U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:20-cv-01072-CRC

C.G.B. et al v. WOLF et al Assigned to: Judge Christopher R. Cooper Cause: 05:702 Administrative Procedure Act

Date Filed: 04/23/2020 Date Terminated: 01/06/2021 Jury Demand: None Nature of Suit: 899 Administrative Procedure Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff
C.G.B. TERMINATED: 08/14/2020 formerly known as D.G.B. TERMINATED: 08/14/2020

represented by Gregory P. Copeland RAPID DEFENSE NETWORK 11 Broadway Suite 615 New York, NY 10004 (212) 843-0910 Fax: (212) 257-7033 Email: gregory_copeland@alumni.brown.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lynly Egyes TRANSGENDER LAW CENTER 594 Dean Street Brooklyn, NY 11238 973-454-6325 Email: lynly@transgenderlawcenter.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew E. Kelley BALLARD SPAHR LLP 1909 K Street, NW 12th Floor Washington, DC 20006 (202) 508-1112 Fax: (202) 661-2299

Plaintiff

Email: kelleym@ballardspahr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexa Levy BALLARD SPAHR 1735 Market Street 51st Floor Philadelphia, PA 19103 215-864-8278 Email: levya@ballardspahr.com PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Weissert BALLARD SPAHR LLP 1735 Market Street 51st Floor Philadelphia, PA 19103 215-864-8672 Email: weisserte@ballardspahr.com PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie John BALLARD SPAHR LLP 1735 Market Street 51st Floor Philadelphia, PA 19103 215-665-8500 Fax: 215-864-8999 Email: john@ballardspahr.com PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Telo Gillman RAPID DEFENSE NETWORK 11 Broadway Suite 615 New York, NY 10004 212-843-0910 Fax: 212-257-7033 Email: sarah@defensenetwork.org ATTORNEY TO BE NOTICED

A.F. TERMINATED: 08/14/2020 formerly known as O.E.R.F. TERMINATED: 08/14/2020
Plaintiff M.M.S-M. TERMINATED: 08/14/2020 formerly known as A.H.S-M. TERMINATED: 08/14/2020

represented by Gregory P. Copeland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lynly Egyes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew E. Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexa Levy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Weissert (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie John (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Telo Gillman (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory P. Copeland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lynly Egyes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
L.R.A.P. TERMINATED: 08/14/2020 formerly known as E.A.P. TERMINATED: 08/14/2020

Matthew E. Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexa Levy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Weissert (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie John (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Telo Gillman (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory P. Copeland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lynly Egyes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew E. Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexa Levy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
K.S. formerly known as J.H.S.

Elizabeth Weissert (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie John (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Telo Gillman (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory P. Copeland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lynly Egyes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew E. Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexa Levy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Weissert (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie John (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff K.M. formerly known as G.M.
Plaintiff R.H. TERMINATED: 08/14/2020 formerly known as

Sarah Telo Gillman (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory P. Copeland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lynly Egyes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew E. Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexa Levy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Weissert (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie John (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Telo Gillman (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory P. Copeland (See above for address) LEAD ATTORNEY

F.A.H. TERMINATED: 08/14/2020
Plaintiff L.M. TERMINATED: 08/14/2020 formerly known as S.M. TERMINATED: 08/14/2020

ATTORNEY TO BE NOTICED
Lynly Egyes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew E. Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexa Levy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Weissert (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie John (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Telo Gillman (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory P. Copeland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lynly Egyes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew E. Kelley (See above for address)

Plaintiff
M.J.J. TERMINATED: 08/14/2020 formerly known as O.H.J. TERMINATED: 08/14/2020

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexa Levy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Weissert (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie John (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Telo Gillman (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory P. Copeland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lynly Egyes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew E. Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexa Levy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Weissert (See above for address)

Plaintiff
D.B.M.U. TERMINATED: 08/14/2020 formerly known as W.E.M.U. TERMINATED: 08/14/2020

PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie John (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Telo Gillman (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory P. Copeland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lynly Egyes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew E. Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexa Levy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Weissert (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie John (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Telo Gillman

Plaintiff K.R.H. formerly known as W.D.R.H.
Plaintiff G.P. TERMINATED: 08/14/2020 formerly known as O.A.P. TERMINATED: 08/14/2020

(See above for address) ATTORNEY TO BE NOTICED
represented by Gregory P. Copeland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lynly Egyes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew E. Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexa Levy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Weissert (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie John (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Telo Gillman (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory P. Copeland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
M.R.P. TERMINATED: 08/14/2020 formerly known as J.N.R.P. TERMINATED: 08/14/2020

Lynly Egyes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew E. Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexa Levy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Weissert (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie John (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Telo Gillman (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory P. Copeland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lynly Egyes (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew E. Kelley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexa Levy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Weissert (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Leslie John (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Telo Gillman (See above for address) ATTORNEY TO BE NOTICED

V. Defendant CHAD F. WOLF in his official capacity as the acting Secretary of the U.S. Department of Homeland Security
Defendant WILLIAM BARR in his official capacity as the Attorney General of the United States

represented by Sean Michael Tepe U.S. DEPARTMENT OF JUSTICE 555 Fourth Street, NW Washington, DC 20530 (202) 252-2533 Fax: (202) 252-2599 Email: sean.tepe@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sean Michael Tepe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/23/2020

# Docket Text
1 MOTION to Proceed Under Pseudonym by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P.,

04/23/2020 04/23/2020 04/23/2020 04/23/2020
04/23/2020 04/23/2020

R.H. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(zrdj) (Entered: 04/23/2020)
2 MEMORANDUM AND ORDER granting 1 Motion for Leave to Proceed Under Pseudonym. Signed by Chief Judge Beryl A. Howell on 4/23/2020. (See Order for Details)(zrdj) (Entered: 04/23/2020)
3 PETITION for Writ of Mandamus filed by M.R.P., K.M., K.R.H., A.F., L.R.A.P., K.S., M.J.J., L.M., C.G.B., G.P., D.B.M.U., R.H., M.M.S-M.. (Attachments: # 1 Civil Cover Sheet)(zrdj) (Entered: 04/23/2020) Modified event on 5/1/2020 (znmw). (Entered: 04/23/2020)
SUMMONS Not Issued as to WILLIAM BARR, CHAD WOLF (zrdj) (Entered: 04/23/2020)
4 MOTION for Temporary Restraining Order, MOTION for Hearing by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H. (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14 Gorton Declaration and CV - Copy, # 16 Exhibit 15 Franco-Paredes Decl. and CV, # 17 Exhibit 16 CDC Factshee, # 18 Exhibit 17 Mukerjee expert declaration, # 19 Exhibit 18 H.R. Rep. No. 116-180, # 20 Exhibit 19 Winn Conditions Letter, # 21 Exhibit 20 Allegra Love Expert Affidavit, # 22 Exhibit 21 Complaint on LGBTQ PLHIV DHS Sept 2019, # 23 Exhibit 22 Allegra Love Letter, # 24 Exhibit 23 TLC_Affirmation_Letter.docx (1), # 25 Exhibit 24 Horizons Foundation - TLC letter, # 26 Exhibit 25 Kolibri Foundation, # 27 Exhibit 26 RIFF PLEDGE LETTER 4_2020, # 28 Certificate of Service, # 29 Text of Proposed Order, # 30 Text of Proposed Order)(zrdj) (Entered: 04/23/2020)
5 MOTION to Seal Exhibits by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H. (Attachments: # 1 Text of Proposed Order)(zrdj) (Entered: 04/23/2020)
6 SEALED Exhibits filed by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H.. re 5 MOTION to Seal Case filed by M.M.S-M., A.F., K.S., R.H., D.B.M.U., M.J.J., G.P., C.G.B., K.R.H., K.M., M.R.P., L.M., L.R.A.P. (This document is SEALED and only available to authorized persons.)(Exhibit 1) (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 8, # 8 Exhibit 9, # 9 Exhibit 10, # 10 Exhibit 11, # 11 Exhibit 12, # 12 Exhibit 13)(zrdj) (Entered: 04/23/2020)

04/23/2020

Payment for 3 Complaint,, Petition for Writ of Mandamus,. ($400; Receipt number CDCDC-7054148). (Kelley, Matthew) (Entered: 04/23/2020)

04/23/2020 7 NOTICE of Appearance- Pro Bono by Gregory P. Copeland on behalf of All Plaintiffs (Copeland, Gregory) (Entered: 04/23/2020)

04/23/2020

8 NOTICE of Appearance- Pro Bono by Sarah Telo Gillman on behalf of A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H. (Gillman, Sarah) (Entered: 04/23/2020)

04/24/2020

MINUTE ORDER: The parties are hereby ORDERED to appear for a telephonic scheduling conference on Friday, April 24, 2020 at 3:00 PM. The Court will provide dial-in information separately. Plaintiffs counsel are directed forthwith to provide notice of the hearing to the counsel for the government, if known. Signed by Judge Christopher R. Cooper on 4/24/20. (lccrc1) (Entered: 04/24/2020)

04/24/2020

Set/Reset Hearings: Telephone Conference set for 4/24/2020 at 3:00 PM before Judge Christopher R. Cooper. (lsj) (Entered: 04/24/2020)

04/24/2020

9 REQUEST FOR SUMMONS TO ISSUE re 3 Complaint,, Petition for Writ of Mandamus, filed by M.R.P., K.M., K.R.H., A.F., L.R.A.P., K.S., M.J.J., L.M., C.G.B., R.H., D.B.M.U., G.P., M.M.S-M.. Related document: 3 Complaint,, Petition for Writ of Mandamus, filed by M.M.S-M., A.F., K.S., R.H., D.B.M.U., M.J.J., G.P., C.G.B., K.R.H., K.M., M.R.P., L.M., L.R.A.P.. (Attachments: # 1 Summons, # 2 Summons)(Kelley, Matthew) (Entered: 04/24/2020)

04/24/2020

10 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Leslie E. John, Filing fee $ 100, receipt number ADCDC-7057193. Fee Status: Fee Paid. by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H. (Attachments: # 1 Declaration of Leslie E. John, # 2 Text of Proposed Order)(Kelley, Matthew) (Entered: 04/24/2020)

04/24/2020

11 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Elizabeth P. Weissert, Filing fee $ 100, receipt number ADCDC-7057206. Fee Status: Fee Paid. by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H. (Attachments: # 1 Declaration of Elizabeth P. Weissert, # 2 Text of Proposed Order)(Kelley, Matthew) (Entered: 04/24/2020)

04/24/2020

12 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Alexa L. Levy, Filing fee $ 100, receipt number ADCDC-7057215. Fee Status: Fee Paid. by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H. (Attachments: # 1 Declaration

of Alexa L. Levy, # 2 Text of Proposed Order)(Kelley, Matthew) (Entered: 04/24/2020)

04/24/2020 13 NOTICE of Appearance by Sean Michael Tepe on behalf of All Defendants (Tepe, Sean) (Entered: 04/24/2020)

04/24/2020

Minute Entry for Telephone Conference held before Judge Christopher R. Cooper on 4/24/2020. Forthcoming briefing Order. (Court Reporter: Lisa Moreria) (lsj) (Entered: 04/24/2020)

04/24/2020

MINUTE ORDER: As indicated at today's scheduling teleconference, the parties are hereby ORDERED to adhere to the following briefing schedule:

Defendants shall file their Opposition to Plaintiffs' TRO motion on or before Friday, May 1, 2020. Defendants may include in their Opposition any potential legal defenses to the Complaint, for consideration in connection with the likelihood-of-success prong of the TRO inquiry. Alternatively, Defendants may present their legal defenses in a separate motion to dismiss the complaint filed by the same date. Plaintiffs' Reply (and Opposition to any motion to dismiss) are due on or before Tuesday, May 5, 2020.

04/24/2020

It is further ORDERED that a telephonic hearing on Plaintiffs' motion will be held on Wednesday, May 6, 2020 at 2:00PM. Hearing details will follow. Signed by Judge Christopher R. Cooper on 4/24/2020. (lccrc1) (Entered: 04/24/2020)
MINUTE ORDER granting 10 Motion for Leave to Appear Pro Hac Vice Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Christopher R. Cooper on 4/24/2020. (lccrc1) Modified on 4/27/2020 (lsj). (Entered: 04/24/2020)

04/24/2020

MINUTE ORDER granting 11 Motion for Leave to Appear Pro Hac Vice Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Christopher R. Cooper on 4/24/2020. (lccrc1) Modified on 4/27/2020 (lsj). (Entered: 04/24/2020)

04/24/2020

MINUTE ORDER granting 12 Motion for Leave to Appear Pro Hac Vice Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Christopher R. Cooper on 4/24/2020. (lccrc1) Modified on 4/27/2020 (lsj). (Entered: 04/24/2020)

04/24/2020

MINUTE ORDER granting 5 Motion to Seal Case: It is ORDERED that Exhibits (1-13) to Plaintiffs' Motion for a Temporary Restraining Order shall be sealed. Plaintiffs shall propose redacted versions of thedocuments within one week of this Order. Signed by Judge Christopher R. Cooper on 4/24/2020. (lccrc1) (Entered: 04/24/2020)

04/27/2020

Set/Reset Deadlines/Hearings: Responses due by 5/1/2020. Replies due by 5/5/2020. Telephonic Motion Hearing set for 5/6/2020 at 2:00 PM before Judge Christopher R. Cooper. (lsj) (Entered: 04/27/2020)

04/27/2020 14 SUMMONS (3) Issued Electronically as to WILLIAM BARR, CHAD WOLF, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent)(znmw) (Entered: 04/27/2020)

04/29/2020 15 NOTICE of Appearance by Elizabeth Weissert on behalf of All Plaintiffs (Weissert, Elizabeth) (Entered: 04/29/2020)

04/29/2020 16 NOTICE of Appearance by Alexa Levy on behalf of All Plaintiffs (Levy, Alexa) (Entered: 04/29/2020)

04/30/2020

17 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Lynly S. Egyes, Filing fee $ 100, receipt number ADCDC-7076222. Fee Status: Fee Paid. by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H. (Attachments: # 1 Declaration of Lynly S. Egyes, # 2 Text of Proposed Order)(Kelley, Matthew) (Entered: 04/30/2020)

04/30/2020 18 NOTICE of Appearance by Leslie John on behalf of All Plaintiffs (John, Leslie) (Entered: 04/30/2020)

04/30/2020

MINUTE ORDER granting 17 Motion for Leave to Appear Pro Hac Vice Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Christopher R. Cooper on 4/30/20. (lccrc1) Modified on 5/1/2020 (lsj). (Entered: 04/30/2020)

05/01/2020

19 REDACTED DOCUMENT- Exhibits to Motion for Temporary Restraining Order to 4 MOTION for Temporary Restraining Order MOTION for Hearing by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H.. (Attachments: # 1 Exhibit Redacted Exhibit 1, # 2 Exhibit Redacted Exhibit 2, # 3 Exhibit Redacted Exhibit 3, # 4 Exhibit Redacted Exhibit 4, # 5 Exhibit Redacted Exhibit 5, # 6 Exhibit Redacted Exhibit 6, # 7 Exhibit Redacted Exhibit 7, # 8 Exhibit Redacted Exhibit 8, # 9 Exhibit Redacted Exhibit 9, # 10 Exhibit Redacted Exhibit 10, # 11 Exhibit Redacted Exhibit 11, # 12 Exhibit Redacted Exhibit 12,

# 13 Exhibit Redacted Exhibit 13)(Kelley, Matthew) (Entered: 05/01/2020)

05/01/2020

20 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILLIAM BARR, CHAD WOLF (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Opposotion to Motion for TRO, # 2 Declaration of Acosta, # 3 Declaration of Bourne, # 4 Declaration of Cantrell, # 5 Declaration of Ciliberti, # 6 Declaration Davies, # 7 Declaration Hodges, # 8 Declaration Lederman, # 9 Declaration Lopez, # 10 Declaration Malakhova, # 11 Declaration Mros, # 12 Declaration Mullan, # 13 Declaration Valenzuela)(Tepe, Sean) (Entered: 05/01/2020)

05/05/2020

21 MOTION to Certify Class by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H. (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1 Copeland Declaration, # 3 Exhibit 2 Egyes Declaration, # 4 Exhibit 3 John Declaration, # 5 Text of Proposed Order)(Kelley, Matthew) (Entered: 05/05/2020)

05/05/2020

22 REPLY to opposition to motion re 4 MOTION for Temporary Restraining Order MOTION for Hearing filed by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Kelley, Matthew) (Entered: 05/05/2020)

05/05/2020

23 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Text of Proposed Order)(Kelley, Matthew) (Entered: 05/05/2020)

05/06/2020

MINUTE ORDER: Pursuant to Standing Order 20-19 (BAH), the Court will provide access for the public to participate in the hearing on the motion for temporary restraining order. It is ORDERED that the participants using the public access telephone line shall adhere to the rules set forth in Standing Order 20-20 (BAH), available on the Court's website.

Toll Free Number: 888-204-5984; Access Code: 8981531

SO ORDERED by Judge Christopher R. Cooper on 5/6/2020. (lsj) (Entered: 05/06/2020)

05/06/2020

Minute Entry for Motion Hearing held before Judge Christopher R. Cooper on 5/6/2020. Oral arguments submitted on Plaintiff's Motion 4 for Temporary Restraining Order. Motion taken under advisement; forthcoming order. (Court Reporter: Lisa Moreira) (lsj) (Entered: 05/06/2020)

05/06/2020

MINUTE ORDER: As stated on record at the TRO motion hearing held on May 6, 2020, the Court will hold the hearing record open until at least Monday, May 11, 2020 at 5:00 PM. The parties may file any supplemental declarations and/or additional supporting evidence by that date. Defendants shall file their Opposition to Plaintiffs' Motion to Certify Class on or before Monday, May 11, 2020 at 5:00 PM. Plaintiffs' Reply is due on Wednesday, May 13, 2020 at 5:00 PM. The Court GRANTS Defendants' 20 Motion for Leave to File Documents Under Seal and Plaintiffs' 23 Motion for Leave to File Documents Under Seal. It is ORDERED that Exhibits 1-13 to Defendants' Opposition and Exhibits 1-5 of Plaintiffs' Reply shall be sealed. Signed by Judge Christopher R. Cooper on 5/6/2020. (lccrc1) (Entered: 05/06/2020)

05/06/2020

27 SEALED DOCUMENT filed by WILLIAM BARR, CHAD WOLF. re 4 MOTION for Temporary Restraining Order MOTION for Hearing filed by M.M.S-M., A.F., K.S., R.H., D.B.M.U., M.J.J., G.P., C.G.B., K.R.H., K.M., M.R.P., L.M., L.R.A.P.. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration Acosta, # 2 Declaration Bourne, # 3 Declaration Ciliberti, # 4 Declaration Davies, # 5 Declaration Hodges, # 6 Declaration Lederman, # 7 Declaration Lopez, # 8 Declaration Malakhova, # 9 Declaration Mros, # 10 Declaration Mullan, # 11 Declaration Valenzuela)(ztd) (Entered: 05/11/2020)

05/06/2020

29 SEALED DOCUMENT filed by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H.. re 4 MOTION for Temporary Restraining Order MOTION for Hearing filed by M.M.S-M., A.F., K.S., R.H., D.B.M.U., M.J.J., G.P., C.G.B., K.R.H., K.M., M.R.P., L.M., L.R.A.P.. (This document is SEALED and only available to authorized persons.)(ztd) (Entered: 05/11/2020)

05/07/2020

24 ENTERED IN ERROR. . . . .MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Lynly S. Egyes, Filing fee $ 100, receipt number ADCDC-7101013. Fee Status: Fee Paid. by C.G.B. (Egyes, Lynly) Modified on 5/8/2020 (ztd). (Entered: 05/07/2020)

05/07/2020

MINUTE ORDER: At the TRO Motion Hearing held on May 6, 2020, the Government indicated that it intended to file supplemental declarations in support of its Opposition. In addition to any updates regarding the status of the named Plaintiffs, the Court requests that the

Government include in its supplemental declarations the following information for each facility where a named Plaintiff is detained:

(1) the number of positive cases of COVID-19 among detainees and staff, and the number of detainees who have been tested; (2) the number of detainees at each facility and the facility's total capacity, including the number of detainees in each unit where a named Plaintiff is being held and that unit's total capacity; (3) a description of the sleeping arrangements used by each named Plaintiff, including photographs; (4) a description of the dining quarters for each named Plaintiff, including photographs; (5) a description of the personal protective equipment provided to staff and detainees; and (6) a description of the hand cleansing and cleaning materials provided to staff and detainees.

SO ORDERED. Signed by Judge Christopher R. Cooper on 5/7/20. (lccrc1) (Entered: 05/07/2020)

05/07/2020 25 NOTICE of Appearance by Lynly Egyes on behalf of All Plaintiffs (Egyes, Lynly) (Main Document 25 replaced on 5/12/2020) (znmw). Modified on 5/20/2020 (znmw). (Entered: 05/07/2020)

05/07/2020

26 TRANSCRIPT OF TELEPHONIC MOTION HEARING before Judge Christopher R. Cooper held on May 6, 2020; Page Numbers: 1-73. Date of Issuance:May 7, 2020. Court Reporter/Transcriber Lisa A. Moreira, RDR, CRR, Telephone number (202) 354-3187, Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 5/28/2020. Redacted Transcript Deadline set for 6/7/2020. Release of Transcript Restriction set for 8/5/2020.(Moreira, Lisa) (Entered: 05/07/2020)

05/07/2020

NOTICE OF CORRECTED DOCKET ENTRY: re 24 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Lynly S. Egyes, Filing fee $ 100, receipt number ADCDC-7101013. Fee Status: Fee Paid. was entered in error. Per counsel, the pleading is docket entry no. 25 . (ztd) (Entered: 05/08/2020)

05/11/2020

28 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Text of Proposed Order)(Kelley, Matthew) (Entered: 05/11/2020)

05/11/2020

30 MOTION for Joinder of Petitioners by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H. (Attachments: # 1 Text of Proposed Order)(Kelley, Matthew) (Entered: 05/11/2020)

05/11/2020

31 RESPONSE TO ORDER OF THE COURT re Order,,, Supplement to TRO Record filed by WILLIAM BARR, CHAD WOLF. (Tepe, Sean) (Entered: 05/11/2020)

05/11/2020 32 Memorandum in opposition to re 21 MOTION to Certify Class filed by WILLIAM BARR, CHAD WOLF. (Tepe, Sean) (Entered: 05/11/2020)

05/11/2020

33 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILLIAM BARR, CHAD WOLF (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration of Acosta, Supplemental, # 2 Exhibit to Suppl Acosta Decl, # 3 Declaration of Davies, Supplemental, # 4 Exhibit to Suppl Davies Decl, # 5 Declaration of Cantrell, Supplemental with Exhibits, # 6 Declaration of Ciliberti, Supplemental, # 7 Exhibit to Suppl Ciliberti Decl, # 8 Declaration of Hodges, Supplemental, # 9 Declaration of Lederman, Supplemental, # 10 Declaration of Malakhova, Supplemental, # 11 Declaration of Cantu, # 12 Exhibit to Cantu Decl)(Tepe, Sean) (Entered: 05/11/2020)

05/12/2020

MINUTE ORDER: Defendants shall file their Opposition to Plaintiffs' 30 Motion for Joinder on or before Thursday, May 14, 2020 at 5:00 PM. Plaintiffs' Reply is due on Monday, May 18, 2020 at 5:00 PM. Signed by Judge Christopher R. Cooper on 5/12/20. (lccrc1) (Entered: 05/12/2020)

05/12/2020

34 SEALED DOCUMENT (ERRATA) re 28 filed by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H. (This document is SEALED and only available to

authorized persons.) (Attachments: # 1 Exhibit Corrected Exhibit 4, # 2 Exhibit Corrected Exhibit 6)(Kelley, Matthew) Modified on 5/13/2020 (ztd). Modified to add link on 5/14/2020 (znmw). (Entered: 05/12/2020)

05/12/2020

Set/Reset Deadlines: Responses due by 5/14/2020 and Replies due by 5/18/2020. (lsj) (Entered: 05/13/2020)

05/13/2020

35 REPLY to opposition to motion re 21 MOTION to Certify Class filed by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H.. (Kelley, Matthew) (Entered: 05/13/2020)

05/14/2020

36 RESPONSE re 31 Response to Order of the Court filed by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H.. (Attachments: # 1 Exhibit 1 Fraihat Joint Statement)(Kelley, Matthew) (Entered: 05/14/2020)

05/14/2020

37 NOTICE OF SUPPLEMENTAL AUTHORITY by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H. (Attachments: # 1 Exhibit 1 Savino v. Souza)(Kelley, Matthew) (Entered: 05/14/2020)

05/14/2020 38 Memorandum in opposition to re 30 MOTION for Joinder of Petitioners filed by WILLIAM BARR, CHAD WOLF. (Tepe, Sean) (Entered: 05/14/2020)

05/15/2020 39 REPLY re 31 , 36 Response to Document filed by WILLIAM BARR, CHAD WOLF. (Tepe, Sean) Modified on 5/18/2020 (ztd). (Entered: 05/15/2020)

05/18/2020

40 REPLY to opposition to motion re 30 MOTION for Joinder of Petitioners filed by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H.. (Kelley, Matthew) (Entered: 05/18/2020)

05/20/2020

ENTERED IN ERROR (DISREGARD).....NOTICE OF CORRECTED DOCKET ENTRY: Docket Entry 25 Notice of Appearance- Pro Bono was entered in error; counsel is instructed to refile with certification that the appearance is pro bono and without compensation, pursuant to Local Rule 83.2(g). (znmw) Modified on 5/20/2020 (znmw). (Entered: 05/20/2020)

06/02/2020

41 ORDER denying 4 Plaintiffs' Motion for TRO, 21 Plaintiffs' Motion to Certify Class, and 30 Plaintiffs' Motion for Joinder and requiring the Government to provide updated declarations by June 10, 2020. See full Order for details. 4 Plaintiffs' Motion for Hearing was GRANTED with

the May 6, 2020 hearing. Signed by Judge Christopher R. Cooper on 6/2/20. (lccrc2) (Entered: 06/02/2020)

06/02/2020

42 MEMORANDUM OPINION re: 41 Order. See full Opinion and accompanying Order for details. Signed by Judge Christopher R. Cooper on 6/2/20. (lccrc2) (Entered: 06/02/2020)

06/03/2020

Set/Reset Deadlines: Government's Declarations due by 6/10/2020. (lsj) (Entered: 06/03/2020)

06/04/2020

MINUTE ORDER granting 28 Sealed Motion for Leave to File Document Under Seal; granting 33 Sealed Motion for Leave to File Document Under Seal: It is ORDERED that Exhibits 1-2 to Plaintiffs' 28 Motion to be Joined, Exhibits 3-9 to Plaintiffs' 28 Supplemental Declarations, and Exhibits 1-12 to the Government's 33 Supplemental Declarations shall be sealed. The parties shall propose redacted versions of the documents within one week of this Order. Signed by Judge Christopher R. Cooper on 6/4/20. (lccrc1) (Entered: 06/04/2020)

06/04/2020

Set/Reset Deadlines: Redacted documents due by 6/11/2020. (lsj) (Entered: 06/04/2020)

06/04/2020

43 SEALED DOCUMENT (Exhibits 1-2) filed by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H.. re 30 MOTION for Joinder of Petitioners filed by M.M.S-M., A.F., K.S., R.H., D.B.M.U., M.J.J., G.P., C.G.B., K.R.H., K.M., M.R.P., L.M., L.R.A.P.. (This document is SEALED and only available to authorized persons.)(ztd) (Additional attachment(s) added on 6/5/2020: # 1 Exhibit 3-9) (ztd). (Main Document 43 replaced on 6/11/2020) (ztd). Modified to correct filing on 6/11/2020 (ztd). (Entered: 06/05/2020)

06/04/2020

44 SEALED DOCUMENT filed by WILLIAM BARR. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit Exhibit to Suppl Acosta Decl, # 2 Declaration Davies, # 3 Exhibit Exhibit to Suppl Davies Decl, # 4 Declaration Cantrell, # 5 Declaration Declaration of Ciliberti, Supplemental, # 6 Exhibit Exhibit to Suppl Ciliberti Decl, # 7 Declaration Declaration of Hodges, Supplemental, # 8 Declaration Declaration of Lederman, Supplemental, # 9 Declaration Declaration of Malakhova, Supplemental, # 10 Declaration Cantu, # 11 Exhibit Cantu)(ztd) (Entered: 06/05/2020)

06/10/2020

45 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by WILLIAM BARR, CHAD WOLF (This document is SEALED and only available to authorized persons.) (Attachments: # 1 2d Supp. Cantrell Decl., # 2 2d Supp. Cantu Decl., # 3 2d Supp.

Ciliberti Decl., # 4 2d Supp. Davies Decl., # 5 2d Supp. Acosta Decl.)(Tepe, Sean) (Entered: 06/10/2020)

06/11/2020

46 NOTICE of Filing Redacted Exhibits by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H. re 29 Sealed Document, (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Kelley, Matthew) (Entered: 06/11/2020)

06/26/2020

MINUTE ORDER: Upon review of the Government's 45 supplemental declarations and exhibits regarding the conditions at the detention centers where the named Plaintiffs are held, the Court concludes that further updated reports from the Government are unnecessary at this time. The Court ORDERS the Government to file an answer or otherwise respond to Plaintiffs' complaint by July 10, 2020. Signed by Judge Christopher R. Cooper on 6/26/20. (lccrc1) (Entered: 06/26/2020)

06/26/2020

MINUTE ORDER granting 45 Sealed Motion for Leave to File Documents Under Seal: Exhibits 1-5 to the Government's 45 Supplemental Declarations shall be sealed. The Government shall propose redacted versions of the documents within one week of this Order. As stated in the Court's June 4, 2020 Minute Order, the Government is further directed to propose redacted versions Exhibits 1-12 to the Government's 33 Supplemental Declarations within one week of this Order. Signed by Judge Christopher R. Cooper on 6/26/20. (lccrc1) (Entered: 06/26/2020)

06/26/2020

Set/Reset Deadlines: Answer due by 7/10/2020 (lsj) (Entered: 06/26/2020)

06/26/2020

49 SEALED DOCUMENT (Main document 2d Supp. Cantrell Decl) filed by WILLIAM BARR, CHAD WOLF. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Declaration 2d Supp. Cantu Decl, # 2 Declaration 2d Supp. Ciliberti Decl., # 3 Declaration 2d Supp. Davies Decl, # 4 Declaration 2d Supp. Acosta Decl)(ztd) (Entered: 06/29/2020)

06/29/2020

47 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/15/2020. Answer due for ALL FEDERAL DEFENDANTS by 8/14/2020. (Kelley, Matthew) (Entered: 06/29/2020)

06/29/2020

48 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 06/19/2020. (Kelley, Matthew) (Entered: 06/29/2020)

07/06/2020 50 NOTICE of Filing Public Versions of Declarations by WILLIAM BARR, CHAD WOLF (Tepe, Sean) (Entered: 07/06/2020)

07/06/2020

51 NOTICE of FIling Public Versions of Declarations by WILLIAM BARR, CHAD WOLF (Attachments: # 1 Acosta Supplemental Decl, # 2 Cantrell Supplemental Decl, # 3 Ciliberti Supplemental Decl, # 4 Davies Supplemental Decl, # 5 Cantu Supplemental Decl, # 6 Hodges Supplemental Decl, # 7 Lederman Supplemental Decl, # 8 Malahkova Supplemental Decl, # 9 Acosta Second Supp Decl, # 10 Cantrell Second Supp Decl, # 11 Cantu Second Supp Decl, # 12 Ciliberti Second Supp Decl, # 13 Davies Second Supp Decl)(Tepe, Sean) (Entered: 07/06/2020)

07/07/2020

52 Unopposed MOTION for Extension of Time to Respond to Complaint by WILLIAM BARR, CHAD WOLF (Tepe, Sean) Modified event on 7/7/2020 (ztd). (Entered: 07/07/2020)

07/07/2020

53 MOTION to Expedite Discovery by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H. (Attachments: # 1 Text of Proposed Order)(Kelley, Matthew) Modified text on 7/8/2020 (ztd). (Entered: 07/07/2020)

07/07/2020

54 SEALED MOTION FOR LEAVE TO FILE DOCUMENT UNDER SEAL filed by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H. (This document is SEALED and only available to authorized persons.) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Kelley, Matthew) (Entered: 07/07/2020)

07/08/2020

MINUTE ORDER granting 52 Motion for Extension of Time to File Response: The deadline for Defendants to respond to Plaintiffs' Complaint is extended to July 31, 2020. Signed by Judge Christopher R. Cooper on 7/8/20. (lccrc1) (Entered: 07/08/2020)

07/21/2020 55 Memorandum in opposition to re 53 MOTION for Discovery filed by WILLIAM BARR, CHAD WOLF. (Attachments: # 1 Declaration of Acosta, # 2 Declaration of Davies)(Tepe, Sean) (Entered: 07/21/2020)

07/28/2020

56 REPLY to opposition to motion re 53 MOTION for Discovery filed by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H.. (Kelley, Matthew) (Entered: 07/28/2020)

07/31/2020 57 MOTION to Dismiss by WILLIAM BARR, CHAD F. WOLF (Attachments: # 1 Supp Bourne Decl)(Tepe, Sean) (Entered: 07/31/2020)

08/12/2020 58 ORDER denying 53 Plaintiffs' Motion for Expedited Discovery. See full Order for details. Signed by Judge Christopher R. Cooper on 8/12/20. (lccrc1) (Entered: 08/12/2020)

08/14/2020 59 AMENDED COMPLAINT against All Defendants filed by M.R.P., K.M., K.R.H., A.F., L.R.A.P., K.S., M.J.J., L.M., C.G.B., R.H., D.B.M.U., G.P., M.M.S-M..(Kelley, Matthew) (Entered: 08/14/2020)

08/18/2020

MINUTE ORDER denying as moot 57 Motion to Dismiss: The government's 57 motion to dismiss is DENIED as moot in light of the filing of the 59 amended complaint. It is further ORDERED that the government shall respond to the amended complaint by September 18, 2020. It is further ORDERED that Plaintiffs shall file a redlined version of their amended complaint, indicating the changes made to the original complaint by August 20, 2020. SO ORDERED. Signed by Judge Christopher R. Cooper on 8/18/20. (lccrc1) (Entered: 08/18/2020)

08/18/2020

Set/Reset Deadlines: Amended Pleadings due by 8/20/2020. Answer to Amended Complain due by 9/18/2020. (lsj) (Entered: 08/18/2020)

08/19/2020

60 RESPONSE TO ORDER OF THE COURT re Order on Motion to Dismiss,, Redlined Version of Amended Complaint filed by K.M., K.R.H., K.S.. (Kelley, Matthew) (Entered: 08/19/2020)

09/18/2020 61 MOTION to Dismiss Amended Complaint by WILLIAM BARR, CHAD F. WOLF (Attachments: # 1 Text of Proposed Order)(Tepe, Sean) (Entered: 09/18/2020)

09/25/2020

62 Unopposed MOTION for Extension of Time to File Response/Reply as to 61 MOTION to Dismiss Amended Complaint by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H. (Attachments: # 1 Text of Proposed Order)(Kelley, Matthew) (Entered: 09/25/2020)

09/30/2020

MINUTE ORDER granting 62 Motion for Extension of Time to Respond to Motion to Dismiss. It is hereby ORDERED that Petitioners shall respond to the Motion to Dismiss by October 9, 2020. Signed by Judge Christopher R. Cooper on 9/30/2020. (lccrc1) (Entered: 09/30/2020)

10/09/2020

63 Memorandum in opposition to re 61 MOTION to Dismiss Amended Complaint filed by K.M., K.R.H., K.S.. (Kelley, Matthew) (Entered: 10/09/2020)

10/16/2020 64 REPLY to opposition to motion re 61 MOTION to Dismiss Amended Complaint filed by WILLIAM BARR, CHAD F. WOLF. (Tepe, Sean) (Entered: 10/16/2020)

01/05/2021

65 STIPULATION of Dismissal by A.F., C.G.B., D.B.M.U., G.P., K.M., K.R.H., K.S., L.M., L.R.A.P., M.J.J., M.M.S-M., M.R.P., R.H.. (Attachments: # 1 Text of Proposed Order)(Kelley, Matthew) (Entered: 01/05/2021)

01/06/2021

MINUTE ORDER: Based upon consideration of the parties' stipulation of dismissal, it is hereby ORDERED that this action is DISMISSED. Signed by Judge Christopher R. Cooper on 1/6/2021. (lccrc1) (Entered: 01/06/2021)

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 Case 1:20-cv-01072-CRC Document 1 Filed 04/23/20 Page 1 of 5

IN UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

C.G.B., f/k/a D.G.B.; A.F., f/k/a O.E.R.F.;

)

Case: 1:20−cv−01072 Assigned To : Cooper, Christopher R. Assign. Date : 4/23/2020

M.M.S-M., f/k/a A.H.S-M.; L.R.A.P., f/k/a E.A.P.; ) Case No. Description: TRO/PI (D−DECK)

K.S., f/k/a J.H.S.; K.M., f/k/a G.M.;

)

R.H., f/k/a F.A.H.; L.M., f/k/a S.M.; M.J.J., f/k/a ) MOTION FOR LEAVE TO FILE

O.H.J.; D.B.M.U., f/k/a W.E.M.U.; K.R.H., f/k/a ) UNDER PSEUDONYMS

W.D.R.H.; G.P., f/k/a O.A.P.; and M.R.P., f/k/a )

J.N.R.P.,

)

)

Petitioners,

)

)

v.

)

)

Chad WOLF, in his official capacity as the acting )

Secretary of the U.S. Department of Homeland )

Security; and

)

)

William BARR, in his official capacity as the

)

Attorney General of the United States,

)

)

)

Respondents.

)

)

MOTION FOR LEAVE TO FILE UNDER PSEUDONYMS

Petitioners in the above-captioned matter hereby respectfully request leave of Court to

file this action under pseudonyms pursuant to the legal standards articulated in United States v.

Microsoft Corp., 56 F. 3d 1448 (D.C. Cir. 1995). A proposed order is attached hereto.

Petitioners are thirteen asylum-seeking transgender women who are being held at various

immigration detention centers in the United States. Petitioners are detained in the legal custody

of the Department of Homeland Security, which seeks to deport them. Most Petitioners are

currently in the asylum process, yet each fears persecution, death or torture should they be

returned to their countries of origin.

RECEIVED
APR 23 2020
Clerk, U.S. District & Bankruptcy Court for the District of Columbia

Case 1:20-cv-01072-CRC Document 1 Filed 04/23/20 Page 2 of 5
In the usual case, Federal Rule of Civil Procedure 10(a) requires that a complaint state all of the names of the parties. Fed. R. Civ. P. 10(a); see Doe v. George Wash. Univ., 369 F. Supp. 3d 49, 62 (D.D.C. 2019) (“Disclosure of the parties’ identities furthers the public interest in knowing the facts surrounding judicial proceedings.”) (internal citation omitted). Despite this general requirement, courts have the discretion to allow parties to proceed pseudonymously in the “critical” or the “unusual” case, including those in which “identification creates a risk of retaliatory physical or mental harm,” and those in which “anonymity is necessary to preserve privacy in a matter of [a] sensitive and highly personal nature.” See Qualls v. Rumsfeld, 228 F.R.D. 8, 10-11 (D.D.C. 2005). “[I]t is within the discretion of the district court to grant the ‘rare dispensation’ of anonymity.” United States v. Microsoft Corp., 56 F.3d at 1464 (quoting James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993)). In exercising this discretion, the Court has “a judicial duty to inquire into the circumstances of particular cases to determine whether the dispensation is warranted.” Id. “As part of this inquiry, the court should take into account the risk of unfairness to the opposing party, as well the customary and constitutionally-embedded presumption of openness in judicial proceedings.” Id. (internal quotation marks omitted).
In I.A. v. Barr, this Court recently granted plaintiff asylum seekers leave to proceed using pseudonyms. No. 1:19-cv-2530, 2019 U.S. Dist. LEXIS 142234 (D.D.C. Aug. 21, 2019). In so holding, the Court found “[t]hese allegations are sensitive and highly personal in nature, and identifying the individuals making them could place them and their families at risk of further harm. The public’s interest in judicial transparency, though substantial, is outweighed by the acute privacy interests and safety concerns implicated here.” Id. at *8. The same reasoning applies here with additional force as Petitioners here have disclosed sensitive details of their medical histories and current medical treatments in connection with their claims.
2

Case 1:20-cv-01072-CRC Document 1 Filed 04/23/20 Page 3 of 5
Petitioners easily meet the burden to demonstrate a legitimate basis for proceeding under pseudonym by demonstrating both that identification creates a risk of retaliatory physical or mental harm, and that “anonymity is necessary to preserve privacy in matters of a sensitive and highly personal nature.” See Doe v. U.S. Dep’t of State, Civ. Action No. 1:15-01971, 2015 U.S. Dist. LEXIS 173937, at *5-6 (D.D.C. Nov. 3, 2015). Petitioners are transgender women seeking the protection of the United States from persecution and torture (in the form of asylum, withholding of removal and relief under the Convention Against Torture). The federal government protects the confidentiality of asylum-seekers by regulation. See 8 C.F.R. § 208.6. According to the U.S. Citizenship and Immigration Services Asylum Confidentiality Fact Sheet, attached as Exhibit A, the reason for that protection is as follows:
Public disclosure of asylum-related information may subject the claimant to retaliatory measures by government authorities or non-state actors in the event that the claimant is repatriated, or endanger the security of the claimant’s family members who may still be residing in the country of origin. Moreover, public disclosure might, albeit in some limited circumstances, give rise to a plausible protection claim where one would not otherwise exist by bringing an otherwise ineligible claimant to the attention of the government authority or non-state actor against which the claimant has made allegations of mistreatment. Because refugee applicants face similar negative consequences when their information is disclosed to a third party, as a matter of policy, USCIS extends the same protections outlined in 8 C.F.R. § 208.6 to refugees.
As such, revealing the names of the Petitioners will subject them to the prospect of serious retaliatory harm should Petitioners be subjected to removal from this country. They are persons who have left countries suffering tremendous violence, who are seeking protection in the United States. For example, one petitioner was terrorized by a gang and subjected to beatings and rape on multiple occasions. Another was detained and tortured for participating in a transgender rights group. Petitioners are immigrants from countries where their status as
3

Case 1:20-cv-01072-CRC Document 1 Filed 04/23/20 Page 4 of 5
transgender women puts them at risk. Revealing their identities could subject Petitioners and their families to significant danger here and in their home countries if they are removed.
Additionally, Petitioners set forth sensitive personal information about their medical histories and medical conditions, including information such as whether they are receiving hormone treatment, whether they are HIV-positive, and whether they have been tested for COVID-19. This is information in which petitioners justifiably have a privacy interest.
There is no unfairness to the opposing parties, the government Defendants, in allowing the Petitioners to proceed under pseudonyms – their own policies and regulations support confidentiality. Further, Petitioners are willing to proceed under seal while revealing their names to the government Defendants. Petitioners’ interests in proceeding anonymously outweigh the public’s right to access judicial proceedings using the balancing test set out in United States v. Microsoft Corp., 56 F.3d at 1464.
Accordingly, Petitioners, through counsel, request the ability to prosecute this action while maintaining confidentiality of their identities. As transgender immigrants who have been subjected to violence in their home countries and are seeking asylum in the United States, Petitioners are especially vulnerable and require confidentiality of identity to protect them from further trauma, harm or humiliation.
4

Case 1:20-cv-01072-CRC Document 1 Filed 04/23/20 Page 5 of 5

WHEREFORE, Petitioners move this Honorable Court to for leave to proceed under pseudonyms.

April 23, 2020

Respectfully submitted,

/s/ Matthew E. Kelley Matthew E. Kelly (Bar No. 1018126)

Gregory P. Copeland (D.D.C. Bar # NY0311) Sarah T. Gillman (D.D.C. Bar # NY0316) RAPID DEFENSE NETWORK 11 Broadway, Suite 615 New York, NY 10004-1490 Phone: (212) 843-0910 Fax: (212) 257-7033 Email: gregory@defensenetwork.org
Lynly S. Egyes** Transgender Law Center PO Box 70976 Oakland, CA 94612-0976 Telephone: (973) 454-6325 Facsimile: (917) 677-6614 lynly@transgenderlawcenter.org

Matthew E. Kelley (Bar. No. 1018126) Leslie E. John ** Elizabeth Weissert ** Alex Levy ** BALLARD SPAHR LLP 1909 K Street, NW - 12th Floor Telephone: (202) 661-2200 Facsimile: (202) 661-6299 Email: kelleym@ballardspahr.com Email: johnl@ballardspahr.com Email: weisserte@ballardspahr.com Email: levya@ballardspahr.com

Attorneys for Petitioners ** Application for admission pro hac vice forthcoming

5

Case 1:20-cv-01072-CRC Document 1-1 Filed 04/23/20 Page 1 of 8
Exhibit A

Case 1:20-cv-01072-CRC Document 1-1 Filed 04/23/20 Page 2 of 8
Prepared by the USCIS Asylum Division Date: October 18, 20 12
Fact Sheet: Federal Regulation Protecting the Confidentiality of Asylum Applicants
Synopsis The federal regulation at 8 CFR 208.6 generally prohibit the disclosure to third parties of
infonnation contained in or pertaining to asylum applications, credible fear detenninations, and reasonable fear detenninations-including infonnation contained in RAPS or APSS1-except under certain limited circumstances. This regulation safeguards infonnation that, if disclosed publicly, could subject the claimant to retaliatory measures by government authorities or nonstate actors in the event that the claimant is repatriated, or endanger the security of the claimant's family members who may still be residing in the country of origin. Moreover, public disclosure might, albeit in rare circumstances2, give rise to a plausible protection claim where one would not otherwise exist by bringing an otherwise ineligible claimant to the attention of the government authority or non-state actor against which the claimant has made allegations of mistreatment.
According to established guidance, confidentiality is breached when infonnation contained in or pertaining to an asylum application (including infonnation contained in RAPS or APSS) is disclosed to a third party in violation of the regulation, and the unauthorized disclosure is of a nature that allows the third party to link the identity of the applicant to: (1) the fact that the applicant has applied for asylum; (2) specific facts or allegations pertaining to the individual asylum claim contained in an asylum application; or (3) facts or allegations that are sufficient to give rise to a reasonable inference that the applicant has applied for asylum. The same principles generally govern the disclosure of infonnation related to credible fear and reasonable fear detenninations, as well as to applications for withholding or deferral of removal under Article 3 of the Convention Against Torture, which are included in the asylum application.
In the absence of the asylum applicant's written consent or the Secretary of Homeland Security's3 specific authorization, disclosure may be made only to United States government officials or contractors and United States federal or state courts on a need to know basis related to certain administrative, law enforcement, and civil actions. In some instances, interagency arrangements have been established to facilitate the proper disclosure of asylum-related infonnation to United States agencies pursuant to the regulation. The release of infonnation relating to an asylum application, credible fear detennination, or reasonable fear detennination to an official of another government or to any entity for purposes not specifically authorized by the
'RAPS is the system for maintenance of records concerning aliens who affirmatively seek asylum by applying for the benefit with USCIS. APSS is the system for maintenance of records concerning aliens referred to a USCIS asylum officer for a credible fear or reasonable fear screening determination after having expressed a fear of return to the intended country of removal because of persecution or torture during the expedited removal process under INA sec. 23S(b) or administrative removal processes under INA sec. 238(b) or INA sec. 24l(a)(5). 2 Public disclosure alone will rarely be sufficient to establish sur place protection claims under U.S. asylum laws. The applicant would have to establish, in light of this disclosure, that he or she has a well-founded fear of r,ersecution on account of one ofthe protected grounds. By operation of section 1512(d) of the Homeland Security Act of2002, Pub. L. 107-296, 116 Stat. 2135, 2310, the Attorney General's authority under 8 C.F.R. § 208.6(a) to authorize disclosure of confidential asylum information held by the former Immigration and Naturalization Service (INS)-and now held by the Department of Homeland Security (DHS)-was transferred to the Secretary of DHS.

