk of harm. Id. The plaintiff must also show that prison officials have
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a subjective state of mind more blameworthy than negligence, and akin to criminal recklessness. Id. To satisfy the subjective requirement, the plaintiff must show that the defendant: “(1) was ‘aware of facts from which the inference could be drawn that a substantial risk of serious harm exists’; (2) subjectively ‘dr[e]w the inference’ that the risk existed; and (3) disregarded the risk.” Id. The “incidence of diseases or infections, standing alone,” do not “imply unconstitutional confinement conditions, since any densely populated residence may be subject to outbreaks.” Id.(quoting Shepherd v. Dallas Cty., 591 F.3d 445, 454 (5th Cir. 2009)). Instead, the plaintiff must show a denial of “basic human needs.” Id.
The Fifth Circuit states that it is incorrect for courts to treat “inadequate measures as dispositive of the Defendants’ mental state.” Id. A general awareness of the dangers posed by COVID-19 does not show that defendants “subjectively believe the measures they are taking are inadequate.” Id. at 802. Mere disagreement with the facility’s medical decisions as to how to deal with the COVID-19 outbreak in a detention setting does not establish deliberate indifference. Id. In this case, the evidence shows that ACDC has taken and continues to take measures – informed by guidance from the CDC – to abate and control the spread of the virus. The petitioners have offered no evidence that the officials
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at ACDC have acted with deliberate indifference to their medical needs.
In the case at hand, the petitioners have not shown that they are likely to succeed on the merits of their Writ of Habeas Corpus. The petitioners have failed to demonstrate either that their detention amount to a punishment in violation of the Constitution, or that officials within the ACDC are acting with deliberate indifference to their medical needs. ACDC is operating at approximately one-third capacity, it has enacted numerous measures to mitigate the spread of COVID-19 in the facility, there is no evidence that the prison officials have a subjective belief that they are taking inadequate measures to combat the pandemic, and there is a rationally related governmental interest in keeping ICE detainees within ACDC.
Likelihood of Suffering Irreparable Harm
The petitioners must show “that they will suffer irreparable injuries even after accounting for the protective measures” in place. Valentine, 956 F.3d at 804. There is no evidence to support such a finding in this case. In their Reply [26], petitioners note that as of May 5, 2020, ACDC had 15 confirmed cases of COVID-19. As of June 2, 2020, ACDC has reported only two additional confirmed cases. See ICE, COVID-19 Guidance (last visited June 2, 2020), https://www.ice.gov/coronavirus. In the hearing held on May 19,
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2020, the Government informed the Court that fourteen of the fifteen detainees who were confirmed COVID-19 cases have recovered from the illness.
In their Supplemental Authority, the petitioners note that two (2) ACDC employees have also tested positive. The Government submitted a Declaration of Warden Shawn Gillis, who explains that one of the employees who tested positive is an administrative staff member who developed symptoms while at home and did not work within the facility or have access to detainees, and the other employee, a detention officer, was off work when he developed symptoms and that he sought medical attention and was immediately tested and quarantined per CDC regulations. Both employees have recovered.
The Court acknowledges the difficulty of accurately confirming the number of cases because asymptomatic carriers may not be tested. However, there is no evidence before the Court that there has been any sort of drastic increase in cases at the facility. ACDC has had confirmed cases of COVID-19 as early as April 2020. See [ECF No.5] at 5. Despite having COVID-19 in the facility for well over a month, there have been no fatalities3 and only one person4 has needed medical care outside the capabilities
3 See ICE, COVID-19 Guidance (last visited June 2,2020) https://www.ice.gov/coronavirus 4 See [ECF No. 15] at 3(noting, at the time of the Government’s Response, that only one detainee had been transferred to a local hospital while the remaining eleven (11) confirmed COVID-19 cases were treated in ACDC).
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of ACDC. Additionally, there is no evidence that there has been a extreme number of detainees who present symptoms of the virus.
ICE asserts that it is conducting tests based on CDC guidelines and the Court is hesitant to require ACDC to provide additional testing that would exceed the CDC’s guidelines. The Court recognizes that the Western District of Louisiana recently reviewed a similar situation pertaining to testing in the case Dada v. Witte, No. 1:23-cv-458, 2020 WL 2614616, at *2 (W.D. La. May 22, 2020)(questioning the accuracy of the minimal spread of the virus throughout the ICE facility, and speculating that the facility was moving detainees to other ICE facilities). However, the Court in Dada clearly stated “[a]ll of this is to say that the PARTICULAR fact pattern upon which the court’s ruling is based, that is as to these PARTICULAR plaintiffs, could very well be different next week… [t]he case, therefore, has no precedential value as to any other detainee at any other time.” Id. at 1.
Whether Threatened Injury Outweighs the Harm to Non-Movant and the Public Interest
The Government succinctly explains the significant public interest in maintaining and enforcing the United States’ immigration laws and the potential harm to the Government if its ability to enforce immigration laws is disrupted:
“It is well-settled that the public interest in enforcement of United States immigration laws is significant. Landon v. Plasencia, 459 U.S. 21, 34 (1982)
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(“The government’s interest in efficient administration of the immigration laws at the border is also weighty.”); United States v. Martinez- Fuerte, 428 U.S. 543, 556-58 (1976); Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981) (“The Supreme Court has recognized that the public interest in enforcement of the immigration laws is significant.”); see also Nken v. Holder, 556 U.S. 418, 435 (2009)(“There is always a public interest in prompt execution of removal orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and permit[s] and prolong[s] a continuing violation of United States law.” (internal quotation marks omitted)).” [ECF No. 15] at 15. This Court finds the Government’s position to be well taken and
agrees that the balance of interests favors the Warden. While the
petitioners argue that the Court’s decision can be narrowly decided
and not create a sweeping and/or generalized outcome, there is no
cognizably narrow limitation. If the Court grants the petitioners’
TRO, there would be few restrictions preventing the Court from
releasing every ICE detainee who has an underlying illness or is
of a certain age. See e.g. United Stated v. Fitzgerald, No. 2:17-
cr-00295-JCM-NJK, 2020 WL 1433932, at *2 (D. Nev. Mar. 24, 2020)
(“[T]he Court cannot release every detainee at risk of contracting
COVID-19 because the Court would then be obligated to release every
detainee.”).
CONCLUSION
IT IS HEREBY ORDERED that the petitioners’ Motion for a
Temporary Restraining Order is DENIED without prejudice.
SO ORDERED, this the 3rd day of June, 2020.
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Case 5:20-cv-00106-DCB-MTP Document 34 Filed 06/03/20 Page 18 of 18 _/s/ David Bramlette_________ UNITED STATES DISTRICT JUDGE
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