Case 1:20-cv-01072-CRC Document 1-1 Filed 04/23/20 Page 3 of 8
Prepared by the USCIS Asylum Division Date: October 18,2012
regulation without the written consent of the claimant requires the express permission of the Secretary of Homeland Security.
Code of Federal Regulations, Title 8 Sec. 208.6 Disclosure to third parties.
(a) Information contained in or pertaining to any asylum application, records pertaining to any credible fear determination conducted pursuant to § 208.30, and records pertaining to any reasonable fear determination conducted pursuant to § 208.31, shall not be disclosed without the written consent of the applicant, except as permitted by this section or at the discretion of the Attorney General [now the Secretary ofDHS].
(b) The confidentiality of other records kept by the [Immigration and Naturalization] Service [now DHS] and the Executive Office for Immigration Review that indicate that a specific alien has applied for asylum, received a credible fear or reasonable fear interview, or received a credible fear or reasonable fear review shall also be protected from disclosure. The Service [now DHS] will coordinate with the Department of State to ensure that the confidentiality of those records is maintained if they are transmitted to Department of State offices in other countries.
(c) This section shall not apply to any disclosure to: (1) Any United States Government official or contractor having a need to examine information in connection with: (i) The adjudication of asylum applications; (ii) The consideration of a request for a credible fear or reasonable fear interview, or a credible fear or reasonable fear review; (iii) The defense of any legal action arising from the adjudication of, or failure to adjudicate, the asylum application, or from a credible fear determination or reasonable fear determination under § 208.30 or § 208.31; (iv) The defense of any legal action of which the asylum application, credible fear determination, or reasonable fear determination is a part; or (v) Any United States Government investigation concerning any criminal or civil matter; or (2) Any Federal, State, or local court in the United States considering any legal action: (i) Arising from the adjudication of, or failure to adjudicate, the asylum application, or from a credible fear or reasonable fear determination under § 208.30 or § 208.31; or (ii) Arising from the proceedings of which the asylum application, credible fear determination, or reasonable fear determination is a part.
Frequently Asked Questions
1. Q: Why does the regulation protect asylum-related information from disclosure?
A: Public disclosure of asylum-related information may subject the claimant to retaliatory measures by government authorities or non-state actors in the event that the claimant is repatriated, or endanger the security of the claimant's family members who may still be residing in the country of origin. Moreover, public disclosure might, albeit in some limited circumstances, give rise to a plausible protection claim where one would not otherwise exist by bringing an otherwise ineligible claimant to the attention of the government authority or non-state actor against which the claimant has made allegations of mistreatment. Because refugee applicants face similar negative consequences when their information is disclosed to
2

Case 1:20-cv-01072-CRC Document 1-1 Filed 04/23/20 Page 4 of 8
Prepared by the USCIS Asylum Division Date: October 18, 2012
a third party, as a matter of policy, USCIS extends the same protections outlined in 8 CFR 208.6 to refugees.
2. Q: Under what specific circumstances can asylum-related information be disclosed to third parties?
A: In general, asylum-related information must not be shared with third parties without the asylum applicant's written consent or the Secretary of Homeland Security's specific authorization. However, this general prohibition does not apply to the following limited circumstances as established by the regulation at 8 CFR 208.6:
(I) Any United States Government official or contractor having a need to examine information in connection with:
(i) The adjudication of asylum applications; (ii) The consideration of a request for a credible fear or reasonable fear interview, or a credible fear or reasonable fear review; (iii) The defense of any legal action arising from the adjudication of, or failure to adjudicate, the asylum application, or from a credible fear determination or reasonable fear determination under § 208.30 or § 208.31; (iv) The defense of any legal action of which the asylum application, credible fear determination, or reasonable fear determination is a part; or (v) Any United States Government investigation concerning any criminal or civil matter; or (2) Any Federal, State, or local court in the United States considering any legal action: (i) Arising from the adjudication of, or failure to adjudicate, the asylum application, or from a credible fear or reasonable fear determination under § 208.30 or § 208.31; or (ii) Arising from the proceedings of which the asylum application, credible fear determination, or reasonable fear determination is a part."
3. Q: To what extent may asylum-related information be disclosed to personnel within the Department of Homeland Security (DHS), such as Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) personnel?
A: Asylum-related information may be disclosed to ICE and CBP personnel, as they are not considered "third parties" for the purposes of 8 CFR 208.6. Protected asylum-related information may also be disclosed to offices within the direct policy and legal chains of command of DHS, such as DHS Office of General Counsel, the Office of the Undersecretary for Border and Transportation Security (BTS), the Office of the Deputy Secretary, and the Office of the Secretary.
4. Q: If none of the regulatory exceptions applies, what information about an asylum applicant, if any, may be shared with third parties without breaching confidentiality?
A: According to established guidance, confidentiality is breached when information contained in or pertaining to an asylum application is disclosed to a third party in violation of the regulation, and the unauthorized disclosure is of a nature that allows the third party to link the identity ofthe applicant to: (1) the fact that the applicant has applied for asylum; (2)
3

Case 1:20-cv-01072-CRC Document 1-1 Filed 04/23/20 Page 5 of 8
Prepared by the USCIS Asylum Division Date: October 18, 2012
specific facts or allegations pertaining to the individual asylum claim contained in an asylum application; or (3) facts or allegations that are sufficient to give rise to a reasonable inference that the applicant has applied for asylum. The same principles govern the disclosure of information related to credible fear and reasonable fear determinations. They also generally apply to applications for withholding or deferral of removal under Article 3 of the Convention Against Torture, which are included in the asylum application.
5. Q: Under the regulation's exceptions, can asylum-related information be disclosed to state law enforcement agencies or other state agencies?
A: No. The confidentiality regulation does not allow disclosure of asylum-related information to state agencies, including state law enforcement agencies, except with the asylum applicant's written consent or the Secretary of Homeland Security's specific authorization. The regulation at 208.6(c)(2) do, however, allow for disclosure to state or local courts under certain circumstances.
6. Q: Under the regulation, how can a United States Government official or contractor, who is seeking asylum-related information and to whom asylum-related information may be disclosed, obtain that information from the United States Citizenship and Immigration Services (USCIS)?
A: Unless there is a pre-existing interagency arrangement or protocol, government officials or contractors should request asylum-related information about specific aliens directly from the appropriate USCIS Asylum Office Director with jurisdiction over the alien's application. Requests for asylum-related information concerning groups of aliens that match certain identified criteria must be made to the Chief of the Asylum Division of USCIS by the appropriate official in the requesting agency.
7. Q: If asylum-related information is properly disclosed to a third party pursuant to the regulation, what is the third party's obligation with respect to confidentiality?
A: As the new custodian of the asylum-related information, the third-party recipient is bound by the confidentiality regulation under 8 CFR 208.6. The recipient must not disclose the asylum-related information to other parties, except as authorized by the regulation.
8. Q: What are the obligations of U.S. government officials or contractors who work with or are responsible for maintaining asylum-related information in U.S. government systems?
A: U.S. government officials or contractors who encounter asylum-related information in their work are bound by the confidentiality regulation under 8 CFR 208.6. These personnel must not disclose the asylum-related information to third parties, except as authorized by the regulation. When making an authorized disclosure of asylum-related information to a third party, these personnel should alert the third party to the confidentiality requirements of 8 CFR208.6.
4

Case 1:20-cv-01072-CRC Document 1-1 Filed 04/23/20 Page 6 of 8
Prepared by the USCIS Asylum Division Date: October 18, 2012
9. Q: Are non-USCIS custodians of asylum-related information required to obtain authorization from USCIS before disclosing the asylum-related information to another party pursuant to the regulation?
A: No. However, the transmitter of information should take reasonable steps to ensure that the new recipient of information is aware of the confidentiality rules described in this document to prevent unauthorized disclosure by the new recipient. The transmitter may want to provide the new recipient with a copy of this document for that purpose.
10. Q: Is there an interagency arrangement between members of the Intelligence Community and agencies with counterterrorism functions and USCIS concerning the disclosure of asylum-related information?
A: On October 8, 2001, the Attorney General used his discretionary authority under 8 CFR 208.6 to provide the FBI access to asylum applications filed with USCIS for the purpose of gathering foreign counterintelligence or international terrorism information unrelated to pending criminal or civil litigation. This arrangement was superseded in an April 18, 2007, memorandum whereby Secretary of Homeland Security Chertoff exercised his authority under 8 CFR 208.6 to allow disclosure of asylum-related information to any element of the U.S. Intelligence Community or any other federal or state agency having a counterterrorism function, provided that the need to examine the information or the request is made in connection with its authorized intelligence or counterterrorism function or functions and that the information received will be used for the authorized purpose for which it was requested. On August 25, 2011, Secretary Napolitano signed an addendum to the 2007 Memorandum. The addendum expands sharing of asylum-related information to include sharing with any local government agency having a counterterrorism function.
In general, requests for disclosure of asylum-related information shall be made to the DHS Office of Intelligence and Analysis Support Branch (IASB) using the DHS Support Request Form. Requests for asylum information must include a detailed justification directly linking the request to an authorized intelligence or counterterrorism function, as IASB is required to validate requests with the offices of Privacy, Intelligence Oversight, and the General Counsel. The request for asylum information must be approved by an individual with supervisory command from the requesting office.
If the request for disclosure, or pre-emptive disclosure if no request is made, occurs in accordance with the terms and conditions of any applicable standing information-sharing arrangements between DHS and the recipient, disclosure may be made without using the DHS Support Request Form.
I I. Q: Can members of the Intelligence Community and agencies with counterterrorism functions that receive asylum-related information further disseminate it?
A: Under certain limited circumstances, an element of the Intelligence Community or other federal, state or local governmental agency having a counterterrorism function that received asylum or refugee-related information may further disseminate that information, but such
5

Case 1:20-cv-01072-CRC Document 1-1 Filed 04/23/20 Page 7 of 8
Prepared by the USCIS Asylum Division Date: October 18, 2012
further disclosure must be authorized by the Secretary, Deputy Secretary or the Under Secretary for Intelligence and Analysis acting in coordination with the Director, USCIS, the Assistant Secretary, ICE or any other DHS official to whom disclosure authority under section 208.6(a) bas been delegated.
12. Q: Are there any other interagency arrangements?
A: Yes. In 2002, the Attorney General authorized the Asylum Division to disclose to the Office of Refugee Resettlement (ORR) of the Department of Health and Human Services (HHS) biographical information on individuals granted asylum to enable ORR to meet congressional reporting requirements and generate statistical reports used to allocate funding for asylee social benefits. In 2001 the Attorney General authorized the Asylum Division to disclose to HHS certain biographical information on asylees to enable ORR and the Center for Disease Control (CDC) to provide emergency relief to qualified asylees.
13. Q: Can asylum-related information be shared with foreign governments or international organizations (such as INTERPOL)?
A: Asylum-related information cannot be shared with foreign governments or international organizations without the written consent of the asylum applicant, except at the discretion of the Secretary of Homeland Security. Secretary Napolitano bas exercised her discretion to permit regular sharing of asylum-related information with Canada, Australia, the United Kingdom, and New Zealand. Secretary Ridge initially allowed the sharing of asylum-related information with Canada in 2003. The arrangement with Canada is in the form of a Statement ofMutual Understanding on Information Sharing (SMU) and an Asylum Annex to the SMU, which together permit Canada's Department of Citizenship and Immigration Canada (CIC) and USCIS to exchange asylum-related records on both a case-by-case and systematic basis.
Since the signing of the Asylum Annex to the Statement of Mutual Understanding on Information Sharing between the U.S. and Canada in 2003, USCIS and CIC have engaged in a regular exchange of information on asylum claims on a case-by-case basis. More recently, the USCIS Asylum Division bas worked with US-VISIT on sharing information relating to refugee claimants as defined in the agreement under the Five Country Conference (FCC) High Value Data Sharing Protocol (Protocol). Beginning in 2010, the Asylum Division commenced information sharing under the FCC Protocol with Canada, Australia, and the United Kingdom. The Asylum Division commenced information sharing under the FCC Protocol with New Zealand in 2011.
14. Q: Why are there special information-sharing agreements with Canada, Australia, the United Kingdom, and New Zealand?
A: Sharing information on asylum seekers was included as an initiative in the agreement signed by former Attorney General Ashcroft and former Canadian Minister of Citizenship and lmmigration Caplan on December 2, 2001. It was also one of the thirty initiatives included in the Ridge-Manley Smart Border Action Plan. In furtherance of this initiative, the
6

Case 1:20-cv-01072-CRC Document 1-1 Filed 04/23/20 Page 8 of 8
Prepared by the USClS Asylum Division Date: October 18, 2012
United States and Canadian governments entered into a formal arrangement in 2003 that permits USCIS and CIC to systematically share information on individuals seeking asylum in the U.S. or Canada. The subsequent information-sharing agreements with Canada, Australia, the United Kingdom, and New Zealand through the Five Country Conference (FCC) High Value Data Sharing Protocol (Protocol) further strengthen USCIS's capacity to acquire information relevant to asylum adjudications. By gaining access to this key information, USCIS and the immigration authorities in Canada, Australia, the United Kingdom, and New Zealand will enhance their abilities to prevent abuse of the asylum process in their respective countries and to make accurate asylum eligibility determinations, thereby strengthening the integrity of each country's asylum system.
15. Q: What is the status of the implementation of the information-sharing arrangement with Canada?
A: USCIS and CIC have been sharing information on asylum seekers on a case-by-case basis since 2003. As of2010, the USCIS Asylum Division has also worked with US-VISIT to share asylum-related information with Canada under the Five Country Conference (FCC) High Value Data Sharing Protocol (Protocol). The 2011 Beyond the Border agreement between the United States and Canada includes an action plan for enhanced information sharing between the two countries. USCIS and CIC and their technical specialists are working together to develop a fully automated systematic sharing of information to cover all asylum claimants who are subject to biometric collection requirements by 2014.
16. Q: May protected asylum-related information be shared with congressional offices?
A: If the Chairman of a congressional committee with competent jurisdiction submits a written request for protected asylum-related information, the requested information will generally be provided without regard to the regulation. Written requests for asylum-related information by individual Members of Congress or their respective staff members will be considered on a case-by-case basis.
17. Q: What information can be shared with the press when the applicant bas gone public with the asylum claim?
A: Because the regulation currently requires the applicant's written consent, we generally do not recognize implicit waivers of confidentiality, even when the asylum-related information is a matter of public record.
18. Q: Does 8 CFR 208.6 apply to refugee information?
A: As a matter of policy, USCIS extends the same protections outlined in 8 CFR 208.6 to refugees.
If you have any questions regarding these policies, please contact the Asylum Division's Operations Branch Chief at 202.272.1651.
7

 
 Case 1:20-cv-01072-CRC Document 2 Filed 04/23/20 Page 1 of 6
FILED

APR 23 2020

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Clerk, U.S. District & Bankruptcy Court for the District of Columbia

C.G.B., et al. Plaintiffs, v.
CHAD WOLF, et al. Defendants.

Case: 1:20−cv−01072 Assigned To : Cooper, Christopher R. Assign. Date : 4/23/2020 Civil Action No. Description: TRO/PI (D−DECK)
Chief Judge Beryl A. Howell

MEMORANDUM AND ORDER

The plaintiffs in this action,

-seeking transgender women who are

Mot. for Leave

to File Under Pseudonyms

at 1, have moved to proceed under pseudonym in

their instant action seeking

to reasonable protection from the COVID-

1. For the reasons set

forth below, the motion is granted, subject to any further consideration by the United States

District Judge to whom this case is randomly assigned.1

I. BACKGROUND

This action arises out of the current global pandemic and nationwide emergency

caused by COVID-19. Plaintiffs are transgender individuals being held in immigration

2. They

allege that despite federal recog

-

in its facilities. Id. ¶¶ 1 2.
1
.
1

. . motion[s] to file a

Case 1:20-cv-01072-CRC Document 2 Filed 04/23/20 Page 2 of 6

sufficient measures to curb the spread of COVID-

Id. ¶ 2. Furthermore,

a

. . are among the

Id. As such, they s

protocols designed to prevent the transmission of COVID- Id. at 41 42. They have also

II. LEGAL STANDARD

Generally, a complaint must state the names of the parties and address of the plaintiff.

FED. R. CIV. P. 10

LCVR 5.1(c)(1)

n 30

(same requirement as LCvR 5.1(c)(1)). The Federal Rules thus promote a neral public interest in

In re Sealed Case, 931 F.3d 92, 96 (D.C. Cir. 2019) (internal

citations omitted) (quoting Wash. Legal Found.

, 89 F.3d 897, 899

(D.C. Cir. 1996)). Accordingly, parties to a lawsuit must typically openly identify

cipate . . . as individual party plaintiffs must do so United States v. Microsoft Corp., 56 F.3d 1448, 1463 64 (D.C. Cir. 1995) (per curiam) (internal quotation marks and citations omitted).

2

Case 1:20-cv-01072-CRC Document 2 Filed 04/23/20 Page 3 of 6 Nevertheless, courts have, in special circumstances, permitted a party to proceed

anonymity against countervailin

In re Sealed Case, 931 F.3d at

96. When weighing those concerns, five factors, initially drawn from James v. Jacobson, 6

In re Sealed Case, 931 F.3d at 97. These five factors are:
(1) whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of [a] sensitive and highly personal nature; (2) whether identification poses a risk of retaliatory physical or mental harm to the requesting party or[,] even more critically, to innocent non-parties; (3) the ages of the persons whose privacy interests are sought to be protected; (4) whether the action is against a governmental or private party; and relatedly, (5) the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.
Id. (citing James, 6 F.3d at 238).
At the same time, a c
Id.
Id. (quoting Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 189 90 (2d Cir. 2008)).
inquire into the circumstances of particular cases

unfairness to the opposing party, as well the customary and constitutionally-embedded

presumption of openness in j

Microsoft Corp., 56 F.3d at 1464 (quoting

James, 6 F.3d at 238 (other internal citations and quotation marks omitted)).

3

Case 1:20-cv-01072-CRC Document 2 Filed 04/23/20 Page 4 of 6

III. DISCUSSION At this early stage of the litigation, this Court is persuaded that the plaintiffs have met
their burden of showing that their privacy interests outwe

identities is de minimis compared to the significant privacy interests of the plaintiffs,

asylum seekers who fear[] persecution, death or torture should they be returned to their

countries of origin

1.

The first factor courts are instructed to consider when ruling on these kinds of motions

plainly weighs in the plaintiff

Plaintiffs

Sealed Case, 931 F.3d at 97, but to prevent the public airing of their past

Sealed Case, 931 F.3d at 97. The plaintiffs also contend, with respect to the second factor, that entification

. Id.

Id. Not only are they at

and in their home countries. Id. at 4. The danger of revealing their identities is clearly not illusory. Indeed, it was to escape that very threat that plaintiffs sought asylum or other relief from deportation in the first place.2
Allowing the plaintiffs to proceed under pseudonyms will have no impact on any private rights, as the only defendants are government agencies and officers. Nor will allowing

2

is

irrelevant to this motion. Sealed Case, 931 F.3d at 97.

4

Case 1:20-cv-01072-CRC Document 2 Filed 04/23/20 Page 5 of 6
the plaintiffs to proceed pseudonymously prejudice the defendants in any way. The plaintiffs identities are already known to the defendants in connection with their asylum applications. Moreover, the plaintiffs are willing to

Waterfront Em

Chao, 587 F. Supp. 2d 90, 99 (D.D.C. 2008). Indeed, defendants

understand the need to maintain the anonymity of asylum applicants and have therefore

prohibited the disclosure of their identities during the processing of asylum applications. See

8 C.F.R. § 208.6. Finally, any public interest in disclosing the identity of the plaintiffs is

significantly outweighed by privacy interests of the asylum-seekers in this case.

significant interest in maintaining their anonymity at this early stage in the litigation is more than sufficient to overcome any general presumption in favor of open proceedings. See Horowitz v. Peace Corps, 428 F.3d 271, 278 (D.C. Cir. 2005)

Fed. Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989))). IV. CONCLUSION AND ORDER
For the foregoing reasons, it is hereby ORDERED GRANTED, subject to any further consideration by the United States District Judge to whom this case is randomly assigned, and the plaintiffs may proceed herein using the pseudonyms listed in their complaint; and it is further

5

Case 1:20-cv-01072-CRC Document 2 Filed 04/23/20 Page 6 of 6

ORDERED that the defendants are prohibited from publicly disclosing the

identities or any personal identifying information that could lead to the identification of the

plaintiffs by nonparties, except for the purposes of investigating the allegations contained in

the Complaint and for preparing an answer or other dispositive motion in response.

SO ORDERED.

Date: April 23, 2020

__________________________ BERYL A. HOWELL Chief Judge

6

 
 Case 1:20-cv-01072-CRC Document 3 Filed 04/23/20 Page 1 of 44

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

C.G.B., f/k/a D.G.B.; A.F., f/k/a O.E.R.F.;

)

M.M.S-M., f/k/a A.H.S-M.; L.R.A.P., f/k/a E.A.P.; )

K.S., f/k/a J.H.S.; K.M., f/k/a G.M.;

)

Case No.

Case: 1:20−cv−01072 Assigned To : Cooper, Christopher R. Assign. Date : 4/23/2020 Description: TRO/PI (D−DECK)

R.H., f/k/a F.A.H.; L.M., f/k/a S.M.; M.J.J., f/k/a ) EMERGENCY VERIFIED PETITION

O.H.J.; D.B.M.U., f/k/a W.E.M.U.; K.R.H., f/k/a ) FOR A WRIT OF MANDAMUS AND

W.D.R.H.; G.P., f/k/a O.A.P.; and M.R.P., f/k/a ) COMPLAINT FOR DECLARATORY

J.N.R.P.,

) AND INJUNCTIVE RELIEF

)

Petitioners,

)

)

v.

)

)

Chad WOLF, in his official capacity as the acting )

Secretary of the U.S. Department of Homeland )

Security; and

)

Physical Address:

)

Office of the General Counsel

)

U.S. Department of Homeland Security )

Washington, D.C. 20528;

)

)

William BARR, in his official capacity as the

)

Attorney General of the United States,

)

Physical Address:

)

Office of the Attorney General

)

U.S. Department of Justice

)

950 Pennsylvania Avenue, N.W.,

)

Washington, D.C. 20530-0001,

)

)

)

Respondents.

)

)

INTRODUCTION 1. This lawsuit seeks to vindicate the constitutional and statutory rights to reasonable

protection from the COVID-19 pandemic for an especially vulnerable group: transgender people

in civil immigration detention. These people are not being punished for any crime but are being

put at unreasonable and unconstitutional risk of infection, disease and death by the government’s

failure to follow even its own basic safety and health rules.

RECEIVED APR 23 2020
Clerk, U.S. District & Bankruptcy Court for the District of Columbia

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2. Although federal authorities recognize the severe risks posed by outbreaks of the COVID-19 virus in immigration detention centers, Immigration and Customs Enforcement (“ICE”) has done little more than pay lip service to protecting those in its custody. Transgender people in civil immigration detention – many of whom came to this country seeking safety from violence and persecution in their home countries because of their gender identities – are among the most vulnerable during the current pandemic. Petitioners therefore seek the supervised release of all transgender people in immigration detention because ICE has not provided and cannot implement sufficient measures to curb the spread of COVID-19 in its facilities.
3. Since ICE first reported a COVID-19 infection in one of its detention centers on March 19, 2020, outbreaks have spread to at least 32 detention centers across the country. As of April 21, 2020, ICE had publicly reported 285 confirmed cases of COVID-19 in those facilities, including 253 detainees and 32 staff members. At least ten facilities where transgender people in civil immigration detention are housed are experiencing reported outbreaks with 103 detainees and 12 staff members infected.
4. Immigration detention centers are congregate facilities in which detainees live in close proximity. That fact makes them especially dangerous during pandemics such as COVID19, which easily spreads from person to person, both through the air and on commonly used surfaces such as tables and toilets.
5. On April 10, 2020, a month after the World Health Organization declared a global pandemic, ICE finally recognized this problem and issued rules for its detention centers to take some steps designed to reduce the risk of COVID-19 outbreaks, and also required its facilities to follow guidance for detention centers published by the Centers for Disease Control (“CDC”) and
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Prevention. But ICE has systematically failed to provide even these fundamental protections to people in civil immigration detention.
6. ICE’s failures are dramatically illustrated by the experience of Petitioner C.G.B., a transgender woman who is being held at a detention facility in Arizona. The facility placed a newly arrived detainee in the bunk above C.G.B., and he began coughing uncontrollably. But he was not seen by a medical provider for several days, and then he was returned to the general population. Days later, C.G.B. began experiencing symptoms of COVID-19, including vomiting, a fever, and what she described as pain in her bones. C.G.B. was tested for COVID-19 on April 9, 2020, but has not been told what the results of that test were. She is being held in a pod with a dozen other detainees suffering from COVID-19 symptoms, two of whom have confirmed cases of the disease.
7. Transgender people in civil immigration detention report that it is often impossible to practice social distancing – beds and tables are bolted to the floor, forcing detainees to sleep and sit only a few feet from each other, and some detainees are still lining up in large groups for meals as they did before the outbreak. Few guards and staff members wear face masks when interacting with detainees, and some wear no protective equipment at all – including a doctor who performed a physical examination of a transgender woman without even wearing gloves. Most detainees have not been provided face masks; some do not have access to soap and must wash their hands with shampoo. Many detainees must clean their own living spaces without disinfectant. Detainees exhibiting symptoms such as coughing or fever are not always given a medical examination or isolated from the rest of the population.
8. Transgender people in civil immigration detention are particularly susceptible to COVID-19 infection because as a group they are more likely to have underlying medical
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conditions making them vulnerable, such as infection with HIV, diabetes and high blood pressure. Further, transgender people in civil immigration detention have not only suffered the trauma of being discriminated against, persecuted, tortured and raped because of their gender identity, they live with the constant stress of continuing discrimination, harassment and the risk of sexual assault. Such stress lowers their immune systems’ response to infection, meaning transgender detainees are more likely to become infected, become sick, and die from COVID-19.
9. Petitioners have no other avenue to seek relief. ICE has announced that it has completed its release of detainees it determined to be at high risk of infection, yet Petitioners and dozens, if not hundreds, of other transgender people remain in ICE custody as outbreaks inside immigration detention centers rapidly worsen. Absent this Court’s intervention, Petitioners and all other transgender people in civil immigration detention will continue to be at an unreasonably high risk of falling victim to this deadly virus.
10. ICE’s failures have made detention centers death traps for transgender people in civil immigration detention. That situation violates Petitioners’ Fifth Amendment due process rights and the Administrative Procedure Act. Therefore, this Court should issue an injunction mandating the release on parole or other supervised release of all transgender people in civil immigration detention so they may take the necessary precautions against COVID-19. The nonprofit organizations and other groups supporting transgender people in civil immigration detention have the resources and plans necessary to support all of the transgender people in civil immigration detention in release.
PARTIES 11. Petitioner C.G. B., f/k/a D.G.B., is a citizen of Mexico who has been detained at the Florence Correctional Center (“Florence”) in Florence, Arizona, since January 2020. D.G.B., a transgender woman, is seeking asylum because she fears persecution in Mexico because of her
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transgender status. C.G.B. has experienced COVID-19 symptoms since April 9, 2020, and is being held in quarantine with other detainees who are showing symptoms of the virus. She had a COVID-19 test performed on April 9, 2020, but despite being told she would have results in three days, she has not been told of those test results to date. C.G.B. was being held in a pod with approximately 64 other detainees when, on April 2, 2020, the newly arrived man in the bunk above her began coughing uncontrollably. He was eventually seen by a doctor five days later, but was returned to the general population and the bunk above C.G.B.. She saw nurses and then a doctor after she began vomiting, had a fever, had pain in her throat, head and bones, and began losing hair. She is now housed in a pod with a dozen people experiencing COVID-19 symptoms, two of whom have tested positive for the virus.
12. Petitioner A.F., f/k/a O.E.R.F., is a citizen of Nicaragua who is detained at the La Palma Correctional Center (“La Palma”) in Eloy, Arizona. She has been in ICE custody since January 9, 2020. A.F., a transgender woman, intends to seek asylum because she was detained and tortured for her participation in a transgender rights organization. A doctor at La Palma told A.F. that she is at greater risk for COVID-19 infection because she was born with only one kidney. She is concerned because there is no way to practice social distancing at La Palma; for example, detainees have meals in groups of more than 100 people and cannot maintain a six-foot distance while waiting in line or eating. Guards at La Palma refuse to answer questions about COVID-19, although ICE reports at least 13 confirmed cases of the disease among detainees there. She has not observed guards wearing face masks or gloves while interacting with detainees.
13. Petitioner M.M.S-M., f/k/a A.H.S-M., is a citizen of El Salvador who is detained at the Winn Correctional Center (“Winn”) in Winnfield, La. She has been in ICE custody for
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nearly a year. M.M.S-M., a transgender woman, is seeking asylum because she fears persecution and death in El Salvador because of her transgender status. She has been unable to obtain critical health care, including hormone replacement therapy, while in ICE custody. Because of her fear and anxiety from being housed with 40 cisgender men, M.M.S-M. has been placed in segregation, which is exacerbating her mental health issues. Nurses at Winn do not wear gloves or masks, and neither medical staff nor guards have provided M.M.S-M. with information about COVID-19.
14. Petitioner L.R.A.P., f/k/a E.A.P., is a citizen of Mexico who came to the United States when she was three or four years old. She has been detained at La Palma since December 16, 2019. L.R.A.P., a transgender woman, is seeking asylum because she fears persecution in Mexico because of her transgender status. L.R.A.P. has not received information about COVID19 from the staff at La Palma and was not informed that there are 18 confirmed cases among detainees there. L.R.A.P. is “distressed, stressed, and panicked,” both out of fear of contracting the coronavirus and also because of the harassment she endures from both detainees and staff members, who often use anti-gay and anti-transgender slurs. Social distancing is impossible for her because detainees congregate together and must sit at tables one foot apart. She has not seen any guards wearing face masks or gloves
15. Petitioner K.S., f/k/a J.H.S., is a citizen of Jamaica who is detained at the Nevada Southern Detention Center (“Nevada Southern”) in Pahrump, Nevada. She has been in ICE custody since March 27, 2019. K.S., a transgender woman, is seeking asylum because she has received death threats from her family and fears persecution in Jamaica because of her transgender status. K.S., who is living with HIV, at times has difficulty ensuring that she
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receives her antiretroviral medication as prescribed. Staff at Nevada Southern, including medical staff, do not always wear gloves and masks.
16. Petitioner K.M., f/k/a G.M., is a citizen of Haiti who has been detained at Nevada Southern since March 27, 2019. K.M., a transgender woman, is seeking asylum because she fears persecution and violence in Haiti because of her transgender status. A cousin of hers in Haiti was beheaded because he was gay. Staff at the facility sometimes do not provide K.M., who is living with HIV, with her antiretroviral medication, causing her to miss doses. She has observed other detainees in her pod showing possible COVID-19 symptoms such as coughing and fever; those detainees were sent to medical care but returned to the general population.
17. Petitioner R.H., f/k/a F.A.H., is a citizen of Honduras who is detained at Caroline Detention Facility (“Caroline”) in Bowling Green, Virginia. She has been in ICE custody since January 18, 2020. R.H., a transgender woman, is seeking asylum because she fears persecution in Honduras because of her transgender status. She suffers from asthma, which requires her to use an inhaler three times a day. She also takes medically necessary hormones as part of her gender-affirming care. Upon being detained, her hormones were changed, and she experienced side effects including severe headaches. Because of her asthma, she is at high risk for severe illness or death if she contracts COVID-19. There are 35-40 people in her dorm, and she has experienced some harassment from the people with whom she is detained. These conditions have made it impossible for her to practice social distancing.
18. Petitioner L.M., f/k/a S.M., is a citizen of Jamaica who is detained at the Aurora Detention Center (“Aurora”) in Aurora, Colorado. She has been detained since she presented herself at the San Ysidro Port of Entry on February 17, 2020, seeking asylum because she has experienced beatings, death threats, discrimination and persecution in Jamaica because of her
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status as a transgender woman. At Aurora, it took approximately 3-4 weeks for her to obtain an appointment with a doctor, who resumed her prescribed hormone treatments at one-quarter of her previous dose, and who examined her without wearing gloves or a mask.
19. Petitioner M.J.J., f/k/a O.H.J., is a citizen of Honduras who is detained at Aurora. She has been detained for about one month – originally at El Paso Processing Center (“El Paso”) in El Paso, Texas, then transferred to Florence, and eventually to Aurora. M.J.J., a transgender woman, is seeking asylum because she fears persecution in Honduras because of her transgender status. She is in a dorm with seven other transgender women, five of whom are HIV positive. She does not believe that anyone in the dorm has been tested for COVID-19. She has not been given gloves or masks. The guards at Aurora wear gloves but do not wear masks.
20. Petitioner D.B.M.U., f/k/a W.E.M.U., is a citizen of Honduras who is detained at Aurora. She has been detained for more than a month – originally at El Paso, then transferred to Florence, and eventually to Aurora. D.B.M.U., a transgender woman, is seeking asylum because she fears persecution in Honduras because of her transgender status. She has not been given any information about why she has been transferred. She is detained in a room with seven other transgender women. She heard on the news that there was a confirmed case of COVID-19 at Aurora. She does not have access to any disinfectants, gloves, or masks, and she has not seen anyone at Aurora being tested for COVID-19. She is worried that she will contract COVID-19 and die.
21. Petitioner K.R.H., f/k/a W.D.R.H., is a citizen of Guatemala who has been detained in ICE custody at the La Palma since the beginning of April 2020. K.R.H., a transgender woman, is seeking asylum because she fears persecution based on her LGBTQ+ identity in Guatemala, where she experienced threats and a kidnapping attempt. She suffers from
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tachycardia (an abnormally rapid heartbeat) and anxiety. In early April, K.R.H. suffered a headache and fever, which are potential symptoms of COVID-19, but a nurse at La Palma did not see her until a week later, did not test her for the virus, and did not provide medication for her symptoms. Although as of April 21, 2020, ICE reported 18 detainees at La Palma had been diagnosed with COVID-19, staff members have not notified K.R.H. about the presence of the virus at the facility. She learned of three cases of COVID-19 at La Palma from other detainees who work in the medical area. K.R.H. is housed in a 120-person pod and does not have sufficient space in the pod to stay more than six feet away from other people; the detainees congregate in groups of 20 to 30 to have meals and watch television, and the beds in the twoperson cells do not provide a six-foot distance for sleeping.
22. Petitioner G.P., f/k/a O.A.P., is a citizen of Honduras who has been detained at Imperial Regional Detention Facility (“Imperial”) in Calexico, California for fifteen months. G.P., a transgender woman, is seeking asylum because she fled Honduras due to persecution because of her transgender status. Until recently, she lived in a dorm with 64 people, which makes social distancing impossible. She does not know if anyone at Imperial has contracted COVID-19, but she does not believe that anyone has been tested. She does not have access to gloves or hand sanitizer and was offered a mask only in the past week. She does not feel safe, and she is concerned because there are still new people coming into the Detention Center.
23. Petitioner M.R.P., f/k/a J.N.R.P., is a citizen of El Salvador who has been detained since June 11, 2019. Since February 2020, she has been detained at El Paso. She was previously detained at Cibola and Otero Detention Center (“Otero”) in Chaparral, New Mexico. M.R.P., a transgender woman, is seeking asylum because she fled persecution, torture and death threats in El Salvador because of her transgender status. She has respiratory issues,
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hypothyroidism, Hepatitis A, abnormally high bilirubin, and abnormally high hemoglobin. She has a family history of diabetes, and while she does not have a formal diagnosis, she knows she is at risk of getting diabetes. She sleeps in a barrack with nine cisgender men. The beds in the barrack are only three or four feet apart, so social distancing is impossible. She is afraid that she will become infected with COVID-19 and that she will develop serious medical issues because people with diabetes and respiratory issues are at a higher risk for serious symptoms if they contract COVID-19.
24. Respondent Chad Wolf is the acting secretary of the United States Department of Homeland Security (“DHS”). He is a legal custodian of Petitioners and is sued in his official capacity. Respondent Wolf is charged with the administration and enforcement of the immigration laws of the United States, 8 U.S.C. § 1103(a), and has supervisory authority over Immigration and Customs Enforcement (“ICE”), the Department of Homeland Security (“DHS”) component responsible for the civil detention of immigrants including Petitioners.
25. Respondent William P. Barr is the United States Attorney General. In this capacity, he has supervisory authority over all operation of the Executive Office of Immigration Review (EOIR), which includes all the immigration courts and the Board of Immigration Appeals (BIA). 8 U.S.C.§ 1103(g); 8 C.F.R. § 1003.0. He is also charged with the administration and the enforcement of the immigration laws under 8 U.S.C. § 1103(a). Respondent Barr is a legal custodian of Petitioners. He is sued in his official capacity.
PROPOSED CLASS 26. Petitioners file this action on behalf of a highly vulnerable putative class: all transgender people in civil immigration detention in the United States. 27. On information and belief, transgender people in civil immigration detention are being held in at least the following 17 facilities: Adelanto Detention Center/Adelanto ICE
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Processing Center, Adelanto, California; Aurora Detention Center, Aurora, Colorado; Caroline Detention Facility, Bowling Green, Virginia; Cibola Detention Center/Cibola County Correctional Center, Milan, New Mexico; El Paso Processing Center, El Paso, Texas; Florence Correctional Center, Florence, Arizona; Imperial Regional Detention Facility, Calexico, California; Irwin County Detention Center, Ocilla, Georgia; La Palma Correctional Facility, Eloy, Arizona; Nevada Southern Detention Center, Pahrump, Nevada; Otay Mesa Detention Center, San Diego, California; Otero Detention Center/Otero County Processing Center, Chaparral, New Mexico; Pearsall Detention Center/South Texas ICE Processing Center, Pearsall, Texas; Prairieland Detention Center, Alvarado, Texas; Stewart Detention Center, Lumpkin, Georgia; Tacoma Northwest Detention Center, Tacoma, Washington; and Winn Correctional Center, Winnfield, Louisiana.
28. Each transgender person in civil immigration detention is at imminent risk of contracting COIVD-19 because of the life-threatening conditions under which they are confined—conditions that violate CDC guidelines, ICE directives, and State and County orders as they pertain to COVID-19. This risk is heightened further because transgender people in civil immigration detention suffer from medical conditions such as HIV, diabetes, and mental illness, and have an increased likelihood of harassment and assault that put them at greater risk of contracting COVID-19 and suffering serious symptoms and death as a result.
29. Named Petitioners bring this action as representatives of the following proposed class:
All transgender people in civil immigration detention who are held, or who will be held, by Respondents in any U.S. detention center or facility during the pendency of the COVID-19 pandemic. 30. The proposed class meets the requirements of Federal Rules of Civil Procedure 23(a) and (b).
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31. The class is sufficiently numerous. Although ICE does not publish the number of transgender people in civil immigration detention, Petitioners on information and belief estimate that the number is at least 60 and may be as many as several hundred.
32. All members of the class are bound together by common questions of law and fact – most prominently, whether in the face of the lethal COVID-19 pandemic, the continued civil detention of the class members at the Detention Centers in violation of the CDC guidelines placing the class members’ health and safety at grave risk violates their constitutional rights.
33. The named Petitioners are proper class representatives because their claims are typical of the absent class members and because they and their counsel will adequately and vigorously represent the class.
34. Rule 23(b)(2) is also satisfied here because the Respondents have “acted or refused to act on grounds that apply generally to the class” through creating and maintaining conditions that put the class at imminent risk of contracting COVID-19, the deadly virus that is currently sweeping the globe.
VENUE 35. Venue in the District Court for the District of Columbia is proper under 28 U.S.C. § 1391(b) because Respondents reside in this district.
JURISDICTION 36. Respondents reside within the jurisdiction of this Court. 37. This case arises under the United States Constitution and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. 38. This Court has jurisdiction pursuant to the All Writs Act, 28 U.S.C. § 1651(a).
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39. This Court has jurisdiction pursuant to 28 U.S. Code § 1331 (Federal Question), 28 U.S. Code § 1361 (Action to compel an officer of the United States to perform his duty), and 28 U.S.C. § 2201(a), (Federal Declaratory Judgment Act).
FACTS A. COVID-19 is a Global Pandemic that Poses a Significant Risk of Death or Serious
Illness to Petitioners. 40. Since the first confirmed case of COVID-19 in the United States in late January 2020, the number of infected people in this country has exploded to more than 746,000 as of April 20, 2020, with more than 39,000 deaths, according to the CDC. See Cases of Coronavirus Disease (COVID-19) in the U.S., Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited Apr. 20, 2020). 41. State and local governments across the country have implemented measures intended to curb the spread of the disease, including banning large gatherings, closing nonessential businesses, ordering people to stay home except for essential activities, and requiring the use of face masks where large groupings of strangers are unavoidable, such as in grocery stores. 42. COVID-19 is a respiratory illness that is spread through airborne droplets, such as those expelled when a person coughs or sneezes, or via contact with contaminated surfaces such as doorknobs and countertops. See What you should know about COVID-19 to protect yourself and others, Centers for Disease Control and Prevention (Apr. 15, 2020) (“CDC Factsheet”), available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/2019-ncov-factsheet.pdf.
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43. Some people who are infected with the novel coronavirus that causes COVID-19 do not experience symptoms, but may nonetheless be contagious. Even those who develop symptoms may be contagious before they exhibit symptoms and may be contagious afterwards.
44. Those who do suffer illness from the disease experience flu-like symptoms such as fever, coughing, body aches, and difficulty breathing, and, in severe cases, the infection can cause pneumonia, multiple organ failure, and death.
45. Severe cases require hospitalization, often with breathing assistance ranging from supplemental oxygen to use of a ventilator; those who survive severe illness may have permanent lung damage and other disability. There is no vaccine or cure.
46. Preventative measures recommended by public health experts include frequent and thorough hand washing; wearing a face mask in public; frequently disinfecting surfaces on which the virus could be deposited; and the now-familiar tactic of “social distancing” – staying at least six feet away from other people.
47. Although young and otherwise healthy people can become ill and die from COVID-19, those at the highest risk for illness and death include those over age 55 and people with underlying medical issues such as asthma or other lung ailments; high blood pressure; suppressed immune systems; and diabetes. See CDC Factsheet. B. Transgender People in Civil Immigration Detention Are At High Risk for Becoming
Infected, Experiencing Severe Illness, and Dying from COVID-19. 48. Transgender people in civil immigration detention, as a group, are at a greater risk of contracting the virus that causes COVID-19 than the general population and, if they do become infected, are more likely to become seriously ill or die. 49. It is no exaggeration to state that during this pandemic, ICE detention facilities are death traps for the transgender people being held there.
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50. Several well-documented, preexisting factors combine to make transgender people in civil immigration detention a high-risk group for developing severe illness and death from COVID-19.
51. First, transgender people are more likely to have underlying health conditions that put them at high risk for developing the most serious complications from COVID-19, including health conditions caused by tobacco use, immune suppression caused by HIV or viral hepatitis, diabetes, high blood pressure, and obesity.
52. For example, some studies have found that 20% to 25% of transgender women are HIV-positive, with even higher rates among transgender women of color and those who live in urban areas.
53. Second, transgender people in civil immigration detention also are far more likely to suffer from mental health issues such as depression, anxiety and post-traumatic stress disorder that cause immune suppression and other physical ailments.
54. One common factor for transgender people is the mental and emotional trauma caused by the endemic discrimination, violence and social stigma against transgender people – a phenomenon known generally as “minority stress” – which, in turn, can further suppress the immune system and exacerbate other underlying medical conditions.
55. Transgender people in ICE custody are especially vulnerable to mental health problems due to the fact that they left their native countries because of violence and persecution, and thus have a profound history of trauma leading to high rates of depression, anxiety, and posttraumatic stress disorder. For example, a detainee at La Palma reports having her depression exacerbated by harassment by other detainees and staff. Another La Palma detainee reports
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being depressed by being called anti-transgender and anti-gay slurs by staff and other detainees, and being terrified when staff let men into the bathroom while she was showering.
56. In other words, transgender immigrants are at higher risk of infection for precisely the same reasons they fled their home countries and came to be in ICE custody.
57. Third, that discrimination, violence and social stigma means transgender people also are more likely to live in poverty and less likely to have health insurance or the ability to pay for health care, and therefore are less likely to have received proper, ongoing medical care for their underlying medical conditions prior to their detention.
58. Fourth, because transgender people in civil immigration detention cannot selfadminister their injectable hormone treatments while in ICE custody, they must have more frequent interactions with medical staff, who themselves are at higher risk of contracting – and thus spreading – the Coronavirus because of their contact with sick people.
59. One transgender woman being detained in Aurora, for example, was examined by a doctor who was not wearing a face mask or gloves.
60. Another transgender woman being detained in Aurora has observed that the medical staff who distribute medication do so wearing gloves but not face masks.
61. Fifth, transgender people in ICE custody are far more likely to be victims of abuse and sexual assault than other detainees – indeed, ICE’s own data show that lesbian, gay, bisexual and transgender detainees are 97 times more likely to be sexually victimized than non-LGBT detainees.
62. That abuse – and the fear of falling victim to it – only compounds the stress transgender people in civil immigration detention experience and exacerbates their other mental
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and physical health problems. For example, a transgender woman in civil immigration detention who was raped at age 12 suffered panic attacks when housed with dozens of cisgender men.
63. Further, physical and sexual assaults by definition involve the kind of close contact that can spread Coronavirus and are more likely to occur when detainees are kept in close quarters.
64. In sum, the distressing reality for transgender people in ICE custody is that they are more likely to be exposed to the Coronavirus; more likely to become infected if they are exposed; more likely to experience severe illness if they become infected; and more likely to die if they experience severe illness.
65. The heightened susceptibility of transgender people in civil immigration detention to COVID-19 means that releasing them from detention will not only help curb their risks of illness and death, it will help protect any remaining detainees, guards and staff who might otherwise be exposed to enhanced spread of the virus and avoid further overwhelming area health care facilities. C. ICE’s Failure to Provide the Most Basic Pandemic Precautions Has Increased the
Risk of Illness and Death to Transgender People in Civil Immigration Detention. 66. Despite the fact that transgender people in civil immigration detention are at high risk for contracting and suffering severe illness from COVID-19, ICE has not taken the steps necessary to protect transgender people from COVID-19, nor have the detention centers holding transgender people followed the COVID-19 response requirements that ICE itself sets forth. 67. To the contrary, ICE’s actions and inactions unacceptably and unconstitutionally have put transgender people in civil immigration detention at increased risk of suffering and dying from this pandemic.
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i. Social Distancing 68. As government and private sector medical experts have repeatedly emphasized,
limiting the spread of the pandemic requires “social distancing” – keeping at least six feet away from other people. ICE detention centers have not and cannot provide sufficient space to do so.
69. The consequences of the lack of opportunity for social distancing in ICE custody are dramatically illustrated by the experience of C.G.B., who became ill with a suspected case of COVID-19 after a newly arrived bunkmate spent days coughing before being seen by a doctor and then returned to the general population. The pod where C.G.B. became ill has beds spaced approximately three feet apart.
70. At Winn, detainees stay in pods of approximately 44 people, sleeping in beds that are approximately four or five feet apart.
71. At La Palma, some 100 to 120 detainees eat meals together, where they must sit approximately one foot away from each other and cannot keep a six-foot distance while waiting in line. Approximately 60 detainees at a time are allowed on a patio, where they also do not have enough room to stay six feet apart.
72. At the El Paso Processing Center, detainees sleep in beds four feet apart. 73. At Aurora, beds, as well as the tables and seating where detainees eat, are bolted to the floor and cannot be moved to increase the distance between detainees. Detainees are not able to practice social distancing. 74. At Southern Nevada, the beds are close enough for detainees to reach across the aisle and touch the adjacent bed. Detainees eat at tables seating four people that are too small to accommodate all four food trays at once.
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75. At the Caroline detention facility, detainees cannot maintain proper social distancing because they sleep four to a room in close quarters, in dormitories of approximately 35-40 people. Detainees from each dorm at Caroline travel as a group to the cafeteria for meals and to the law library, providing additional opportunities for disease to spread.
ii. Hand-washing and Hygiene 76. Since the beginning of the pandemic, public health experts have emphasized that
proper hand washing, cleaning and other hygiene practices are key preventative measures that everyone should follow. E.g., How to Protect Yourself and Others, Centers for Disease Control and Prevention (last updated Apr. 13, 2020), https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/prevention.html.
77. ICE’s pandemic response requirements – issued on April 10, 2020, a month after the World Health Organization declared a global pandemic – mandate that detention facilities require everyone in the facility, staff and detainees alike, “to maintain good hand hygiene by regularly washing their hands with soap and water for at least 20 seconds,” and to provide at no cost sufficient supplies such as hand soap and tissues to allow detainees to meet these requirements.1 ICE also requires its detention facilities to follow the guidance for detention facilities published by the CDC. ICE Pandemic Requirements at 5-6.
78. The CDC guidance also mandates that facilities provide staff and detainees with sufficient supplies and opportunities for frequent and adequate hand washing.2

1

ERO COVID-19 Pandemic Response Requirements at 9, U.S. Immigration and Customs

Enforcement (Version 1.0, Apr. 10, 2020), available at

https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf

(hereinafter, “ICE Pandemic Requirements”).

2

Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in

Correctional and Detention Facilities at 10, U.S. Centers for Disease Control and

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79. Despite these basic requirements, ICE detention centers lack sufficient facilities to allow all detainees to practice frequent hand washing.
80. At the Imperial Regional Detention Facility, 32 detainees residing on one floor of a dormitory share four sinks and one soap dispenser.
81. At Winn, approximately 44 detainees share one bathroom with three sinks and toilets. The only regular cleaning is sweeping by detainees once per day. A transgender woman detained in segregation is able to clean her cell only once or twice a week, whenever a guard gets around to providing her with cleaning supplies.
82. At Southern Nevada, 46 detainees share one bathroom with eight sinks and toilets. 83. The bathroom sink in a dormitory housing transgender detainees in Aurora has been clogged for an extended period of time, and the detainees do not have the equipment to fix it. Detainees use a container to capture the dirty water and pour it in the shower. 84. ICE detention centers also fail to provide detainees with sufficient supplies. 85. At La Palma, for example, detainees are provided with shampoo, but have to purchase soap—which indigent detainees are unable to do. Detainees at Southern Nevada and Caroline also have to purchase soap at the commissary. 86. ICE also requires that its detention centers use household cleaners and disinfectants several times a day to “clean and disinfect surfaces and objects that are frequently touched, especially in common areas (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment.)” ICE Pandemic Requirements at 10.3

Prevention (last updated Mar. 23, 2020), available at

https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-

detention.pdf (hereinafter, “CDC Guidance.”).

3

The mandatory CDC guidelines also require this kind of cleaning and disinfecting several

times per day. CDC Guidance at 9.

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87. ICE detention facilities holding transgender people in civil immigration detention are not even coming close to fulfilling this mandate.
88. Frequently used surfaces such as sinks and toilets are cleaned, at most, once a day, and detainees often are not provided with the cleaning and disinfecting supplies necessary to protect themselves.
89. For example, detainees in Aurora, who are responsible for cleaning their own living areas, attempt to clean three times daily but are provided only two rags, one for the living area and one for the bathroom.
90. Sinks and bathrooms in the El Paso facility are cleaned only once daily, and the detainees are not provided with disinfectant to clean more often.
91. ICE has failed to provide detainees with the supplies to permit them to follow the most basic hygiene measures required by its own regulations.
92. The agency’s inability to sufficiently provide for such common-sense and lowtech preventative measures shows that supervised release from detention is the only way to remedy the unacceptable risk of infection, disease and death ICE has created for transgender people in civil immigration detention.
iii. Protective Equipment 93. ICE regulations mandate that “[c]loth face coverings should be worn by detainees
and staff . . . to help slow the spread of COVID-19.” ICE Pandemic Requirements at 9. ICE facilities are not complying with this requirement, either.
94. Many detainees report that they have not been provided with face masks, despite asking for them. One detainee states that she has not asked for a mask because she assumes they are unavailable since guards do not wear them.
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Case 1:20-cv-01072-CRC Document 3 Filed 04/23/20 Page 22 of 44
95. Detainees at La Palma were provided with one paper mask each on April 14, 2020, and were told that it would not be replaced if it was damaged. Facility staff initially tried to require detainees to sign a liability waiver to obtain a mask, but relented after detainees refused to sign. Detainees at Nevada Southern were not provided with cloth masks until April 16, 2020.
96. Guards and other staff frequently interact with detainees without wearing protective equipment.
97. A doctor at Aurora performed a hands-on medical examination without wearing gloves or a mask. So did a doctor at La Palma.
98. Medical personnel delivering medication to detainees at Aurora also do not wear masks.
99. Ironically, a guard giving detainees a presentation on COVID-19 at Southern Nevada did so without wearing a mask or gloves. Guards at Southern Nevada also perform patdown searches of detainees without wearing gloves or masks.
100. Several detainees report observing guards wearing gloves, but not masks. 101. Guards at La Palma do not even wear gloves or masks. 102. ICE’s failure to provide protective gear such as face masks to detainees and to ensure that staff members use the required equipment further heightens the unconstitutional risk of infection to which transgender people in civil immigration detention are subjected through their continued detention. iv. Information and Training 103. Both the ICE rules and the CDC guidance require that detainees be provided with accurate and up-to-date information about COVID-19, precautions they can take to reduce the
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Case 1:20-cv-01072-CRC Document 3 Filed 04/23/20 Page 23 of 44
risk of infection, and the presence of the virus in their facility. ICE Pandemic Requirements at 7, 9; CDC Guidance at 6, 10, 12, 22.
104. ICE has failed to provide any of this required lifesaving information to many detainees, has not provided regular updates to the limited amount of information it has provided to other detainees, and in some instances has misled detainees by falsely denying the presence of COVID-19 at their facility.
105. Many current and recently released detainees report that guards or other staff gave them no information about COVID-19. They include C.G.B., who received no information about COVID-19 from the staff at La Palma despite being quarantined with a suspected case of the disease. Another La Palma detainee reports that she has not received any information from staff regarding COVID-19 and guards refuse to answer questions about the virus. This problem also has occurred at Aurora.
106. One detainee at Aurora said that the only information she received was a suggestion to wash her hands.
107. At Southern Nevada, a guard gave a COVID-19 presentation in the morning while some detainees were sleeping and did not ensure that all detainees attended.
108. The CDC Guidelines, which ICE facilities are required to follow, require that information about COVID-10 must be provided “in a manner that can be understood by nonEnglish speaking individuals and those with low literacy.” CDC Guidelines at 22; see also id. at 6, 10 (same).
109. Some statements made by facility staff have contradicted ICE’s public statements. For example, staff informed detainees at Nevada Southern on April 15, 2020 that there was one person with COVID-19 at the facility, but ICE has not reported one to the public.
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Case 1:20-cv-01072-CRC Document 3 Filed 04/23/20 Page 24 of 44
110. Worse, ICE has violated the CDC Guidelines by affirmatively misinforming detainees about the presence of COVID-19 at their facility.
111. Although ICE now reports that two staff members at Aurora have tested positive for the COVID-19 virus,4 officials falsely denied to detainees that anyone at the facility had been infected.
112. By failing to provide any information about the virus to many detainees and providing incomplete, false and misleading information to others, ICE has not only violated its own rules and mandatory CDC guidance, but also has further heightened the risks of COVID-19 transmission to transgender people in civil immigration detention.
113. ICE regulations acknowledge that “[b]oth good hygiene practices and social distancing are critical in preventing further transmission” of COVID-19. ICE Pandemic Requirements at 11. In practice, however, neither are being implemented at ICE detention facilities.
114. ICE’s failure to follow its own regulations and inability to take the most basic precautions against the spread of this deadly virus pose dangers to transgender people in civil immigration detention that can be remedied only by the detainees’ immediate release to safer areas. D. ICE’s Inadequate Medical Care For Transgender People in Civil Immigration
Detention Enhances Their Risk 115. ICE detention centers are plagued by chronic and well-documented failures to provide proper medical care to transgender people in civil immigration detention – problems that
4 See ICE Guidance on COVID-19, https://www.ice.gov/coronavirus (last visited Apr. 20, 2020).
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have been exacerbated by the pandemic and pose another enhanced risk of infection, disease and death for transgender people in civil immigration detention.
116. ICE’s past handling of infectious disease outbreaks in detention centers has been inept—foreshadowing the impact COVID-19 will have if transgender people in civil immigration detention are not released. Just last year, for example, a mumps outbreak across 57 immigration detention facilities throughout the country led to almost 900 cases of mumps overwhelmingly contracted inside the facilities before the outbreak spread to surrounding communities.
117. As explained by Dr. Carlos Franco-Paredes, an infectious disease expert who has treated HIV-positive transgender detainees at the Aurora facility:
[I]t is my professional opinion that the medical care available in immigration detention centers cannot properly accommodate the needs of patients should there be an outbreak of COVID-19 in these facilities. Immigration detention centers are often poorly equipped to diagnose and manage infectious disease outbreaks. Many of these centers lack onsite medical facilities or 24-hour medical care. 118. Besides C.G.B., whose bunkmate was not isolated for many days despite showing classic COVID-19 symptoms, several other transgender people in civil immigration detention report that they or other detainees showing possible COVID-19 symptoms have not been tested, quarantined or isolated. One detainee reports that when she had a cough, she saw medical personnel who gave her aspirin and returned her to the general population; another states that when she suffered COVID-19-like symptoms including a fever, she had to wait a week before seeing a nurse, who told her she was fine, did not test her or provide any medication, and did not schedule a follow-up appointment; and another reports that a fellow detainee with a fever and flu-like symptoms was told to make a regular medical request rather than receiving immediate attention.
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119. This is a violation of ICE regulations and CDC guidance, which require that people suspected or confirmed to have COVID-19 must be placed in medical isolation and their close contacts must be quarantined. ICE Pandemic Requirements at 14-16; CDC guidance at 1011. Notably, ICE did not issue its regulations until the day after C.G.B. had her COVID-19 test, which was more than a week after she was first exposed to the coughing bunkmate. ICE Pandemic Requirements at 1.
120. Another alarming example of ICE’s bungling of medical care during the pandemic is the failure to provide adequate treatment to transgender people in civil immigration detention living with HIV, which further threatens their already compromised immune response.
121. Prior to the outbreak, Dr. Franco-Paredes, a doctor specializing in infectious diseases, was treating transgender people in civil immigration detention living with HIV at Aurora.
122. Since the outbreak began, authorities at Aurora have barred Dr. Franco-Paredes from providing care to any if his patients there; as a result, Dr. Franco-Paredes has been unable to see any of his patients in person, and even has had difficulty in scheduling virtual evaluations.
123. Dr. Franco-Paredes is concerned that the lack of adequate treatment will expose HIV-positive detainees to a high risk of contracting COVID-19, noting that one patient he evaluated had been given prescriptions for medications that negatively interacted with each other and thus could suppress the patient’s immune response.
124. Multiple transgender people in civil immigration detention living with HIV report that they do not receive their medication at regular times, which puts them at greater risk of contracting life-threatening infections such as COVID-19 because it can lessen their immune response.
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Case 1:20-cv-01072-CRC Document 3 Filed 04/23/20 Page 27 of 44
125. Other transgender people in civil immigration detention have had their medically necessary gender-affirming hormone treatments or other prescribed medications denied or changed without explanation.
126. The COVID-19 outbreak has exacerbated the problems with a system that was already ill equipped to provide adequate medical care to transgender people in civil immigration detention. Although ICE has stated that discrimination against transgender people in civil immigration detention is prohibited,5 detainees report continued harassment; one detainee reports that when notified of such harassment, a facility psychologist said there was nothing to be done because “we aren’t big on trans rights here.”
127. A June 2019 Department of Homeland Security Office of Inspector General report6 found inadequate medical care at the Adelanto, California facility and other egregious health and safety violations at facilities in Aurora; Essex County, New Jersey; and LaSalle, Louisiana.
128. A 2017 OIG report of inspections of six facilities found inadequate medical care including long delays for detainees to receive care, inadequate documentation of the care they

5

Thomas Homan, Executive Associate Director, U.S. Immigration and Customs

Enforcement, Further Guidance Regarding the Care of Transgender Detainees (June 19,

2015), available at

https://www.ice.gov/sites/default/files/documents/Document/2015/TransgenderCareMem

orandum.pdf.

6

Report No. OIG-19-47, Concerns about ICE Detainee Treatment and Care at Four

Detention Facilities, U.S. Department of Homeland Security, Office of Inspector General

(June 3, 2019), available at https://www.oig.dhs.gov/sites/default/files/assets/2019-

06/OIG-19-47-Jun19.pdf.

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Case 1:20-cv-01072-CRC Document 3 Filed 04/23/20 Page 28 of 44
received, and failure to use translation services to allow detainees to communicate their symptoms to medical workers and to understand and knowingly consent to medical treatment.7
129. Congress has expressed concern about treatment of transgender people in civil immigration detention when approving the fiscal 2020 appropriations for DHS. The congressional report accompanying the appropriations directs ICE to limit the detention of transgender people to facilities operating under contracts that comply with ICE’s 2015 guidance on best practices for transgender detainees. See H. R. Rep. No. 116-180 at 37 (2019). Despite Congressional urging to push ICE to implement its own best practices, no ICE detention contracts so far have incorporated those improvements.
130. In the last six months, two U.S. Senators and 45 members of the House of Representatives have written to the acting directors of ICE and DHS, citing “overwhelming evidence of systemic neglect and mistreatment of transgender individuals in immigration and detention facilities,” including a lack of adequate medical care, that “demonstrate ICE’s inability to provide adequate conditions for transgender immigrants.” Letter from Sens. Elizabeth Warren and Tammy Baldwin to Kevin McAleenan, Acting Secretary, U.S. Department of Homeland Security (Oct. 15, 2019), available at https://www.warren.senate.gov/imo/media/doc/2019.10.15%20Letter%20to%20DHS%20ICE%2 0and%20CPB%20regarding%20transgender%20migrants%20and%20asylum%20seekers.pdf; Letter from Rep. Mike Quigley, et al. to Chad Wolf, Acting Secretary, U.S. Department of

7

Report No. OIG-18-32, Concerns about ICE Detainee Treatment and Care at Detention

Facilities, U.S. Department of Homeland Security, Office of Inspector General (Dec. 11,

2017), available at https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-

32-Dec17.pdf.

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Case 1:20-cv-01072-CRC Document 3 Filed 04/23/20 Page 29 of 44
Homeland Security (Jan. 14, 2020), available at https://quigley.house.gov/sites/quigley.house.gov/files/01.14.20%20ICE%20Letter.pdf.
131. Advocacy organizations also have filed several complaints with DHS and ICE in the past year citing egregious examples of medical neglect and mistreatment of transgender people in civil immigration detention.
132. Just last month, a coalition of eight groups led by the Santa Fe Dreamers Project filed a complaint with ICE, the DHS Office of Inspector General, and the DHS Office for Civil Rights and Civil Liberties over conditions for transgender people in civil immigration detention at the Winn Correctional Center.
133. The complaint documented severe abuse and mistreatment of transgender people in civil immigration detention and medical care failings including interrupted and inconsistent provision of HIV medication; refusal to provide medically necessary gender-affirming hormone treatments; delayed or denied dental care causing extreme pain and weight loss; and refusal to allow a woman to perform physical therapy exercises after her leg was broken by another inmate because she was transgender.
134. The Transgender Law Center and a dozen other nonprofit organizations filed a complaint with DHS and its Inspector General’s Office in September 2019 over ICE’s failure to provide adequate medical and mental health care to LGBT and HIV positive detainees, citing the maltreatment of 19 current and former detainees, most of them transgender.
135. ICE’s failures to provide adequate medical care during the pandemic—building upon its inability to do so even in the best of times—put transgender people in civil immigration detention at further risk of serious illness or death should they become infected with the Coronavirus.
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136. Because ICE cannot provide adequate medical care to them, transgender people in civil immigration detention should be released immediately to safer environments. E. ICE Protocols for Dealing With COVID-19 Are Inadequate.
137. Even if it followed its own requirements, ICE could not adequately protect transgender people in civil immigration detention from unconstitutional risks of infection posed by suspected or confirmed COVID-19 infections of other detainees or facility staff. Indeed, the shortcomings of these rules actually increase the risk that transgender people in civil immigration detention would contract, suffer and die from the virus.
138. The screening procedures ICE has announced are insufficient to keep those infected with COVID-19 from spreading the disease.
139. The ICE rules require facilities to screen employees and detainees upon entry for COVID-19 symptoms – fever, cough, and shortness of breath – and to bar entry to staff with those symptoms and to isolate incoming detainees with those symptoms. ICE Pandemic Requirements at 12.
140. However, many infected with the Coronavirus either never show symptoms or become infectious before they develop symptoms; and many with COVID-19 have gastrointestinal or other symptoms, not respiratory symptoms like a cough.
141. Thus, ICE’s screening would miss many infections which could then spread extensively in a crowded detention setting.
142. ICE’s website states that in detention centers, “cohorting” – keeping people together in a contained group – “serves as an alternative to self-monitoring at home” for those potentially exposed to the virus who do not have symptoms. See ICE Guidance on COVID-19, www.ice.gov/coronavirus (last visited Apr. 19, 2020). The CDC Guidelines, which the ICE
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Case 1:20-cv-01072-CRC Document 3 Filed 04/23/20 Page 31 of 44
Pandemic Requirements make mandatory, state that cohorting should only be used as a last resort, however. CDC Guidelines at 16.
143. ICE’s rules for its detention centers say “facilities should consider cohorting” all detainees who arrive on one or more days. ICE Pandemic Requirements at 14.8 Cohorting is a dangerous practice for detention facilities because it could amplify, rather than prevent, an outbreak, because unless the detainees are able to stay six feet away from each other, one infected person could spread the virus to the entire cohort.
144. The risk is particularly acute for anyone in the cohort with increased susceptibility to the virus, such as transgender people in civil immigration detention or others with underlying medical conditions.
145. C.G.B.’s experience illustrates this problem. Although she has been separated from the general population, she is not isolated in a single room but stays in a room with a dozen patients, two of whom have confirmed cases of COVID-19. Thus, even if she and the other nine detainees without confirmed COVID-19 infections did not have the virus when they went into quarantine, they almost certainly do now.
146. Because ICE’s own guidelines are insufficient to reduce the risk of infection to transgender people in civil immigration detention and actually enhances that risk, transgender people in civil immigration detention should be paroled to safer quarters.

8

For suspected or confirmed COVID-19 cases, the rules state that “[c]ohorting should only

be practiced if there are no other available options” and that only those who have tested

positive should be “cohorted” together. ICE Pandemic Requirements at 14.

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LEGAL FRAMEWORK A. Violation of Constitutional Rights.
147. When the government detains or incarcerates a person, it has an affirmative duty to guarantee conditions of reasonable health and safety: “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989). As a result, the government must provide those in its custody with “food, clothing, shelter, medical care, and reasonable safety.” Id. at 200.
148. The Supreme Court has held that the Eighth Amendment protects against future harm to incarcerated people, as “it would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.” Helling v. McKinney, 509 U.S. 25, 33 (1993). Further, in this context, “[t]he science is well established – infected, asymptomatic carriers of the coronavirus are highly contagious,” and therefore “[t]he Government cannot be deliberately indifferent to the Petitioners’ potential exposure to [COVID-19] on the ground that they are not, now, infected or showing current symptoms.” Castillo v. Barr, No. 20-00605, 2020 U.S. Dist. LEXIS 54425, at *13–14 (C.D. Cal. Mar. 27, 2020) (citing Helling, 509 U.S. at 33).
149. The Eighth Amendment requires that “inmates be furnished with the basic human needs, one of which is ‘reasonable safety.’” Helling, 509 U.S. at 33 (quoting DeShaney, 489 U.S. at 200). The Supreme Court in Helling recognized that the risk of contracting a communicable disease may constitute such an “unsafe, life-threatening condition” that threatens “reasonable safety.” Id.
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150. These Constitutional protections also apply in the context of immigration detention because immigrant detainees, even those with prior criminal convictions, are civil detainees held pursuant to civil immigration laws. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Because detained immigrants are civil detainees, they are entitled to the due process protections derived from the Fifth Amendment, which prohibit punishment. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”). Because the Fifth Amendment rather than the Eighth Amendment governs civil detention, the “deliberate indifference” standard required to establish a constitutional violation in the latter context does not apply to civil detainees like Petitioners. Jones v. Blanas, 393 F.3d 918, 934 (9th Cir. 2004), cert. denied, 546 U.S. 820 (2005). Still, the Eighth Amendment’s guarantees represent a “constitutional floor” that must also be met for detainees who are not being punished, such as those jailed prior to trial and civil immigration detainees. United States v. Moore, No. 1:18-cr198 (JEB), 2019 U.S. Dist. LEXIS 104300, at *6-7 (D.D.C. June 21, 2019).
151. A condition of confinement for a civil immigration detainee violates the Constitution “if it imposes some harm to the detainee that significantly exceeds or is independent of the inherent discomforts of confinement and is not reasonably related to a legitimate governmental objective or is excessive in relation to the legitimate governmental objective.” Unknown Parties v. Johnson, No. CV-15-00250-TUC-DCB, 2016 U.S. Dist. LEXIS 189767, at *13 (D. Ariz. Nov. 18, 2016), aff’d sub nom. Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017). This Court has held that detaining people during the COVID-19 pandemic in such a manner that they are unable to practice social distancing or take other precautions necessary to contain the spread of the virus creates an unreasonable risk of damage to detainees’ health. Banks v. Booth, No. 20-849, 2020 U.S. Dist. LEXIS 68287, at *27–30 (D.D.C. Apr. 19, 2020) (holding that pre-trial
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detainee plaintiffs established a likelihood of success on the merits on their Fifth Amendment due process claim). Other courts addressing TRO motions for civil detainees during the COVID19 pandemic have found that detaining people under conditions such that they are unable to practice social distancing or take other precautions necessary to contain the spread of the virus is sufficient to establish a likelihood of success on the merits of a Fifth Amendment due process claim. See, e.g., Castillo, 2020 U.S. Dist. LEXIS 54425, at *16 (plaintiffs established more than a mere likelihood of success on the merits of their due process claim where the conditions of confinement did not allow detainees to socially distance); Thakker v. Doll, No. 1:20-480, 2020 U.S. Dist. LEXIS 59459, at *25 (M.D. Pa. Mar. 31, 2020) (plaintiffs established likelihood of success on the merits of their due process claim where plaintiffs were detained in “tightlyconfined, unhygienic spaces” and unable to socially distance).
152. Similarly, here, Plaintiffs have established that they are unable to practice social distancing or take other precautions to contain the spread of the virus under their current conditions of confinement. Therefore, they have established a likelihood of success on the merits of their Fifth Amendment Due Process claim. B. Violation of the Administrative Procedures Act.
153. Respondents are also in violation of the Fifth Amendment Due Process Clause by depriving detainees the rights guaranteed under the COVID-19 regulations enacted by ICE.
154. When the government has promulgated “[r]egulations with the force and effect of law,” those regulations “supplement the bare bones” of federal statutes. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266, 268 (1954) (reversing in immigration case after review of warrant for deportation). Agencies must follow their own “existing valid regulations,” even where government officers have broad discretion, such as in the area of immigration. Id. at 268; see also Morton v. Ruiz, 415 U.S. 199, 235 (1974) (“[I]t is incumbent upon agencies to
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follow their own procedures . . . even where [they] are possibly more rigorous than otherwise would be required.”); Battle v. FAA, 393 F.3d 1330, 1336 (D.C. Cir. 2005) (“Accardi has come to stand for the proposition that agencies may not violate their own rules and regulations to the prejudice of others.”). Breaches of Accardi’s rule constitute violations of both the Administrative Procedures Act (“APA”) and the Fifth Amendment’s Due Process Clause.
155. While violations of “internal agency procedures” do not always require a remedy, Accardi’s rule applies with full force when “the rights or interests of the objecting party” are “affected.” Monitlla v. INS, 926 F.2d 162, 167 (2d. Cir. 1991) (citing cases) (“Accardi doctrine is premised on fundamental notions of fair play underlying the concept of due process”); see also Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 545-46 (6th Cir. 2004) (noting that an Accardi violation may be a due process violation, and the government’s action may be set aside pursuant to the APA); Sameena, Inc. v. U.S. Air Force, 147 F.3d 1148, 1153 (9th Cir. 1998) (“An agency’s failure to follow its own regulations . . . may result in a violation of an individual’s constitutional right to due process.”).
156. Under the Accardi doctrine, due process and the basic principle of administrative law dictate that rules promulgated by a federal agency regulating the rights and interests of others are controlling upon the agency. That doctrine is premised on the fundamental notion of fair play underlying the concept of due process. 322. The Accardi doctrine applies with particular force when “the rights of individuals are affected.” Morton, 415 U.S. at 235.
157. The D.C. Circuit has explained “that ‘agencies cannot relax or modify regulations that provide the only safeguard individuals have against unlimited agency discretion.’” Damus v. Nielsen, 313 F. Supp. 3d 317 (D.D.C. 2018), citing Lopez v. FAA, 318 F.3d 242, 247 (D.C. Cir. 2003) as amended (Feb. 11, 2003).
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158. On March 18, 2020, ICE issued a statement on enforcement during the COVID19 crisis:
159. In the statement, ICE states that as a result of the COVID-19 epidemic, “ICE Enforcement and Removal Operations (ERO) will focus enforcement on public safety risks and individuals subject to mandatory detention based on criminal grounds. For those individuals who do not fall into those categories, ERO will exercise discretion to delay enforcement actions until after the crisis or utilize alternatives to detention, as appropriate.” Id.
160. ICE did not issue its mandatory rules for COVID-19 response until April 10, 2020, nearly a month later. See ICE Pandemic Requirements at 1.
161. ICE has the authority to comply with its constitutional requirements by paroling transgender people in civil immigration detention, who are vulnerable to severe illness or death if they contract COVID-19. Section 212(d)(5)(A) of the Immigration and Nationality Act permits the Attorney General, at his or her discretion, to parole any noncitizen into the United States “temporarily under such conditions as [she or] he may prescribe only on a case-by-case basis for
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urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A). Further, 8 C.F.R. § 235.3(b)(2)(iii) vests the Attorney General with the discretion to parole detained aliens with negative credible/reasonable fear findings as required “to meet a medical emergency.” Responding to the current pandemic appropriately by releasing transgender people in civil immigration detention who are not a threat to public safety meets all three standards: a medical emergency, a legitimate law enforcement objective and a “significant public benefit.” Even if the government paroles a detainee, it can still issue notices to appear and place parolees in removal proceedings, thus ensuring that their immigration court cases continue even if they are released from detention. See 8 C.F.R. § 235.3(c).
162. Here, ICE’s failure to implement even the most basic protections its rules require violates both the Fifth Amendment and the APA. See Torres v. United States Dep’t of Homeland Sec., 411 F. Supp. 3d 1036, 1068-69 (C.D. Cal. 2019) (detainees stated Accardi claim with allegations an ICE detention center did not follow the agency’s standards for treatment of detainees).
163. Even if Respondents have taken some proactive measures to address the crisis, this is not enough to achieve compliance with CDC guidelines or to eliminate risk of exposure. See Cristian A.R. v. Decker, No. 20-3600, 2020 U.S. Dist. LEXIS 66658, at *34 (D.N.J. Apr. 12, 2020). For example, because detainees cannot avoid coming into close contact with frequently used surfaces and shared spaces, Respondents’ failure to ensure proper disinfecting of detainees’ living areas at the recommended intervals of several times per day exposes detainees to a high risk of infection, even if some cleaning is performed.
164. Respondents’ failure to act in a timely manner to protect Petitioners interferes with the rights of Petitioners in an arbitrary and capricious manner and is without justification.
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165. The continued refusal to establish and implement policies and procedures designed to prevent the transmission of COVID-19 violates the substantive and procedural due process rights of Petitioners and all transgender people in civil immigration detention. Courts have consistently held that detainees are likely to succeed on the merits of their claims under similar circumstances. See, e.g., Castillo, 2020 U.S. Dist. LEXIS 54425, at *16 (“Civil detainees must be protected by the Government. Petitioners have not been protected”).
166. By failing to establish and implement policies and procedures to protect to prevent Petitioners from the transmissions of COVID-19 in the Detention Centers, Respondents have enacted a final decision that violates both the APA and the Fifth Amendment. See Torres, 411 F. Supp. 3d at 1069.
CLAIMS FOR RELIEF Count I
(Violation of Fifth Amendment Right to Due Process – Unlawful Punishment; Freedom from Cruel Treatment and Conditions of Confinement)
167. Petitioners re-allege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
168. The Fifth Amendment to the U.S. Constitution guarantees that civil detainees, including all immigrant detainees, may not be subjected to punishment. The federal government violates this substantive due process right when it subjects civil detainees to treatment and conditions of confinement that amount to punishment or does not does ensure those detainees’ safety and health.
169. Respondents’ conditions of confinement subject Petitioners and all class members to heightened risk of contracting COVID-19, for which there is no vaccine, known treatment, or cure.
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170. Respondents are subjecting Petitioners and all class members to a substantial risk of serious harm, in violation of Petitioners’ and class members’ rights under the Due Process Clause.
171. As public health experts in correctional medical care and infectious disease agree, transgender people in immigration detention are at grave risk of COVID-19 infection, illness and death.
172. Accordingly, Respondents are subjecting Petitioners and class members to detention conditions that amount to punishment and that fail to ensure their safety and health.
173. For these reasons, Respondents’ ongoing detention of Petitioners and all class members violates the Due Process Clause.
Count II (Violation of the Administrative Procedure Act as to All Respondents) 174. Petitioners re-allege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 175. Respondents’ failure to act in a timely manner to protect Petitioners and class members interferes with the rights of Petitioners and class members in an arbitrary and capricious manner and is without justification. 176. The continued refusal to establish and implement policies and procedures designed to prevent the transmission of COVID-19 is contrary to Petitioners’ and class members’ constitutional rights as it violates their substantive and procedural due process rights, as outlined above. 177. By failing to establish and implement policies and procedures to protect Petitioners from the transmission of COVID-19 in the Detention Centers, Respondents have enacted a final decision.
39

Case 1:20-cv-01072-CRC Document 3 Filed 04/23/20 Page 40 of 44
178. This decision constitutes a final agency action and is reviewable by this Court. 179. When a government agency detains people for civil immigration purposes during a pandemic crisis and fails to adhere to the most basic and minimally adequate plan or procedure it is “arbitrary, capricious, an abuse of discretion, [and] not in accordance with law.” 5 U.S.C. § 706(2)(A). 180. Here, detaining Petitioners and class members without a minimally adequate plan or procedure for their safety is arbitrary and capricious and an abuse of discretion. The failures to comply with Respondents’ own policies and procedures is not in accordance with law – in violation of the Administrative Procedure Act.
Count III (Writ of Mandamus) 181. Petitioners re-allege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 182. As set forth above, Respondents are in violation of federal statutes and regulations and the U.S. Constitution. 183. These legal obligations for care of people held in civil immigration detention create affirmative duties to act, which Respondents have failed to respect. 184. Petitioners accordingly seek a writ of mandamus to require the Respondents to act immediately in accordance with their legal obligations to protect Petitioners and class members and to follow their own parole guidelines and directives. 185. Petitioners are contemporaneously filing a motion for a temporary restraining order.
40

Case 1:20-cv-01072-CRC Document 3 Filed 04/23/20 Page 41 of 44
Count IV (Declaratory Judgment Act) 186. Petitioners re-allege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 187. The Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202, provides that “[i]n a case of actual controversy within its jurisdiction … any court of the United States … may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). 188. There is an actual controversy between the parties because Respondents are failing to implement adequate protocols to prevent the transmission of COVID-19 in the ICE detention centers. 189. The Court should exercise its authority under the Declaratory Judgment Act to declare that Respondents have no basis to refuse to implement adequate protocols to prevent the transmission of COVID-19 and should order Respondents to immediately release on parole or other supervised released Petitioners and all class members to protect them from the dangers of COVID-19 transmission.
PRAYER FOR RELIEF WHEREFORE, Petitioners respectfully request this Court to:
1. Assume jurisdiction over this matter; 2. Declare that the Respondents’ conduct constitutes a danger to public health and
safety; 3. Order the immediate release on parole or other supervised release of Petitioners and
all class members pending the completion of these proceedings, pursuant to the Court’s inherent powers;
41

Case 1:20-cv-01072-CRC Document 3 Filed 04/23/20 Page 42 of 44 4. Prohibit Respondents from placing any new transgender people in civil immigration
detention; 5. Order Respondents to immediately implement all protocols designed to prevent the
transmission of COVID-19 as indicated in the attached expert declarations or protocols of the CDC; 6. Declare that Respondents’ detention of Petitioners and class members creates an undue increased risk of infection, disease and death, and therefore is unconstitutional in violation of the Fifth Amendment; 7. Declare that Respondents have violated the Administrative Procedures Act; 8. Award Petitioners and the Class their costs and reasonable attorneys’ fees pursuant to the Equal Access to Justice Act; and 9. Grant such further relief as the Court deems just and proper.
42

Case 1:20-cv-01072-CRC Document 3 Filed 04/23/20 Page 43 of 44

April 23. 2020
Gregory P. Copeland (D.D.C. Bar # NY0311 RAPID DEFENSE NETWORK 11 Broadway, Suite 615 New York, NY 10004-1490 Phone: (212) 843-0910 Fax: (212) 257-7033 Email: gregory@defensenetwork.org Email: sarah@defensenetwork.org
Lynly S. Egyes** Transgender Law Center PO Box 70976 Oakland, CA 94612-0976 Telephone: (973) 454-6325 Facsimile: (917) 677-6614 lynly@transgenderlawcenter.org

Respectfully submitted,
/s/ Matthew E. Kelley Matthew E. Kelley (Bar No. 1018126)
Matthew E. Kelley (Bar. No. 1018126) Leslie E. John ** Elizabeth Weissert ** Alex Levy ** BALLARD SPAHR LLP 1909 K Street, NW - 12th Floor Telephone: (202) 661-2200 Facsimile: (202) 661-6299 Email: kelleym@ballardspahr.com Email: johnl@ballardspahr.com Email: weisserte@ballardspahr.com Email: levya@ballardspahr.com

Attorneys for Petitioners ** Application for admission pro hac vice forthcoming

43

Case 1:20-cv-01072-CRC Document 3 Filed 04/23/20 Page 44 of 44

VERIFICATION I am submitting this verification on behalf of the Petitioners because I am one of the Petitioners’ attorneys. I have discussed the claims and the events described in this Emergency Petition with Petitioners’ legal team. On the basis of those discussions, on information and belief, I hereby verify that the factual statements made in the attached Emergency Verified Petition for a Writ Of Mandamus are true and correct to the best of my knowledge.

Dated: April 23, 2020

By: /s/ Matthew E. Kelley Matthew E. Kelley (Bar No. 1018126)

44

 
 Case 1:20-cv-01072-CRC Document 4 Filed 04/23/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

Case: 1:20−cv−01072

C.G.B., f/k/a D.G.B.; A.F., f/k/a O.E.R.F.;

)

M.M.S-M., f/k/a A.H.S-M.; L.R.A.P., f/k/a E.A.P.; )

K.S., f/k/a J.H.S.; K.M., f/k/a G.M.;

)

Case No.

Assigned To : Cooper, Christopher R. Assign. Date : 4/23/2020 Description: TRO/PI (D−DECK)

R.H., f/k/a F.A.H.; L.M., f/k/a S.M.; M.J.J., f/k/a ) MOTION FOR TEMPORARY

O.H.J.; D.B.M.U., f/k/a W.E.M.U.; K.R.H., f/k/a ) RESTRAINING ORDER

W.D.R.H.; G.P., f/k/a O.A.P.; and M.R.P., f/k/a )

J.N.R.P.,

)

) EMERGENCY HEARING

Petitioners,

) REQUESTED

)

v.

)

)

Chad WOLF, in his official capacity as the acting )

Secretary of the U.S. Department of Homeland )

Security; and

)

)

William BARR, in his official capacity as the

)

Attorney General of the United States,

)

)

)

Respondents.

)

)

MOTION FOR TEMPORARY RESTRAINING ORDER AND REQUEST FOR EMERGENCY HEARING

Pursuant to Fed. R. Civ. P. 65 and LCvR 65.1, Petitioners, C.G.B., f/k/a D.G.B., et al.,

hereby move this Court to issue a Temporary Restraining Order requiring Respondents to: (i)

immediately release on parole or other supervised release Petitioners and all transgender detainees

in Immigration and Customs Enforcement Detention Centers (collectively, “Detention Centers”);

(ii) immediately order Respondents to implement all protocols designed to prevent the

transmission of COVID-19; and (iii) prohibit the placement of new transgender detainees in the

Detention Centers until all protocols designed to prevent the transmission of COVID-19 have been

implemented.

RECEIVED APR 23 2020
Clerk, U.S. District & Bankruptcy Court for the District of Columbia

Case 1:20-cv-01072-CRC Document 4 Filed 04/23/20 Page 2 of 2

In support of this motion, Petitioners rely upon the attached memorandum of points and authorities.1 A proposed order is attached. Petitioners also request an emergency hearing on this matter.

April 23, 2020

Respectfully submitted,

Gregory P. Copeland (D.D.C. Bar # NY0311) Sarah T. Gillman (D.D.C. Bar # NY0316) RAPID DEFENSE NETWORK 11 Broadway, Suite 615 New York, NY 10004-1490 Phone: (212) 843-0910 Fax: (212) 257-7033 Email: gregory@defensenetwork.org Email: sarah@defensenetwork.org
Lynly S. Egyes** Transgender Law Center PO Box 70976 Oakland, CA 94612-0976 Telephone: (973) 454-6325 Facsimile: (917) 677-6614 lynly@transgenderlawcenter.org

/s/ Matthew E. Kelley Matthew E. Kelley (Bar No. 1018126)
Matthew E. Kelley (Bar. No. 1018126) Leslie E. John ** Elizabeth Weissert ** Alex Levy ** BALLARD SPAHR LLP 1909 K Street, NW - 12th Floor Telephone: (202) 661-2200 Facsimile: (202) 661-6299 Email: kelleym@ballardspahr.com Email: johnl@ballardspahr.com Email: weisserte@ballardspahr.com Email: levya@ballardspahr.com

Attorneys for Petitioners ** Application for admission pro hac vice forthcoming

1

Pursuant to LCvR 65.1(a), Petitioners have provided Respondents actual notice of the

filing, including copies of all pleadings and papers.

2

Case 1:20-cv-01072-CRC Document 4-1 Filed 04/23/20 Page 1 of 44

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

C.G.B., f/k/a D.G.B.; A.F., f/k/a O.E.R.F.;

)

M.M.S-M., f/k/a A.H.S-M.; L.R.A.P., f/k/a E.A.P.; ) Case No.

K.S., f/k/a J.H.S.; K.M., f/k/a G.M.;

)

R.H., f/k/a F.A.H.; L.M., f/k/a S.M.; M.J.J., f/k/a )

O.H.J.; D.B.M.U., f/k/a W.E.M.U.; K.R.H., f/k/a )

W.D.R.H.; G.P., f/k/a O.A.P.; and M.R.P., f/k/a )

J.N.R.P.,

)

)

Petitioners,

)

)

v.

)

)

Chad WOLF, in his official capacity as the acting )

Secretary of the U.S. Department of Homeland )

Security; and

)

)

William BARR, in his official capacity as the

)

Attorney General of the United States,

)

)

)

Respondents.

)

)

Case: 1:20−cv−01072 Assigned To : Cooper, Christopher R. Assign. Date : 4/23/2020 Description: TRO/PI (D−DECK)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITIONERS’ MOTION
FOR TEMPORARY RESTRAINING ORDER AND REQUEST FOR AN EMERGENCY HEARING

Case 1:20-cv-01072-CRC Document 4-1 Filed 04/23/20 Page 2 of 44

TABLE OF CONTENTS

Page

INTRODUCTION .......................................................................................................................... 1

FACTUAL BACKGROUND ......................................................................................................... 5

I. The COVID-19 Global Pandemic........................................................................... 5

II. Transgender Detainees Have A High Risk Of Becoming Infected, Experiencing Severe Illness, and Dying From COVID-19 .................................... 6

III. ICE’s Failure to Provide the Most Basic Pandemic Precautions Has Increased Transgender Detainees’ Risk of Illness and Death............................... 10

A. Social Distancing ...................................................................................... 10 B. Hand-washing and Hygiene...................................................................... 12 C. Protective Equipment................................................................................ 14 D. Information and Training .......................................................................... 15

IV. ICE’s Inadequate Medical Care For Transgender Detainees Enhances Their Risk.............................................................................................................. 17

V. ICE Protocols for Dealing With Suspected and Confirmed COVID-19 Infections Do Not Adequately Protect Detainees and Put Them at Greater Risk ....................................................................................................................... 22

VI. Sufficient Private Resources Exist to Support the Release of All Transgender Detainees Into Safer Settings ........................................................... 24

ARGUMENT ................................................................................................................................ 25

I. Legal Standard ...................................................................................................... 25

II. Petitioners Are Entitled to Injunctive Relief......................................................... 26

A. Petitioners Are Likely to Succeed on the Merits of Their Claims............ 26 B. Petitioners Will Be Irreparably Injured if The Court Does Not
Grant the Relief Sought ............................................................................ 34 C. There is No Substantial Injury to Other Parties and Injunctive
Relief is in Public Interest......................................................................... 35

CONCLUSION............................................................................................................................. 37

i

Case 1:20-cv-01072-CRC Document 4-1 Filed 04/23/20 Page 3 of 44
TABLE OF AUTHORITIES
Page(s)
Cases United States ex rel. Accardi v. Shaughnessy,
347 U.S. 260 (1954).....................................................................................................29, 30, 32
Al-Joudi v. Bush, 406 F. Supp. 2d 13 (D.D.C. 2005) ...........................................................................................34
Banks v. Booth, No. 20-849, 2020 U.S. Dist. LEXIS 68287 (D.D.C. Apr. 19, 2020) .................................28, 34
Battle v. FAA, 393 F.3d 1330 (D.C. Cir. 2005) ...............................................................................................29
Bell v. Wolfish, 441 U.S. 520 (1979).................................................................................................................27
Bent v. Barr, No. 19-06123, 2020 U.S. Dist. LEXIS 62792 (N.D. Cal. Apr. 9, 2020) .................................36
Brown v. Plata, 563 U.S. 493 (2011).................................................................................................................26
Castillo v. Barr, No. 20-00605, 2020 U.S. Dist. LEXIS 54425 (C.D. Cal. Mar. 27, 2020).............26, 28, 33, 36
Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) .................................................................................................25
Citizens for Responsibility & Ethics in Washington v. Cheney, 577 F. Supp. 2d 328 (D.D.C.) ..................................................................................................25
City of Sacramento v. Lewis, 523 U.S. 833 (1998).................................................................................................................27
Council on American-Islamic Relations v. Gaubatz, 667 F. Supp. 2d 67 (D.D.C. 2009) ...........................................................................................25
Cristian A.R. v. Decker, No. 20-3600, 2020 U.S. Dist. LEXIS 66658 (D.N.J. Apr. 12, 2020) ......................................33
Damus v. Nielsen, 313 F. Supp. 3d 317 (D.D.C. 2018) .........................................................................................30
ii

Case 1:20-cv-01072-CRC Document 4-1 Filed 04/23/20 Page 4 of 44
Davis v. District of Columbia, 158 F.3d 1342 (D.C. Cir. 1998) ...............................................................................................35
DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189 (1989)...........................................................................................................26, 27
Doe v. Barr, No. 20-02141-LB, 2020 U.S. Dist. LEXIS 64459 (N.D. Cal. Apr. 12, 2020)...........................7
Gordon v. Holder, 721 F.3d 638 (D.C. Cir. 2013) .................................................................................................35
Hall v. Johnson, 599 F. Supp. 2d 1 (D.D.C. 2009) .............................................................................................25
Harris v. Bd. of Supervisors, Los Angeles Cnty., 366 F.3d 754 (9th Cir. 2004) ...................................................................................................34
Helling v. McKinney, 509 U.S. 25 (1993).............................................................................................................26, 27
Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004), cert. denied, 546 U.S. 820 (2005) ............................................27
League of Women Voters of the United States v. Newby, 838 F.3d at 12 ..........................................................................................................................36
Lopez v. FAA, 318 F.3d 242 (D.C. Cir. 2003) .................................................................................................30
MGU v. Nielsen, 325 F. Supp. 3d 111 (D.D.C. 2018) .........................................................................................36
Monitlla v. INS, 926 F.2d 162 (2d. Cir. 1991)....................................................................................................29
Morton v. Ruiz, 415 U.S. 199 (1974)...........................................................................................................29, 30
Open Communities Alliance v. Carson, 286 F. Supp. 3d 148 (D.D.C. 2017) .........................................................................................35
R.I.L–R v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) ...........................................................................................35
Sameena, Inc. v. U.S. Air Force, 147 F.3d 1148 (9th Cir. 1998) .................................................................................................30
iii

Case 1:20-cv-01072-CRC Document 4-1 Filed 04/23/20 Page 5 of 44
Save Jobs USA v. U.S. Dep’t of Homeland Sec., 105 F. Supp. 3d 108 (D.D.C. 2015) .........................................................................................25
Sibley v. Obama, 810 F. Supp. 2d 309 (D.D.C. 2011) .........................................................................................25
Thakker v. Doll, No. 1:20-480, 2020 U.S. Dist. LEXIS 59459 (M.D. Pa. Mar. 31, 2020) ..........................28, 34
Torres v. United States Dep’t of Homeland Sec., 411 F. Supp. 3d 1036 (C.D. Cal. 2019) .............................................................................32, 34
United States v. Moore, No. 1:18-cr-198 (JEB), 2019 U.S. Dist. LEXIS 104300 (D.D.C. June 21, 2019) ........................................................................................................................................28
United States v. Salerno, 481 U.S. 739 (1987).................................................................................................................27
Unknown Parties v. Johnson, No. CV-15-00250-TUC-DCB, 2016 U.S. Dist. LEXIS 189767 (D. Ariz. Nov. 18, 2016), aff’d sub nom. Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017) ....................................28
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541 (6th Cir. 2004) ...................................................................................................30
Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008).....................................................................................................................25
Zadvydas v. Davis, 533 U.S. 678 (2001).................................................................................................................27
Statutes 8 U.S.C. § 1182(d)(5)(A) .........................................................................................................32, 35 Administrative Procedure Act................................................................................................ passim Other Authorities 8 C.F.R. § 235.3(b)(2)(iii)........................................................................................................32, 35 8 C.F.R. § 235.3(c)...................................................................................................................32, 36 Fifth Amendment ................................................................................................................... passim Eighth Amendment ..................................................................................................................26, 27
iv

Case 1:20-cv-01072-CRC Document 4-1 Filed 04/23/20 Page 6 of 44
Cases of Coronavirus Disease (COVID-19) in the U.S., Centers for Disease Control and Prevention ..............................................................................................................5
ERO COVID-19 Pandemic Response Requirements, U.S. Immigration and Customs Enforcement (Version 1.0, Apr. 10, 2020) ....................................................... passim
Fed. R. Civ. P. 65 .............................................................................................................................1 H. R. Rep. No. 116-180 (2019)......................................................................................................20 ICE Guidance on COVID-19, Confirmed Cases, Immigration and Customs
Enforcement ...................................................................................................................4, 17, 23 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in
Correctional and Detention Facilities at 10, U.S. Centers for Disease Control and Prevention (last updated Mar. 23, 2020) ...........................................................................12 Letter from Rep. Mike Quigley, et al. to Chad Wolf, Acting Secretary, U.S. Department of Homeland Security (Jan. 14, 2020) .................................................................21 Letter from Sens. Elizabeth Warren and Tammy Baldwin to Kevin McAleenan, Acting Secretary, U.S. Department of Homeland Security (Oct. 15, 2019)............................21 Loc. Civ. R. 5.1(h) ...........................................................................................................................4 Loc. Civ. R. 65.1 ..............................................................................................................................1 Report No. OIG-18-32, Concerns about ICE Detainee Treatment and Care at Detention Facilities, U.S. Department of Homeland Security, Office of Inspector General (Dec. 11, 2017) ...........................................................................................20 Report No. OIG-19-47, Concerns about ICE Detainee Treatment and Care at Four Detention Facilities, U.S. Department of Homeland Security, Office of Inspector General (June 3, 2019) .............................................................................................20 Thomas Homan, Executive Associate Director, U.S. Immigration and Customs Enforcement, Further Guidance Regarding the Care of Transgender Detainees (June 19, 2015)........................................................................................................19 What You Should Know About COVID-19 to Protect Yourself and Others, Centers for Disease Control and Prevention (Apr. 15, 2020) .............................................................5, 6
v

Case 1:20-cv-01072-CRC Document 4-1 Filed 04/23/20 Page 7 of 44
Pursuant to Fed. R. Civ. P. 65 and Loc. Civ. R 65.1, Petitioners, by and through undersigned counsel, respectfully request that this Court enter an Order: (1) immediately releasing, on parole or other supervised release, Petitioners and all transgender detainees in the Immigration and Customs Enforcement Detention Centers (“Detention Centers”) pending the completion of these proceedings, pursuant to the Court’s inherent powers; (2) immediately ordering Respondents to implement, without exception, all protocols designed to prevent the transmission of COVID-19 coronavirus as indicated in the attached expert declarations and/or protocols of the CDC2 and the WHO;3 and (3) prohibiting the placement of any and all new transgender detainees in the Detention Centers until all protocols designed to prevent the transmission of the COVID-19 coronavirus have been implemented sufficient to adequately protect detainees from contracting COVID-19.
The grounds for this Motion are set forth below and in the accompanying declarations. INTRODUCTION
Although federal authorities recognize the severe risks posed by outbreaks of the COVID-19 virus in immigration detention centers, Immigration and Customs Enforcement (ICE) has done little more than pay lip service to protecting those in its custody. Transgender people in civil immigration detention – many of whom came to this country seeking safety from violence and persecution in their home countries because of their gender identities – are among the most vulnerable to infection, disease and death during the current pandemic. This lawsuit seeks the parole or supervised release of all transgender people in civil immigration detention because ICE
2 https://www.cdc.gov/coronavirus/2019-ncov/hcp/guidance-prevent-spread.html 3 https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public

Case 1:20-cv-01072-CRC Document 4-1 Filed 04/23/20 Page 8 of 44
has not provided and cannot implement even the most basic measures to curb the spread of COVID-19 in its facilities.
Transgender detainees are particularly susceptible to COVID-19 infection because as a group they are more likely to have underlying medical conditions making them vulnerable, such as infection with HIV, diabetes and high blood pressure. Further, transgender detainees have not only suffered the trauma of being discriminated against, persecuted, tortured and raped because of their gender identity, but they also live with the constant stress of continuing discrimination, harassment and the risk of sexual assault. Such stress lowers their immune systems’ response to infection, meaning transgender detainees are more likely to become infected, become sick, and die from COVID-19.
Immigration detention centers are congregate facilities in which detainees live in close proximity. That fact makes them especially dangerous during pandemics such as COVID-19, which easily spreads from person to person, both through the air and on commonly used surfaces such as tables and toilets.
In fact, since ICE first reported a COVID-19 infection in one of its detention centers on March 19, 2020, outbreaks have spread to at least 32 detention centers across the country. As of April 22, 2020, ICE had publicly reported 322 confirmed cases of COVID-19 in those facilities, including 287 detainees and 35 staff members. At least ten facilities where transgender detainees are housed are experiencing reported outbreaks with 103 detainees and 12 staff members infected.
On April 10, 2020, a month after the World Health Organization declared a global pandemic, ICE finally issued rules for its detention centers to take some steps designed to reduce the risk of COVID-19 outbreaks, and also required its facilities to follow guidance for detention
2

Case 1:20-cv-01072-CRC Document 4-1 Filed 04/23/20 Page 9 of 44
centers published by the Centers for Disease Control and Prevention. But ICE has systematically failed to provide even these fundamental protections to civil immigration detainees. Indeed, in precisely the scenario envisioned by public health experts, a transgender detainee in Arizona is being treated for a suspected case of COVID-19 after her bunkmate spent several nights uncontrollably coughing. The health workers at that detention center only cursorily examined the bunkmate, sending him right back to the general population.
Transgender detainees report that it is often impossible to practice social distancing and take other necessary measures that are required to protect from COVID-19. Beds and tables are bolted to the floor, forcing detainees to sleep and sit only a few feet from each other, and some detainees are still lining up in large groups for meals as they did before the outbreak. Few guards and staff members wear face masks when interacting with detainees, and some wear no protective equipment at all – including a doctor who performed a physical examination of a transgender woman without even wearing gloves. Most detainees have not been provided with face masks; some do not have access to soap and must wash their hands with shampoo. Many detainees must clean their own living spaces without disinfectant. Detainees exhibiting symptoms such as coughing or fever on occasion are not given medical examinations or isolated from the rest of the population.
On top of these failures, transgender detainees continue to be subject to harassment and threats of assault from other detainees, further making social distancing an impossibility. Transgender detainees that live with HIV report that detention center staff do not provide needed medications at the prescribed intervals, compromising their immunity. And transgender
3

Case 1:20-cv-01072-CRC Document 4-1 Filed 04/23/20 Page 10 of 44

detainees on medically necessary hormone replacement therapy must interact frequently with medical staff, further exposing them to infection.
The COVID-19 outbreak has spread to several ICE detention centers, including those in which transgender detainees are held. As of April 22, 2020, ICE reported at least 322 confirmed COVID-19 cases in its detention centers, including 287 detainees and 35 ICE staff members. See ICE Guidance on COVID-19, Confirmed Cases, Immigration and Customs Enforcement, www.ice.gov/coronavirus (last visited Apr. 22, 2020). Eleven detention centers known to house transgender detainees have outbreaks, including the Prairieland Detention Center in Texas, where 33 detainees have tested positive; the Otay Mesa Detention Center in San Diego, where 42 detainees and eight staff members have confirmed COVID-19 infections; and the La Palma Correctional Facility in Arizona, where there are 18 detainees with confirmed cases of COVID19. Id. The official figures likely underestimate the actual number of COVID-19 infections at ICE detention centers, because detainees report that not all of those with symptoms of the virus are treated, let alone tested, and some detainees have been informed of COVID-19 infections at detention centers that ICE has not publicly acknowledged. K.S. Decl. ¶¶ 20, 27, Ex 5.4
ICE’s failures have made detention centers death traps for transgender detainees. That situation violates detainees’ Fifth Amendment due process rights and the Administrative Procedure Act. Therefore, this Court should issue an injunction mandating the release on parole or other supervised release of all transgender people in civil immigration detention so they may

4

Because they contain the names and other highly personal information about Petitioners,

who are seeking asylum because of fear of persecution because of their transgender

status, Petitioners’ declarations have been filed under seal, accompanied by a motion to

seal pursuant to Local Civil Rule 5.1(h). Additionally, because in-person access to

Petitioners is not allowed, and given the exigent circumstances, the declarations were

signed by attorneys or their representatives who had phone access to Petitioners and

received their consent to execute the declarations on their behalf.

4

Case 1:20-cv-01072-CRC Document 4-1 Filed 04/23/20 Page 11 of 44
take the necessary precautions against COVID-19. The nonprofit organizations and other groups supporting transgender detainees have the resources and plans necessary to support all of the transgender detainees so that, if released, they can protect themselves and other from COVID-19. FACTUAL BACKGROUND
I. The COVID-19 Global Pandemic Although there is much about the novel coronavirus that causes COVID-19 that is still a mystery, the basic facts about the viral pandemic and its effects on nearly every aspect of our society are well known. Since the first confirmed case of COVID-19 in the United States in late January 2020, the number of infected people in this country has exploded to more than 802,000 as of April 20, with nearly 45,000 deaths, according to the federal Centers for Disease Control and Prevention (“CDC”). See Cases of Coronavirus Disease (COVID-19) in the U.S., Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/cases-in-us.html (last visited Apr. 22, 2020). State and local governments across the country have implemented measures intended to curb the spread of the disease, including banning large gatherings, closing non-essential businesses, ordering people to stay home except for essential activities, and requiring the use of face masks where large groupings of strangers are unavoidable, such as in grocery stores. COVID-19 is a respiratory illness that is spread through airborne droplets, such as those expelled when a person coughs or sneezes, or via contact with contaminated surfaces such as doorknobs and countertops. See What You Should Know About COVID-19 to Protect Yourself and Others, Centers for Disease Control and Prevention (Apr. 15, 2020) (“CDC Factsheet”), available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/2019-ncov-factsheet.pdf. Some people who are infected with the novel coronavirus that causes COVID-19 do not experience symptoms, but may nonetheless be contagious, as are those who exhibit symptoms
5

Case 1:20-cv-01072-CRC Document 4-1 Filed 04/23/20 Page 12 of 44
before, during and after they are ill. Id.; see also Decl. of R. Nick Gorton, M.D. (“Gorton Decl.”) ¶ 4, Ex 14. Those who do suffer illness from the disease experience flu-like symptoms such as fever, coughing, body aches, and difficulty breathing, and in severe cases the infection can cause pneumonia, multiple organ failure, and death. Gorton Decl. ¶ 4, Ex 14.; see also Decl. of Carlos Franco-Paredes (“Franco-Paredes Decl.”) ¶ 16, Ex 15. Severe cases require hospitalization, often with breathing assistance ranging from supplemental oxygen to use of a ventilator; those who survive severe illness may have permanent lung damage and other disability. Gorton Decl. ¶ 4, Ex 14. There is no vaccine or cure. Id. ¶ 6; see also CDC Factsheet, Ex 16.
Preventative measures recommended by public health experts include frequent and thorough hand washing; wearing a face mask in public; frequently disinfecting surfaces on which the virus could be deposited; and the now-familiar tactic of “social distancing” – staying at least six feet away from other people. CDC Factsheet, Ex 16; Gorton Decl. ¶ 6, Ex 14. Although young and otherwise healthy people can become ill and die from COVID-19, those at the highest risk for illness and death include those over age 55 and people with underlying medical issues such as asthma or other lung ailments; high blood pressure; suppressed immune systems; and diabetes. Franco-Paredes Decl. ¶ 10, Ex 15; CDC Factsheet, Ex 16.
II. Transgender Detainees Have A High Risk Of Becoming Infected, Experiencing Severe Illness, and Dying From COVID-19
Transgender detainees, as a group, are at a greater risk of contracting the virus that causes COVID-19 than the general population and, if they do become infected, are more likely to become seriously ill or die. Gorton Decl. ¶ 10, Ex 14; Franco-Paredes Decl. ¶ 17, Ex 15. It is no exaggeration to state that during this pandemic, ICE detention facilities are death traps for the transgender people being held there. Gorton Decl. ¶¶ 12-13, Ex 14 (“[B]ecause transgender
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people are at much higher risk due to the above described clinical vulnerabilities in this group, I also expect that if kept in detention, transgender detainees will have a disproportionately higher risk of severe or critical COVID-19 and death or permanent pulmonary disability as a consequence.”); see also Franco-Paredes Decl. ¶¶ 5-6, 28, Ex 15.
Several well documented, preexisting factors combine to make transgender detainees a high-risk group for developing severe illness and death from COVID-19.
First, transgender people are more likely to have underlying health conditions that put them at high risk for developing the most serious complications from COVID-19, including health conditions caused by tobacco use, immune suppression caused by HIV or viral hepatitis, diabetes, high blood pressure, and obesity. Gorton Decl. ¶ 10, Ex 14; Franco-Paredes Decl. ¶ 17, Ex 15. For example, some studies have found that 20% to 25% of transgender women are HIVpositive, with even higher rates among transgender women of color and those who live in urban areas. Gorton Decl. ¶ 10(B), Ex 14. Ronica Mukerjee, a nurse practitioner who treats transgender patients in Tijuana, Mexico for an immigrant rights organization, estimates that 30% of her patients are HIV-positive, and in most the infection is not well controlled. Mukerjee Decl. ¶¶ 5, 8, Ex 17. In this case, two of the named Petitioners are HIV-positive.
Second, transgender detainees also are far more likely to suffer from mental health issues such as depression, anxiety and post-traumatic stress disorder that cause immune suppression and other physical ailments. Gorton Decl. ¶ 10(F), Ex 14; Franco-Paredes Decl. ¶ 17, Ex 15; see also Doe v. Barr, No. 20-02141-LB, 2020 U.S. Dist. LEXIS 64459, at *7 (N.D. Cal. Apr. 12, 2020) (“weakened immunity due to mental-health disorders can put detainees ‘at increased risk of contracting and suffering from more severe forms of COVID-19’”). One common factor for transgender people is the mental and emotional trauma caused by the endemic discrimination,
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violence and social stigma against transgender people – a phenomenon known generally as “minority stress” – which, in turn, can further suppress the immune system and exacerbate other underlying medical conditions. Gorton Decl. ¶ 10(D), Ex 14.
Transgender people in ICE custody are especially vulnerable to mental health problems due to the fact that they left their native countries because of violence and persecution, and thus have “a profound history of trauma leading to high rates of depression, anxiety, and posttraumatic stress disorder.” Franco-Paredes Decl. ¶ 17, Ex 15. For example, a detainee at La Palma reports that harassment by other detainees and staff is exacerbating her depression. A.F. Decl. ¶ 20, Ex 2. Another La Palma detainee reports being depressed by being called antitransgender and anti-gay slurs by staff and other detainees, and being terrified when staff let men into the bathroom while she was showering. L.R.A.P. Decl. ¶¶ 13-15, Ex 4. In other words, transgender immigrants are at higher risk of infection for precisely the same reasons they fled their home countries and came to be in ICE custody.
Third, that discrimination, violence and social stigma means transgender people also are more likely to live in poverty and less likely to have health insurance or the ability to pay for health care, and therefore are less likely to have received proper, ongoing medical care for their underlying medical conditions prior to their detention. Gorton Decl. ¶ 10, Ex 14.
Fourth, because transgender detainees are not allowed to self-administer their injectable hormone treatments while in ICE custody, they must have more frequent interactions with medical staff, who themselves are at higher risk of contracting – and thus spreading – the Coronavirus because of their contact with sick people. Gorton Decl. ¶ 11, Ex 14. One detainee in Aurora, for example, was examined by a doctor at the facility who was not wearing gloves or a face mask. L.M. Decl. ¶ 105, Ex 8. Another Aurora detainee has observed that the medical
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staff who distribute medication do so wearing gloves but not face masks. D.B.M.U. Decl. ¶ 22, Ex 10.
Fifth, transgender people in ICE custody are far more likely to be victims of abuse and sexual assault than other detainees – indeed, ICE’s own data show that lesbian, gay, bisexual and transgender detainees are 97 times more likely to be sexually victimized than non-LGBT detainees. Gorton Decl. ¶ 11, Ex14; see also Franco-Paredes Decl. ¶ 17, Ex 15. That abuse – and the fear of falling victim to it – only compounds the stress transgender detainees experience and exacerbates their other mental and physical health problems. See M.M.S-M. Decl. ¶¶ 8, 1617 (transgender woman describing sexual harassment and assault in ICE detention and having panic attacks when housed with cisgender men because of her past history of surviving rape), Ex 3. And, needless to say, physical and sexual assaults by definition involve the kind of close contact that can spread Coronavirus and are more likely to occur when detainees are kept in close quarters. See Gorton Decl. ¶ 11, Ex 14 (noting that “even if a transgender person wanted to attempt social distancing [while in ICE custody], it might not be an option because of the high likelihood of getting sexually assaulted.”).
In sum, the distressing reality for transgender people in ICE custody is that they are more likely to be exposed to the Coronavirus; more likely to become infected if they are exposed; more likely to experience severe illness if they become infected; and more likely to die if they experience severe illness. Gorton Decl. ¶¶ 10-13, Ex 14. And the heightened susceptibility of transgender detainees to COVID-19 means that releasing them from detention will not only help curb their risks of illness and death, it will help protect any remaining detainees, guards and staff who might otherwise be exposed to enhanced spread of the virus and avoid further burdening area health care facilities. Franco-Paredes Decl. ¶¶ 28-29, Ex 15; Gorton Decl. ¶ 13, Ex 14.
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III. ICE’s Failure to Provide the Most Basic Pandemic Precautions Has Increased Transgender Detainees’ Risk of Illness and Death
Despite the fact that transgender detainees are at high risk for contracting and suffering severe illness from COVID-19, ICE has not taken the steps necessary to protect transgender detainees from the disease, nor have the detention centers holding transgender detainees followed even the minimal COVID-19 response requirements that ICE itself sets forth. To the contrary, ICE’s actions and inactions have unacceptably and unconstitutionally put transgender detainees at increased risk of suffering and dying from this pandemic.
A. Social Distancing As government and private sector medical experts have repeatedly emphasized, limiting the spread of the pandemic requires “social distancing” – keeping at least six feet away from other people. See, e.g., Gorton Decl. ¶ 6, Ex 14; Franco-Paredes Decl. ¶ 14, Ex 15. ICE detention centers have not and cannot provide sufficient space to do so. See id. The consequences of the lack of opportunity for social distancing in ICE custody are dramatically illustrated by the experience of C.G.B., who became ill with a suspected case of COVID-19 after a newly arrived bunkmate spent days coughing before being seen by a doctor and then was returned to the general population. C.G.B. Decl. ¶¶ 7-8, Ex 1. The pod where C.G.B. became ill has beds spaced approximately three feet apart. Id. ¶ 6. At Winn, detainees stay in pods of approximately 44 people, sleeping in beds that are approximately four or five feet apart. M.M.S-M. Decl. ¶ 30, Ex 3. At La Palma, some 100 to 120 detainees eat meals together, where they must sit approximately one foot away from each other and cannot keep a six-foot distance while waiting in line. A.F. Decl. ¶ 12, Ex 2; see also L.R.A.P. Decl. ¶ 8, Ex 4 (another La Palma detainee explaining social distancing is impossible because detainees must sit at tables one foot apart). Approximately 60 detainees at a time are
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allowed on a patio, where they also do not have enough room to stay six feet apart. A.F. Decl. ¶ 13, Ex 2.
At the El Paso Processing Center, detainees sleep in beds four feet apart. M.R.P. Decl. ¶ 34, Ex 13. At Aurora, beds, as well as the tables and seating where detainees eat, are bolted to the floor and cannot be moved to increase the distance between detainees. L.M. Decl. ¶¶ 92-93, Ex 8; D.B.M.U. Decl. ¶ 17, Ex 10. Detainees are not able to practice social distancing. M.J.J. Decl. ¶ 17, Ex 9.
At Southern Nevada, the beds are close enough for detainees to reach across the aisle and touch the adjacent bed. K.M. Decl. ¶ 22, Ex 6. Detainees eat at tables seating four people that are too small to accommodate all four food trays at once. Id. ¶ 26. At the Caroline detention facility in Virginia, detainees cannot maintain proper social distancing because they sleep four to a room in close quarters, in dormitories of approximately 35-40 people. R.H. Decl. ¶ 20, Ex 7. Detainees from each dorm at Caroline travel as a group to the cafeteria for meals and to the law library, providing additional opportunities for disease to spread. Id. ¶ 21.
ICE regulations acknowledge that “[b]oth good hygiene practices and social distancing are critical in preventing further transmission” of COVID-19. ERO COVID-19 Pandemic Response Requirements at 11, U.S. Immigration and Customs Enforcement (Version 1.0, Apr. 10, 2020), available at https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf (hereinafter, “ICE Pandemic Requirements”). In practice, however, neither are being implemented at ICE detention facilities. ICE’s failure to follow its own regulations and inability to take the most basic precautions against the spread of this deadly virus pose dangers to
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transgender detainees that can be remedied only by the detainees’ immediate release to safer areas.
B. Hand-washing and Hygiene Since the beginning of the pandemic, public health experts have emphasized that proper hand washing, cleaning and other hygiene practices are key preventative measures that everyone should follow. E.g., How to Protect Yourself and Others, U.S. Centers for Disease Control and Prevention (last updated Apr. 18, 2020), https://www.cdc.gov/coronavirus/2019-ncov/preventgetting-sick/prevention.html; see also Gorton Decl. ¶ 6, Ex 14. ICE’s pandemic response requirements – issued on April 10, 2020, a month after the World Health Organization declared COVID-19 a global pandemic – mandate that detention facilities require everyone in the facility, staff and detainees alike, “to maintain good hand hygiene by regularly washing their hands with soap and water for at least 20 seconds,” and to provide at no cost sufficient supplies such as hand soap and tissues to allow detainees to meet these requirements.5 ICE also requires its detention facilities to follow the guidance for detention facilities published by the CDC. ICE Pandemic Requirements at 5-6. The CDC guidance also mandates that facilities provide staff and detainees with sufficient supplies and opportunities for frequent and adequate hand washing.6 Despite these basic requirements, ICE detention centers lack sufficient facilities to allow all detainees to practice frequent hand washing. For example, at the Imperial Regional Detention
5 ERO COVID-19 Pandemic Response Requirements at 9, U.S. Immigration and Customs Enforcement (Version 1.0, Apr. 10, 2020), available at https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf (hereinafter, “ICE Pandemic Requirements”). 6 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities at 10, U.S. Centers for Disease Control and Prevention (last updated Mar. 23, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidancecorrectional-detention.pdf (hereinafter, “CDC Guidance.”).
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Facility in California, 32 detainees residing on one floor of a dormitory share four sinks and one soap dispenser, G.P. Decl. ¶ 19, Ex 12, while at Southern Nevada, 46 detainees share one bathroom with eight sinks and toilets. K.M. Decl. ¶ 23, Ex 6. The conditions are worse at Winn, where approximately 44 detainees share one bathroom with three sinks and toilets. M.M.S-M. Decl. ¶ 30, Ex 3. The only regular cleaning is sweeping by detainees once per day. Id. ¶ 31.
At Aurora, the bathroom sink in a dormitory housing transgender detainees has been clogged for an extended period of time, and the detainees do not have the equipment to fix it. D.B.M.U. Decl. ¶ 21, Ex 10. Detainees use a container to capture the dirty water and pour it in the shower. Id.
ICE also fails to provide detainees with sufficient supplies. La Palma, for example, provides shampoo, but detainees have to purchase soap—which indigent detainees are unable to do. A.F. Decl. ¶ 14, Ex 2; L.R.A.P. Decl. ¶ 9, Ex 4; K.R.H. Decl. ¶ 15, Ex 11. Detainees at Southern Nevada also have to purchase soap at the commissary, K.M. Decl. ¶ 30 Ex 6, as do detainees at Caroline, R.H. Decl. ¶ 25, Ex 7.
ICE also requires that its detention centers use household cleaners and disinfectants several times a day to “clean and disinfect surfaces and objects that are frequently touched, especially in common areas (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment.)” ICE Pandemic Requirements at 10.7 However, ICE detention facilities holding transgender immigrants are not even coming close to fulfilling this mandate.

7

The mandatory CDC guidelines also require this kind of cleaning and disinfecting several

times per day. CDC Guidance at 9.

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Frequently used surfaces such as sinks and toilets are cleaned, at most, once a day, and detainees are not provided with the cleaning and disinfecting supplies necessary to protect themselves. For example, detainees in Aurora, who are responsible for cleaning their own living areas, attempt to clean three times daily but staff provides only two rags, one for the living area and one for the bathroom. M.J.J. Decl. ¶ 22, Ex 9; D.B.M.U. Decl. ¶ 20, Ex 10. Sinks and bathrooms in the El Paso facility are cleaned only once daily, and the detainees are not provided with disinfectant to clean more often. M.R.P. Decl. ¶¶ 33, 37, Ex 13.
ICE has failed to provide detainees with the supplies to permit them to follow the most basic hygiene measures required by its own regulations. The agency’s inability to sufficiently provide for such common-sense and low-tech preventative measures shows that supervised release from detention is the only way to remedy the unacceptable risk of infection, disease and death ICE has created for transgender detainees.
C. Protective Equipment ICE regulations mandate that “[c]loth face coverings should be worn by detainees and staff . . . to help slow the spread of COVID-19.” ICE Pandemic Requirements at 9. ICE facilities are not complying with this requirement, either. Many detainees report that they have not been provided with face masks, despite asking for them. M.M.S-M. Decl. ¶ 23, Ex 3; L.M. Decl. ¶ 51, Ex 8; M.J.J. Decl. ¶ 19, Ex 9; R.H. Decl. ¶¶ 22, 26, Ex 7; M.R.P. Decl. ¶ 30, Ex 13; cf. D.B.M.U. Decl. ¶ 18, Ex 10 (stating she has not asked for a mask because she assumes they are unavailable since guards do not wear them). Detainees at La Palma were provided with one paper mask each on April 14, 2020, and were told that it would not be replaced if it were damaged. A.F. Decl. ¶ 15, Ex 2. Facility staff initially tried to require detainees to sign a liability waiver to obtain a mask, but relented after detainees refused to sign the waiver. Id.; see also K.R.H. Decl. ¶ 9 (same), Ex 11. Detainees at Nevada
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Southern were not provided with cloth masks until April 16, 2020. K.S. Decl. ¶ 20, Ex 5; K.M. Decl. ¶ 31, Ex 6.
Guards, medical personnel, and other staff frequently interact with detainees without wearing protective equipment.
A doctor at Aurora performed a hands-on medical examination without wearing gloves or a mask. L.M. Decl. ¶ 105, Ex 8. So did a doctor at La Palma. A.F. Decl. ¶ 16, Ex 2. Medical personnel delivering medication to detainees at Aurora also do not wear masks. D.B.M.U. Decl. ¶ 22, Ex 10.
Ironically, a guard giving detainees a presentation on COVID-19 at Southern Nevada did so without wearing a mask or gloves. K.S. Decl. ¶ 18, Ex 5. Guards at Southern Nevada also perform pat-down searches of detainees without wearing gloves or masks. K.M. Decl. ¶¶ 33-34, Ex 6. Several detainees report that guards do not wear gloves or masks. A.F. Decl. ¶ 17, Ex 2; L.R.A.P. Decl. ¶ 12, Ex 4; K.R.H. Decl. ¶ 11, Ex 11; D.B.M.U. Decl. ¶ 22, Ex 10. Other detainees report observing guards wearing gloves, but not masks. M.J.J. Decl. ¶ 23, Ex 9; K.M. Decl. ¶¶ 33-34, Ex 6.
ICE’s failure to provide protective gear such as face masks to detainees and to ensure that staff members use the required equipment further heightens the unconstitutional risk of infection to which transgender detainees are subjected through their continued detention.
D. Information and Training Both the ICE rules and the CDC guidance require that detainees be provided with accurate and up to date information about COVID-19, precautions they can take to reduce the risk of infection, and the presence of the virus in their facility. ICE Pandemic Requirements at 7, 9; CDC Guidance at 6, 10, 12, 22. The CDC Guidelines, which ICE facilities are required to follow, require that information about COVID-10 must be provided “in a manner that can be
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understood by non-English speaking people and those with low literacy.” CDC Guidelines at 22; see also id. at 6, 10 (same).
ICE has failed to provide any of this required lifesaving information to many detainees, has not provided regular updates to the limited amount of information it has provided to other detainees, and in some instances has misled detainees by falsely denying the presence of COVID-19 at their facility.
Many current and recently released detainees report that guards or other staff gave them no information about COVID-19. They include C.G.B., who received no information about COVID-19 from the staff at La Palma despite being quarantined with a suspected case of the disease. C.G.B. Decl. ¶ 11, Ex 1; see also L.R.A.P. Decl. ¶ 6 (same), Ex 4; A.F. Decl. ¶ 10 (La Palma detainee stating she has not received any information from staff regarding COVID-19 and guards refuse to answer questions about the virus), Ex 2. This problem also has occurred at Aurora. D.B.M.U. Decl. ¶ 12, Ex 10.
One detainee at Aurora said that the only information she received was a suggestion to wash her hands. M.J.J. Decl. ¶ 12, Ex 9. At Southern Nevada, a guard gave a COVID-19 presentation in the morning while some detainees were sleeping and did not ensure that all detainees attended. K.M. Decl. ¶ 18, Ex 6.
Some statements made by facility staff have contradicted ICE’s public statements. For example, staff informed detainees at Nevada Southern on April 15, 2020 that there was one person with COVID-19 at the facility, but ICE has not reported one to the public. K.S. Decl. ¶ 20, Ex 5.
Worse, ICE has violated the CDC Guidelines by affirmatively misinforming detainees about the presence of COVID-19 at their facility. Although ICE now reports that two staff
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members at Aurora have tested positive for the COVID-19 virus,8 officials falsely denied to detainees that anyone at the facility had been infected. See M.J.J. Decl. ¶ 14, Ex 9; D.B.M.U. Decl. ¶ 14, Ex 10.
By failing to provide any information about the virus to many detainees and providing incomplete, false and misleading information to others, ICE has not only violated its own rules and mandatory CDC guidance, but also has further heightened the risk of COVID-19 transmission to transgender detainees.
IV. ICE’s Inadequate Medical Care For Transgender Detainees Enhances Their Risk
ICE detention centers are plagued by chronic and well-documented failures to provide proper medical care to transgender detainees – problems that have been exacerbated by the pandemic and pose another enhanced risk of infection, disease and death for transgender detainees. ICE’s past handling of infectious disease outbreaks in detention centers has been inept—foreshadowing the impact COVID-19 will have if transgender detainees are not released. Just last year, for example, a mumps outbreak across 57 immigration detention facilities throughout the country led to almost 900 cases of mumps overwhelmingly contracted inside the facilities before the outbreak spread to surrounding communities. As explained by Dr. Carlos Franco-Paredes, an infectious disease expert who has treated HIV-positive transgender detainees at the Aurora facility:
[I]t is my professional opinion that the medical care available in immigration detention centers cannot properly accommodate the needs of patients should there be an outbreak of COVID-19 in these facilities. Immigration detention centers are often poorly equipped to diagnose and manage infectious disease outbreaks. Many of these centers lack onsite medical facilities or 24-hour medical care.
8 See ICE Guidance on COVID-19, https://www.ice.gov/coronavirus (last visited Apr. 19, 2020).
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Franco-Paredes Decl. ¶ 5, Ex 15. Besides C.G.B., whose bunkmate was not isolated for many days despite showing classic
COVID-19 symptoms, several other transgender detainees report that they or other detainees showing possible COVID-19 symptoms have not been tested, quarantined or isolated. A.F. Decl. ¶ 16 (reporting that fellow detainee with fever and flu-like symptoms was told to make a regular medical request rather than receiving immediate attention), Ex 2; M.J.J. Decl. ¶ 30 (reporting that when she had a cough, she saw medical personnel who gave her aspirin and returned her to the general population), Ex 9; K.R.H. Decl. ¶ 12 (stating that when she suffered COVID-19-like symptoms including a fever, she had to wait a week before seeing a nurse, who told her she was fine, did not test her or provide any medication, and did not schedule a follow-up appointment), Ex 11.
This is a violation of ICE regulations and CDC guidance, which require that individuals suspected or confirmed to have COVID-19 must be placed in medical isolation and their close contacts must be quarantined. ICE Pandemic Requirements at 14-16; CDC guidance at 10-11.
Another alarming example of ICE’s bungling of medical care during the pandemic is the failure to provide adequate treatment to transgender detainees living with HIV, which further threatens their already compromised immune response. Prior to the outbreak, Dr. FrancoParedes, a doctor specializing in infectious diseases, was treating transgender detainees living with HIV at Aurora. Franco-Paredes Decl. ¶ 3, Ex 15. Since the outbreak began, authorities at Aurora have barred Dr. Franco-Paredes from providing care to any if his patients there; as a result, Dr. Franco-Paredes has been unable to see any of his patients in person, and even has had difficulty in scheduling virtual evaluations. Id.; see also id. ¶ 29. Dr. Franco-Paredes is concerned that the lack of adequate treatment will expose HIV-positive detainees to a high risk
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of contracting COVID-19, noting that one patient he evaluated had been given prescriptions for medications that negatively interacted with each other and thus could suppress the patient’s immune response. Id.
Multiple transgender detainees living with HIV report that they do not receive their medication at regular times, which, because it can lessen their immune response, puts them at greater risk of contracting life-threatening infections such as COVID-19. See K.S. Decl. ¶ 12, Ex 5; K.M. Decl. ¶ 14; see also M.J.J. Decl. ¶ 27 (Aurora detainee stating that fellow detainees who are HIV-positive have gotten their medication at varying times during the day), Ex 9. Other transgender detainees have had their medically necessary gender-affirming hormone treatments or other prescribed medications denied or changed without explanation. M.M.S-M. Decl. ¶¶ 12, 14, Ex 3; R.H. Decl. ¶¶ 11-13, 17, Ex 7; M.R.P. Decl. ¶¶ 17-18, Ex 13; L.M. Decl. ¶¶ 15-21, Ex 8; A.F. Decl. ¶ 18, Ex 2; K.R.H. Decl. ¶¶ 12, 16, Ex 11.
The COVID-19 outbreak has exacerbated the problems with a system that was already ill equipped to provide adequate medical care to transgender detainees. Although ICE has stated that discrimination against transgender detainees is prohibited,9 detainees report continued discrimination from health workers; one detainee reports that when she complained about harassment, a facility psychologist said there was nothing to be done because “we aren’t big on trans rights here.” L.R.A.P. Decl. ¶ 13, Ex 4.

9

Thomas Homan, Executive Associate Director, U.S. Immigration and Customs

Enforcement, Further Guidance Regarding the Care of Transgender Detainees (June 19,

2015), available at

https://www.ice.gov/sites/default/files/documents/Document/2015/TransgenderCareMem

orandum.pdf.

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A June 2019 Department of Homeland Security Office of Inspector General report10 found inadequate medical care at the Adelanto, California facility and other egregious health and safety violations at facilities in Aurora; Essex County, New Jersey; and LaSalle, Louisiana. A 2017 OIG report of inspections of six facilities found inadequate medical care including long delays for detainees to receive care, inadequate documentation of the care they received, and failure to use translation services to allow detainees to communicate their symptoms to medical workers and to understand and knowingly consent to medical treatment.11
Congress has expressed concern about treatment of transgender detainees when approving the fiscal 2020 appropriations for the Department of Homeland Security. The congressional report accompanying the appropriations directs ICE to limit the detention of transgender people to facilities operating under contracts that comply with ICE’s 2015 guidance on best practices for transgender detainees. See H. R. Rep. No. 116-180 at 37 (2019), Ex 18. Despite Congressional urging to push ICE to implement its own best practices, no ICE detention contracts so far have incorporated those improvements.
In the last six months, two U.S. Senators and 45 members of the House of Representatives have written to the acting directors of ICE and the Department of Homeland Security, citing “overwhelming evidence of systemic neglect and mistreatment of transgender individuals in immigration and detention facilities,” including a lack of adequate medical care,
10 Report No. OIG-19-47, Concerns about ICE Detainee Treatment and Care at Four Detention Facilities, U.S. Department of Homeland Security, Office of Inspector General (June 3, 2019), available at https://www.oig.dhs.gov/sites/default/files/assets/201906/OIG-19-47-Jun19.pdf.
11 Report No. OIG-18-32, Concerns about ICE Detainee Treatment and Care at Detention Facilities, U.S. Department of Homeland Security, Office of Inspector General (Dec. 11, 2017), available at https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-1832-Dec17.pdf .
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that “demonstrate ICE’s inability to provide adequate conditions for transgender immigrants.” Letter from Sens. Elizabeth Warren and Tammy Baldwin to Kevin McAleenan, Acting Secretary, U.S. Department of Homeland Security (Oct. 15, 2019), available at https://www.warren.senate.gov/imo/media/doc/2019.10.15%20Letter%20to%20DHS%20ICE%2 0and%20CPB%20regarding%20transgender%20migrants%20and%20asylum%20seekers.pdf; Letter from Rep. Mike Quigley, et al. to Chad Wolf, Acting Secretary, U.S. Department of Homeland Security (Jan. 14, 2020), available at https://quigley.house.gov/sites/quigley.house.gov/files/01.14.20%20ICE%20Letter.pdf.
Advocacy organizations also have filed several complaints with DHS and ICE in the past year citing egregious examples of medical neglect and mistreatment of transgender detainees. Just last month, a coalition of eight groups led by the Santa Fe Dreamers Project filed a complaint with ICE, the DHS Office of Inspector General, and the DHS Office for Civil Rights and Civil Liberties over conditions for transgender detainees at the Winn Correctional Center in Winnfield, Louisiana. See Ex 19. The complaint documented severe abuse and mistreatment of transgender detainees and medical care failings including interrupted and inconsistent provision of HIV medication; refusal to provide gender-affirming hormone treatments; delayed or denied dental care causing extreme pain and weight loss; and refusal to allow a woman to perform physical therapy exercises after her leg was broken by another inmate because she was transgender. Id.; see also Declaration of Allegra Love, Esq. (“Love Decl.”) ¶¶ 15-20 (describing these incidents), Ex 20. The Transgender Law Center and a dozen other nonprofit organizations filed a complaint with DHS and its inspector general’s office in September 2019 over ICE’s failure to provide adequate medical and mental health care to LGBT and HIV positive detainees,
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citing the maltreatment of 19 current and former detainees, most of them transgender. See Ex 21 (copy of complaint).
ICE’s failures to provide adequate medical care during the pandemic—building upon its inability to do so even in the best of times—put transgender detainees at further risk of serious illness or death should they become infected with the Coronavirus. Because ICE cannot provide adequate medical care to them, transgender detainees should be released immediately to safer environments.
V. ICE Protocols for Dealing With Suspected and Confirmed COVID-19 Infections Do Not Adequately Protect Detainees and Put Them at Greater Risk
Even if it followed its own requirements, ICE could not adequately protect transgender detainees from unconstitutional risks of infection posed by suspected or confirmed COVID-19 infections of other detainees or facility staff. Indeed, the shortcomings of these rules actually increase the risk that transgender detainees would contract, suffer and die from the virus. See Gorton Decl. ¶ 7 (“The ICE COVID-19 guidelines place persons in detention at significant risk.”), Ex 14.
The screening procedures ICE has announced are insufficient to keep those infected with COVID-19 from spreading the disease. Gorton Decl. ¶ 9, Ex 14. The ICE rules require facilities to screen employees and detainees upon entry for COVID-19 symptoms – fever, cough, and shortness of breath – and to bar entry to staff with those symptoms and to isolate incoming detainees with those symptoms. ICE Pandemic Requirements at 12. However, as Dr. R. Nick Gorton explains, many infected with the Coronavirus either never show symptoms or become infectious before they develop symptoms; and many with COVID-19 have gastrointestinal or other symptoms, not respiratory symptoms like a cough. Gorton Decl. ¶ 9, Ex 14. Thus, Dr.
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Gorton concludes, “[a] significant number of infections which could spread extensively in a crowded detention situation would be missed by ICE’s screening.” Id.
ICE’s website states that in detention centers, “cohorting” – keeping people together in a contained group – “serves as an alternative to self-monitoring at home” for those potentially exposed to the virus who do not have symptoms. See Ice Guidance on COVID-19, www.ice.gov/coronavirus (last visited Apr. 20, 2020). The agency’s rules for its detention centers say “facilities should consider cohorting” all detainees who arrive on one or more days. ICE Pandemic Requirements at 14.12 ). The CDC Guidelines, which the ICE Pandemic Requirements make mandatory, state that cohorting should only be used as a last resort, however. CDC Guidelines at 16.
Cohorting is a dangerous practice for detention facilities because it could amplify, rather than prevent, an outbreak, because unless the detainees are able to stay six feet away from each other, one infected person could spread the virus to the entire cohort. Gorton Decl. ¶¶ 7-8, Ex 14. The risk is particularly acute for anyone in the cohort with increased susceptibility to the virus, such as transgender detainees or others with underlying medical conditions. Id. As Dr. Gorton explains, “[f]or example, if you have 10 people, 8 with COVID-19 and 2 with flu or another virus, soon you will have 10 very sick people with all three conditions.” Id. ¶ 8, Ex 14.
C.G.B.’s experience illustrates this problem. Although she has been separated from the general population, she is not isolated in a single room but stays in a room with a dozen patients, two of whom have confirmed cases of COVID-19. C.G.B. Decl. ¶ 10, Ex 1. Thus, even if she
12 For suspected or confirmed COVID-19 cases, the rules state that “[c]ohorting should only be practiced if there are no other available options” and that only those who have tested positive should be “cohorted” together. ICE Pandemic Requirements at 14.
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and the other nine detainees without confirmed COVID-19 infections did not have the virus when they went into quarantine, their risk of contracting COVID-19 has risen exponentially.
Because ICE’s own guidelines are insufficient to reduce the risk of infection facing transgender detainees and would actually enhance that risk, this Court should order the parole of transgender detainees to safer quarters.
VI. Sufficient Private Resources Exist to Support the Release of All Transgender Detainees Into Safer Settings
A coalition of organizations supporting transgender detainees has amassed funding and put together a plan to support the sheltering in place of transgender detainees upon their immediate release. The Santa Fe Dreamers Project is a non-profit legal services organization that has resettled transgender detainees released from ICE detention to 11 states and 20 major U.S. cities. As set forth in the letter of Allegra Love, Executive Director of the Santa Fe Dreamers Project, attached hereto as Ex 22, the project has experience with large-scale releases and has put together a plan to support the release of transgender immigrants in this case, to ensure that all of their needs are met, including shelter, food, clothing, medical care and transportation. This plan will allow the safe shelter of all released detainees and will allow them to follow all CDC and WHO guidelines to prevent the spread of COVID-19.
The Santa Fe Dreamers project together with the Transgender Law Project and a group of foundations have already secured nearly $100,000 in funds to implement the release plan. See Exhibits 22 - 26 . Moreover, a number of detainees have secured private sponsors. Thus, adequate plans are in place for all transgender detainees to be immediately released and moved to safer settings.
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ARGUMENT I. Legal Standard The standard for obtaining injunctive relief through either a temporary restraining order or
a preliminary injunction is well established. “A moving party must show: (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction were not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that the public interest would be furthered by the injunction.” Council on American-Islamic Relations v. Gaubatz, 667 F. Supp. 2d 67, 74 (D.D.C. 2009) (citing Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006); Hall v. Johnson, 599 F. Supp. 2d 1, 3 n.2 (D.D.C. 2009) (“[t]he same standard applies to both temporary restraining orders and to preliminary injunctions”)).
A district court considering a motion for preliminary injunction must balance the strengths of the requesting party in each of the four areas. Sibley v. Obama, 810 F. Supp. 2d 309, 311 (D.D.C. 2011). “In applying this four-factored standard, district courts employ a sliding scale under which a particularly strong showing in one area can compensate for weakness in another.” Citizens for Responsibility & Ethics in Washington v. Cheney, 577 F. Supp. 2d 328, 334-35 (D.D.C.).13
Here, each of the factors weighs in favor of granting Petitioners the injunctive relief sought.
13 The Court of Appeals for the D.C. Circuit has not definitively stated whether this sliding-scale approach was displaced by Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008). See, e.g., Save Jobs USA v. U.S. Dep’t of Homeland Sec., 105 F. Supp. 3d 108, 112 (D.D.C. 2015). Petitioners respectfully submit that they are entitled to injunctive relief regardless of whether the likelihood of success is an independent requirement.
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II. Petitioners Are Entitled to Injunctive Relief A. Petitioners Are Likely to Succeed on the Merits of Their Claims
Petitioners are likely to succeed on the merits of their claims because the law is clear that exposure to a high risk of infection with a deadly pathogen violates detainees’ constitutional rights. Ordering parole for transgender detainees, who are particularly susceptible to COVID-19 infection, is well within the Court’s authority; the Supreme Court has held that “[w]hen necessary to ensure compliance with a Constitutional mandate, courts may enter orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011).
i. Violation of Constitutional Rights and the Administrative Procedure Act (APA) When the government detains or incarcerates a person, it has an affirmative duty to guarantee conditions of reasonable health and safety: “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989). As a result, the government must provide those in its custody with “food, clothing, shelter, medical care, and reasonable safety.” Id. at 200. The Supreme Court has held that the Eighth Amendment protects against future harm to inmates, as “it would be odd to deny an injunction to inmates who plainly proved an unsafe, lifethreatening condition in their prison on the ground that nothing yet had happened to them.” Helling v. McKinney, 509 U.S. 25, 33 (1993). Further, “[t]he science is well established – infected, asymptomatic carriers of the coronavirus are highly contagious,” and therefore “[t]he Government cannot be deliberately indifferent to the Petitioners’ potential exposure to [COVID-19] on the ground that they are not, now, infected or showing current symptoms.” Castillo v. Barr, No. 20-
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00605, 2020 U.S. Dist. LEXIS 54425, at *13–14 (C.D. Cal. Mar. 27, 2020) (citing Helling, 509 U.S. at 33).
The Eighth Amendment requires that “inmates be furnished with the basic human needs, one of which is ‘reasonable safety.’” Helling, 509 U.S. at 33 (quoting DeShaney, 489 U.S. at 200). The Supreme Court in Helling recognized that the risk of contracting a communicable disease may constitute such an “unsafe, life-threatening condition” that threatens “reasonable safety.” Id.
These Constitutional protections also apply in the context of immigration detention because immigrant detainees, even those with prior criminal convictions, are civil detainees held pursuant to civil immigration laws. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Because detained immigrants are civil detainees, they are entitled to the due process protections derived from the Fifth Amendment, which prohibit punishment. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”). “The touchstone of due process is protection of the individual against arbitrary action of government … whether the fault lies in the denial of fundamental due process fairness [procedural due process],… or in the exercise of power without any reasonable justification in the service of a legitimate government objective [substantive due process].…” City of Sacramento v. Lewis, 523 U.S. 833 (1998) (citations and internal quotations omitted). “‘Substantive due process’ prevents the government from engaging in conduct that ‘shocks the conscience,’ ... or interferes with rights ‘implicit in the concept of ordered liberty.’” United States v. Salerno, 481 U.S. 739, 746 (1987). (internal citations omitted).
Because the Fifth Amendment rather than the Eighth Amendment governs civil detention, the “deliberate indifference” standard required to establish a constitutional violation in the latter context does not apply to civil detainees like Petitioners. Jones v. Blanas, 393 F.3d 918, 934 (9th Cir. 2004), cert. denied, 546 U.S. 820 (2005). Still, the Eighth Amendment’s guarantees represent
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a “constitutional floor” that must also be met for detainees who are not being punished, such as those jailed prior to trial and civil immigration detainees. United States v. Moore, No. 1:18-cr-198 (JEB), 2019 U.S. Dist. LEXIS 104300, at *6-7 (D.D.C. June 21, 2019).
A condition of confinement for a civil immigration detainee violates the Constitution “if it imposes some harm to the detainee that significantly exceeds or is independent of the inherent discomforts of confinement and is not reasonably related to a legitimate governmental objective or is excessive in relation to the legitimate governmental objective.” Unknown Parties v. Johnson, No. CV-15-00250-TUC-DCB, 2016 U.S. Dist. LEXIS 189767, at *13 (D. Ariz. Nov. 18, 2016), aff’d sub nom. Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017). This Court has held that detaining individuals during the COVID-19 pandemic in such a manner that they are unable to practice social distancing or take other precautions necessary to contain the spread of the virus creates an unreasonable risk of damage to detainees’ health. Banks v. Booth, No. 20-849, 2020 U.S. Dist. LEXIS 68287, at *27–30 (D.D.C. Apr. 19, 2020) (holding that pre-trial detainee plaintiffs established a likelihood of success on the merits on their Fifth Amendment due process claim). Other courts addressing TRO motions for civil detainees during the COVID-19 pandemic have found that detaining people under conditions such that they are unable to practice social distancing or take other precautions necessary to contain the spread of the virus is sufficient to establish a likelihood of success on the merits of a Fifth Amendment due process claim. See, e.g., Castillo, 2020 U.S. Dist. LEXIS 54425, at *16 (plaintiffs established more than a mere likelihood of success on the merits of their due process claim where the conditions of confinement did not allow detainees to socially distance); Thakker v. Doll, No. 1:20-480, 2020 U.S. Dist. LEXIS 59459, at *25 (M.D. Pa. Mar. 31, 2020) (plaintiffs established likelihood of success on the merits of their
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due process claim where plaintiffs were detained in “tightly-confined, unhygienic spaces” and unable to socially distance).
Similarly, here, Plaintiffs have established that they are unable to practice social distancing or take other precautions to contain the spread of the virus under their current conditions of confinement. Therefore, they have established a likelihood of success on the merits of their Fifth Amendment Due Process claim.
Respondents are also in violation of the Fifth Amendment Due Process Clause by depriving detainees the rights guaranteed under the COVID-19 regulations enacted by ICE. When the government has promulgated “[r]egulations with the force and effect of law,” those regulations “supplement the bare bones” of federal statutes. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266, 268 (1954) (reversing in immigration case after review of warrant for deportation). Agencies must follow their own “existing valid regulations,” even where government officers have broad discretion, such as in the area of immigration. Id. at 268; see also Morton v. Ruiz, 415 U.S. 199, 235 (1974) (“[I]t is incumbent upon agencies to follow their own procedures . . . even where [they] are possibly more rigorous than otherwise would be required.”); Battle v. FAA, 393 F.3d 1330, 1336 (D.C. Cir. 2005) (“Accardi has come to stand for the proposition that agencies may not violate their own rules and regulations to the prejudice of others.”). Breaches of Accardi’s rule constitute violations of both the Administrative Procedures Act (“APA”) and the Fifth Amendment’s Due Process Clause.
While violations of “internal agency procedures” do not always require a remedy, Accardi’s rule applies with full force when “the rights or interests of the objecting party” are “affected.” Monitlla v. INS, 926 F.2d 162, 167 (2d. Cir. 1991) (citing cases) (“Accardi doctrine is premised on fundamental notions of fair play underlying the concept of due process”); see also
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Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 545-46 (6th Cir. 2004) (noting that an Accardi violation may be a due process violation, and the government’s action may be set aside pursuant to the APA); Sameena, Inc. v. U.S. Air Force, 147 F.3d 1148, 1153 (9th Cir. 1998) (“An agency’s failure to follow its own regulations . . . may result in a violation of an individual’s constitutional right to due process.”).
Under the Accardi doctrine, due process and the basic principle of administrative law dictate that rules promulgated by a federal agency regulating the rights and interests of others are controlling upon the agency. That doctrine is premised on the fundamental notion of fair play underlying the concept of due process. 322. The Accardi doctrine applies with particular force when “the rights of individuals are affected.” Morton, 415 U.S. at 235.
The D.C. Circuit recently explained “that ‘agencies cannot relax or modify regulations that provide the only safeguard individuals have against unlimited agency discretion.’” Damus v. Nielsen, 313 F. Supp. 3d 317 (D.D.C. 2018), citing Lopez v. FAA, 318 F.3d 242, 247 (D.C. Cir. 2003) as amended (Feb. 11, 2003).
On March 18, 2019, ICE issued a statement on enforcement during the COVID-19 crisis:
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In the statement, ICE states that as a result of the COVID-19 epidemic, “ICE Enforcement and Removal Operations (ERO) will focus enforcement on public safety risks and individuals subject to mandatory detention based on criminal grounds. For those individuals who do not fall into those categories, ERO will exercise discretion to delay enforcement actions until after the crisis or utilize alternatives to detention, as appropriate.” Id. ICE did not issue its mandatory rules for COVID-19 response until April 10, nearly a month later, however. See ICE Pandemic Requirements at 1. ICE has failed to release Petitioners and other transgender detainees under this program, and has announced that it has completed its reviews and relases of those detainees it considers high risk.
ICE has the authority to comply with its constitutional requirements by paroling transgender detainees, who are vulnerable to severe illness or death if they contract COVID-19. Section 212(d)(5)(A) of the Immigration and Nationality Act permits the Attorney General, at his or her discretion, to parole any noncitizen into the United States “temporarily under such conditions as [she or] he may prescribe only on a case-by-case basis for urgent humanitarian
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reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A). Further, 8 C.F.R. § 235.3(b)(2)(iii) vests the Attorney General with the discretion to parole detained aliens with negative credible/reasonable fear findings as required “to meet a medical emergency.” Responding to the current pandemic appropriately by releasing transgender civil immigration detainees who are not a threat to public safety meets all three standards: a medical emergency, a legitimate law enforcement objective and a “significant public benefit.” Even if the government paroles a detainee, it can still issue notices to appear and place parolees in removal proceedings, thus ensuring that their immigration court cases continue even if they are released from detention. See 8 C.F.R. § 235.3(c).
Here, ICE’s failure to implement even the most basic protections set forth in its rules require violates both the Fifth Amendment and the APA. See Torres v. United States Dep’t of Homeland Sec., 411 F. Supp. 3d 1036, 1068-69 (C.D. Cal. 2019) (detainees stated Accardi claim with allegations an ICE detention center did not follow the agency’s standards for treatment of detainees).
As shown in detail by the declarations supporting this Motion, ICE has failed to ensure that its detention centers follow the ICE Pandemic Requirements or the guidance for detention facilities published by the CDC, which ICE also purports to require. Petitioners’ evidence shows:
 Social Distancing—keeping a distance of 6 feet—is impossible, as detainees are surrounded by dozens of other detainees at any given time, sharing bedrooms, bathrooms, and communal spaces;
 Some of the ICE facilities have not provided any information about COVID-19 or instructions on how to maintain proper hygiene;
 Detainees do not have consistent access to soap, and often lack soap altogether if they do not have the funds to purchase soap themselves;
 Detainees are not provided with protective masks or gloves;
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 Guards and staff working at the Detention Centers often do not use masks or gloves, and do not abide by the 6-foot social distancing rule, and;
 People in the Detention Centers are exhibiting symptoms of COVID-19, including coughs, fever, and shortness of breath, but are not being medically isolated, tested for COVID-19, or provided adequate medicine to address these symptoms.
The declarations of Petitioners also document the increased risks faced by transgender detainees:
 HIV-positive detainees are not provided their antiretroviral medication consistently, leading to gaps in doses that can compromise their immune systems;
 Transgender detainees suffer the additional burden and stress of experiencing harassment, discrimination and even violence at the hands of other detainees and guards (and further making social distancing impossible);
 Transgender detainees with chronic medical conditions are not consistently receiving proper care for those ailments – and in some cases are not receiving medical care for those conditions at all.
Even if Respondents have taken some proactive measures to address the crisis, this is not enough to achieve compliance with CDC guidelines or to eliminate risk of exposure. See Cristian A.R. v. Decker, No. 20-3600, 2020 U.S. Dist. LEXIS 66658, at *34 (D.N.J. Apr. 12, 2020). For example, because detainees cannot avoid coming into close contact with frequently used surfaces and shared spaces, Respondents’ failure to ensure proper disinfecting of detainees’ living areas at the recommended intervals of several times per day exposes detainees to a high risk of infection, even if some cleaning is performed.
Respondents’ failure to act in a timely manner to protect Petitioners interferes with the rights of Petitioners in an arbitrary and capricious manner and is without justification. The continued refusal to establish and implement policies and procedures designed to prevent the transmission of COVID-19 violates Petitioners’ and all transgender detainees’ substantive and procedural due process rights. Courts have consistently held that detainees are likely to succeed on the merits of their claims under similar circumstances. See, e.g., Castillo, 2020 U.S. Dist.
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LEXIS 54425, at *16 (“Civil detainees must be protected by the Government. Petitioners have not been protected”).
By failing to establish and implement policies and procedures to protect Petitioners from the transmission of COVID-19 in the Detention Centers, Respondents have enacted a final decision that violates both the APA and the Fifth Amendment. See Torres, 411 F. Supp. 3d at 1069.
For all of these reasons, Petitioners have established that they are likely to prevail on the merits.
B. Petitioners Will Be Irreparably Injured if The Court Does Not Grant the Relief Sought
COVID-19 is infecting and killing people in the United States at an ever-increasing rate. Avoiding transmission of the virus requires social distancing and proper hygiene. Respondents have failed to implement sufficient protocols in the Detention Centers to ensure that these basic directives can be followed, imperiling the lives of Petitioners and every transgender detainee. The imminent risk of infection, pain, disability and death is a well-established form of irreparable harm. See, e.g., Harris v. Bd. of Supervisors, Los Angeles Cnty., 366 F.3d 754, 766 (9th Cir. 2004) (affirming finding of irreparable harm to Medicaid recipients from pain, infection, and possible death due to delayed treatment from county’s reduction of hospital beds); Al-Joudi v. Bush, 406 F. Supp. 2d 13, 20 (D.D.C. 2005) (“Facing requests for preliminary injunctive relief, courts often find a showing of irreparable harm where the movant's health is in imminent danger.”). In granting a preliminary injunction regarding similar dangers at the District of Columbia jail, Judge Kollar-Kotelly held that “Plaintiffs’ risk of contracting COVID-19 and the resulting complications, including the possibility of death, is the prototypical irreparable harm.” Banks, 2020 U.S. Dist. LEXIS 68287, at *43; see also, e.g., Thakker, 2020 U.S. Dist. LEXIS 59459, at *10 (granting injunction ordering immediate release of civil detainees from ICE detention centers
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in central Pennsylvania and observing that “[b]ased upon the nature of the virus, the allegations of current conditions in the prisons, and Petitioners’ specific medical concerns . . . Petitioners face a very real risk of serious, lasting illness or death. There can be no injury more irreparable.”).
Further, “‘suits for declaratory and injunctive relief against the threatened invasion of a constitutional right do not ordinarily require proof of any injury other than the threatened constitutional deprivation itself.’” Gordon v. Holder, 721 F.3d 638, 643 (D.C. Cir. 2013) (quoting Davis v. District of Columbia, 158 F.3d 1342, 1346 (D.C. Cir. 1998). “Thus, ‘[a]lthough a Petitioner seeking equitable relief must show a threat of substantial and immediate irreparable injury, a prospective violation of a constitutional right constitutes irreparable injury for these purposes.’” Id. (quoting Davis, 158 F.3d at 1346) (internal citation omitted). Here, Petitioners have alleged that Respondents’ conduct violates the Due Process Clause of the Fifth Amendment. That constitutional deprivation constitutes irreparable harm.
C. There is No Substantial Injury to Other Parties and Injunctive Relief is in Public Interest.
The Government “cannot suffer harm from an injunction that merely ends an unlawful practice.” Open Communities Alliance v. Carson, 286 F. Supp. 3d 148, 179 (D.D.C. 2017); see also R.I.L–R v. Johnson, 80 F. Supp. 3d 164, 191 (D.D.C. 2015). ICE has the authority to comply with its constitutional requirements by paroling transgender detainees, who are vulnerable to severe illness or death if they contract COVID-19. Section 212(d)(5)(A) of the Immigration and Nationality Act permits the Attorney General, at his or her discretion, to parole any noncitizen into the United States “temporarily under such conditions as [she or] he may prescribe only on a caseby-case basis for urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A). Further, 8 C.F.R. § 235.3(b)(2)(iii) vests the Attorney General with the discretion to parole detained aliens with negative credible/reasonable fear findings as required “to meet a
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medical emergency.” Responding to the current pandemic appropriately by releasing transgender civil immigration detainees who are not a threat to public safety meets all three standards: a medical emergency, a legitimate law enforcement objective and a “significant public benefit.” Even if the government paroles a detainee, it still can issue notices to appear and place parolees in removal proceedings, thus ensuring that their immigration court cases continue even if they are released from detention. See 8 C.F.R. § 235.3(c). Accordingly, there is no injury to Respondents should the Court grant the temporary restraining order.
Courts have granted temporary restraining orders where detainees have proposed a concrete and suitable release plan. See, e.g., Bent v. Barr, No. 19-06123, 2020 U.S. Dist. LEXIS 62792 (N.D. Cal. Apr. 9, 2020). Courts also have acknowledged that the risk that detainees will flee, given the current global pandemic, is very low. See Castillo, 2020 U.S. Dist. LEXIS 54426, at *15. Here, many of the Petitioners have identified sponsors that will provide a residence where petitioners can shelter-in-place and remain on home detention. A group of nonprofit organizations led by the Transgender Law Center has secured nearly $100,000 and has plans in place to provide for the former detainees’ humanitarian needs, including safe housing where social distancing is possible, for detainees that do not have sponsors. Ex 23 - 26; see also Ex 22.
Further, it is in the public interest that the Court grant the temporary restraining order. Where an injunction will “not substantially injure other interested parties,” the balance of equities tips in the movant’s favor. MGU v. Nielsen, 325 F. Supp. 3d 111, 123 (D.D.C. 2018) (citing League of Women Voters of the United States v. Newby, 838 F.3d at 12 (citation omitted)). Petitioners have already demonstrated that they will suffer irreparable harm without immediate relief, including severe and significant medical harm or death if exposed to COVID-19. See supra at Sec. II.C. If there are further outbreaks of COVID-19 in the Detention Centers, detainees and
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staff who require hospitalization could overwhelm the nearby hospitals, putting the communities in which the Detention Centers operate at risk. See Franco-Paredes Decl. ¶ 26, Ex 15. ICE has an interest in preventing the potential spread of COVID-19 because the risk of exposure and infection is so high due to lack of basic sanitation products, inability to maintain social distancing, and due to inadequate medical care and a large number of currently sick detainees. There can be no greater public interest than preventing infection of dozens, if not hundreds, of detainees and preserving the resources of the local hospitals. CONCLUSION
For all of the foregoing reasons, Petitioners respectfully request that the Court enter an Order: (1) immediately releasing, on parole or other supervised release, Petitioners and all transgender detainees in the Immigration and Customs Enforcement Detention Centers pending the completion of these proceedings, pursuant to the Court’s inherent powers; (2) immediately ordering Respondents to implement all protocols designed to prevent the transmission of COVID19 as indicated in the attached expert declarations or protocols of the CDC and the WHO; and (3) prohibiting the placement of new transgender detainees in the Detention Centers.
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April 23, 2020
Gregory P. Copeland (D.D.C. Bar # NY0311) Sarah T. Gillman (D.D.C. Bar # NY0316) RAPID DEFENSE NETWORK 11 Broadway, Suite 615 New York, NY 10004-1490 Phone: (212) 843-0910 Fax: (212) 257-7033 Email: gregory@defensenetwork.org Email: sarah@defensenetwork.org
Lynly S. Egyes** Transgender Law Center PO Box 70976 Oakland, CA 94612-0976 Telephone: (973) 454-6325 Facsimile: (917) 677-6614 lynly@transgenderlawcenter.org

Respectfully submitted,
/s/ Matthew E. Kelley Matthew E. Kelley (Bar No. 1018126)
Matthew E. Kelley (Bar. No. 1018126) Leslie E. John ** Elizabeth Weissert ** Alex Levy ** BALLARD SPAHR LLP 1909 K Street, NW - 12th Floor Telephone: (202) 661-2200 Facsimile: (202) 661-6299 Email: kelleym@ballardspahr.com Email: johnl@ballardspahr.com Email: weisserte@ballardspahr.com Email: levya@ballardspahr.com

Attorneys for Petitioners ** Application for admission pro hac vice forthcoming

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Exhibit 1 (C.G.B. Declaration Filed Under Seal)

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Exhibit 2 (A.F. Declaration Filed Under Seal)

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Exhibit 3 (M.M.S-M Declaration Filed Under Seal)

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Exhibit 4 (L.R.A.P. Declaration Filed Under Seal)

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Exhibit 5 (K.S. Declaration Filed Under Seal)

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Exhibit 6 (K.M. Declaration Filed Under Seal)

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Exhibit 7 (R.H. Declaration Filed Under Seal)

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Exhibit 8 (L.M. Declaration Filed Under Seal)

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Exhibit 9 (M.J.J. Declaration Filed Under Seal)

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Exhibit 10 (D.B.M.U. Declaration Filed Under Seal)

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Exhibit 11 (K.R.H. Declaration Filed Under Seal)

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Exhibit 12 (G.P. Declaration Filed Under Seal)

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Exhibit 13 (M.R.P. Declaration Filed Under Seal)

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Declaration of R. Nick Gorton, MD, DABEM
1. I, R. Nick Gorton, MD am a physician licensed to practice medicine in the state of California. I am board certified in Emergency Medicine and practice both as an emergency physician at Sutter Davis Hospital in Davis California and as a primary care provider at Lyon-Martin Health Services in San Francisco California. Lyon-Martin is an historically LGBTQ clinic. Over half of my patients identify as transgender. I have treated hundreds of transgender patients in the 15 years I have practiced at Lyon-Martin. As both an EM and primary care physician I am familiar both with the nature of COVID19 and the particular vulnerabilities of certain populations to infection and complications from SARS-CoV-2 (the virus that causes COVID-19).
2. I received my medical degree from the University of North Carolina, School of Medicine and completed my residency and chief residency in emergency medicine at Kings County Hospital in Brooklyn, New York. I am board certified in Emergency Medicine and also have expertise in the primary care and hormonal treatment of transgender people.
3. COVID-19 (Corona Virus Disease 2019) is the clinical syndrome of illness suffered by people who are infected with the SARS-CoV-2 virus. SARS stands for Severe Acute Respiratory Syndrome. Previously this was referred to as “2019 novel coronavirus” or “2019-nCoV”. Coronaviruses are ubiquitous causes of viral illness in many mammals including humans. Some strains circulate seasonally and cause mild viral respiratory infections like colds. Two other coronavirus strains have produced severe illness in humans: SARS coronavirus (SARS-CoV) which was identified in 2003, and MERS-CoV the cause if Middle East Respiratory Syndrome which was identified in 2012. While SARS-CoV-2 has a lower mortality rate than SARS-CoV and MERS-CoV, it has caused significantly more deaths because unlike SARS-CoV and MERS-CoV, it is far more easily transmitted person to person.
4. COVID-19 is a spectrum of disease with a minority being completely asymptomatic. Of those with symptoms approximately 80% will have “mild” disease meaning they are able to adequately oxygenate their blood without assistance and either have no pneumonia or have pneumonia with less than 50% of lung tissue involved. However many of these patients would not describe their illness as mild, but rather more severe than influenza. Mild is merely a clinical term meaning that patients are unlikely to require respiratory support and hospitalization. Another 15% have “severe” disease which is defined as pneumonia of 50% or more of the lungs and an inability to without assistance keep their blood adequately oxygenated. These patients require supplemental oxygen and in some cases invasive or non-invasive respiratory support (from non-invasive CPAP to intubation and artificial ventilation in an intensive care unit). Finally 5% have “critical” disease which is defined as respiratory failure, shock, and/or multiorgan system dysfunction (for example kidney failure, heart failure, etc). It should also be noted that a significant portion of those with severe or critical disease (and a minority with mild disease) who do survive will suffer permanent lung damage which, while not killing them today, can potentially significantly decrease their life expectancy and quality of life, and increase their need for chronic ongoing medical treatments for their lifetime.

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5. As of on April 20, 2020, there have been almost 800,000 diagnosed cases of COVID-19 and over 39,000 deaths. Barring rapid availability of a vaccine even with good maintenance of social distancing, the number of infected in the US will likely rise to over 100 million.
6. There is no specific cure for COVID-19. Patients with severe and critical disease can be given what is termed supportive care – oxygen, invasive or non-invasive ventilation, intravenous fluids, medicines to raise blood pressure for patients in shock, dialysis for those who develop kidney failure, etc. However, despite this, approximately half the patients with critical COVID-19 die because there is no specific medicine to treat the actual infection. Thus while patients with severe and critical COVID-19 are given supportive treatment, the only ways to effectively prevent deaths are tried and true public health measures that have been employed for over a century in the US to slow the spread and prevent infections with deadly infectious diseases. The most important of these is commonly termed “social distancing”. As the term implies, effective social distancing requires individuals (or family units) to keep a distance between themselves sufficient to prevent spread of the infection. For COVID-19, the recommendation is 6 feet or 2 meters. In addition, in order to reduce/eliminate transmission from an infected to an uninfected individual, individuals having more proximate contact with an actual or potentially infected individual should wear appropriate personal protective equipment. With COVID-19 in particular, because there are a significant number of people who are asymptomatic or minimally symptomatic that can spread the disease to others, the CDC now recommends that in all situations where social distancing would be challenging (such as going to a store or to seek medical care), masks be worn by everyone to prevent spread. In addition, the virus, when excreted from the respiratory tract of an infected individual, can survive on various surfaces for a time varying from hours to days, depending upon the nature of the surface and the viral load of the individual. So scrupulous and frequent environmental cleaning and individuals practicing frequent hand hygiene with alcohol based hand sanitizers or soap and water is crucial.
7. The ICE COVID-19 guidelines place persons in detention at significant risk. They state that “In detention settings, cohorting1 serves as an alternative to self-monitoring at home.” This is an exceedingly dangerous practice. Self-monitoring at home is recommended for people who have been exposed to the virus and are at risk for infection. An example of what should be done if people are at higher risk for exposure is the CDC’s guidance on returning travelers (i.e. without symptoms but at risk). https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html This guidance
1 Cohorting is defined as the placement of patients infected or colonized with the same laboratory-confirmed pathogens in the same designated unit, zone or ward (with or without the same staff). This term is also frequently applied to grouped patient placement based on clinical and epidemiological information without laboratory confirmation of the pathogen. See “Infection prevention and control of epidemic- and pandemic-prone acute respiratory infectionsin health care,” WHO Guidelines (2014) https://apps.who.int/iris/bitstream/handle/10665/112656/9789241507134_eng.pdf?sequence=1

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includes staying at least 6 feet from others, avoiding crowded places, and staying away from people who are at higher risk for severe disease. To meet these guidelines, detainees would have to have at least 6 feet between them at all times, no detainees would be allowed who were over 65, had hypertension, asthma, HIV, or any number of other diseases placing them at risk. Moreover even if this was done, if the number of detainees cohorted was larger than that of a typical family, the risk would be substantially higher because of a greater potential number of exposures. 8. Another problem with cohorting is that unless it is post test, you are taking people with rhinovirus or some other respiratory ailments and all but guaranteeing they get Covid-19 and coinfection with other respiratory infections makes the risk worse. For example, if you have 10 people , 8 with Covid-19 and 2 with flu or another virus, soon you will have 10 very sick people with all three conditions. 9. In addition, ICE’s method of screening detainees has numerous holes in it. They state that “IHSC isolates detainees with fever and/or respiratory symptoms who meet these criteria and observe them for a specified time period.” The CDC notes that fever was present in less than half of patients when they initially presented to the hospital for care and that asymptomatic and pre-symptomatic infections are common. https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-managementpatients.html In addition, some patients present initially with only gastrointestinal symptoms or vague symptoms like fatigue or muscle aches. A significant number of infections which could spread extensively in a crowded detention situation would be missed by ICE’s screening. 10. Transgender people as a group have greater risks for life threatening complications from SARS-CoV-2 because transgender people have higher rates of multiple risk factors such as: A. Higher rates of current and past tobacco use2 which are both associated with
increased risk for severe or critical disease and death. In addition, many diseases to which tobacco predisposes are independent risks for death or severe/critical disease in COVID-19 such as Chronic Obstructive Pulmonary Disease, cancer, and heart disease. B. Immune suppression due to HIV and viral hepatitis. Rates of HIV positivity among transgender women are as high as 20-25% in some studies, with higher rates among transgender women of color and those living in urban environments.3
2 Buchting, F. O., Emory, K. T., Kim, Y., Fagan, P., Vera, L. E., & Emery, S. (2017). Transgender use of cigarettes, cigars, and e-cigarettes in a national study. American journal of preventive medicine, 53(1), e1-e7. Clarke, M. P., & Coughlin, J. R. (2012). Prevalence of smoking among the lesbian, gay, bisexual, transsexual, transgender and queer (LGBTTQ) subpopulations in Toronto—The Toronto Rainbow Tobacco Survey (TRTS). Canadian journal of public health, 103(2), 132-136. Gamarel, K. E., Mereish, E. H., Manning, D., Iwamoto, M., Operario, D., & Nemoto, T. (2015). Minority stress, smoking patterns, and cessation attempts: findings from a community-sample of transgender women in the San Francisco Bay area. Nicotine & Tobacco Research, 18(3), 306-313. Grant, J., Mottet, L., Tanis, J., Herman, J. L., Harrison, J., & Keisling, M. (2010). National transgender discrimination survey report on health and health care. 3Baral, S. D., Poteat, T., Strömdahl, S., Wirtz, A. L., Guadamuz, T. E., & Beyrer, C. (2013). Worldwide burden of HIV in transgender women: a systematic review and meta-analysis. The Lancet infectious diseases, 13(3), 214-222. Herbst, J. H., Jacobs, E. D., Finlayson, T. J., McKleroy, V. S., Neumann, M. S., Crepaz, N., & HIV/AIDS Prevention Research Synthesis Team. (2008). Estimating HIV prevalence and risk behaviors of transgender persons in the United States: a systematic review. AIDS and Behavior, 12(1), 1-17.

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C. Increased rates of pre-existing high risk medical problems like diabetes, hypertension, and obesity. These increased risks are likely multifactorial. Hormone replacement therapy increases risks of these conditions but in addition, these are also heavily influenced by social determinants of health.
D. Transgender patients suffer minority stress and also have higher rates of unemployment, higher rates of incarceration, poverty, and homelessness which all contribute to these risks.4 Minority stress is a chronically high level of stress faced by members of stigmatized groups, including transgender people. People who experience minority stress exhibit stress responses which includes high blood pressure, anxiety and a host of other medical issues. Over time, minority stress can lead to poor mental and physical health. These underlying conditions can lower immune response and act as a contributing factor to vulnerability for a severe reaction to Covid-19.
E. Lack of insurance which results in inadequate treatment of the above mentioned conditions prior to incarceration or detention.5
F. Higher rates of mental illness6 which could complicate treatment of severe or critical COVID19 due to the known adverse neuropsychiatric effects of treatments being studied and used for COVID19 such as hydroxychloroquine and nucleoside analogues like remdisavir. In addition, since ICU care and intubation are known to provoke PTSD, patients who need advanced treatments would be further endangered.
11. Moreover, transgender patients taking hormone treatment by injected hormones (most transgender men and many transgender women) may have to interact with prison/detention health care providers more frequently (typically weekly to bimonthly). And even those taking oral medications may have to get daily medication from staff. This increased interaction with these medical providers places them at higher risk of contracting the virus from high-risk staff. This contrasts with transgender patients not in prison who generally self-administer medication at home.
While incarcerated, transgender people face an increased risk of assault, which impacts their health and well-being generally and particularly in the midst of the current health crisis.
4 Grant, J. M., Motter, L. A., & Tanis, J. (2011). Injustice at every turn: A report of the national transgender discrimination survey. Russomanno, J., Patterson, J. G., & Jabson, J. M. (2019). Food insecurity among transgender and gender nonconforming individuals in the southeast United States: a qualitative study. Transgender Health, 4(1), 89-99. Reisner, S. L., Bailey, Z., & Sevelius, J. (2014). Racial/ethnic disparities in history of incarceration, experiences of victimization, and associated health indicators among transgender women in the US. Women & health, 54(8), 750767. James, S., Herman, J., Rankin, S., Keisling, M., Mottet, L., & Anafi, M. A. (2016). The report of the 2015 US transgender survey. 5 Budge, S. L., Katz-Wise, S. L., & Garza, M. V. (2016). Health disparities in the transgender community: Exploring differences in insurance coverage. Psychology of Sexual Orientation and Gender Diversity, 3(3), 275. Grant, J., Mottet, L., Tanis, J., Herman, J. L., Harrison, J., & Keisling, M. (2010). National transgender discrimination survey report on health and health care. 6 James, S., Herman, J., Rankin, S., Keisling, M., Mottet, L., & Anafi, M. A. (2016). The report of the 2015 US transgender survey. Brown, G. R., & Jones, K. T. (2016). Mental health and medical health disparities in 5135 transgender veterans receiving healthcare in the Veterans Health Administration: A case–control study. LGBT health, 3(2), 122-131.

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Research has repeatedly demonstrated that transgender prisoners and prisoners with intersex conditions suffered significantly higher rates of abuse than the general population. See, e.g., NPREC Report, at 73 (citing W.S. Wooden & J. Parker, Men behind bars: Sexual exploitation in prison. (Plenum Press 1982)); Valerie Jenness et al., Violence in California correctional facilities: An empirical examination of sexual assault (Ctr. for Evidence-Based Corrs. 2009); see also Sylvia Rivera Law Project, “‘It’s War in Here’: A Report on the Treatment of Transgender & Intersex People in New York State Men’s Prisons” (2007), http://srlp.org/files/warinhere.pdf (documenting unrelenting harassment and abuse of transgender women incarcerated in New York State men’s prisons). According to ICE’s own numbers, lesbian, gay, bisexual and transgender (LGBT) people in ICE custody are 97 times more likely to be sexually victimized than non-LGBT people in detention. Therefore, even if a transgender person wanted to attempt social distancing, it might not be an option because of the high likelihood of getting sexually assaulted. See Center for American Progress, “ICE’s Rejection of Its Own Rules Is Placing LGBT Immigrants at Severe Risk of Sexual Abuse” (2018) https://www.americanprogress.org/issues/lgbtq-rights/news/2018/05/30/451294/ices-rejectionrules-placing-lgbt-immigrants-severe-risk-sexual-abuse/
12. As an emergency physician I am fully aware of the devastation that COVID-19 is wreaking throughout the world and the consequences for individuals and the entire health care system of underestimating the danger of this deadly virus and delaying measures to control its spread and protect vulnerable populations. Transgender people are a population that is highly vulnerable to negative outcomes of this infection while incarcerated or detained, and based on my expert medical judgment, the ICE guidelines that I have read at https://www.ice.gov/coronavirus are woefully inadequate to prevent widespread COVID-19 among detainees in their care.
13. Moreover because transgender people are at much higher risk due to the above described clinical vulnerabilities in this group, I also expect that if kept in detention, transgender detainees will have a disproportionately higher risk of severe or critical COVID-19 and death or permanent pulmonary disability as a consequence. In addition to placing transgender detainees at risk, others in the community surrounding detention facilities could be placed at risk. Per ICE’s guidance, “ICE transports individuals with moderate to severe symptoms, or those who require higher levels of care or monitoring, to appropriate hospitals with expertise in high-risk care.” Given ICE’s inadequate infection controls, widespread infection in facilities is very likely. Among those infected, 20% are expected to need hospital care and 5% or more intubation and prolonged use of a ventilator. With high risk detainees like transgender people, this number is even higher. Each ventilator and ICU bed that is occupied by a detainee is one that is unavailable to the surrounding community served by that hospital. Release of medically high-risk detainees like transgender people has the potential to save two lives: that of the detainee who would be better able to socially isolate in a community setting, and the local community member who lives near the ICE facility who would have access to a ventilator and ICU bed in the coming weeks to months when US cases surge and ventilator supply will be critically inadequate.

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I would strongly encourage immediate release of as many transgender people in custody as possible to minimize the risk of serious harm, death, or permanent disability to both transgender individuals in custody as well as the people who live in close proximity to detention centers who will suffer because of lack of medical resources.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed on this twentieth day of April 2020 at San Francisco, California, United States.
______________________________________ R. Nick Gorton, MD, DABEM CA Lic: A89440 Cell: 504.261.8379

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Ryan Nicholas Gorton, MD, DABEM
901 Douglass Ave, Davis CA 95616 (504) 261-8379 (mobile) nickgorton@gmail.com

Professional Practice

February 2005 – Current

Emergency Medicine Physician Sutter Davis Hospital Davis, CA

July 2002 – February 2005

Emergency Medicine Physician St Tammany Parish Hospital Covington, LA

Professional Practice: Volunteer Activities

March 2005 – Current

Primary Care Provider and Clinical Instructor Lyon-Martin Health Services San Francisco, CA.

August 2005 – February 2006 Acting Medical Director Lyon-Martin Health Services San Francisco, CA.

September 2008 – Current

Executive Committee Member and Lecturer
Project HEALTH ​http://www.project-health.org/
San Francisco, CA.

January 2011 – Current

Lead Clinician TransLine National Clinical Consultation Line

Medical-Legal Consultant:

Sylvia Rivera Law Project, New York, NY Lambda Legal Defense and Education Fund, Inc., New York, NY Transgender Law Center, San Francisco, CA National Center for Lesbian Rights. San Francisco, CA Northwest Justice Project, Seattle, WA The Legal Aid Society, New York, NY National Center for Transgender Equality, Washington, DC TGI Justice Project, Oakland, CA. ACLU Florida

Post Graduate Training

June 2001 – June 2002

Chief Resident, Department of Emergency Medicine Kings County Hospital Center/SUNY Downstate Brooklyn, NY

July 1998 – June 2002

Emergency Medicine Residency

Case 1:20-cv-01072-CRC Document 4-15 Filed 04/23/20 Page 9 of 17

Education

Kings County Hospital Center/SUNY Downstate Brooklyn, NY

August 1994 – May 1998

Doctor of Medicine University of North Carolina School of Medicine Chapel Hill, NC

August 1988 – August 1991 Professional Affiliations

Bachelor of Science in Biochemistry, Summa Cum Laude North Carolina State University Raleigh, NC

World Professional Association for Transgender Health (formerly HBIGDA) ◆ WPATH GEI Certified Practitioner ◆ Institutionalized Persons Committee
University of California at San Francisco Center of Excellence for Transgender Health ◆ Medical Advisory Board 2010-2013 (during development of original Primary Care Protocols)
American Medical Association ◆ GLBT Advisory Committee 2009-2011
Gay and Lesbian Medical Association ◆ LGBT Medical Experts Panel

Licensure/Certification

Nov 2003 – Present Nov 2004 – Present Feb 2002 – 2009 June 2001 – 2010

Diplomate American Board of Emergency Medicine CA State Medical License A89440 LA State Medical License 14466R NY State Medical License 221808

Publications and Papers

Gorton, R, and Berdahl, C. ​Improving the Quality of Emergency Care for Transgender Patients. Annals of emergency medicine.​ 71(2): 189-192. 2018.

Gorton, R, and Erickson-Schroth, L. ​Hormonal and Surgical Treatment Options for FTMs.​ Psychiatric Clinics of North America. Psychiatric Clinics of North America. 40(1): 79-97. 2017.

Gorton, R, and Jaffe, J.M., ​Transline Medical Consultation Service: Four Years of Clinician Support.​ USPATH Poster Presentation: February, 2017.

Ingram, N., Pratt V., and Gorton, R. ​Counting trans* patients: A Community Health Center Case Study​. TSQ: Transgender Studies Quarterly. 2(1): 136-147. 2015.

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Gorton, R and Grubb, M. (2014), General, Sexual, and Reproductive Health In Erickson-Schroth, L (Ed) ​Trans Bodies, Trans Selves: A Resource for the Transgender Community​. New York, NY: Oxford University Press.
Gorton R. Transgender as Mental Illness: Nosology, Social Justice, and the Tarnished Golden Mean. In Stryker S and Aizura A (Eds.), ​The Transgender Studies Reader, Vol 2.​ New York, NY Taylor and Francis. 2013.
Ehrbar R, Gorton R, and Winters K. Sugerencias para la revisión de los diagnósticos relacionados con el genero en el DSM y el CIE. In Miquel Missé and Gerard Coll-Planas (Eds.), ​El Género Desordenado - Críticas en torno a la patologización de la transexualidad.​ Madrid: EGALES. 2010.
Ehrbar R, and Gorton R. ​Exploring Provider Treatment Models in Interpreting the Standards of Care.​ International Journal of Transgenderism, 12(4):198-210. 2010.
Pittsburgh Transgender Health Research Summer Institute: ​A Review and Guidance for Future Research—Proceedings from the Summer Institute at the Center for Research on Health and Sexual Orientation, University of Pittsburgh t.​ International Journal of Transgenderism, 12(4):211-229. 2010.
Haraldsen I, Ehrbar R, Gorton R, and Menvielle E. ​Recommendations for Revision of the DSM Diagnosis of Gender Identity Disorder in Adolescents. International Journal of Transgenderism, 12(2):75-79. 2010.
Gorton R. ​Transgender Health Benefits: Collateral Damage in the Resolution of the National Health Care Financing Dilemma​. Sexuality Research and Social Policy: Journal of NSRC. 4(4):81-91. Dec 2007.
Gorton R. ​Health Care and Insurance Issues for Transgender Persons. American Family Practitioner. 74(12):2022. December 2006. http://www.aafp.org/afp/20061215/letters.html
Gorton R. ​Current Summary of the Medical Knowledge Base and Current Clinical Standards Surrounding the Treatment of Patients with Gender Identity Disorder. ​Report prepared for the Lambda Legal Defense Fund. May 2005.
Gorton R, Buth J, and Spade D. ​Medical Therapy and Health Maintenance for Transgender Men: A Guide For Health Care Providers. Lyon-Martin Women's Health Services. San Francisco, CA. 2005. ISBN 0-9773250-0-8 (​www.nickgorton.org​)

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Gorton R. ​A Critical Analysis of the Hayes Report: "Sex Reassignment Surgery and Associated Therapies for Treatment of GID."​ Report prepared for the Lambda Legal Defense Fund. May 2005.
Greenberg's Text Atlas of Emergency Medicine,​ Michael Greenberg Ed. Lippincott Williams & Wilkins. ISBN 0-7817-4586-1 2004. Contributing Author: Chapter 4 – Eyes/Ophthalmic.
Gorton R. “Toward a Resolution of GID, the Model of Disease, and the Transgender Community.” MAKE. March 2005. http://www.makezine.org/giddisease.htm
Sinnert R, et al, Gorton R. “The ratio of ionized calcium to magnesium modifies the bronchodilatory effects of magnesium therapy in acute asthma.” Aced Emerg Med 2002 9(5) 436-437.
Morris D, Rosamond W, Hinn A, Gorton R. “Time delays in accessing stroke care in the emergency department.” Acad Emerg Med 1999 Mar; 6(3) 218-23.
Rosamond W, Gorton R, Hinn A, Hohenhaus S, Morris D. “Rapid response to stroke symptoms: the Delay in Accessing Stroke Healthcare (DASH) study.” Acad Emerg Med 1998 Jan; 5(1) 45-51.
Selected Conference Presentations and Invited Talks
Gorton, R, Gruberg, S, Tobin, Harper Jean. Plenary IV: Fighting for LGBT Health Policy Protections: Health Providers’ Crucial Role in Advocacy. GLMA 2019. New Orleans, LA, September 2019.
Gorton, R. Genital Gender Affirming Surgery for the Transgender Patient: A Didactic and Hands-on Fresh Cadaver-Based Course: “Hormone Replacement for Transgender Patients”. American Urological Association 2018. San Francisco, CA. May, 2018.
Gorton, R, Jaffe, JM, Tescher, J, and Baker, K. “Mini-Symposium: As California Goes, So Goes the Nation (Hopefully)”. USPATH. February, 2017.
Gorton, R. Sessuion Moderator. USPATH Symposium. San Francisco CA. February, 2017.
Gorton, R. “Acute and Long Term Complications of Silicone Pumping: Primary, Secondary, and Tertiary Prevention”. WPATH Symposium. Amsterdam, The Netherlands. June, 2016.
Gorton, R, Ettner, R, Brown, G, Bermudez, F, Orthwein, J and Mazur, T. “Orange isn’t the New Black (Yet)”. WPATH Symposium. Amsterdam, The Netherlands. June, 2016.

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Gorton R. “Transgender Patient Care in the Emergency Department”. American Academy of Emergency Medicine Scientific Assembly. Las Vegas, Nevada. February 2016.
Gorton R. “Transgender Patients in the Emergency Department”. Stanford University Department of Emergency Medicine SimWars. Stanford, CA. February 2016.
Gorton R. “History of Transgender Medicine”. UCSF School of Medicine Transgender Health elective. San Francisco, CA. February 2016.
Gorton R. “Free Silicone Complications and Management”. National Transgender Health Summit. Oakland, CA. April 2015.
Gorton R. “History of Transgender Medicine”. UCSF School of Medicine Transgender Health elective. San Francisco, CA. March 2015.
Gorton R. “Transgender Healthcare”. UC Davis School of Medicine. Sacramento, CA.
December 2015.
Gorton R. “Engaging and Retaining Transgender Patients in Ongoing Primary Care”. National Association of Community Health Centers Health Institute and Expo. San Diego, CA. August 2014.
Gorton R. “Sexual and Reproductive Health: A Focus on Transgender Patients”. California Family Health Council. Webinar. March 2014.
Gorton, R, Green, J and Tescher, J. “California Dreaming: Two Decades of Change in Health Insurance Law and Policy”. WPATH Symposium. Bangkok, Thailand. February, 2014.
Gorton, R and Chung, C. “From Grassroots Health Advocacy to Expanding Clinician Competency: Project HEALTH (Harnessing Education, Advocacy & Leadership for Transgender Health)”. WPATH Symposium. Bangkok, Thailand. February, 2014.
Gorton, R and Tescher, J. “Minding the Gap: Development and Implementation of a Clinical Rotation in Transgender Health”. WPATH Symposium. Bangkok, Thailand. February, 2014.
Gorton R and Keenan C. “LGBT Sexual and Reproductive Health Issues”. California Family Health Council Women's Health Update. San Francisco, CA. April, 2013.
Gorton R. “Transgender Medicine”. California AHEC Webinar. San Francisco, CA. April, 2013.

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Gorton R. “Transgender Aging Issues”. Institute on Aging Conference on LGBT Aging. San Francisco, CA. November, 2012.
Gorton R and Branning N. “Transgender Primary Care”. California Academy of Physician Assistants Annual Conference. Palm Springs, CA. October, 2012.
Gorton R. “Primary care and Hormonal Treatment for Transgender Clients”.
Samuel Merritt​ University. Oakland, CA. June 2012.
Gorton R. “Primary care and Hormonal Treatment for Transgender Clients” Grand Rounds for the VA Medical Center. San Francisco, CA. June 2012.
Gorton R and Wertz K. “Transgender Health Care” Webinar for the California Family Health Council. San Francisco, CA. June, 2012.
Eichenbaum J, Gorton R and May A. “Transgender Health, the VA, and Barriers to Care.” San Francisco Veterans Administration Mental Health Services Grand Rounds. San Francisco, CA. May, 2012.
Gorton R and Wertz K. “Working With GLBT Clients” California Family Health Council Webinar. Los Angeles, CA. May, 2011.
Gorton R. “Improving Access to Transgender Health Care: Outcomes from Project HEALTH” World Professional Association for Transgender Health. Atlanta, GA. September, 2011.
Gorton R and Wertz K. “Trailblazing for Transgender Health” Southern Comfort Conference. Atlanta, GA. September, 2011.
Gorton R. “Nuts and Bolts of Transgender Primary Care” Gay and Lesbian Medical Association Annual Conference. Atlanta, GA. September, 2011.
Gorton R. “Transgender Medicine and Cultural Competency” Kaiser Department of OB/Gyn Grand Rounds. San Francisco, CA. April, 2011.
Gorton R. “Evidence Based Transgender Medicine” Opening Plenary UCSF National Transgender Health Summit. San Francisco, CA. January, 2011.
Green J and Members of the Center of Excellence for Transgender Health Medical Advisory Board. “Primary Care Protocols” Morning Plenary UCSF National Transgender Health Summit. San Francisco, CA. January, 2011.
Freshel K, Gorton R, Hansom C and Barnes A. “Communities Working Together

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to Become Culturally Competent” California State Rural Health Association Conference. Sacramento, CA. November, 2010.
Gorton R, Spade D and Wilkinson W. “Transposium: Healthcare Access and Quality For Transgender Individuals” Shaking the Foundations: The West Coast Conference on Progressive Lawyering, Primary Care Associate Program, Stanford School of Law. Stanford CA. October, 2010.
Gorton R. "Improving Access to Transgender Healthcare: Outcomes from Project HEALTH (Harnessing Education, Advocacy, and Leadership for Transgender Health)" Gay and Lesbian Medical Association Annual Conference. San Diego, CA. September 2010.
Gorton R, Gould D and Wertz K. “Trailblazing for Transgender Health” National Gay and Lesbian Task Force Creating Change Conference. March 2010.
Gorton R. “Grand Rounds: Transgender Medicine” Highland General Hospital Department of Internal Medicine. Oakland, CA. January, 2010.
Gorton R. “Grand Rounds: Transgender Medicine” Kaiser Permanente Department of Internal Medicine. San Francisco, CA. December, 2009.
Keatley J and Gorton R. “Transgender Health Care Issues in California Today” Equality California and the California LGBT Legislative Caucus Briefing on LGBTI Health Care Issues. Sacramento, CA. December 2009.
Ehrbar R, Winters K, and Gorton R. “Revision Suggestions for Gender Related Diagnoses in the DSM and ICD” WPATH XXI Biennial Symposium. Oslo, Norway. June, 2009.
Gorton R. “A Place at the Table” American College Health Association Annual Meeting. San Francisco, CA. May, 2009.
Famula M, Hall A, Pardo S, Gorton R. “Providing Trans-Specific Health Care to Transgender Students in the College Setting.” American College Health Association Annual Meeting. San Francisco, CA. May, 2009.
Gorton R. “Transgender Health” American Medical Student Association: Regional Conference. Lubbock, TX. March, 2009.
Gorton R. “Medical Ethics and Evidence Based Transgender Medicine” Equality and Parity II: A Statewide Action for Transgender HIV Prevention and
Care. Los Angeles, CA, January 2009.

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Gorton R. “Transgender Medicine 101” AMSA Regional Conference. Lubbock, TX. December, 2008.
Gorton R, Djordjevic M, and Brownstein M. “Female to Male (FTM) Health Update” (Provider Session) The 7​th​ Annual Mazzoni Center Trans-Health Conference. Philadelphia, PA. May 2008.
Gorton R. “FTM Hormones 201.” (Community Session) The 7​th​ Annual Mazzoni Center Trans-Health Conference. Philadelphia, PA. May 2008.
Green J, Gorton R, Razza R, and Tamar-Mattis A, “Healthcare and Access Issues Panel.” University of California Hastings College of the Law Transposium Conference. April 2008.
Arkles G, Gorton R, Sanchez D, Suarez C. “Trans Issues in Health Care Panel.” Harvard Law School Lambda Legal Advocacy Conference. February
2008.
Gorton N, Thaler C, and Keisling M. “Drawing the Curtain: An Overview of Medical
Privacy Protections and Risks for Transgender Patients and Providers ” WPATH Symposium, 2007, Chicago.
Gorton R. “Transgender Medicine 2007: A Medical Ethics and Evidence Based Paradigm Shift.” (Provider Session) The 6​th​ Annual Mazzoni Center Trans-Health Conference. Philadelphia, PA. April 2007.
Gorton R. “FTM Hormones 201.” (Community Session) The 6​th​ Annual Mazzoni Center Trans-Health Conference. Philadelphia, PA. April 2007.
Gorton R. “Medical Ethics and Evidence Based Transgender Medicine.” FORGE Forward. Milwaukee WI. March 2007.
Gorton R. “FTM Hormonal Treatment: Beyond 101.” FORGE Forward. Milwaukee
WI. March 2007.
Gorton R. "Transgender Healthcare in 2007: Its Time to Take it Seriously." Humboldt
State University 13​th​ Annual Diversity Conference and Education Summit. Arcata CA. March 2007.
Spade D, Gehi P, Arkles G, and Gorton R. “Barriers to health care access for transpeople.” UCLA School of Law, Williams Institute Annual Update. Los Angeles, CA. February 2007.

Case 1:20-cv-01072-CRC Document 4-15 Filed 04/23/20 Page 16 of 17
Marksamer J and Gorton R. "Legal Support and Advocacy for Transgender Youth and Their Families." Gay and Lesbian Medical Association Annual Conference. San Francisco, CA. October 2006.
Gorton R. “Hormone Therapy 101.” FTM-Gender Odyssey 2006. Seattle, WA. September 2006.
Gorton R. “Hormone Therapy 201.” FTM-Gender Odyssey 2006. Seattle, WA. September 2006.
Gorton R. “Transgender Medicine.” California Department of Health Early Intervention Program Statewide Conference. May 2006.
Gorton R. “Primary Care and Hormonal Therapy for Transgender Males.” (Provider
Session) The 5​th​ Annual Mazzoni Center Trans-Health Conference. Philadelphia, PA. March 2006.
Gorton R. “Health Maintainence for Transgender Men.” (Community Session) The 5​th
Annual Mazzoni Center Trans-Health Conference. Philadelphia, PA. March
2006.
Gorton R. “Primary Care and Hormonal Therapy for Transgender Males.” The 23​rd Annual Conference of the Gay and Lesbian Medical Association. Montreal, Canada. September, 2005.
Spade, D, and Gorton R. “Medical-Legal Policy Update in the Quest for Trans Health
Care and Justice.” The 23​rd​ Annual Conference of the Gay and Lesbian Medical Association. Montreal, Canada. September, 2005.
Arkles Z, and Gorton R. “Medical-legal Collaboration in the Quest for Trans Health
Care and Justice” The 19​th​ Biennial Symposium of the Harry Benjamin International Gender Dysphoria Association. Bologna, Italy. April, 2005.
Professional Advocacy
Supported as physician member of the American Medical Association for adoption of inclusive language for transgender people within AMA policy. “Recommendations to Modify AMA Policy to Ensure Inclusion for Transgender Physicians, Medical Students and Patients.” Accepted by the AMA Board of Delegates July 2007. See “AMA Meeting: Anti-discrimination policy extended to transgendered.” AMA News July 16, 2007.

Case 1:20-cv-01072-CRC Document 4-15 Filed 04/23/20 Page 17 of 17

Awards

http://www.ama-assn.org/amednews/2007/07/16/prsk0716.htm​. Policy amendment available at: http://www.ama-assn.org/ama1/pub/upload/mm/467/bot11a07.doc
Authored and proposed with Vernon A, and Maxey K. ​Resolution to amend the American College of Emergency Physicians 'Code of Ethics for Emergency Physicians.'​ Accepted as policy October 2005. Now reads (amended language underlined): “Provision of emergency medical treatment should not be based on gender, age, race, socioeconomic status, ​sexual orientation, real or perceived gender identity​, or cultural background.”
Claire Skiffington Vanguard Award. Transgender Law Center. San Francisco, CA. 2012.

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Case 1:20-cv-01072-CRC Document 4-16 Filed 04/23/20 Page 2 of 38

DECLARATION OF CARLOS FRANCO-PAREDES, M.D., M.P.H.

I, Carlos Franco-Paredes, M.D., M.P.H., declare under penalty of perjury under the laws

of the United States as follows:

I.

Overview of Background and Specializations.

1. My name is Dr. Carlos Franco-Paredes and I am an Associate Professor of Medicine

at the University of Colorado in the Department of Medicine, Division of Infectious

Diseases. I completed my internal medicine residency and infectious diseases

fellowship at Emory University School of Medicine. I present my Curriculum Vitae

attached as Exhibit A. I have written and published extensively on the topics of

infectious diseases pandemics and epidemics, particularly in influenza. I have 196

scientific publications in peer-reviewed scientific journals. I teach a class at the

school of medicine on caring for underserved populations including immigrants and

incarcerated populations.

2. In addition, I hold a public health degree in global health from the Rollins School of

Public Health at Emory University with a concentration on the dynamics of infectious

disease epidemics and pandemics. I also have twenty years of relevant clinical

experience. I participated in developing international guidelines for pandemic

influenza preparedness and response as well as a global health action plan with the

World Health Organization.

3. As an infectious diseases clinician, I have experience providing care to individuals in

civil detention centers in the United States (US) and have performed medical forensic

examinations and medical second opinion evaluations for patients in the custody of

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Case 1:20-cv-01072-CRC Document 4-16 Filed 04/23/20 Page 3 of 38
the Department of Homeland Security, Immigration and Customs Enforcement (ICE). I have also provided direct care for many patients in ICE custody or incarcerated settings living with HIV-infection at my current academic institution. Prior to the Covid-19 outbreak, I provided care for transgender women residing in the Aurora, CO, immigration detention facility to manage their gender affirming care and antiretroviral therapy for HIV. However, at this time, the facility is not allowing me to see my patients, even virtually. The current doctor at the facility is not helping with the previously existing collaboration. 4. Over the last two weeks, I have witnessed firsthand the impact of COVID-19 at my institution, University of Colorado, Anschutz Medical Center. I have provided direct care to at least 40 patients with this infection, with many requiring intensive care management and often developing respiratory failure necessitating mechanical ventilator support. 5. Based on my conversations with patients, my own observations, and information that exists regarding the resources available within immigration detention facilities as detailed by the ICE Health Services Corps, it is my professional opinion that the medical care available in immigration detention centers cannot properly accommodate the needs of patients should there be an outbreak of COVID-19 in these facilities. Immigration detention centers are often poorly equipped to diagnose and manage infectious disease outbreaks. Many of these centers lack onsite medical facilities or 24-hour medical care. 6. In summary, I am concerned about the treatment of immigrants inside detention centers, which could make the current COVID-19 epidemic worse in the US by
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contributing to a high fatality rate among detained individuals and potentially

spreading the outbreak into the larger community.

7. Immigration detention centers in the US are tinderboxes for the transmission of

highly transmissible infectious pathogens including the SARS-CoV-2, which causes

the Coronavirus Disease (COVID-19). Given the large population density of

immigration detention centers, and the ease of transmission of this viral pathogen, the

attack rate inside these centers may reach exponential proportions consuming

significant medical care and financial resources.

II.

Overview of Documents Reviewed in Preparation of this Declaration.

8. In preparation for this declaration, I reviewed the following scientific references,

relevant medical documents and public health websites:

a. Johns Hopkins University. Coronavirus Resource Center Available at: https://coronavirus.jhu.edu/map.html. Accessed: April 14, 2020.
b. CDC-Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) Available at: https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidancemanagement-patients.html). Accessed: April 14, 2020.
c. CDC COVID 19 Response Team. Severe outcomes among patients with coronavirus disease 2019 (COVID-19) – United States, February 12-March 16, 2020. Available at: https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm. Accessed: April 13, 2020.
d. Rodriguez-Morales AJ, Cardona-Ospina JA, Gutiérrez-Ocampo E, Villamizar-Peña R, Holguin-Rivera Y, Escalera-Antezana JP, Alvarado-Arnez LE, Bonilla-Aldana DK, Franco-Paredes C, Henao-Martinez AF, PanizMondolfi A, Lagos-Grisales GJ, Ramírez-Vallejo E, Suárez JA, Zambrano LI, Villamil-Gómez WE, Balbin-Ramon GJ, Rabaan AA, Harapan H, Dhama K, Nishiura H, Kataoka H, Ahmad T, Sah R; Latin American Network of Coronavirus Disease 2019-COVID-19 Research (LANCOVID-19). Electronic address: https://www.lancovid.org. Clinical, laboratory and imaging features of COVID-19: A systematic review and meta-analysis. Travel Med Infect Dis. 2020 Mar 13:101623. doi: 10.1016/j.tmaid.2020.101623. [Epub ahead of print].

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e. Foppian Palacios C, Opensahw JJ, Travassos MA. Influenza in US detention centers- the desperate need for immunization. N Engl J Med 2020; 382(9): 789-792.
f. Novel Coronavirus Pneumonia Emergency Response Epidemiology Team. [The Epidemiological Characteristics of an Outbreak of 2019 Novel Coronavirus Diseases (COVID-19) in China]. Zhonghua Liu Xing Bing Xue Za Zhi. 2020;41(2):145–151. DOI:10.3760/cma.j.issn.02546450.2020.02.003.
g. Mart M, Ware LB. The long-lasting effects of the acute respiratory distress syndrome. Expert Rev Respir Dis 2020; https://doi.org/10.1080/17476348.2020.1743182.
h. Wu C, Chen X, Cai Y, Xia J, Zhou X, Xu S, Huang H, Zhang L, Zhou X, Du C, Zhang Y, Song J, Wang S, Chao Y, Yang Z, Xu J, Zhou X, Chen D, Xiong W, Xu L, Zhou F, Jiang J, Bai C, Zheng J, Song Y. JAMA Intern Med. 2020 Mar 13. doi: 10.1001/jamainternmed.2020.0994. [Epub ahead of print].
i. Koh GC, Hoenig H. How should the rehabilitation community prepare for 2019-nCOV? Arch Phys Med Rehabil 2020 Mar 16. Pii: S00039993(20)30153-2. Doi: 10.1016/j.apmr.2020.03.003. (Epub ahead of print].
j. Chen C, Zhou Y, Wen WD. SARS-CoV-2: a potential novel etiology of fulminant myocarditis. Herz 2020; March 5. https://doiorg/10.1007/s00059020-04909-z.
k. Hu H, Ma F, Wei X, Fang Y. Coronavirus fulminant myocarditis saved with glucocorticoid and human immunoglobulin. Eur Heat J 2020; Mar 16. [Epub ahead of print].
l. Li R, Pei S, Chen B, Song , Zhang T, Shaman J. Substantial undocumented infection facilitates the rapid dissemination of novel coronavirus (SARSCoV2). Science 10.1126/scienceabb3221 (2020).
m. Russell CD, Millar JE, Baillie JK. Clinical evidence does not support corticosteroid treatment for 2019-nCoV lung injury. Lancet Infect Dis 2020; 395: 474-475.
n. Hoffmann M, Kleine-Weber H, Schroeder S, Krüger N, Herrler T, Erichsen S, Schiergens TS, Herrler G, Wu NH, Nitsche A, Müller MA, Drosten C, Pöhlmann S. SARS-CoV-2 Cell Entry Depends on ACE2 and TMPRSS2 and Is Blocked by a Clinically Proven Protease Inhibitor. Cell. 2020 Mar 4. pii: S0092-8674(20)30229-4. doi: 10.1016/j.cell.2020.02.052. [Epub ahead of print]
o. Tian S, Hu W, Niu L, Liu H, Su H, Xiao SY. Pulmonary pathology of early phase 2019 novel coronavirus (COVID-19) pneumonia in patients with lung cancer. J Thorac Oncol 2020; https://doi.org/10.1016;j.tho.2020.02.010.
p. Lauer SA, Grantz KH, Bi Q, Jones FK, Zheng Q, Meredith HR, Azman AS, Reich NG, Lessler J.The incubation period of coronavirus disease 2019 (COVID-19) from publicly reported confirmed cases: estimation and
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application. Ann Intern Med 2020; March 10, doi: https://doi/org/107326/M20-0504.
q. Korean Society of Infectious Diseases; Korean Society of Pediatric Infectious Diseases; Korean Society of Epidemiology; Korean Society for Antimicrobial Therapy; Korean Society for Healthcare-associated Infection Control and Prevention; Korea Centers for Disease Control and Prevention. Report on the Epidemiological Features of Coronavirus Disease 2019 (COVID-19) Outbreak in the Republic of Korea from January 19 to March 2, 2020. J Korean Med Sci. 2020 Mar 16; 35(10):e112. doi: 10.3346/jkms.2020.35.e112.
r. Fauci AS. Infectious diseases: considerations for the 21st century. Clin Infect Dis 2001; 32: 675-85.
s. Finnie TJR, Copley VR, Hall IM, Leach S. An analysis of influenza outbreaks in institutions and enclosed societies. Epidemiol Infect 2014; 14: 107-113.
t. Chao W-C, Liu P-Y, Wu C-L. Control of an H1N1 outbreak in a correctional facility in central Taiwan. J Microbiol Immunol Infect 2017; 50: 175-182.
u. Dolan K, Wirtz AL, Moazen B, Ndeffo-Mbah M, Galvani A, Kinner SA, Courtney R, McKee M, Amon JJ, Maher L, Hellard M, Beyrer C, Altice FL. Global burden of HIV, viral hepatitis, and tuberculosis in prisoners and detainees. Lancet 2016; 388 (10049): 1089-1102
v. CDC. Interim guidance on management of coronavirus disease 2019 (COVID19) in correctional and detention facilities. Available at: https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html. Accessed: April 12, 2020.
w. Mizumoto K, Chowell G. Transmission potential of the novel coronavirus (COVID-19) onboard the diamond Princess Cruises Ship, 2020. Infect Dis Modelling 2020; 5: 264-270.
x. Sanche S, Lin YT, Xu C, Romero-Severson E, Hengartner N, Ke R. High contagiousness and rapid spread of severe acute respiratory syndrome coronavirus 2. Emerg Infect Dis. 2020 Jul https://doi.org/10.3201/eid2607.200282.
Thompson R. Pandemic potential of 2019-nCoV.Lancet Infect Dis 2020; 20 March 20; doi.org/10.1016/S1473-3099 (20)30068-2.

III.

Formal Analysis.

A. Global and US-Specific Status of the SARS-CoV-2 (COVID-19) Pandemic.

9. The Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2) is a newly

emerging zoonotic agent initially identified in December 2019 that as of April 14,

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2020 has disseminated to 185 countries, causing 1,961,965 confirmed cases and 125,476 deaths. This viral pathogen causes the Coronavirus Disease 2019 (COVID19). 10. Infection with COVID-19 is associated with significant morbidity and mortality, especially in patients above 55 years of age and those with chronic medical conditions including HIV/AIDS, diabetes mellitus, chronic lung disorders, hypertension and others. 11. As of April 14, 2020, there have been 594,207 confirmed cases of COVID-19 with 25,402 deaths reported in the U.S. There have been reports of confirmed cases in all US states and most states have already reported deaths. The epicenters in the US territory began in the Pacific Northwestern states and then spread to California and the Northeast, particularly New York City and New Jersey. 12. Reports by the CDC show that 31% of COVID-19 cases, 45% of hospitalizations, and 80% of deaths occurred among adults over 65 years of age. Case-fatality in persons aged over 85 ranged from 10-27%, followed by 3-11% among persons aged 65 to 84, 1% among persons aged 55 to 64, and less than 1% among persons aged 20 to 54.
B. Risk of Immigration Detention Centers Fueling the COVID-19 Pandemic. 13. I reviewed COVID-19 guidance by ICE and CDC recommendations for carceral
settings. 14. Both sets of guidance address social distancing in these centers, which appears to be
difficult, if not impossible, in settings where many individuals are living in close quarters with a large number of beds per room or dorm. However, these recommendations and guidance are insufficient in case of an outbreak as it has
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occurred in many carceral settings in the U.S. The current crisis reaching jails and prisons in the U.S. is concerning. My colleagues and I have a publication in press where we state the following: “In the US, the Federal Bureau of Prisons (BOP) reports that there are 335 federal inmates diagnosed with COVID-19 and 185 staff members among 39 BOP and 9 Residential Reentry Management Centers (RRC) nationwide. There have been nine federal inmate deaths. However, when combining prisons and jails in all States, there are at least 1,324 confirmed cases of COVID-19 tied to prisons and jails with at least 32 deaths. These include some of America’s largest outbreaks including the Cook County Jail in Chicago, Illinois (492 cases), and Parnall Correctional Facility in Jackson, Michigan (194 cases). As the number of cases of COVID-19 continues to spread in the U.S., it is likely that there will be an increasing number of clusters and outbreaks in carceral settings with implications to the larger community and to the healthcare system. At this point in the pandemic, the capacity to handle a large influx of patients with complicated COVID-19 coming from jails and prisons is limited. Efforts at the federal, state, and local levels are reducing the number of incarcerated individuals. However, without widespread availability of testing in jails and prisons to guide isolation and quarantine practices, inadequate supply of personal protective equipment for inmates including masks, and the revolving door of jails, hampers the ability to block transmission as the current outbreak inside the Cook County jail has uncovered.”
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C. Populations at Risk of Severe Disease and Death Due to SARS-CoV-2 Infection under ICE Custody.
15. According to the CDC, groups deemed to be at high risk of developing severe disease and dying from COVID-19 include those above 50 years of age and those with underlying medical conditions (regardless of their age). (See Table 1 below). These cases are also amplifiers or hyper-spreaders of the infection since they tend to have high viral concentrations in their respiratory secretions.
16. The clinical experience in China, South Korea, Italy, and Spain; and within the US, has shown that 80% of confirmed cases tend to occur in persons 30 to 69 years of age regardless of whether they had underlying medical conditions. Of these, 20% develop severe clinical manifestations or become critically ill. Among those with severe clinical manifestations, regardless of their age or underlying medical conditions, the virus progresses into respiratory failure, septic shock, and multiorgan dysfunction requiring intensive care support including the use of mechanical ventilator support. The overall case fatality rate is 10-14% of those who develop severe disease.
17. Another important vulnerable group is transgender individuals, particularly transgender women. An important percentage of them are living with HIV-infection. Without exception, all of them have fled to the US seeking protection from torture, sexual violence, or other forms of persecution. Every single patient that I have the honor of caring for as a physician, have a profound history of trauma leading to high rates of depression, anxiety, and post-traumatic stress disorder. Many experience prolonged periods of detention while immigration courts adjudicate their asylum claims or are deported for civil immigration violations. While in detention, many
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transgender women routinely undergo harassment, sexual assault, and solitary confinement. In some immigration detention centers, there is no routine provision of gender affirming care (hormonal therapy). Often, transgender women are held in men’s detention facilities placing them at risk of sexual abuse. From a medical perspective, many transgender women may also have chronic medical conditions such as systemic arterial hypertension or diabetes mellitus. Two transgender females have died under ICE custody and in both cases, there has been evidence of medical neglect.

Table 1. Risk factors for developing severe disease and death

Age groups at high risk of developing severe >50 years (1% CFR)*

disease and dying without underlying medical 60-69 years (3.6% CFR)

conditions

70-79 years (8% CFR)

Groups with underlying medical conditions at -Cardiovascular Disease (congestive heart

high risk of dying regardless of their age

failure, history of myocardial infarction,

history of cardiac surgery)

-Systemic Arterial Hypertension (high blood pressure)

-Chronic Respiratory Disease (asthma, chronic obstructive pulmonary disease including chronic bronchitis or emphysema, or other pulmonary diseases)

-Diabetes Mellitus

-Cancer

-Chronic Liver Disease

-Chronic Kidney Disease

-Autoimmune Diseases

-Severe Psychiatric Illness **

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-History of Transplantation -HIV/AIDS *CFR= Case Fatality Rate. This is an indicator of lethality used during outbreaks to identify the number of individuals who succumb out of those who become infected. ** In South Korea, 20% of deaths occurred in what they defined as Psychiatric Illness (J Korean Med Sci 2020; 35(10): e112).
D. Potential Impact of the COVID-19 behind Walls of Immigration Detention Centers in the US.
18. There is a growing number of confirmed Covid-19 cases in the US, increasing numbers of hospitalizations and admissions to intensive care units, and many deaths. In this wave of the pandemic or in subsequent ones, it is likely the number of infected individuals will continue to augment. In the closed settings of immigration detention centers, where there is overcrowding and confinement of a large number of persons, networks of transmission become highly conducive to spread rapidly.
19. There is evidence of substantial undocumented infection facilitating the rapid dissemination of novel coronavirus SARS-CoV-2 which is responsible for 79% of documented cases of COVID-19 in China. Once an individual is exposed to this virus from either a symptomatic individual (21% of cases) or from asymptomatic individuals (79% of cases), the shortest incubation period is 3 days with a median incubation period of 5.1 days (95% CI 4.5 to 5.8 days). Overall, 97.5% of persons who develop symptoms do so within 11.5 days of the initial exposure. Most persons with COVID-19 who develop severe disease do so immediately after admission or within 3-5 days from their initial presentation and represent 53% of those requiring intensive care unit admissions and advanced supportive care. At the University of
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Colorado, Anschutz Medical Center, there have been two confirmed deaths occurring within 48 hours of admission to the hospital. 20. Given the high population density of jails, prisons, and juvenile detention centers, and the ease of transmission of this viral pathogen, the infection rate will be exponential if even a single person, with or without symptoms, that is shedding the virus enters a facility. For every person with the virus, they will infect more than 2 other people – whether they be incarcerated individuals or staff. Of those infected, one-fifth will get so ill that they require hospital admission, and about 10% will develop severe disease requiring treatment only available in the intensive care unit. To illustrate the magnitude of this threat, a jail or prison that holds 1500 individuals can anticipate that 500-650 individuals may acquire the infection. Of these, 100 to 150 individuals may develop symptoms and may progress to develop severe disease requiring admission to the hospital, potentially to an intensive care unit. Of these, 5-10 individuals may die from respiratory failure, septic shock and multiorgan failure. 21. Reducing the number of incarcerated individuals is necessary for effective infection control and sanitization practices that could dramatically reduce the burden COVID19 will inevitably place on our health system. Urgent action is needed given the predicted shortage of medical supplies such as personal protective equipment, shortage of staff as medical personnel become ill themselves, and limited life-saving resources such as ventilators.
E. Potential Impact of a COVID-19 Outbreak in a Detention Center May be Overwhelming To Local Healthcare Systems
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22. Detention of any kind requires large groups of people to be held together in a confined space and creates the worst type of setting for curbing the spread of a highly contagious infection such as COVID-19. To contain the spread of the disease, infection prevention protocols must be meticulously followed.
23. The number of private rooms in a typical detention facility is insufficient to comply with the recommended airborne/droplet isolation guidelines. Another important consideration that complicates disinfection and decontamination practices is the ability of this novel coronavirus to survive for extended periods of time on materials that are highly prevalent in secure settings, such as metals and other non-porous surfaces. Current outbreak protocols require frequent disinfection and decontamination of all surfaces of the facility, which is exceedingly difficult given the large number of incarcerated individuals, frequent interactions between incarcerated individuals and staff, and regularity with which staff move in and out of each facility.
24. Responding to an outbreak requires significant improvements in staffing, upgrading medical equipment, substantial supplies including antibiotics, intravenous infusions, cardiac and respiratory monitors, devices for oxygen supply, and personal protection supplies among persons at high risk of severe COVID-19 disease. Additionally, this outbreak calls for highly trained staff to correctly institute and enforce isolation and quarantine procedures, and appropriately use personal protective equipment. It is essential that nursing and medical staff be trained in infection control prevention practices, implementing triage protocols, and the medical management of suspected, probable and confirmed cases of coronavirus infection.
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25. These same personnel would have to initiate the management of those with severe disease. Since these are closed facilities, the number of exposed, infected, and ill individuals may rapidly overwhelm staff and resources.
26. This is particularly important in rural and semirural settings where many immigration detention centers are located, particularly in Southern states and where they may have contact with a limited number of surrounding medical centers. As a result, many patients would need transfer to hospitals near these facilities, likely overwhelming the surrounding healthcare systems, which are already functioning at full capacity caring for the general non-incarcerated community.
27. A large outbreak of COVID-19 in an immigration detention facility would put a tremendous strain on the medical system to the detriment of patients in the communities surrounding these centers. It is reasonable to anticipate that there will be the loss of additional lives that could have otherwise been saved.
IV. Expert Opinion. 28. There is an urgent need to consider alternative strategies to dilute the communitybased impact of an outbreak inside immigration detention centers. Therefore, it is my professional view, that releasing detainees on parole from these centers constitutes a high-yield public health intervention that may significantly lessen the impact of this outbreak. In particular, due to their vulnerability, there should be efforts targeting the release of transgender women. Many of these transgender women are in the age groups at risk of severe disease and death; or those with underlying medical conditions including HIV infection, diabetes mellitus, obesity, and hypertension.
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These interventions may lessen the human and financial costs that this outbreak may impose on ICE detention facilities nationwide.
29. As an infectious disease physician specialized in the care of patients living with HIVinfection, I can attest that most patients that we currently co-manage with the Aurora medical staff are receiving optimal antiretroviral therapy. However, some of the newly admitted patients to the Aurora facility are living with HIV-infection have not received our consultation services. This is an important concern since lately we have had some challenges in scheduling virtual evaluations of some of our patients. And at least in one case, one of the patients that I evaluated was receiving an antiretroviral drug combination (Genvoya) which contains cobicistat, a medication with important drug-drug interactions. This transgender patient living with HIV-infection was also receiving the inhaled steroid, fluticasone that has important drug-drug interactions with cobicistat leading to excess glucocorticoid syndrome. In summary, it is my professional opinion that despite receiving optimal antiretroviral therapy, many individuals living with HIV-infection and having an adequate response to these therapies, remain at high risk of some infections including bacterial pneumonias and likely COVID-19. It is my understanding that the increasing number of transgender women in civil detention at the Aurora facility are residing in a specific pod. This may concentrate the vulnerability of this group to COVID-19 by all living in one designated area. Conversely, releasing them into the male or female general pods, may place them at risk of increasing harassment and sexual violence. Therefore, the best strategy for risk mitigation for this group of individuals is release.
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Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed on this fifteenth day of April 2020 at Aurora, Colorado, United States.

______________________________ Carlos Franco Paredes, M.D., M.P.H. Associate Professor of Medicine Division of Infectious Diseases Department of Medicine Division of infectious Diseases Program Director Infectious Disease Fellowship Training Program, University of Colorado

Exhibit A. Curriculum Vitae – Carlos Franco-Paredes MD, MPH

PERSONAL INFORMATION Carlos Franco-Paredes, M.D., M.P.H. Carlos.franco-paredes@cuanschutz.edu carlos.franco.paredes@gmail.com US Citizen

CURRENT PROFESSIONAL POSITION AND ACTIVITIES:  Associate Professor of Medicine, Division of Infectious Diseases, University of Colorado Denver School of Medicine, Anschutz Medical Campus and Infectious Diseases (July 2018 - ongoing).  Fellowship Program Director, Division of Infectious Diseases, University of Colorado Denver School of Medicine, Anschutz Medical Campus (March 2019- ongoing).

EDUCATION 1989 -1995 1996-1999

M.D. - La Salle University School of Medicine, Mexico City, Mexico Internship and Residency in Internal Medicine, Emory University School of Medicine Affiliated Hospitals, Atlanta, GA
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1999-2002 1999-2002
1999 - 2002 2001-2002 2006

Fellowship in Infectious Diseases, Emory University School of Medicine Affiliated Hospitals, Atlanta, GA Fellow in AIDS International Training and Research Program, NIH Fogarty Institute, Rollins School of Public Health, Emory University, Atlanta, GA Masters Degree in Public Health (M.P.H.) Rollins School of Public Health, Emory University, Atlanta, GA, Global Health Track Chief Medical Resident, Grady Memorial Hospital, Emory University School of Medicine, Atlanta, GA Diploma Course in Tropical Medicine, Gorgas. University of Alabama, Birmingham and Universidad Cayetano Heredia, Lima Peru

CERTIFICATIONS 1999-Present Diplomat in Internal Medicine American Board of Internal Medicine (Recertification 11/2010-11/2020) 2001-present Diplomat in Infectious Diseases, American Board of Internal Medicine, Infectious Diseases Subspecialty (Recertification 04/2011-04/2021) 2005-present Travel Medicine Certification by the International Society of Travel Medicine 2007-present Tropical Medicine Certification by the American Society of Tropical Medicine – Diploma in Tropical Medicine and Hygiene (DTMH - Gorgas)

EMPLOYMENT HISTORY:  2002 - 2004 - Advisor to the Director of the National Center for Child and Adolescent Health and of the National Immunization Council (NIP), Ministry of Health Mexico; my activities included critical review of current national health plans on vaccination, infectious diseases, soil-transmitted helminthic control programs; meningococcal disease outbreaks in the jail system, an outbreak of imported measles in 2003-2004 and bioterrorism and influenza pandemic preparedness. I represented the NIP at meetings of the Global Health Security Action Group preparation of National preparedness and response plans for Mexico  2005 – 2011- Co-Director Travel Well Clinic, Emory University Emory Midtown Hospital  2004- 8/2009 -Assistant Professor of Medicine Department of Medicine, Division of Infectious Diseases Emory University School of Medicine, Atlanta GA  3/2008-10/2009 Consultant WHO, HQ, Geneva, Influenza Vaccine  9/2009- 3/2011 Associate Professor of Medicine Department of Medicine, Division of Infectious Diseases Emory University School of Medicine, Atlanta GA  1/2007 – 3/2011 Assistant Professor of Public Health Hubert Department of Global Health Rollins School of Public Health, Emory University, Atlanta GA

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 4/2011 –5/2013 - Associate Professor of Public Health in Global Health Hubert Department of Global Health Rollins School of Public Health, Emory University, Atlanta GA
 2010 - WHO HQ Consultant for a 4-month-period on the Deployment of H1N1 influenza vaccine in the African Region, Jan to March 2010, Switzerland Geneva, WHO HQ 2010 sponsored by John Snow Inc. USAID, Washington, D.C.
 2014-2015 - Consultant International Association of Immunization Managers, Regional Meeting of the Middle Eastern and North African Countries and Sub Saharan Africa, held in Durban South Africa, Sept 2014; and as rapporteur of the Inaugural Conference, 3-4 March 2015, Istanbul, Turkey.
 3/2011- 5/2017 - Phoebe Physician Group –Infectious Diseases Clinician Phoebe Putney Memorial Hospital, Albany, GA.
 5/2015 - 9/2015 - Consultant Surveillance of Enteric Fever in Asia (Pakistan, Indonesia, Bangladesh, Nepal, India) March 2015-October 2015.
 June 19, 2017-June 31, 2018–Visiting Associate Professor of Medicine, Division of Infectious Diseases, University of Colorado Denver, Anschutz Medical Campus
 June 2004- present - Adjunct Professor of Pediatrics, Division of Clinical Research, Hospital Infantil de México, Federico Gómez, México City, México. Investigador Nacional Nivel II, Sistema Nacional de Investigadores (12/2019); SNI III Sistema Nacional de Investigadores (1/2020-); Investigador Clínico Nivel E, Sistema Nacional de Hospitales

HONORS AND AWARDS

1995 Top Graduating Student, La Salle School of Medicine

1997 1999 2002 2002 2002
2002

Award for Academic Excellence in Internal Medicine, EUSM Alpha Omega Alpha (AOA) House staff Officer, EUSM Pillar of Excellence Award. Fulton County Department of Health and Wellness Communicable Disease Prevention Branch, Atlanta GA Emory University Humanitarian Award for extraordinary service in Leadership Betterment of the Human Condition the Emory University Rollins School of Public Health Winner of the Essay Contest on the Health of Developing Countries: Causes and Effects in Relation to Economics or Law, sponsored by the Center for International Development at Harvard University and the World Health Organization Commission on Macroeconomics Health with the essay "Infectious Diseases, Non-zero Sum Thinking and the Developing World” “James W. Alley” Award for Outstanding Service to Disadvantaged Populations, Rollins School of Public Health of Emory University May

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2002. Received during Commencement Ceremony Graduation to obtain the Degree of Masters in Public Health 2006 Golden Apple Award for Excellence in Teaching, Emory University, School of Med 2006 Best Conference Award Conference, “Juha Kokko” Best Conference Department of Medicine, EUSM 2007 “Jack Shulman” Award Infectious Disease fellowship, Excellence in Teaching Award, Division of Infectious Diseases, EUSM 2007 Emerging Threats in Public Health: Pandemic Influenza CD-ROM, APHA’s Public Health Education and Health Promotion Section, Annual Public Health Materials Contest award 2009 National Center for Preparedness, Detection, and Control of Infectious Diseases. Honor Award Certificate for an exemplary partnership in clinical and epidemiologic monitoring of illness related to international travel. NCPDCID Recognition Awards Ceremony, April 2009. CDC, Atlanta, GA 2012 The ISTM Awards Committee, directed by Prof. Herbert DuPont, selected the article "Rethinking typhoid fever vaccines" in the Journal of Travel Medicine (Best Review Article) 2012 Best Clinical Teacher. Albany Family Medicine Residency Program 2018 Outstanding Educator Award – Infectious Diseases Fellowship, Division of Infectious Diseases, University of Colorado, Anschutz Medical Center, Aurora Colorado
EDITORSHIP AND EDITORIAL BOARDS 2007-Present Deputy/Associate Editor PLoS Neglected Tropical Disease
Public Library of Science 2017-2018 Deputy Editor, Annals of Clinical Microbiology and Antimicrobials
BMC 2007-2019 Core Faculty International AIDS Society-USA -Travel and Tropical
Medicine/HIV/AIDS
INTERNATIONAL COMMITTEES 2018- Member of the Examination Committee of the International Society of Travel Medicine.
Developing Examination Questions and Proctoring the Certificate in Traveler’s Health Examination
Proctor Certificate of Traveler’s Health Examination (CTH) as part of the International Society of Travel Medicine– 12th Asia-Pacific Travel Health Conference, Thailand 21-24, March 2019 Proctor Certificate of Traveler’s Health Examination (CTH), Atlanta, GA, September, 2019
PRESENTATIONS AT NATIONAL/INTERNATIONAL MEETINGS 2017- Meeting of the Colombian Society of Infectious Diseases, August 2017: Discussion of Clinical Cases Session, Influenza, MERS-Coronavirus, Leprosy, Enteric Fever
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2018 – Cutaneous Mycobacterial Diseases, Universidad Cayetano Heredia, Lima, Peru, Mayo 2018 2018 – Scientific Writing Seminar, ACIN, Pereira, Colombia, August 2-4, 2018 2019 – First International Congress of Tropical Diseases ACINTROP 2019. March 21, 2019, Monteria, Colombia, Topic: Leishmaniasis 2019 – One Health Symposium of Zoonoses, Pereira Colombia, August 16-17, 2019, Topic: Zoonotic Leprosy 2019 – Congress Colombian Association of Infectious Diseases (ACIN), Topic: Leprosy in Latin America, Cartagena, Colombia, August 21-24, 2019 2019 – World Society Pediatric Infectious Diseases, Manila Philippines, November 7-9, 2019 Tropical Medicine Symposium: Diagnosis, Treatment, and Prevention of Leprosy. 2019 – FLAP. Federacion Latino Americana de Parasitologia, Panama, Panama, November 26, 2019, Oral Transmission of Leprosy Symposium 2019 – FLAP. Federacion Latino Americana de Parasitologia, Panama, Panama, November 27, 2019, Leprosy Situation in the Americas.
PUBLICATIONS BOOKS Franco-Paredes C, Santos-Preciado JI. Neglected Tropical Diseases in Latin America and the Caribbean, Springer-Verlag, 2015. ISBN-13: 978-3709114216 ISBN-10: 3709114217 Franco-Paredes C. Core Concepts in Clinical Infectious Diseases, Academic Press, Elsevier, March 2016. ISBN: 978-0-12-804423-0
RESEARCH ORIGINAL ARTICLES (clinical, basic science, other) in refereed journals: 1. Del Rio C, Franco-Paredes C, Duffus W, Barragan M, Hicks G. Routinely Recommending HIV Testing at a Large Urban Urgent-Care Clinic – Atlanta, GA. MMWR Morbid Mortal Wkly Rep 2001; 50:538-541. 2. Del Rio C, Barragán M, Franco-Paredes C. Pneumocystis carinii Pneumonia. N Engl J Med 2004; 351:1262-1263. 3. Barragan M, Hicks G, Williams M, Franco-Paredes C, Duffus W, Del Rio C. Health Literacy is Associated with HIV Test Acceptance. J Gen Intern Med 2005; 20:422-425. 4. Rodriguez-Morales A, Arria M, Rojas-Mirabal J, Borges E, Benitez J, Herrera M, Villalobos C, Maldonado A, Rubio N, Franco-Paredes C. Lepidopterism Due to the Exposure of the Moth Hylesia metabus in Northeastern Venezuela. Am J Trop Med Hyg 2005; 73:991-993. 5. Rodriguez-Morales A, Sánchez E, Arria M, Vargas M, Piccolo C, Colina R, Franco-Paredes C. White Blood Cell Counts in Plasmodium vivax. J Infect Dis 2005; 192:1675-1676. 6. Franco-Paredes C, Nicolls D, Dismukes R, Kozarsky P. Persistent Tropical Infectious Diseases among Sudanese Refugees Living in the US. Am J Trop Med Hyg 2005; 73: 1. 7. Osorio-Pinzon J, Moncada L, Franco-Paredes C. Role of Ivermectin in the Treatment of Severe Orbital Myiasis Due to Cochliomyia hominivorax. Clin Infect Dis 2006; 3: e57-9. 8. Rodriguez-Morales A, Franco-Paredes C. Impact of Plasmodium vivax Malaria during Pregnancy in Northeastern Venezuela. Am J Trop Med Hyg 2006; 74:273-277. 9. Rodriguez-Morales A, Nestor P, Arria M, Franco-Paredes C. Impact of Imported Malaria on the Burden of Malaria in Northeastern Venezuela. J Travel Med 2006; 13:15-20.
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10. Rodríguez-Morales A, Sánchez E, Vargas M, Piccolo C, Colina R, Arria M, Franco-Paredes C. Is anemia in Plasmodium vivax More Severe and More Frequent than in Plasmodium falciparum? Am J Med 2006; 119:e9-10. 11. Hicks G, Barragan M, Franco-Paredes C, Williams MV, del Rio C. Health Literacy is a Predictor of HIV Knowledge. Fam Med J 2006; 10:717-723. 12. Cardenas R, Sandoval C, Rodriguez-Morales A, Franco-Paredes C. Impact of Climate Variability in the Occurrence of Leishmaniasis in Northeastern Colombia. Am J Trop Med Hyg 2006; 75:273-7. 13. Franco-Paredes C, Nicolls D, Dismukes R, Wilson M, Jones D, Workowski K, Kozarsky P. Persistent and Untreated Tropical Infectious Diseases among Sudanese Refugees in the US. Am J Trop Med Hyg 2007; 77:633-635. 14. Rodríguez-Morales AJ, Sanchez E, Arria M, Vargas M, Piccolo C, Colina R, FrancoParedes C. Hemoglobin and haematocrit: The Threefold Conversion is also Non Valid for Assessing Anaemia in Plasmodium vivax Malaria-endemic Settings. Malaria J 2007; 6:166. 15. Franco-Paredes C, Jones D, Rodriguez-Morales AJ, Santos-Preciado JI. Improving the Health of Neglected Populations in Latin America. BMC Public Health 2007; 7. 16. Kelly C, Hernández I, Franco-Paredes C, Del Rio C. The Clinical and Epidemiologic Characteristics of Foreign-born Latinos with HIV/AIDS at an Urban HIV Clinic. AIDS Reader 2007; 17:73-88. 17. Hotez PJ, Bottazzi ME, Franco-Paredes C, Ault SK, Roses-Periago M. The Neglected Tropical Diseases of Latin America and the Caribbean: Estimated Disease Burden and Distribution and a Roadmap for Control and Elimination. PLoS Negl Trop Dis 2008; 2:e300. 18. Tellez I, Barragan M, Nelson K, Del Rio C, Franco-Paredes C. Pneumocystis jiroveci (PCP) in the Inner City: A Persistent and Deadly Pathogen. Am J Med Sci 2008; 335:192-197. 19. Rodriguez-Morales AJ, Olinda, Franco-Paredes C. Cutaneous Leishmaniasis Imported from Colombia to Northcentral Venezuela: Implications for Travel Advice. Trav Med Infect Dis 2008; 6(6): 376-9. 20. Jacob J, Kozarsky P, Dismukes R, Bynoe V, Margoles L, Leonard M, Tellez I, FrancoParedes C. Five-Year Experience with Type 1 and Type 2 Reactions in Hansen’s Disease at a US Travel Clinic. Am J Trop Med Hygiene 2008; 79:452-454. 21. Delgado O, Silva S, Coraspe V, Ribas MA, Rodriguez-Morales AJ, Navarro P, FrancoParedes C. Epidemiology of Cutaneous Leishmaniasis in Children and Adolescents in Venezuela. Trop Biomed. 2008; 25(3):178-83. 22. Franco-Paredes C, Lammoglia L, Hernandez I, Santos-Preciado JI. Epidemiology and Outcomes of Bacterial Meningitis in Mexican Children: 10-Years' Experience (1993-2003). Int J Infect Dis 2008; 12:380-386. 23. Pedroza A, Huerta GJ, Garcia ML, Rojas A, Lopez I, Peñagos M, Franco-Paredes C, Deroche C, Mascareñas C. The Safety and Immunogenicity of Influenza Vaccine in Children with Asthma in Mexico. Int J Infect Dis 2009; 13(4): 469-75. 24. Museru O, Franco-Paredes C. Epidemiology and Outcomes of Hepatitis B Virus Infection among Refugees Seen at US Travel Medicine Clinic: 2005-2008. Travel Med Infect Dis 2009; 7: 171-179. 25. Rodriguez-Morales AJ, Olinda M, Franco-Paredes C. Imported Cases of Malaria Admitted to Two Hospitals of Margarita Island, Venezuela: 1998-2005. Travel Med Infect Dis 2009: (1): 48-45.
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26. Kelley CF, Checkley W, Mannino DM, Franco-Paredes C, Del Rio C, Holguin F. Trends in Hospitalizations for AIDS-associated Pneumocystis jiroveci Pneumonia in the United States (1986-2005). Chest 2009; 136(1): 190-7. 27. Carranza M, Newton O, Franco-Paredes C, Villasenor A. Clinical Outcomes of Mexican Children with Febrile Acute Upper Respiratory Infection: No Impact of Antibiotic Therapy. Int J Infect Dis 2010; 14(9): e759-63. 28. Museru O, Vargas M, Kinyua M, Alexander KT, Franco-Paredes C, Oladele A. Hepatitis B Virus Infection among Refugees Resettled in the US: High Prevalence and Challenges in Access to Health Care. J Immigrant Minor Health 2010; 29. Moro P, Thompson B, Santos-Preciado JI, Weniger B, Chen R, Franco-Paredes C. Needlestick injuries in Mexico City sanitation workers. Revista Panamericana de Salud Pública/Pan American Journal of Public Health 2010; 27 (6): 467-8. 30. Barragan M, Holtz M, Franco-Paredes C, Leonard M. The Untimely Misfortune of Tuberculosis Diagnosis at time of Death. Infect Dis Clin Pract 2010; 18(6):1-7. 31. Hochberg N, Armstrong W, Wang W, Sheth A, Moro R, Montgomery S, Steuer F, Lennox J, Franco-Paredes C. High Prevalence of Persistent Parasitic Infections in Foreign-born HIVinfected Persons in the United States. PLoS Neglect Dis 2011; 5(4): e1034. 32. Larocque RC, Rao SR, Lee J, Ansdell V, Yates JA, Schwartz BS, Knouse M, Cahill J, Hagmann S, Vinetz J, Connor BA, Goad JA, Oladele A, Alvarez S, Stauffer W, Walker P, Kozarsky P, Franco-Paredes C, Dismukes R, Rosen J, Hynes NA, Jacquerioz F, McLellan S, Hale D, Sofarelli T, Schoenfeld D, Marano N, Brunette G, Jentes ES, Yanni E, Sotir MJ, Ryan ET; the Global TravEpiNet Consortium. Global TravEpiNet: A National Consortium of Clinics Providing Care to International Travelers--Analysis of Demographic Characteristics, Travel Destinations, and Pretravel Healthcare of High-Risk US International Travelers, 2009-2011. Clin Infect Dis. 2012; 54(4):455-462. 33. Espinosa-Padilla SE, Murata C, Estrada-Parra S, Santos-Argumendo L, Mascarenas C, Franco-Paredes C, Espinosa-Rosales FJ. Immunogenicity of a 23-valent pneumococcal polysaccharide vaccine among Mexican children. Arch Med Res 2012; 34. Harris JR, Lockhart SR, Sondermeyer G, Vugia DJ, Crist MB, D'Angelo MT, Sellers B, Franco-Paredes C, Makvandi M, Smelser C, Greene J, Stanek D, Signs K, Nett RJ, Chiller T, Park BJ. Cryptococcus gattii infections in multiple states outside the US Pacific Northwest. Emerg Infect Dis. 2013; 19 (10):1620-6. 35. Franco-Paredes C. Aerobic actinomycetes that masquerade as pulmonary tuberculosis. Bol Med Hosp Infant Mex 2014; 71(1): 36-40. 36. Chastain DB, Ngando I, Bland CM, Franco-Paredes C, and Hawkins WA. Effect of the 2014 Clinical and Laboratory Standard Institute urine-specific breakpoints on cefazolin susceptibility rates at a community teaching hospital. Ann Clin Microbiol Antimicrob 2017; 16(1): 43. 37. Kashef Hamadani BH, Franco-Paredes C, MCollister B, Shapiro L, Beckham JD, HenaoMartinez AF. Cryptococcosis and cryptococcal meningitis- new predictors and clinical outcomes at a United States Academic Medical Center. Mycoses 2017; doi: 10.1111/myc.12742. 38. Chastain DB, Franco-Paredes C, Wheeler SE, Olubajo B, Hawkins A. Evaluating Guideline Adherence regarding Empirical Vancomycin use in patients with neutropenic fever. Int J Infect Dis 2018; Feb 22. pii: S1201-9712(18)30052-3. doi: 10.1016/j.ijid.2018.02.016. PMID: 29477362
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39. Parra-Henao G, Amioka E, Franco-Paredes C, Colborn KL, Henao-Martinez AF. Heart failure symptoms and ecological factors as predictors of Chagas disease among indigenous communities in the Sierra Nevada de Santa Marta, Colombia. J Card Fail 2018; Mar 26. pii: S1071-9164(18)30119-2. doi: 10.1016/j.cardfail.2018.03.007. 40. Vela Duarte D, Henao-Martinez AF, Nyberg E, Castellanos P, Franco-Paredes C, Chastain DB, Lacunar Stroke in Cryptococcal Meningitis: Clinical and Radiographic Features. J Stroke and Cerebrovascular Disease 2019; 41. Chastain DB, Henao-Martinez AF, Franco-Paredes C. A clinical pharmacist survey of prophylactic strategies used to prevent adverse events of lipid-associated formulations of amphotericin B. Infect Dis 2019; 42. Henao-Martínez AF, Chadalawada S, Villamil-Gomez WE, DeSanto K, Rassi A Jr, FrancoParedes C. Duration and determinants of Chagas latency: an etiology and risk systematic review protocol. JBI Database System Rev Implement Rep. 2019 Jul 22. doi: 10.11124/JBISRIR-D-1800018.
RESEARCH ORIGINAL ARTICLES AS COLLABORATOR (clinical, basic science, other) in refereed journals: 43. Benator D, Bhattacharya M, Bozeman L, Burman W, Cantazaro A, Chaisson R, Gordin F, Horsburgh CR, Horton J, Khan A, Lahart C, Metchock B, Pachucki C, Stanton L, Vernon A, Villarino ME, Wang YC, Weiner M, Weis S; Tuberculosis Trials Consortium. Rifapentine and Isoniazid Once a Week versus Rifampicin and Isoniazid twice a week for Treatment of Drug-susceptible Pulmonary Tuberculosis in HIV-Negative Patients: a Randomised Clinical Trial. Lancet 2002; 360:528-34. 44. Weiner M, Burman W, Vernon A, Benator D, Peloquin CA, Khan A, Weis S, King B, Shah N, Hodge T; Tuberculosis Trials Consortium. Low INH Concentrations and Outcome of Tuberculosis Treatment with Once-weekly INH and Rifapentine. Am J Rev Crit Care Med 2003; 167:1341-1347. 45. Jasmer RM, Bozeman L, Schwartzman K, Cave MD, Saukkonen JJ, Metchock B, Khan A, Burman WJ; Tuberculosis Trials Consortium. Recurrent Tuberculosis in the United States and Canada: Relapse or Reinfection? Am J Respir Crit Care Med 2004; 170:1360-1366. Mendelson M, Davis XM, Jensenius M, Keystone JS, von Sonnenburg F, Hale DC, Burchard GD, Field V, Vincent P, Freedman DO; GeoSentinel Surveillance Network. Health risks in travelers to South Africa: the GeoSentinel experience and implications for the 2010 FIFA World Cup. Am J Trop Med Hyg. 2010; 82(6): 991-5. 46. Hagmann S, Neugebauer R, Schwartz E, Perret C, Castelli F, Barnett ED, Stauffer WM; GeoSentinel Surveillance Network. Illness in children after international travel: analysis from the GeoSentinel Surveillance Network. Pediatrics. 2010; 1 25(5): e1072-80. 47. Schlagenhauf P, Chen LH, Wilson ME, Freedman DO, Tcheng D, Schwartz E, Pandey P, Weber R, Nadal D, Berger C, von Sonnenburg F, Keystone J, Leder K; GeoSentinel Surveillance Network. Sex and gender differences in travel-associated disease. Clin Infect Dis. 2010; 50 (6): 826-32.
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48. Jensenius M, Davis X, von Sonnenburg F, Schwartz E, Keystone JS, Leder K, Lopéz-Véléz R, Caumes E, Cramer JP, Chen L, Parola P; GeoSentinel Surveillance Network. Multicener GeoSentinel analysis of rickettsial diseases in international travelers, 1996-2008. Emerg Infect Dis. 2009; 15(11):1791-8. 49. Chen LH, Wilson ME, Davis X, Loutan L, Schwartz E, Keystone J, Hale D, Lim PL, McCarthy A, Gkrania-Klotsas E, Schlagenhauf P; GeoSentinel Surveillance Network. Emerg Infect Dis. 2009; 15(11): 1773-82. 50. Nicolls DJ, Weld LH, Schwartz E, Reed C, von Sonnenburg F, Freedman DO, Kozarsky PE; GeoSentinel Surveillance Network. Characteristics of schistosomiasis in travelers reported to the GeoSentinel Surveillance Network 1997-2008. Am J Trop Med Hyg 2008; 79(5): 729-34. 51. Greenwood Z, Black J, Weld L, O'Brien D, Leder K, Von Sonnenburg F, Pandey P, Schwartz E, Connor BA, Brown G, Freedman DO, Torresi J; GeoSentinel Surveillance Network. Gastrointestinal infection among international travelers globally. J Travel Med 2008; 1 5(4):221-8. 52. Davis XM, MacDonald S, Borwein S, Freedman DO, Kozarsky PE, von Sonnenburg F, Keystone JS, Lim PL, Marano N; GeoSentinel Surveillance Network. Health risks in travelers to China: the GeoSentinel experience and implications for the 2008 Beijing Olympics. Am J Trop Med Hyg 2008; 79(1): 4-8. 53. Boggild AK, Castelli F, Gautret P, Torresi J, von Sonnenburg F, Barnett ED, Greenaway CA, Lim PL, Schwartz E, Wilder-Smith A, Wilson ME; GeoSentinel Surveillance Network. Vaccine preventable diseases in returned international travelers: results from the GeoSentinel Surveillance Network. Vaccine 2010; 28(46):7389-95. 54. Esposito DH, Han PV, Kozarsky PE, Walker PF, Gkrania-Klotsas E, Barnett ED, Libman M, McCarthy AE, Field V, Connor BA, Schwartz E, MacDonald S, Sotir MJ; GeoSentinel Surveillance Network. Characteristics and spectrum of disease among ill returned travelers from pre- and post-earthquake Haiti: The GeoSentinel experience. Am J Trop Med Hyg 2012 Jan; 86(1):23-8. 55. Boggild AK, Castelli F, Gautret P, Torresi J, von Sonnenburg F, Barnett ED, Greenaway CA, Lim PL, Schwartz E, Wilder-Smith A, Wilson ME; GeoSentinel Surveillance Network. Latitudinal patterns of travel among returned travelers with influenza: results from the GeoSentinel Surveillance Network, 1997-2007. J Travel Med 2012; 19(1):4-8. doi: 10.1111/j.1708-8305.2011.00579.x.
REVIEW, EDITORIALS, CASE SERIES, CASE REPORT ARTICLES: 56. Franco-Paredes C, Jurado R. Ankylosing Spondylitis Fibrocavitary Lung Disease. Clin Infect Dis 2001; 32:1062. 57. Franco-Paredes C, Evans J, Jurado R. Diabetes Insipidus due to Streptococcus pneumoniae Meningitis. Arch Intern Med 2001; 161; 1114-15. 58. Franco-Paredes C, Blumberg H. Tuberculosis Psoas Abscess caused by Mycobacterium tuberculosis and Staphylococcus aureus: Case Report and Review. Am J Med Sci 2001; 321:415-17.
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59. Jurado R, Franco-Paredes C. Aspiration Pneumonia: A Misnomer. Clin Infect Dis 2001;33:1612-3. 60. Del Rio Carlos, Franco-Paredes C. Bioterrorism: A New Public Health Problem. Sal Publ Mex 2001; 43:585-88. 61. Franco-Paredes C, Blumberg H. New Concepts in the Diagnosis of Latent Tuberculosis Infection. Consultant 2001; 41:1105-1121. 62. Franco-Paredes C, Bellehemeur T, Sanghi P, et al. Aseptic Meningitis and Retrobulbar Optic Neuritis Caused By VZV Preceding the Onset of PORN in a Patient with AIDS. AIDS 2002; 16:1045-1049. 63. Franco-Paredes C, Mehrabi D, Calle J, Jurado R. Night Sweats Revisited. Infect Dis Clin Pract 2002; 11:291-293. 64. Franco-Paredes C, Jurado R, Del Rio C. The Clinical Utility of the Urine Gram Stain. Infect Dis Clin Pract 2002; 11:561-563. 65. Franco-Paredes C, Agudelo C. Editorial Response: The Ever Expanding Clinical Spectrum of Tuberculosis. J Clin Rheumatol 2002;8:1-2. 66. Franco-Paredes C, Rebolledo P, Folch E, Hernandez I, Del Rio C. Diffuse CD8 Lymphocytosis Syndrome in HIV-infected Patients. AIDS Reader 2002; 12:408-13. 67. Franco-Paredes C. Human Immunodeficiency Virus Infection as a Risk Factor for Tuberculosis Infection and Clinical Disease. Infect Med 2002; 19:475-479. 68. Franco-Paredes C, Leonard M, Jurado R, Blumberg H. Tuberculosis of the Pancreas. Report of two cases and Review of the Literature. Am J Med Sci 2002; 323(1): 54-58. 69. DiazGranados C, Franco-Paredes C, Steinberg J. A Long Suffering Patient with New Abdominal Pain. Clin Infect Dis 2002; 34(9):1213-1214; 1267-1268. 70. Franco-Paredes C, Martin K. Extranodal Rosai-Dorfman Manifested in the Meninges. Southern Med J 2002; 95(9): 1101-1104. 71. Franco-Paredes C, Workowski K, Harris M. Infective Endocarditis-Endarteritis Complicating Coarctation of the Aorta. Am J Med 2002; 112(7):590-92. 72. Folch E, Hernandez I, Barragan M, Franco-Paredes C. Infectious Disease, Non-Zero Sum Thinking and the Developing World. Am J Med Sci 2003; 326:66-72. 73. Franco-Paredes C, Santos Preciado JI. Parasitology Resources on the World Wide Web: A Powerful Tool for Infectious Diseases Practitioners. Clin Infect Dis 2003; 37:694-701. 74. Franco-Paredes C, Tellez I, Santos-Preciado JI. Monkeypox Virus Infection Appears in the Americas. Salud Publ Mex 2003; 45:428-430. 75. Franco-Paredes C, Del Rio C, Nava Frías M, Rangel Frausto S, Téllez I, Santos Preciado JI. Confronting Bioterrorism: Epidemiologic, Clinical, and Preventive Aspects of Smallpox. Sal Publ Mex 2003; 45:298-309. 76. Franco-Paredes C, Kuri-Morales P, Alvarez-Lucas C, Zavala E, Betancourt M, Nava-Frias M, Santos-Preciado JI. Severe Acute Respiratory Syndrome: A Global View of the Epidemic. Sal Publ Mex 2003; 45:211-220. 77. Huneycut D, Folch E, Franco-Paredes C. Atypical Manifestations of Infections in Patients with Familial Dysautonomia. Am J Med 2003; 115(6): 505-506. 78. Franco-Paredes C, Sanghi P. Progressive Multifocal Leukoencephalopathy. Infect Med 2003; 20(8):376. 79. Franco-Paredes C, Guarner J, McCall C, Mehrabi D, Del Rio C. Clinical and Pathological Recognition of Leprosy. Am J Med 2003; 114(3):246-7.
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80. Franco-Paredes C, Lammoglia L, Santos Preciado JI. Historical Perspective of Smallpox in Mexico: Origins, Elimination, and Risk of Reintroduction due to Bioterrorism. Gac Med Mex 2004; 141:321-328. 81. Santos-Preciado JI, Franco-Paredes C. Influenza Vaccine in Childhood: a Preventive Strategy of National Priority. Salud Publ Mex 2004; 46:498-500. 82. Almeida L, Franco-Paredes C, Pérez LF, Santos JI. Meningococcal Disease: Preventive and Clinical Aspects. Salud Publ Mex 2004; 46(5):438-50. 83. Franco-Paredes C, Téllez I, Del Rio C. The Inverse Relationship between Decreased Infectious Diseases and Increased Inflammatory Disease Occurrence. Arch Med Res 2004; 35:258-26. 84. Arria M, Rodríguez-Morales A, Franco-Paredes C. Galeria Eco-epidemiológica de la Cuenca Amazónica. Rev Peru Salud Publ 2005; 22:236-240. 85. Franco-Paredes C, Lammoglia L, Santos-Preciado JI. The Spanish Royal Philanthropic Expedition to Bring Smallpox Vaccination to the New World and Asia in the 19th Century. Clin Infect Dis 2005; 41:1285-1289. 86. Diaz-Borjon A, Lim S, Franco-Paredes C. Multifocal Septic Arthritis: An Unusual Complication of Invasive Streptococcus pyogenes Infection. Am J Med 2005. 118(8): 924-925. 87. Franco-Paredes C, Rodríguez A. Lepromatous Leprosy. Infect Med 2005 88. Santos-Preciado JI, Franco-Paredes C. Tratamiento Acortado Estrictamente Supervisado (TAES o DOTS) Para Tuberculosis en Poblaciones Con Niveles Moderados de Farmacorresistencia: Perspectiva del Impacto Internacional. Rev Inv Clin 2005; 57:488-490. 89. Rodríguez-Morales A, Sánchez E, Vargas M, Piccolo C, Colina R, Arria M, Franco-Paredes C. Severe Thrombocytopenia, Reply to Spinello et al. Clin Infect Dis 2005; 41:1211-1212. 90. Franco-Paredes C, Dismukes R, Nicolls D, Kozarsky P. Reply to Newton et al. Clin Infect Dis 2005;41:1688-1689. 91. Rodríguez-Morales A, Sánchez E, Vargas M, Piccolo C, Colina R, Arria M, Franco-Paredes C. Occurrence of Thrombocytopenia in Plasmodium vivax malaria. Clin Infect Dis 2005;41:130131. 92. Franco-Paredes C, Rodríguez-Morales A, Santos-Preciado JI. Bioterrorism: Preparing for the Unexpected. Rev Inv Clin 2005; 57: 57(5):695-705. 93. Franco-Paredes C, Tellez I, Del Rio C, Santos-Preciado JI. Pandemic Influenza: Impact of Avian Influenza. Salud Publ Mex 2005; 2: 47(2):107-9. 94. Franco-Paredes C, Dismukes R, Nicolls D, Kozarsky D. Neurotoxicity Associated To Misdiagnosis of Malaria. Clin Infect Dis 2005; 40:1710-1711. 95. Rodríguez-Morales A, Benitez J, Franco-Paredes C. Plasmodium vivax Malaria Imported from a rural Area Near Caracas Venezuela? J Trav Med 2006; 13:325-326. 96. Franco-Paredes C, Tellez I, Del Rio C. Rapid HIV Testing. Current HIV/AIDS Reports 2006; 3:169-75. 97. Franco-Paredes C, Hidron A, Steinberg JP. Photo Quiz: An 82-year-old Female from Guyana with Fever and Back pain. Chyluria due to Wuchereria bancrofti Infection. Clin Infect Dis 2006; 42 (9): 1297; 1340-1341. 98. Franco-Paredes C, Kozarsky P, Nicolls D, Dismukes R. Pelvic Echinococcosis in a Northern Iraqi Refugee. J Trav Med 2006. 13 (2): 119-122. 99. Franco-Paredes C, Santos-Preciado JI. Prevention of Malaria in Travelers. Lancet Infect Dis 2006; 6:139-149.
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100. Franco-Paredes C, Santos-Preciado JI. Reply to Christenson. Clin Infect Dis 2006; 42: 731-732. 101. Franco-Paredes C, Diaz-Borjon A, Barragán L, Senger M, Leonard M. The Ever Expanding Association between Tuberculosis and Rheumatologic Diseases. Am J Med 2006; 119:470-477. 102. Franco-Paredes C, Rouphael N, Del Rio C, Santos-Preciado JI. Vaccination Strategies to Prevent Tuberculosis in the New Millennium: From BCG to New Vaccine Candidates. Int J Infect Dis 2006; 10:93-102. 103. Tellez I, Calderon O, Franco-Paredes C, Del Rio C. West Nile Virus: A Reality in Mexico. Gac Med Mex 2006; 142:493-9. 104. Franco-Paredes C, Santos-Preciado JI. Reply to Christenson. Clin Infect Dis 2006; 42:731-732. 105. Kieny MP, Costa A, Carrasco P, Perichov Y, Franco-Paredes C, Santos-Preciado JI, et al. A Global Pandemic Influenza Vaccine Action Plan. Vaccine 2006; 24:6367-6370. 106. Franco-Paredes C, Anna Von, Alicia Hidron, Alfonso J. Rodríguez-Morales, Ildefonso Tellez, Maribel Barragán, Danielle Jones, Cesar G. Náquira, Jorge Mendez. Chagas Disease: An Impediment in Achieving the Millennium Development Goals in Latin America. BMC Int Health Hum Rights 2007; 7:7. 107. Von A, Zaragoza E, Jones D, Rodriguez-Morales A, Franco-Paredes C. New Insights into Chagas Disease: A Neglected Disease in Latin America. J Infect Developing Countries 2007; 1:99-111. 108. Tellez I, Franco-Paredes C, Caliendo A, Del Rio C. Rapid HIV Test: A Primer for Clinicians. Infect Med 2007; 24:381-385. 109. Franco-Paredes C, Rouphael N, Rodríguez-Morales A, Folch E, Mendez N, Hurst JW. Cardiac Manifestations of Parasitic Diseases Part 1. General Aspects and Immunopathogenesis. Clin Cardiol 2007; 30:195-199. 110. Franco-Paredes C, Rouphael N, Rodríguez-Morales A, Folch E, Mendez N, Hurst JW. Cardiac Manifestations of Parasitic Diseases Part 2. Myocardial Manifestations of Parasitic Diseases. Clin Cardiol 2007; 30:218-222. 111. Franco-Paredes C, Rouphael N, Rodríguez-Morales A, Folch E, Mendez N, Hurst JW. Cardiac Manifestations of Parasitic Diseases Part 3. Pericardial Manifestations of Parasitic Diseases and Other Cardiopulmonary Manifestations. Clin Cardiol 2007; 30:277-280. 112. Rouphael N, Talati N, Franco-Paredes C. A Painful Thorn in the Foot: Eumycetoma. Am J Med Sci 2007; 334:142-144. 113. Zimmer S, Franco-Paredes C. Efficacy of Nitazoxanide in the Treatment of Cyclospora cayetanensis in a Patient Allergic to Sulfas. Clin Infect Dis 2007; 44(3):466-7. 114. Kaplan R, Rebolledo P, Gonzalez E, Franco-Paredes C. An Unexpected Visitor: Mycobacterium kansasii Cutaneous Infection. Am J Med 2007; 120(5):415-6. 115. Seybold U, Blumberg H, Talati N, Franco-Paredes C. Hematogenous Osteomyelitis Mimicking Osteosarcoma due to Community Associated Methicillin-Resistant Staphylococcus aureus. Infect 2007; 35(3): 190-3. 116. Liff D, Kraft C, Pohlel K, Sperling L, Chen E, Franco-Paredes C. Nocardia Nova Aortitis Following Coronary Artery Bypass Surgery. J Am Soc Echo 2007; 20(5):537:e7-8. 117. Rodriguez-Morales AJ, Franco-Paredes C. Paracoccidiodomycosis (South American Blastomycosis) of the Larynx Mimicking Carcinoma. Am J Med Sci 2008; 335:149-150.
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118. Franco-Paredes C. Filariasis due Loa loa is also a cause of Angioedema. Am J Med 2008; 121(10): e29. 119. Rodriguez-Morales A, Benitez J, Tellez I, Franco-Paredes C. Chagas Disease Screening among Latin American Immigrants in Non-endemic Settings. Travel Medicine and Infectious Disease 2008; 6:162-3. 120. Talati N, Rouphael N, Kuppali K, Franco-Paredes C. Spectrum of Central Nervous System Manifestations due to Rapidly Growing Mycobacteria. Lancet Infect Dis 2008; 8:390-8. 121. Rifakis P, Rodríguez-Morales A, Franco-Paredes C. Atypical Plasmodium vivax Malaria in a Traveler: Bilateral hydronephrosis, Severe Thrombocytopenia, and Hypotension. J Trav Med 2008; 15(2): 119-21. 122. Osorio-Pinzon J, Carvajal C, Sussman O, Buitrago R, Franco-Paredes C. Acute liver failure due to dengue virus infection. Int J Infect Dis 2008; 12: 444-445. 123. Jacob J, Franco-Paredes C. The Stigmatization of leprosy in India and its Impact on future approaches to elimination and control. PloS Neglected Tropical Diseases 2008; 30:e113. 124. Difrancesco L, Mora L, Doss M, Small J, Williams M, Franco-Paredes C. Short of Breath: Not short of diagnosis. J Hosp Med 2009; 4(1):60-7. 125. Whitaker JA, Edupuganti S, Del Rio C, Franco-Paredes C. Rethinking Typhoid Fever Vaccines: Implications for travelers and those living in endemic areas. J Travel Med 2009, 16(1): 46-52. 126. Franco-Paredes C, Hidron A, Lesesne J, Tellez I, Del Rio C. HIV-AIDS: Pretravel recommendations and health-related risks. Topics in HIV 2009; 17(1): 2-11. 127. Franco-Paredes C, Jacob JT, Stryjewska B, Yoder L. Two patients with leprosy and the sudden appearance of Inflammation in the skin and new sensory loss. PLoS Negl Trop Dis 2009; 3(9): e425. 128. Franco-Paredes C, Hidron A, Jacob J, Nicolls D, Kuhar D, Caliendo A. Transplantation and Tropical Infectious Diseases. Int J Infect Dis 2009; 14(3): e189-96. 129. Parker S, Vogenthaler N, Franco-Paredes C. Leishmania tropica Cutaneous and Presumptive Concomitant Viscerotropic Leishmaniasis with Prolonged Incubation. Arch Dermatol 2009; 145(9): 1023-6. 130. DiazGranados C, Franco-Paredes C. HIV and Chagas Disease Co-Infection: An Evolving Epidemiologic and Clinical Association. Lancet Infect Dis 2009; 9:324-330. 131. Hidron A, Franco-Paredes C, Drenkard C. A rare opportunistic infection in a woman with systemic lupus erythematous and multiple skin lesions. Lupus 2009; 18 (12): 1100-3. 132. Franco-Paredes C, Kozarsky P. The Bottom Line. Am J Med 2009; 122(12): 1067-8. 133. Franco-Paredes C, Bottazzi ME, Hotez PJ. The Unfinished Agenda of Chagas Disease Control in the Era of Globalization. PLoS Negl Trop Dis. 2009 Jul 7; 3(7): e470. 134. Franco-Paredes C, Carrasco P, Del Rio C, Santos Preciado JI. Respuesta al Brote de Influenza A H1N1. Salud Publ Mex 2009; 51 (3): 183-186. 135. Franco-Paredes C. An Unusual Clinical Presentation of Posttraumatic Stress Disorder in a Sudanese Refugee. Journal of Immigrant and Minority Health 2009; 12(2): 267-9. 136. Kempker R, DiFrancesco L, Gorgojo A, Franco-Paredes C. Xantogranulomathous pyelonephritis caused by Community-Associated MRSA. Cases Journal 2009; 2: 7437.
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137. Franco-Paredes C, Carrasco P, Santos-Preciado JI. The First Influenza Pandemic in the New Millennium: Lessons Learned Hitherto for Current Control Efforts and Overall Pandemic Preparedness. Journal of Immune Based Therapies and Vaccines 2009, 7:2. 138. Livorsi D, Qureshi S, Howard M, Franco-Paredes C. Brainstem Encephalitis: An Unusual Presentation of Herpes Simplex Virus Infection. J Neurol 2010; 257(9): 1432-7. 139. Del Rio C, Franco-Paredes C. The Perennial threat of influenza viruses: The Mexican Experience during the Influenza A (H1N1) 2009 Pandemic. Arch Med Res 2010; 40(8):641-2. 140. Santos-Preciado JI, Franco-Paredes C, Hernandez-Ramos MI, Tellez I, Del Rio C, Roberto Tapia-Conyer R. What have we learned from the Novel Influenza A (H1N1) Influenza Pandemic in 2009 for strengthening Pandemic Influenza Preparedness? Arch Med Res 2010; 40(8): 673-6. 141. Franco-Paredes C, Hernandez-Ramos MI, Del Rio C, Alexander KT, Tapia-Conyer R, Santos-Preciado JI. H1N1 Influenza Pandemics: Comparing the Events of 2009 in Mexico with those of 1976, and 1918-1919. Arch Med Res 2010; 40(8): 6730-6. 142. Graham A, Furlong S, Owusu K, Margoles L, Franco-Paredes C. Clinical Management of Leprosy Reactions. Infect Dis Clin Pract 2010; 18: 234-7. 143. Hidron A, Vogenthaler N, Santos-Preciado JI, Rodriguez-Morales AJ, Franco-Paredes C, Rassi A. Cardiac Involvement with Parasitic Diseases. Clin Microb Rev 2010; 23 (2): 1-27. 144. Franco-Paredes C, Zeuli J, Hernandez-Ramos I, Santos-Preciado JI. Preserving Idealism in Global Health. Global Health Prom 2010; 17(4): 57-60. 145. Franco-Paredes C. Reconstructing the Past of Poliovirus Eradication. Lancet Infect Dis 2010; 10(10): 660-1. 146. Franco-Paredes C, Ko AI, Aksoy S, Hotez PJ. A New Clinical Section in PLoS Neglected Tropical Diseases: NTD Photo Quiz. PLoS Neglect Trop Dis 2010; 4(9): e760. 147. Tellez I, Franco-Paredes C. Actinomycetoma. PLoS Neglect Trop Dis 2010; 4(9): e772. 148. Franco-Paredes C, Hernandez I, Santos-Preciado JI. Equidad en inmunizaciones en las poblaciones más vulnerables en Mesoamérica: Plan Regional del Sistema Mesoamericano de Salud Pública. Salud Publ. Mex 2011; 53 Suppl 3:S323-32. 149. Santos-Preciado JI, Rodriguez MH, Franco-Paredes C. Equidad en Salud en America Latina: De la Oficina Panamericana de Salud Pública a la Iniciativa de Salud Pública. Salud Publ. Mex 2011; 53 Suppl 3:S289-94. 150. Rassi A Jr., Rassi A, Franco-Paredes C. A Latin-American woman with palpitations, a right bundle branch block, and an apical aneursym. PLoS Neglect Trop Dis 2011; 5(2):e852. doi: 10.1371/journal.pntd.0000852. 151. Gupta D, Green J, Franco-Paredes C, Lerakis S. Challenges in the Clinical Management of Blood-Culture Negative Endocarditis: the case of Bartonella henselae infection. Am J Med 2011; 124(3):e1-2. doi: 10.1016/j.amjmed.2010.09.022. 152. Franco-Paredes C. Health Equity is not only Healthcare Delivery. Lancet 2011; 377: 1238. 153. Franco-Paredes C, Santos-Preciado JI. Freedom, Justice, and the Neglected Tropical Diseases. PLoS Neglect Trop Dis 2011; 5(8):e1235.
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154. Sellers B, Hall P, Cine-Gowdie S, Hays AL, Patel K, Lockhart SR, Franco-Paredes C. Cryptococcus gattii: An Emerging Fungal Pathogen in the Southeastern United States. Am J Med Sci. 2012; 343(6):510-1. doi: 10.1097/MAJ.0b013e3182464bc7. 155. Franco-Paredes C. Poliovirus eradication. Lancet Infect Dis 2012; 12(6):432-3. doi: 10.1016/S1473-3099(12)70102-0. 156. Franco-Paredes C, Ray S. Causes of persistent of acid-fast positive smears in patients with pulmonary tuberculosis. Am J Med 2012; 125(12):e3-4. doi: 10.1016/j.amjmed.2012.03.002. 157. Franco-Paredes C. Causes of persistent of acid-fast positive smears in patients with pulmonary tuberculosis. Am J Med 2013: 126(7):e17. doi: 10.1016/j.amjmed.2013.03.001. 158. Franco-Paredes C. Illness and Death in the Universe. Perm J. 2013; 17(4):90-1. 159. Hare A, Franco-Paredes C. Ocular Larva Migrans: A Severe Manifestation of an Unseen Epidemic. Curr Trop Med Rep 2014; 1: 69-73. 160. Franco-Paredes C. Recovering our Human Story. J Cosmology and Philosophy 2014;12: 210-213. 161. Powell DR, Patel S, Franco-Paredes C. Varicella-Zoster virus vasculopathy: The growing association between herpes zoster virus and strokes. Am J Med Sci 2014; 350(3):243-5. 162. Franco-Paredes C. The growing threat of leishmaniasis in travelers. Trav Med Infect Dis 2014; 12(6 Pt A):559-60. doi: 10.1016/j.tmaid.2014.10.020. 163. Franco-Paredes C, Sellers B, Hayes A, Chane T, Patel K, Lockhart S, Marr K. Management of Cryptococcus gattii meningoencephalitis. Lancet Infect Dis 2014; 15(3):348-55. 164. White C, Franco-Paredes C. Leprosy in the 21st Century. Clin Microb Rev 2014; 28(1): 80-94. 165. Carrasco P, Franco-Paredes C, Andrus J, Waller K, Maassen A, Symenouh E, Hafalia G. Inaugural conference of the International Association of Immunization Managers (IAIM), Istanbul Turkey, 3-4 March 2015; Vaccine 2015; 33(33):4047-50. 166. Franco-Paredes C, Rodriguez-Morales AJ. Unsolved matters in leprosy: a descriptive review and call for further research. Ann Clin Microbiol Antimicrob 2016; 15(1):33. 167. Rodriguez-Morales AJ, Banderia AC, Franco-Paredes C. The expanding spectrum of modes of transmission of Zika virus: a global concern. Ann Clin Microbiol Antimicrob 2016; 15:13. doi: 10.1186/s12941-016-0128-2. 168. Khan MI, Katrinak C, Freeman A, Franco-Paredes C. Enteric Fever and Invasive Nontyphidal Salmonellosis – 9th International Conference on typhoid and Invasive NTS Disease, Bali, Indonesia, April 30-May 3, 2015. Emerg Infect Dis 2016; 22(4): doi: 10.3201/eid2204.151463. 169. Franco-Paredes C, Khan MI, Santos-Preciado JI, Gonzalez-Diaz E, Rodriguez-Morales AJ, Gotuzzo E. Enteric Fever: A Slow Reponse to An Old Plague. PLoS Negl Trop Dis 2016; 10(5):e0004597. doi: 10.1371/journal.pntd.0004597. 170. Rodriguez-Morales AJ, Villamil-Gomez WE, Franco-Paredes C. The arboviral burden of disease caused by co-circulation and co-infection of dengue, chikungunya and Zika in the Americas. Trav Med Infect Dis 2016; 14(3):177-9. doi: 10.1016/j.tmaid.2016.05.004.
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171. Alvarado-Socarras JL, Ocampo-Gonzalez M, Vargas Soler JA, Rodriguez-Morales AJ, Franco-Paredes C. Congenital and neonatal Chikungunya in Colombia. J Pediatric Infect Dis Soc. 2016;5(3): e17-20. 172. Franco-Paredes C, Chastain DB, Ezigbo C, Callins KR. Reducing transmission of HIV in the Southeastern US Lancet HIV 2017; 4(3):e101-e102. 173. Franco-Paredes C, Chastain D, Marcos LA, Rodriguez-Morales AJ. Cryptococcal meningoencephalitis in AIDS: When to start antiretroviral therapy? Ann Clin Microbiol Antimicrob 2017; 16:9. 174. Khan MI, Franco-Paredes C, Ochiai RL, Mogasale V, Sushant S. Barriers to typhoid fever vaccine access in endemic countries. Research and Reports in Tropical Medicine; 2017; 8:37-44. 175. Franco-Paredes C, Chastain D, Taylor P, Stocking S, Sellers B. Boar hunting and brucellosis caused by Brucella suis. Trav Med Infect Dis 2017; S1477-8939(17): 30037-6. 176. Chastain DB, Henao-Martinez AF, Franco-Paredes C. Cryptococcal Antigen Negative Cryptococcal Meningoencephalitis. Diagn Microbiol Infect Dis 2017; 89(2): 143-145. 177. Chastain DB, Henao-Martinez A, Franco-Paredes C. Opportunistic invasive fungal infections in HIV/AIDS: Cryptococcosis, Histoplasmosis, Coccidioidomycosis and Talaromycosis. Current Infect Dis Rep 2017; 19(10): 36. 178. Chastain DB, Kayla Stover, Franco-Paredes C. Adressing Antiretroviral TherapyAssociated Drug-Drug Interactions in Patients Requiring Treatment for Opportunistic Infections in Low-Income and Resource-Limited Settings. J Clin Pharmacol 2017; 57(11):1387-1399. 179. Franco-Paredes C. The Harmony of Disequilibrium. Permanente J. 2017; 22. doi: 10.712/TPP/17-067. 180. Franco-Paredes C, Henao-Martinez A, Chastain DB. A 27-year-old male with blurry vision, oral and nasal mucosal lesions, and a skin rash. Clin Infect Dis 2018; 181. Henao-Martinez AF, Olague N, Franco-Paredes C. Spontaneous Mycobacterium bolletti skin abscesses —an under recognized zoonosis from raw bovine milk. Trav Med Infect Dis 2018 Jan 29. pii: S1477-8939(18)30003-6. doi: 10.1016/j.tmaid.2018.01.003. PMID: 29477362. 182. Franco-Paredes C, Henao-Martinez AF, Mathur S, Villamil-Gomez W. A Man Who Harvest Peanuts with Verrucous Lesions in his Right Index Finger. Am J Med Sci 2018; Mar; 355(3):e7. doi: 10.1016/j.amjms.2017.11.010. Epub 2017 Nov 22. No abstract available. PMID: 2954993 183. Henao-Martinez AF, Franco-Paredes C, Palestine A, Montoya G. Symptomatic acute toxoplasmosis in returning travelers. Open Forum Infect Dis 2018;5(4):ofy058. doi: 10.1093/ofid/ofy058. eCollection 2018 Apr. PMID: 29644250. 184. Steele GM, Franco-Paredes C, Chastain DB. Non-infectious causes of fever in adults. Nurse Pract 2018Apr 19; 43(4):38-44. doi: 10.1097/01.NPR.0000531067.65817.7d. 185. Henao-Martinez AF, Chastain DB, Franco-Paredes C, Treatment of cryptococcosis in nonHIV immunocompromised patients. Curr Opin Infect Dis 2018; PMID 29738314.
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186. Chastain DB, Sam JI, Steele GM, Lowder LO, Franco-Paredes C. Expanding Spectrum of Toxoplasmosis gondii: Thymoma and Toxoplasmic encephalitis. Open Forum Infect Dis 2018; Jul 7;5(7):ofy163. doi: 10.1093/ofid/ofy163. eCollection 2018 Jul. 187. Kleinschmidt-DeMasters B, Hawkins K, Franco-Paredes C. Non-tubercular mycobacterial spinal cord abscesses in an HIV plus male due M. haemophilum. J Neuropathol Experim Neurol 2018; 77(6): 532-532. 188. Bruner KT, Chastain DB, Henao-Martinez AF, Franco-Paredes C. Cryptococcus gattii complex infections in HIV-infected patients, Southeastern United States. Emerg Infect Dis 2018; 24(11): 1998-2002. 189. José A. Suárez, Lolimar Carreño, Alberto E. Paniz-Mondolfi, Francisco J. Marco-Canosa, Héctor Freilij, Jorge A. Riera, Alejandro Risquez, Andrea G. Rodriguez-Morales, Evimar Hernández-Rincón, Jorge Alvarado-Socarras, Gustavo Contreras, Maritza Cabrera, Rosa M. Navas, Fredi Díaz-Quijano, Tamara Rosales, Rosa A. Barbella-Aponte, Wilmer E. VillamilGómez, Marietta Díaz, Yenddy Carrero, Anishmenia Pineda, Nereida Valero-Cedeño, Cesar Cuadra-Sánchez, Yohama Caraballo-Arias, Belkis J. Menoni-Blanco, Giovanni Provenza, Jesús E. Robles, María Triolo-Mieses, Eduardo Savio-Larriera, Sergio Cimerman, Ricardo J. Bello, Carlos Franco-Paredes, Juliana Buitrago, Marlen Martinez-Gutierrez, Julio Maquera-Afaray, Marco A. Solarte-Portilla, Sebastián Hernández-Botero, Krisell Contreras, Jaime A. CardonaOspina, D. Katterine Bonilla-Aldana, Alfonso J. Rodriguez-Morales. Infectious Diseases, Social, Economic and Political Crises, Anthropogenic Disasters and Beyond: Venezuela 2019Implications for public health and travel medicine. Rev Panam Enf Inf 2018; 1(2):73-93. 190. Gharamati A, Rao A, Pecen PE, Henao-Martinez AF, Franco-Paredes C, Montoya JG. Acute Disseminated Toxoplasmosis with Encephalitis. Open Forum Infect Dis 2018; Oct 17; 5 (11):ofy259. doi: 10.1093/ofid/ofy259. 191. Franco-Paredes C, Rodriguez-Morales AJ, Luis A. Marcos, Henao-Martinez AF, VillamilGomez WE, Gotuzzo E, Bonifaz A. Cutaneous Mycobacterial Diseases. Clin Microb Rev 2018; 14; 32(1). pii: e00069-18. doi: 10.1128/CMR.00069-18. 192. Henao-Martínes AF, Pinto N, Henao San Martin V, Franco-Paredes C, Gharamati A. Successful Treatment of Gonococcal Osteomyelitis with One Week of Intravenous Antibiotic Therapy. Int J STDs HIV 2019; 193. Reno E, Foster G, Franco-Paredes C, Henao-Martinez AF. Fatal fulminant hepatitis A in a US traveler returning from Peru. J Trav Med 2019. 194. Canfield G, C, Mann S, Zimmer S, Franco-Paredes C. A 31-Year-Old Micronesian Man with Shoulder Fungating Mass. Clin Infect Dis 2019; 195. Parra-Henao G, Oliveros H, Hotez PJ, Motoa G, Franco-Paredes C, Henao-Martínez AF. In Search of Congenital Chagas Disease in the Sierra Nevada de Santa Marta, Colombia. Am J Trop Med Hyg. 2019;101(3):482-483. doi: 10.4269/ajtmh.19-0110. PMID: 31264558. 196. Bonilla-Aldana DK, Suárez JA, Franco-Paredes C, Vilcarromero S, Mattar S, GómezMarín JE, Villamil-Gómez WE, Ruíz-Sáenz J, Cardona-Ospina JA, Idarraga-Bedoya SE, GarcíaBustos JJ, Jimenez-Posada EV, Rodríguez-Morales AJ. Brazil burning! What is the potential
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impact of the Amazon wildfires on vector-borne and zoonotic emerging diseases? - A statement from an international experts meeting. Travel Med Infect Dis. 2019:101474. doi: 10.1016/j.tmaid.2019.101474. 197. Henao-Martinez AF, Archuleta S, Vargas D, Franco-Paredes C. A Latin American patient with a left ventricular pseudoaneurysm presenting with progressive dyspnea and palpitations. Am J Med 2019; doi: 10.1016/j.amjmed.2019.10.006 198. Canfield GS, Henao-Martinez AF, Franco-Paredes C, Zhelnin K, Wyles D, Gardner EM. Corticosteroids for post-transplant Immune reconstitution syndrome in Cryptococcus gattii Meningoencephalitis: Case report and literature review. Open Forum Infect Dis 2019; 6(11): ofz460. Doi: 10.1093/ofid/ofz460. PMID: 31737740. 199. Kon S, Hawkins K, Franco-Paredes C. Intramedullary Spinal Cord Lesions in an Immunocompromised Host due to Mycobacterium Haemophilum. ID Cases 2019; 200. Franco-Paredes C, Rodriguez-Morales AJ, Henao-Rodriguez AJ, Carrasco P, SantosPreciado JI. Vaccination Strategies to prevent paralytic poliomielitis due to cVDPV2. Lancet Infect Dis 2019; 201. Motoa G, Pate A, Franco-Paredes C, Chastain D, Henao-Martinez Aj, Hojat L. Use of procalcitonin to guide discontinuation of antimicrobial therapy in patients with persistent intraabdominal collections: A case series. Case Rep Infect Dis 2019; 202. Murillo-Garcia D, Galindo J, Pinto N, Motoa G Benamu E, Franco-Paredes C, Chastain D, Henao-Martinez AF. Anaerobic bacteremias in left ventricular assist devices and advanced heart failure. Case Rep Infect Dis 2019; 203. Pate A, Franco-Paredes C, Henao-Martinez A. Cryptococcal meningitis: A comparison of clinical features and outcomes by HIV Status. Open Forum Infect Dis 2019; Oct 6 (Suppl 2): S629-S630. PMC6809090. 204. Franco-Paredes, C, Villamil-Gómez Wilmer E., Schultz, J, Henao-Martínez AF, ParraHenao, G, Rassi Jr. A, Rodriguez-Morales AJ, Suarez JA. A Deadly Feast: Elucidating the Burden of Orally Acquired Acute Chagas Disease in Latin America - Public Health and Travel Medicine Importance. Trav Med Infect Dis 2020; 205. Reno E, Quan N, Franco-Paredes C, Chastain DB, Chauhan L, Rodriguez-Morales AJ, Henao-Martinez A. Prevention of Yellow Fever in Travelers: An Update. Lancet Infect Dis 2020; 206. Franco-Paredes C, Griselda Montes de Oca Sanchez, Cassandra White. Global Leprosy Status 2020: Still Losing Touch. Ann Acad Med Singapore 2020; 206. Rodriguez-Morales AJ, Gallego V, Escalera-Antezana JP, Mendez CA, Zambrano LI, Franco-Paredes C, Suarez JA, Rodriguez-Enciso HD, Balbin-Ramon GH, Savio-Larriera E, Risquez A, Cimerman S. COVID-19 in Latin America: The implications of the first confirmed case in Brazil. Travel Med Infect Dis 2020; doi: 10.1016/j.tmaid.2020.101613. 207. Rodríguez-Morales AJ, Cardona-Ospina JA, Gutiérrez-Ocampo E, Villamizar-Peña R, Holguin-Rivera Y, Escalera-Antezana JP, Alvarado-Arnez LE, Bonilla-Aldana DK, FrancoParedes C, Henao-Martinez AF, Paniz-Mondolfi A, Lagos-Grisales GJ, Ramírez-Vallejo E,
32

Case 1:20-cv-01072-CRC Document 4-16 Filed 04/23/20 Page 34 of 38
Suárez JA, Zambrano LI, Villamil-Gómez WE, Balbin-Ramon GJ, Rabaan AA, Harapan H, Dhama K, Nishiura H, Kataoka H, Ahmad T, Sah R, On behalf of the Latin American Network of Coronavirus Disease 2019-COVID-19 Research (LANCOVID-19) (www.lancovid.org). Clinical, Laboratory and Imaging Features of COVID-19: A systematic review and metaanalysis. Travel Med Infect Dis 2020;
BOOK CHAPTERS: Franco-Paredes C, Albrecht H. Anisakiasis (2007). In: Antimicrobial Therapy and Vaccines; Volume I: Microbes (www.antimicrobe.org), Yu VL, et al. (Ed). ESun Technologies, Pittsburgh, PA. 2007. Franco-Paredes C, Albrecht H. Visceral Larva Migrans (2007). In: Antimicrobial Therapy and Vaccines; Volume I: Microbes (www.antimicrobe.org), Yu VL, et al. (Ed). ESun Technologies, Pittsburgh, PA. 2007. Franco-Paredes C. American Trypanosomiasis. Chagas’Disease. In: Eds: Kozarsky P, Arguin P, Reed C. Yellow Book: Health Information for Travelers 2007-2008, Centers for Disease Control and Prevention, Elsevier Ltd. Franco-Paredes C. The Post-travel Period. In: Eds: Kozarsky P, Arguin P, Reed C. Yellow Book: Health Information for Travelers 2007-2008, Centers for Disease Control and Prevention, Elsevier Ltd. Hidron A, Franco-Paredes C. American Trypanosomiasis. Chagas’Disease. In: Eds: Brunnete GW, Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 20092010, Centers for Disease Control and Prevention, Elsevier Ltd, 2009. ISBN: 978-0-7020-34817. Franco-Paredes C. General Approach to the Returned Traveler. In: Eds: Brunnete GW, Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2009-2010, Centers for Disease Control and Prevention, Elsevier Ltd, 2009. ISBN: 978-0-7020-3481-7. Franco-Paredes C. Asymptomatic Screening of the Returned Traveler. In: Eds: Brunnete GW, Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2009-2010, Centers for Disease Control and Prevention, Elsevier Ltd, 2009. ISBN: 978-0-7020-3481-7. Franco-Paredes C, Santos-Preciado JI. Introduction of Antimicrobial Agents in Poor-Resource Countries: Impact on the Emergence of Resistance. In: Antimicrobial Resistance in Developing Countries. Ed. Byarugaba DK, Sosa A. Springer Science & Business Media, 2010. Hidron A, Franco-Paredes C. American Trypanosomiasis. Chagas’Disease. In: Eds: Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2011-2012. Centers for Disease Control and Prevention, Elsevier Ltd, 2011. ISBN: 978-0-7020-3481-7. Franco-Paredes C, Hochberg N. General Approach to the Returned Traveler. In: Eds: Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2011-2012, Centers for Disease Control and Prevention, Elsevier Ltd, 2011. ISBN: 978-0-7020-3481-7. Franco-Paredes C. Asymptomatic Screening of the Returned Traveler. In: Eds: Kozarksy P, Magill A, Shlim D. Yellow Book: Health Information for Travelers 2011-2012, Centers for Disease Control and Prevention, Elsevier Ltd, 2009. ISBN: 978-0-7020-3481-7. Hochberg N, Franco-Paredes C. Emerging Infections in Mobile Populations. In: Emerging Infections 9. Ed. Scheld WM, Grayson ML, Hughes JM. American Society of Microbiology Press 2010. ISBN. 978-1-55581-525-7.
33

Case 1:20-cv-01072-CRC Document 4-16 Filed 04/23/20 Page 35 of 38
Franco-Paredes C, Chagas Disease (American Trypanosomiasis). In: Farrar J, Hotez P, Junghanss T, Kang G, Lalloo D, White NJ. Manson’s Tropical Medicine 23rd Edition, Elsevier, London, U.K., 2014. Franco-Paredes C, Keystone J. Fever in the Returned Traveler. In: Empiric, Antimicrobial Therapy and Vaccines (www.antimicrobe.org). Yu VL, et al (Ed). ESun Technologies, Pittsburgh, PA, 2014. Franco-Paredes C. Mycobacterium leprae (Leprosy). In: Antimicrobial Therapy and Vaccines (www.antimicrobe.org). Yu VL, et al (Ed). ESun Technologies, Pittsburgh, PA, 2015 Franco-Paredes C, Albrecht H. Anisikasis In: Antimicrobial Therapy and Vaccines (www.antimicrobe.org). Yu VL, et al (Ed). ESun Technologies, Pittsburgh, PA, 2015. Franco-Paredes C. Illness and Death in the Universe. In: Narrative Medicine Anthology. Ed: Tom Janisse. The Permanente Press, Oakland, California, Portland Oregon,
2016, pp. 23-25. ISBN: 978-0-9770463-4-8. Villamil-Gomez W, Reyes-Escalante M, Franco-Paredes C. Severe and complicated malaria due to Plasmodium vivax. In: Current Topics in Malaria. Ed: Rodriguez-Morales AJ. ISBN 978953-51-2790-1, Print ISBN 978-953-51-2789-5. InTechOpen 2016. Franco-Paredes C. Mycobacterial Infections of the Central Nervous System. In: The Microbiology of the Central Nervous System Infections. Ed. Kon K, Rai M. Elsevier 2018. ISBN 978-0-12-813806-9 Franco-Paredes C. Leprosy. In: Neglected Tropical Diseases. Drug Discovery and Development. Ed: Swinney D, Pollastri. Wiley-VCH Verlag GmbH & Co. KGaA, 2019. Franco-Paredes C, Henao-Martinez AJ. Legal Perspectives in Travel Medicine. In: Eds: Kozarksy P, Weinberg M. Yellow Book: Health Information for Travelers 2019-2020, Centers for Disease Control and Prevention, Elsevier Ltd, 2011. ISBN: 978-0-7020-3481-7. Franco-Paredes C. Prevención de la transmisión. In: Guerrero MI, Hernández CA y Rodríguez G Editores La lepra: una enfermedad vigente. Centro Dermatológico Federico Lleras Acosta Bogotá DC, Colombia. Panamericana Formas e Impresos. 2019. p. 309-322.

FORMAL TEACHING Medical Student Teaching 2001 - 2002 Clinical Methods, Emory University School of Medicine

2001 - 2002 Clinical Instructor Harvey Cardiology Course, Emory University School of Medicine

2001 - 2002 2005 - 2011 2006 - 2008 2006 - 2007
2007 - 2011 2007 - 2008

Problem-Based Learning for Second year Medical Students, EUSM Clinical Methods Preceptor, ECLH Medical Spanish - Instructor for M2, EUSM Directed Study on Social Determinants of Infectious Diseases for M2 students (Lindsay Margolis and Jean Bendik), EUSM Instructor - Global Health for M2 Students, EUSM Presentation-Case Discussion – Social Determinants of Diseases – Coordinated by Dr. Bill Eley – Emory School of Medicine New Curriculum.

34

Case 1:20-cv-01072-CRC Document 4-16 Filed 04/23/20 Page 36 of 38

2018-

Small Group: Parasitic Diseases, Microbiology Course for First Year Medical

Students, University of Colorado, Anschutz Medical Center.

2019-

MS-2 Small group discussion Microbiology, University of Colorado, Anschutz

Medical Center: Parasitic Diseases, CNS Infections, Septic Arthritis-Cat Bite

2019-

Class Global Health and Underserved Populations of the New SOM CU

Curriculum. Course Co-Director. Pilot Class (Jan 6-Jan 17, 2020).

2020-

MS-2 Small group discussion Microbiology, University of Colorado, Anschutz

Medical Center: Parasitic Diseases, CNS Infections, Septic Arthritis-Cat Bite

Graduate Program:

Training programs

2006-2011 Professor - GH511 (Global Health 511) International Infectious Diseases

Prevention and Control, Rollins School of Public Health

2009-2011 Professor – GH500 D – Key Issues in Global Health, Career MPH Program

2006-2011 Thesis Advisor to students Global Health Track – Hubert Department of Global

Health, Rollins School of Public Health of Emory University

2008-2011 Coordinator International Exchange between Rollins School of Public Health and

National Institute of Public Health, Cuernavaca, Mexico – Supported by the

Global Health Institute of Emory University

Residency and Fellowship Program:

2004-2011 Resident Report – Noon Conferences Emory Crawford Long Hospital and Grady

Memorial Hospital

2004-2011 Didactic Lectures on Parasitic Diseases and Non-tuberculous mycobacterial

diseases for Internal Medicine Residents and Infectious Disease Fellows

2005-2008 Coordinator Journal Club Infectious Disease Division

2005-2011 Travel Medicine Elective, Internal Medicine Residents (2 internal residents per

month)

2005

Grand Rounds – EUH - Department of Medicine: “Travel Medicine”

2006

Grand Rounds – ECLH – Department of Medicine: “Malaria”

2008

Grand Rounds - ECLH – Department of Medicine: “Leprosy”

2008-2011 Journal Club Coordinator, Internal Medicine Residency Program – ECLH

2009

Grand Rounds - EUH – Department of Medicine: “Leprosy a Modern Perspective

of an Ancient Disease”

2009

Grand Rounds – Pulmonary and Critical Care Division – Neglected Tropical

Diseases of the Respiratory Tract, June 16, 2009

2017

Grand Rounds – Leprosy, University of Colorado, Anschutz Medical Center,

Division of Infectious Diseases, December 2017

2017

Grand Rounds – Infections associated with Secondary Antiphospholid Syndrome,

University of Colorado, Anschutz Medical Center, Division of Rheumatology,

2018

Didactic Session – Travel Medicine (Pretravel and Postravel) Infectious Diseases

Fellowship Anschutz Medical Center, Division of Infectious Diseases

2017

Infectious Diseases Fellows Clinic, University of Colorado, Anschutz Medical

Center, IDPG.

2019

Invited Speaker: Travel Medicine, Pretravel/Postravel Care, Physician Assistant

Program, September 12, 2019, University of Colorado, Anschutz Medical Center

Other categories:

35

Case 1:20-cv-01072-CRC Document 4-16 Filed 04/23/20 Page 37 of 38

2000-2002 2004-2007
2009-2011
20172019-

Physician Assistant Supervision during Fellowship/Junior Faculty, Emory University Mentoring of four College Students to enter into Medical School (Emory, Southern University, and Dartmouth): Lindsay Margolis 2004-Emory University Michael Woodworth 2005 – Emory University Peter Manyang 2007 – Southern University Padraic Chisholm 2007 – Southern University/Emory University Project Leader. Partnership – Emory Global Health Institute – University-wide Emory Travel Well Clinic and is titled Hansen’s disease in the state of Georgia: A Modern Reassessment of an Ancient Disease”. http://www.globalhealth.emory.edu/fundingOpportunities/projectideas. php. Students: 5 MPH students (RN/MPH, MD/MPH) Infectious Diseases Fellowship Program, University of Colorado, Anschutz Medical Center. Teaching activities, Inpatient and outpatient (ID Fellows Weekly Clinic) Infectious Diseases Fellowship Program Director, University of Colorado, Aurora Colorado

Supervisory Teaching: Ph.D. students directly supervised: Global Health, Rollins School of Public Health - PhD Task Force Member – 2007-2009 Residency Program: Emory University: Internal Medicine Residents and Infectious Disease Fellows Supervision – Inpatient Months – 3-4 months per year on Grady Wards. I participated in the presentation and discussion of clinical cases, and discussion of peer-reviewed journal with medical students, residents, and fellows. Overall evaluations: Outstanding Teacher. (Anna Von 2005-2006; Seth Cohen 2008, Susana Castrejon 2007; Lindsay Margoles 2007-2008; Jean Bendik 2006-2008; Meredith Holtz 2007-2008) University of Colorado, Anschutz Medical Center (since June 2017- present). Case discussion in infectious diseases during clinical rounds inpatient services (ID Gold, ID Blue, ID Orthopedics). 2004-2009 Thesis advisor – MPH Students – Hubert Department of Global Health – Concentration Infectious Diseases: Brenda Thompson 2004; Katrina Hancy 2004; Trina Smith 2006; Melissa Furtado 2007-2008; Oidda Museru 2008-2009; Hema Datwani 2010; Ruth Moro 2010; Talia Quandelacy 2010 2015 – Class GH511, Topic: “Leprosy” as part of the International Infectious Diseases, Global Health Track, Rollins Schoolf of Public Health, Emory University, Atlanta GA 2017 – Class GH511, Topic: “Leprosy” as part of the International Infectious Diseases, Global Health Track, Rollins School of Public Health, Emory University, Atlanta GA 2019 - Project Mentorship – Diffuse lepromatous leprosy. Undergraduate Student, University of Colorado, Boulder. Mikali Ogbasselassie. Project was carried out in Collaboration with the Dermatology Center of the Hospital General de Mexico. Poster presentation by Mikali Ogbasselassie September 22, 2019, UMBC, Baltimore, Maryland.

36

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Case 1:20-cv-01072-CRC Document 4-17 Filed 04/23/20 Page 1 of 2

Case 1:20-cv-01072-CRC Document 4-17 Filed 04/23/20 Page 2 of 2
What you should know about COVID-19 to protect yourself and others

Know about COVID-19
• Coronavirus (COVID-19) is an illness caused by a virus that can spread from person to person.
• The virus that causes COVID-19 is a new coronavirus that has spread throughout the world.
• COVID-19 symptoms can range from mild (or no symptoms) to severe illness.
Know how COVID-19 is spread
• You can become infected by coming into close contact (about 6 feet or two arm lengths) with a person who has COVID-19. COVID-19 is primarily spread from person to person.
• You can become infected from respiratory droplets when an infected person coughs, sneezes, or talks.
• You may also be able to get it by touching a surface or object that has the virus on it, and then by touching your mouth, nose, or eyes.
Protect yourself and others from COVID-19
• There is currently no vaccine to protect against COVID-19. The best way to protect yourself is to avoid being exposed to the virus that causes COVID-19.
• Stay home as much as possible and avoid close contact with others.
• Wear a cloth face covering that covers your nose and mouth in public settings.
• Clean and disinfect frequently touched surfaces.
• Wash your hands often with soap and water for at least 20 seconds, or use an alcoholbased hand sanitizer that contains at least 60% alcohol.

milk

Practice social distancing

• Buy groceries and medicine, go to the doctor, and complete banking activities online when possible.
• If you must go in person, stay at least 6 feet away from others and disinfect items you must touch.
• Get deliveries and takeout, and limit in-person contact as much as possible.

Prevent the spread of COVID-19 if you are sick
• Stay home if you are sick, except to get medical care.
• Avoid public transportation, ride-sharing, or taxis.
• Separate yourself from other people and pets in your home.
• There is no specific treatment for COVID-19, but you can seek medical care to help relieve your symptoms.
• If you need medical attention, call ahead.

Know your risk for severe illness
• Everyone is at risk of getting COVID-19.
• Older adults and people of any age who have serious underlying medical conditions may be at higher risk for more severe illness.

CS 314937A 04/15/2020

cdc.gov/coronavirus

Case 1:20-cv-01072-CRC Document 4-18 Filed 04/23/20 Page 1 of 11
Exhibit 17

Case 1:20-cv-01072-CRC Document 4-18 Filed 04/23/20 Page 2 of 11
Declaration of Ronica Mukerjee
1. I, Ronica Mukerjee, am an American trained doctorally-prepared family nurse practitioner fully licensed to practice medicine in the states of New York and Connecticut. I am trained as a family nurse practitioner with extensive knowledge in primary care. I have been clinical faculty at Yale University since 2017 I am the program coordinator and creator of the Gender and Sexuality Health Justice concentration at Yale University, focused on the primary care, racial and economic justice, HIV, substance use, and mental health care needs of LGBTQIA people.
2. I received my Masters in Science in Nursing at Columbia University in New York, New York and my doctoral degree in Nursing at Yale University in New Haven, Connecticut, with a specialty in the care of transgender patients. Additionally, I am a board certified American Academy of HIV Medicine Specialist (AAHIVS) and also trained in forensic evaluation of asylum seekers by the Keck Human Rights Clinic and Physicians for Human Rights.
3. I have been formerly employed as the Director of Transgender Health for Community Health Care in New York City, overseeing the transgender medical care of all nurse practitioners, medical doctors, and other medical staff at twelve clinics within the five boroughs of New York City.
4. I am Co-Director of Refugee Health Alliance (RHA). RHA provides ethical, holistic, and culturally-inclusive care and advocate for all displaced and vulnerable populations in collaboration with activists and existing healthcare organizations along the US-Mexico border. Through RHA, I take care of patients seeking asylum who have diverse and complex medical conditions; this population includes transgender patients, in Tijuana, Mexico.
5. I have been seeing patients in Tijuana since January of 2019 and have seen approximately 250 transgender patients for medical care during this time. Patients who are seen by my medical organization, Refugee Health Alliance, have had so many different medical issues that have ranged from: hypertension, diabetes mellitus II, asthma, peptic ulcers, HIV/AIDS, Hepatitis C, chronic smoking, chronic alcohol and drug use, condylomas, abdominal pain, cough, fever, rashes, headaches, back pain, ingrown toenails, several types of cancers, and infections of many different systems including gastrointestinal, upper respiratory, lower respiratory and dermatological systems. About 30% of the trans patients seen through our organization, are HIV+ (almost all without proper treatment) or immunocompromised.
6. COVID-19 infections are much increased and worsened in patients with cardiovascular and respiratory comorbidities. Transgender patients in detention centers across the United States have significantly more comorbidities than their non-transgender counterparts. Some medical diagnoses that are significantly increased in transgender patients include HIV, cardiovascular disease, asthma and diabetes.

Case 1:20-cv-01072-CRC Document 4-18 Filed 04/23/20 Page 3 of 11
7. HIV: According to the Centers for Disease Control (CDC): “By race/ethnicity, an estimated 44% of black/African American transgender women, 26% of Hispanic/Latina transgender women, and 7% of white transgender women have HIV.” (https://www.cdc.gov/hiv/group/gender/transgender/index.html). In Tijuana, about 30% of all transgender patients were HIV+.
8. According to Human Rights Watch, transgender women have been "unable to access their HIV medications for periods ranging from two to three months after entering detention." The likelihood of having significant morbidity and

Case 1:20-cv-01072-CRC Document 4-18 Filed 04/23/20 Page 4 of 11
mortality from the combination of HIV and COVID-19 is increased without access to appropriate medications (Herrera, 2019).
a. Since 2018, I have provided medical care for transgender patients in Tijuana, Mexico. This population of patients is disproportionately affected by HIV wherein approximately 33% of all transgender asylum seekers in Tijuana are HIV.
COVID-19 and HIV: According to the CDC: “People with HIV can also be at increased risk of getting very sick with COVID-19 based on their age and other medical conditions.” (https://www.cdc.gov/coronavirus/2019- ncov/need-extraprecautions/hiv.html). Transgender patients, who have a higher risk of being HIV+ than the general population, have an increased risk of becoming very sick. with COVID-19.
9. Cardiovascular Disease: A study published in 2020 (Martinez, 2020), has clearly demonstrated that transgender patients have increased risk of cardiovascular disease. Cardiovascular disease includes thromboembolic disease (blood clots) and ischemic stroke (Goodman, 2014). In Tijuana, about 25% of all transgender patients presented with cardiovascular complications including hypertension, almost all untreated for a month or more. COVID-19 and Cardiovascular Disease: “The American Heart Association is advising caution and preparation for people who have heart disease or who have survived a stroke. Based on current information, it appears elderly people with coronary heart disease or hypertension are more likely to be infected and to develop more severe symptoms. Stroke survivors may also face increased risk for complications if they get COVID-19.” (https://www.heart.org/en/aboutus/coronavirus-covid-19- resources). Transgender patients with cardiovascular disease have an increased risk of severe symptoms with COVID-19.
10. Asthma: Transgender patients, which are the majority of patients within detention facilities have a much higher rate (26.7%) of asthma diagnosis than non-transgender patients (7.7% of the general population) (Seelman et al., 2017). In Tijuana, about 10% of all transgender patients presented with respiratory complications including asthma, almost all untreated for a month or more.
COVID-19 and Asthma: Currently the CDC is advising that people with asthma are likely at higher risk of getting very sick from COVID-19. Transgender patients, who have higher rates of asthma than the general population, have an increased risk of becoming very sick with COVID-19.
11. Diabetes: In a cross-sectional study completed in 214 TGFs [transgender females] and 138 TGMs [transgender males], there were higher rates of diabetes mellitus in TGFs…” The rates were also increased in transgender males. In Tijuana, about 15% of all transgender patients presented with metabolic complications including diabetes, almost all untreated for a month or more. COVID-19 and Diabetes: According the American Diabetes Association, people with diabetes face “a problem of worse outcomes” when contracting COVID-19. “In China, where most cases have occurred so far,

Case 1:20-cv-01072-CRC Document 4-18 Filed 04/23/20 Page 5 of 11
people with diabetes had much higher rates of serious complications and death than people without diabetes.” (https://www.diabetes.org/covid-19- faq). Transgender patients who have higher rates of diabetes, have an increased risk of severe symptoms with COVID-19.
12. Due to the serious health lapses, including “deficient treatment for mental illnesses and other chronic diseases” noted at detention centers (Rosenberg, 2020), the risk for transgender patients to develop serious complications due to COVID-19 is much higher than the general population. And currently, detention centers across the United States have not instituted 6 feet contact precautions for inmates or staff.
13. COVID-19 is an acute disease of the respiratory tract caused by a novel corona virus designated SARS-CoV-2 that is transmitted easily via respiratory droplets as well as fomites left on surfaces. It was first reported in December 2019 and has caused severe illness and death in almost all countries in the world, including the United States. The death toll will continue to rise, particularly in spaces with little access to appropriate person-to-person spacing such as detention centers. Transgender women are particularly vulnerable to undesired physical contact such as assault and sexual violence in detention centers and this can increase risk of morbidity and mortality due to contracting COVID-19.
14. I have reviewed the ICE Guidelines on COVID-19 (https://www.ice.gov/covid19). So far more than 300 cases have been confirmed (as of April 17, 2020). The R0 (R-naught) of COVID-19 is approximately 2 to 2.5, which means that on average a person with COVID-19 infects 2 to 2.5 other people. This means that likely 170 other people have been infected by the confirmed cases in detention. There is no way to protect transgender patients with comorbidities with such a high level of virulence.
15. It is my expert opinion that transgender patients, whose susceptibility to COVID-19 are higher than the general population should be immediately released into the community in order to avoid death or infirmity due to a lack of consideration for the health of this population.
Pursuant to U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.

Case 1:20-cv-01072-CRC Document 4-18 Filed 04/23/20 Page 6 of 11 Prepared in Tijuana, Mexico on April 21, 2020 Ronica Mukerjee DNP, FNP-BC, MsA, LAc

Case 1:20-cv-01072-CRC Document 4-18 Filed 04/23/20 Page 7 of 11

Ronica Mukerjee, DNP, FNP-BC MsA, LAc
570 Ocean Parkway #1C Brooklyn, NY, 11218 ronica.mukerjee@gmail.com ronica.mukerjee@yale.edu (646) 785-7452

RELEVANT EDUCATION

YALE UNIVERSITY, NEW HAVEN, CT

•

Doctorate of Nursing Practice

COLUMBIA UNIVERSITY, NY, NY • Bachelors of Science, Nursing • Masters of Science graduate, NYS FNP licensure

BASTYR UNIVERSITY, Seattle, WA • Bachelors of Science • Masters of Science in Acupuncture

August 2014-May 2017 June 2005-Feb 2008 Sept 2000-June 2003

CERTIFICATIONS AND LICENSURES

AMERICAN NURSES CREDENTIALING CENTER (ANCC) • Family Nurse Practitioner—Board Certified

May 2009-May 2024

THE STATE OF CONNECTICUT EDUCATION DEPARTMENT • Family Health Nurse Practitioner

June 2017-March 2021

THE STATE OF CONNECTICUT EDUCATION DEPARTMENT • Registered Professional Nurse

June 2017-March 2021

THE STATE OF NEW YORK EDUCATION DEPARTMENT • Family Health Nurse Practitioner

May 2008-February 2021

THE STATE OF NEW YORK EDUCATION DEPARTMENT • Registered Professional Nurse

July 2006-February 2021

THE STATE OF NEW YORK EDUCATION DEPARTMENT • Licensed Acupuncturist

May 2004-February 2022

AMERICAN ACADEMY OF HIV MEDICINE • Certified HIV Specialist

December 2009-December 2022

Case 1:20-cv-01072-CRC Document 4-18 Filed 04/23/20 Page 8 of 11

LANGUAGES SPOKEN

• Native English • Fluent Spanish • Competent Bengali, and American Sign Language • Basic Hindi
RELEVANT SKILLS & EXPERIENCE

YALE UNIVERSITY, NEW HAVEN, CT

August 2017-current

Clinical Lecturer, Yale School of Nursing

Gender and Sexuality Health Justice Program Coordinator and Founder

• Teaching nurse practitioner and midwifery students primary care concepts as part of

their core curriculum

• Focusing on integrating the care of women’s health, chemically dependent and HIV+

adults into a baseline curriculum for all students

• Creating a new program, “Gender and Sexuality Healthcare Justice,” focused on

healthcare for LGBTQIA+, HIV+ and substance-using patients taught through a racial and

economic justice framework

TREE OF LIFE PRIMARY CARE AND RECOVERY, NEW HAVEN, CT February 2018-current Clinical Director, Private Practice
• Providing primary care for patients throughout the lifespan • Delivering outpatient recovery services, including buprenorphine and naloxone, for
adults • Specializing in LGBTQIA+ care • Performing trauma-informed gynecological care • Offering urgent care and telemedicine as needed

COMMUNITY HEALTH ACTION OF STATEN ISLAND, NY

February 2018-current

Clinical Director, Opioid Overuse Prevention Program

• Creating and implementing a new clinical care program for opioid and other

substance users

• Providing buprenorphine care for patients seeking treatment for opioid overuse

• Providing acupuncture for patients seeking treatment for opioid overuse

• Generating promotional materials for a new drug treatment program

ST FRANCIS COLLEGE, BROOKLYN, NY

September 2014-September 2017

Assistant Professor, Nursing Department; full-time

• Teaching undergraduate nursing students physical assessment and community health as

part of their undergraduate core curriculum

• Developing and approving curriculum for the entire college

• Determining academic integrity of students’ behavior, through committee determination

SUNY DOWNSTATE, STAR/WIHS (HIV) CLINIC, BROOKLYN, NY March 2016-August 2017

Case 1:20-cv-01072-CRC Document 4-18 Filed 04/23/20 Page 9 of 11

Nurse Practitioner--HIV Specialist, Clinical Researcher; part-time • Caring for HIV+ patients with both primary care and urgent care services • Performing gynecological care for HIV+ patients • Offering conscientious and compassionate care for all patients • Recruiting and treating trans patients and updating STAR clinic hormonal care protocols • Working with chemically dependent patients • Offering PrEP and PEP services

MITR TRUST, NEW DELHI, INDIA

March 2008-present

Hormonal Specialist for Trans Women (volunteer position)

• Collaborating with a community based organization run by and for trans women in

Western Delhi, including partnership with a local doctor

• Caring for trans women through hormonal advisement and laboratory evaluation

• Providing telemedicine services for every three month follow-up

• Performing physical exams and in-person follow up on a monthly basis

CALLEN-LORDE COMMUNITY HEALTH CENTER, NY, NY

Aug 2008-May 2017

Staff Clinician (full-time until April 2013; occasional per diem thereafter)

• Providing primary and urgent care of adult & adolescent patients

• Specializing in HIV and LGBT-knowledgeable care

• Analyzing phlebotomy results

• Offering compassionate, well-informed gynecological care

• Administering intrauterine artificial insemination

• Coordinating a medical mobile unit (MMU) for transiently-housed, chemically-dependent

adolescents

• Integrating functional medicine, Chinese nutrition, as well as herbs and vitamin

supplementation into a Western medical practice

WASHINGTON HEIGHTS CORNER PROJECT, NY, NY

June 2015- November 2016

Temporary staff clinician

• Providing immediate care for Injection Drug Users at a community-based organization

• Counseling and supporting patients around drug use

• Implementing harm reduction methodology

• Screening patients for chronic and acute disease processes

• Working closely with case managers to ensure proper continuing care and connection

with appropriate services

COLLECTIVE PRIMARY CARE NY, NY

December 2013-January 2014

(closed March 2014)

Senior Nurse Practitioner, Senior Acupuncturist

• Providing primary and urgent care of adult & pediatric patients as one of two clinicians

at a primary care practice

• Analyzing phlebotomy results

• Offering compassionate, well-informed gynecological care

• Integrating acupuncture, functional medicine, Chinese nutrition, as well as herbs and

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vitamin supplementation into a Western medical practice

• Directing the proper medical care of transgender patients including writing evidence-

based protocols for the provision of care to transgender patients

COMMUNITY HEALTHCARE NETWORK, NY, NY

April 2013-August 2014

Associate Medical Director (Director of Trans Services)

• Providing primary and urgent care of adult & pediatric patients

• Providing HIV and LGBT-knowledgeable care

• Analyzing phlebotomy results

• Offering compassionate, well-informed gynecological care

• Working extensively with geriatric patients

• Writing evidence-based protocols for the provision of care to transgender patients

• Directing the proper medical care of transgender patients

• Reviewing all providers performing primary care for transgender patients

YALE UNIVERSITY SCHOOL OF NURSING

June 2011-June 2015

Preceptor

• Precepting Family, Women’s Health, and Adult Nurse Practitioner students

• Teaching students clinical skills as well as analysis of current research for best practices

UPENN SCHOOL OF NURSING

June 2012- May 2014

Preceptor and Adjunct Faculty

• Precepting students as adjunct faculty for Nurse Practitioner students

• Teaching students clinical skills as well as analysis of current research for best practices

COLUMBIA UNIVERSITY SCHOOL OF NURSING

January 2009-April 2013

Preceptor

• Working as a preceptor for Nurse Practitioner students

• Providing seminars on LGBT Health, and HIV

• Teaching students clinical skills as well as analysis of current research for best practices

PRIVATE PRACTICE ACUPUNCTURIST

June 2003-present

Acupuncturist

• Assessing patients’ pathologies including neuromuscular, gastrointestinal and upper

respiratory disorders

• Diagnosing and treating disorders using Chinese Medicine

• Treating chronic illnesses, often in conjunction with Western Medical providers

MT SINAI WOMEN’S HEALTH/ ONCOLOGY, NY, NY

Aug 2006-Jan 2008

Staff Nurse

• Performing full body assessments on post-operative patients

• Placing IVs, catheterizing patients, drawing blood, and accessing central lines and chest

ports

• Providing colostomy care

• Assessing post-surgical wounds for signs of infection

• Administering chemotherapeutic and other medicines

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• Charting assessments of patients accurately and clearly • Administering BCLS and CPR
PUBLICATIONS
• R. Mukerjee. The ethics of transgender inclusion: a nursing perspective. Ethics in Biology, Engineering and Medicine: An International Journal, 2016. Volume 6, Issue 3-4
• Erickson-Schroth, L. (2014), Trans bodies, trans selves: A resource for the transgender community. New York, New York: Oxford University Press.
• Noted contributor on this book
• K. Steffens, A. Radix, J. Dolby, G. Gatterman, G. Mayer, S. Weiss, R. Mukerjee. Implementation of a nursing model for triage of HIV-positive patients with influenza like illness (ILI) during a pandemic threat of novel swine-origin influenza A (2009 H1N1 influenza). International AIDS Conference, Vienna 2010. Abstract no. WEPE0845
• J. Johnson, A. Radix, J. Santos-Ramos, N. Levitt, H. Reynolds, G. Mayer, R. Mukerjee. If you´ve got it, check it: establishing a sexual health clinic for transgender clients at a New York City community health center. International AIDS Conference, Vienna 2010.: Abstract no. WEPE0346
ADDITIONAL SKILLS
• Computer literacy with Microsoft Excel, PowerPoint, Word, and Adobe Photoshop • Experienced Electronic Medical Record (EMR) user • Martial arts training

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116TH CONGRESS

REPORT

1st Session " HOUSE OF REPRESENTATIVES ! 116–180

DEPARTMENT OF HOMELAND SECURITY APPROPRIATIONS BILL, 2020

JULY 24, 2019.—Committed to the Committee of the Whole House on the State of the Union and ordered to be printed

Ms. ROYBAL-ALLARD of California, from the Committee on Appropriations, submitted the following

R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 3931]
The Committee on Appropriations submits the following report in explanation of the accompanying bill making appropriations for the Department of Homeland Security for the fiscal year ending September 30, 2020.
INDEX TO BILL AND REPORT

Page number

Bill Report

TITLE I—DEPARTMENTAL MANAGEMENT, OPERATIONS, IN-

TELLIGENCE, AND OVERSIGHT

Office of the Secretary and Executive Management ........................ 2

6

Operations and Support .............................................................. 2

6

Management Directorate .................................................................... 2 13

Operations and Support .............................................................. 2 13

Procurement, Construction, and Improvements ........................ 3 15

Research and Development ......................................................... ........ ...........

Federal Protective Service .......................................................... 3 15

Intelligence, Analysis, and Operations Coordination ....................... 3 16

Operations and Support .............................................................. 3 16

Office of Inspector General ................................................................. 4 16

Operations and Support .............................................................. 4 16

Administrative Provisions .................................................................. 4 17

TITLE II—SECURITY, ENFORCEMENT, AND INVESTIGATIONS

U.S. Customs and Border Protection ................................................. 9 17

36–683

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2

Page number

Bill Report

Operations and Support .............................................................. 9 17

Procurement, Construction, and Improvements ........................ 11 29

U.S. Immigration and Customs Enforcement ................................... 11 29

Operations and Support .............................................................. 11 30

Procurement, Construction, and Improvements ........................ 12 37

Transportation Security Administration ........................................... 12 38

Operations and Support .............................................................. 12 38

Procurement, Construction, and Improvements ........................ 13 39

Research and Development ......................................................... 13 40

Coast Guard ......................................................................................... 14 40

Operations and Support .............................................................. 14 41

Procurement, Construction, and Improvements ........................ 15 42

Research and Development ......................................................... 15 44

Health Care Fund Contribution ................................................. ........ 44

Retired Pay ................................................................................... 16 44

United States Secret Service .............................................................. 16 45

Operations and Support .............................................................. 16 45

Procurement, Construction, and Improvements ........................ 17 46

Research and Development ......................................................... 18 46

Administrative Provisions .................................................................. 18 46

TITLE III—PROTECTION, PREPAREDNESS, RESPONSE, AND

RECOVERY

Cybersecurity and Infrastructure Security Agency .......................... 39 49

Operations and Support .............................................................. 39 49

Procurement, Construction, and Improvements ........................ 39 53

Research and Development ......................................................... 39 53

Federal Emergency Management Agency ......................................... 40 54

Operations and Support .............................................................. 40 54

Procurement, Construction, and Improvements ........................ 40 55

Federal Assistance ....................................................................... 40 55

Disaster Relief Fund .................................................................... 43 58

National Flood Insurance Fund .................................................. 44 60

Administrative Provisions .................................................................. 46 60

TITLE IV—RESEARCH, DEVELOPMENT, TRAINING, AND SERV-

ICES

U.S. Citizenship and Immigration Services ...................................... 50 60

Operations and Support .............................................................. 50 61

Federal Assistance ....................................................................... 51 63

Federal Law Enforcement Training Centers .................................... 51 63

Operations and Support .............................................................. 51 64

Procurement, Construction, and Improvements ........................ 51 64

Science and Technology Directorate .................................................. 51 64

Operations and Support .............................................................. 51 65

Research and Development ......................................................... 52 65

Countering Weapons of Mass Destruction Office ............................. 52 68

Operations and Support .............................................................. 52 69

Procurement, Construction, and Improvements ........................ 52 69

Research and Development ......................................................... 52 69

Federal Assistance ....................................................................... 53 69

Administrative Provisions .................................................................. 53 69

TITLE V—GENERAL PROVISIONS

This Act ................................................................................................ ........ 70

Compliance with House Rules .................................................... ........ 73

Tables ............................................................................................ 00 104

Minority Views

........ 138

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women fairly and without bias; and (2) CBP’s training, complaints system, and culture regarding sexual harassment and assault.
Technology Procurement.—The Committee understands that CBP is carrying out a Southern Border Threat Assessment to help inform future border security investments, including the appropriate mix of personnel, technology, and infrastructure. To accelerate the efficient acquisition of border security technologies and maximize industry expertise, the Committee urges the Department and CBP to explore and expand the use of rapid and non-traditional acquisition tools, such as Other Transaction Authority and innovative commercial solutions authority provided under section 880 of Public Law 114–328.
U.S. Citizens Held in CBP Custody.—The Committee directs CBP to provide a detailed report within 90 days of the date of enactment of this Act on the number of U.S. citizens detained for more than 24 hours at POEs during the last two fiscal years. The report should include the ages of the individuals detained, the length of detention, and the rationale for their detention.

PROCUREMENT, CONSTRUCTION, AND IMPROVEMENTS

Appropriation, fiscal year 2019 ......................................................... Budget request, fiscal year 2020 ....................................................... Recommended in the bill ................................................................... Bill compared with:
Appropriation, fiscal year 2019 ...................................................... Budget request, fiscal year 2020 ...................................................

$2,515,878,000 5,402,191,000 477,962,000
¥2,037,916,000 ¥4,924,229,000

The Committee recommends the following increases above the request: $50,000,000 for border security technology procurement; $17,000,000 for team awareness kits; $30,000,000 for innovation technology; $20,000,000 for trade enforcement enhancement, to include collections; and $30,000,000 for one additional multi-role enforcement aircraft. The recommendation provides no funding for border barriers or for border patrol checkpoints.
Non-Intrusive Inspection (NII).—The Committee directs CBP to provide, not later than 90 days after the date of enactment of this Act, an updated, multi-year strategic plan for addressing vulnerabilities and capability gaps at POEs, as directed in the explanatory statement accompanying Public Law 115–141. CBP is also directed to brief the Committee on the results of the ongoing POE pilots upon their completion. This briefing shall include an assessment of each platform’s ability to increase vehicle inspection throughput at POEs without impacting primary operations for commercial and privately-owned vehicles. CBP is further directed to update the Committee on the obligation of funds for NII acquisition as a part of the required quarterly obligation plans directed in title I of this report. The Committee expects any procurement of technology to be competitively awarded.

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT

Appropriation, fiscal year 2019 ......................................................... Budget request, fiscal year 2020 ....................................................... Recommended in the bill ................................................................... Bill compared with:
Appropriation, fiscal year 2019 ...................................................... Budget request, fiscal year 2020 ...................................................

$7,587,712,000 8,781,195,000 8,057,287,000
+469,575,000 ¥723,908,000

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Mission
U.S. Immigration and Customs Enforcement (ICE) enforces federal laws governing border control, customs, trade, and immigration to promote homeland security and public safety.
Homeland Security Investigations (HSI) is responsible for disrupting and dismantling transnational criminal threats facing the United States. HSI special agents also conduct national security investigations targeting violations of the nation’s customs and immigration laws.
Enforcement and Removal Operations (ERO) enforces the nation’s immigration laws by identifying and apprehending removable aliens, detaining apprehended individuals when necessary, and removing them from the United States in a manner consistent with legal processes and procedures.
OPERATIONS AND SUPPORT

Appropriation, fiscal year 2019 ......................................................... Budget request, fiscal year 2020 ....................................................... Recommended in the bill ................................................................... Bill compared with:
Appropriation, fiscal year 2019 ...................................................... Budget request, fiscal year 2020 ...................................................

$7,542,153,000 8,702,425,000 7,593,940,000
+51,787,000 ¥1,108,485,000

The recommendation includes the following increases above the request: $47,250,000 to restore proposed cuts for the 2019 pay raise; $15,750,000 to support the annualization of the 2019 pay raise; $90,875,000 for the 2020 pay raise; and $233,144,000 to sustain fiscal year 2019 initiatives. The recommendation does not include $368,612,000 proposed in the request to sustain hiring initiatives that were not funded in the fiscal years 2018 and 2019 appropriations, nor $298,973,000 that was requested for additional law enforcement staffing. An additional reduction of $6,308,000 is based on anticipated savings associated with a hiring freeze for Fugitive Operations and the Criminal Alien Program. The recommendation does not assume the use of $207,600,000 from the Immigration Examination Fee Account (IEFA) to partially offset costs for eligible activities in this account due to concerns with the impact to U.S. Citizenship and Immigration Services (USCIS) operations and the growing backlog in applications for immigration benefits; an administrative provision in the bill prohibits the use of IEFA funds for ICE operations.

Homeland Security Investigations
Combatting Human Trafficking.—HSI plays a critical role in investigating Transnational Criminal Organizations involved in trafficking individuals into and within the United States. The Committee encourages HSI to work with appropriate nonprofit organizations and victim service providers to assist HSI agents in the identification of human trafficking victims, ensuring they receive the proper care and access to victim service organizations.
Human Exploitation Rescue Operative Child-Rescue Corps.—The recommendation includes an increase of $4,000,000 above the request for the training, equipping, and hiring of Human Exploitation Rescue Operative (HERO) Child-Rescue Corps program graduates. ICE is directed to brief the Committee not later than

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180 days after the date of enactment of this Act on performance indicators for the HERO program, including the number of child exploitation cases worked by HERO interns and their impact on the identification of minor victims and apprehension of contact offenders.
Intellectual Property Rights Enforcement.—The recommendation provides not less than $15,000,000 for intellectual property law enforcement through HSI and the National Intellectual Property Rights (IPR) Coordination Center. ICE is reminded of the IPR enforcement resource requirements in House Report 116–9.
Worksite Immigration Enforcement Actions.—The Committee is concerned about the increase in worksite enforcement operations since January 2018, especially the disproportionate use of resources dedicated to civil administrative arrests of employees. Such arrests should be reserved for those individuals who pose a risk to public safety. Within 60 days of the date of enactment of this Act, ICE is directed to brief the Committee on the policies, practices, and procedures associated with worksite immigration enforcement actions, with a specific focus on direction to the field related to civil administrative arrests.
Enforcement and Removal Operations
287(g) Program.—A provision in the bill requires ICE to provide a report to the Committees and the public regarding 287(g) steering committee membership and activities; performance data; the number of individuals placed into removal proceedings by 287(g)designated officers; and any plans for future expansion of or changes to the program. ICE, OIG, and CRCL are also directed to provide rigorous oversight of the 287(g) program, and ICE is directed to notify the Committee prior to implementing any significant changes to the program, including any changes to training requirements, data collection, selection criteria, or the jurisdictions with which ICE has agreements. The Committee also reminds ICE that communities are not legally required to enter into such agreements and that immigration enforcement should not be used either to induce communities to enter or deter them from discontinuing 287(g) agreements.
The Committee directs GAO to follow up on its January 2009 report on management controls in the 287(g) program (GAO–09–109). GAO’s review should include a review of the content of and compliance with memoranda of agreement with participating law enforcement agencies; the establishment and role of community steering committees; the extent to which ICE has guidance for jurisdictions with 287(g) and intergovernmental service agreements to fulfill their separate roles and responsibilities for each agreement; safeguards to ensure that state or local officers perform immigration enforcement functions only as authorized by their 287(g) agreement; and 287(g) arrest data, broken down by jurisdiction and offense, among other factors.
Age-Outs.—The Committee is concerned about reports that approximately two-thirds of unaccompanied children turning 18 years old while in the custody of the Office of Refugee Resettlement (ORR) of the Department of Health and Human Services are transferred directly to ICE custody and detained, often because of a lack of planning for alternative placements during the child’s time in
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ORR care. ICE is directed to provide semi-annual updates to the Committee on the number of unaccompanied alien children who turn 18 while in ORR custody and are subsequently detained by ICE. The first update, due within 60 days after the date of enactment of this Act, shall include a description of the Juvenile Coordinator’s methodology for determining placement in the least restrictive setting available and for considering an alien’s risk to self or the community, risk of flight, and post-18 plan. Each update shall delineate transfers from ORR according to ICE area of responsibility and most recent ORR placement category and shall detail the rationale for ICE’s placement decision (detention, alternatives to detention, Order of Supervision, or own recognizance) for each transferred individual.
Alternatives to Detention (ATD).—The recommendation includes an additional $64,000,000 over fiscal year 2019 to continue to grow the ATD program, of which $20,000,000 is for the Family Case Management Program (FCMP). ICE is directed to continue to provide performance reports to the Committee on the ATD program, as described in House Report 116–9.
Also included is $4,000,000 above the request to fund an independent review and analysis of the ATD program, to include the FCMP. The review shall include recommendations for improvements or alternatives to: increase the overall effectiveness of the program; improve the cost efficiency and sustainability of the program; ensure appropriate alignment of functions to be performed by government officials, non-profit organizations, and/or the private sector; and address any gaps in services provided. The Committee directs the review and analysis be informed by discussions with government officials, current program operators, non-governmental immigration policy stakeholders, and current participants in the program, and by reviewing similar programs in other countries. The results of this review and analysis shall be briefed to the Committee not later than 180 days after the date of enactment of this Act.
ICE is directed to continue ensuring access to ‘‘know your rights’’ presentations, as described in House Report 116–9.
Body Worn Cameras.—ICE is reminded of the requirements in House Report 116–9 regarding the use of body worn cameras in its field enforcement activities.
Bond Payments.—ICE is directed to provide the monthly bond statistics described in House Report 116–9.
Detainee Access to Legal, Medical, and Mental Health Services.— ICE should not enter into, expand, or renew a contract with any entity to operate an immigration detention facility that is located more than 100 miles from: a Level IV (or lower) designated trauma center; or at least one government-listed, legal aid resource on the Executive Office for Immigration Review (EOIR) ‘‘List of Pro Bono Legal Service Providers’’ from which the Director has received confirmation that it is able to provide legal services to detainees at the facility.
ICE is directed to continue the requirements in House Report 116–9 regarding legal resources available to detainees and shall ensure that such information is provided in both English and Spanish.
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Not later than 30 days after the date of the close of the fiscal year, the Committee directs ICE to publish on a public facing website a description of the medical and mental health staffing— delineated by position and qualification—at each facility with a capacity to house at least 50 ICE detainees, along with the ADP of each facility. The report should indicate the hours of availability of in-person, specialized medical service typically available during the week; whether any positions were unfilled for more than one month of the previous year; and the average detainee wait time for seeing a medical professional. ICE shall also include in the report the number of individuals taken into ICE custody with a serious medical condition, including pregnant women, a serious mental health condition, and the total length of detention, including transfers, for each. The Committee urges ICE to reinstate the policies in its August 2016 directive on the Identification and Monitoring of Pregnant Detainees that was superseded by its December 2017 update.
The Committee directs ICE to ensure that each family residential center has on-site at least one medical professional qualified to provide pediatric care for every 200 children in residence. In addition, at least one such medical professional should be on-site or oncall for every 100 children detained in the facility. The Committee further directs ICE to ensure that each family residential center makes available at least one mental health professional specializing in pediatric care.
Detainee Forms.—The Committee directs ICE to provide all forms that are required to be signed by a detained person in the detainee’s native language. ICE is directed to report to the Committee within 90 days of the date of enactment of this Act on a plan and timeline for achieving this goal, including an estimate of related resource requirements.
Detention Capacity.—The recommendation reduces Custody Operations by $1,053,313,000 and reduces the Transportation and Removal Program by $72,229,000 from the request. The funding provided supports an average daily population (ADP) in detention of 34,000 for single adults, of which not more than 17,000 is for interior enforcement operations, commensurate with the average ADP for such operations between fiscal years 2013 and 2016. Funding provided for family detention is intended to phase out this activity by not later than December 31, 2019.
The Committee understands that a surge in the number of single adults deemed inadmissible at a POE or who cross the border between ports in fiscal year 2020 could necessitate additional detention capacity to prevent overcrowding at short-term CBP holding facilities. To address such a contingency, a provision is included to provide additional funding during the fiscal year to respond to surges of single adult migrants. Access to this additional funding requires a certification from the Secretary that the anticipated number of single adult alien transfers to ICE from CBP will exceed the number so transferred in fiscal year 2016, when the ADP for such aliens was approximately 17,000. The Secretary must also provide the Committee with an analysis to substantiate such certifications.
Further, to ensure that a short-term migration surge does not result in over-funding ICE detention operations, the bill makes these additional resources available to ICE only incrementally and peri-
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odically throughout the fiscal year. If surge conditions are met, the highest-level increment of additional funding provided by this provision would support a single adult ADP of 24,500 associated with border security operations, and a total potential funding increase of $387,077,000, of which $55,941,000 would be for the Transportation and Removal Program. None of the incremental funding increases are available for ADP associated with interior enforcement.
Detaining Individuals with Credible Fear.—The Committee reminds ICE of its policy to avoid the detention of an individual who has received a positive credible fear determination from an asylum officer or immigration judge, absent a finding by an immigration officer that the individual poses a risk to the community or is a flight risk. ICE is directed to report to the Committee, monthly, data on the number of individuals who received a positive credible fear or reasonable fear determination who were: considered for parole; granted parole; or denied release on parole, along with an individualized description of the justification for each denial.
Detention Inspection Reporting.—ICE shall continue to report and make public the following, as described in House Report 116– 9, and shall follow the previously directed timeframes unless otherwise specified:
(1) Secure Communities report; (2) Requirements related to detention facility inspections reports; (3) Death in custody reporting, with subsequent reporting to be released within 90 days of the initial report; (4) Access to facilities; (5) Detainee locator information; (6) Changes to the current detention facility category and inspection framework; (7) Compliance with the 2011 Performance Based National Detention Standards (PBNDS 2011) and Prison Rape Elimination Act (PREA) requirements; and (8) Weekly rate of operations for Custody Operations. Detention Oversight.—The Committee remains concerned about the conditions and care provided at ICE’s civil detention facilities. The recommendation provides an additional $14,000,000 above the request for the Office of Detention Oversight within the Office of Professional Responsibility to fully fund the inspection of each over-72-hour detention facility not less than twice per year. The detailed results of these inspections shall be promptly published on a public-facing website, redacted as needed to protect any personally identifiable information, along with a plan of action and milestones to address any deficiencies that were identified during the inspection. The status of addressing such deficiencies shall be validated by the Office of Immigration Detention Ombudsman established in title I and shall be updated on the website not less than quarterly. Further, given the findings in the OIG report, ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements, dated June 26, 2018 (OIG–18–67), the recommendation does not include the $3,500,000 requested for the Custody Management Division’s facility inspection contract. Consistent with the direction provided in House Report 116–9, the ICE Director shall have sole authority to approve detention
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standard waivers and shall notify the Committee of such waivers within 3 business days of such approval. Additionally, ICE shall report publicly on a quarterly basis any waivers issued, and the justification for each such waiver.
To ensure that detention facility inspections capture the reality of conditions that detainees experience, the Committee encourages ICE to include within its immigration detention facility inspections and reviews documented input from a wide-range of stakeholders, to include individuals working at the facility, a representative sample of detainees at the facility, attorneys representing detainees, legal orientation providers at the facility, and others performing visitation, such as clergy or faith-based organizations.
ICE is directed to provide a report to the Committee, not later than 90 days after the date of enactment of this Act, identifying for each detention contract, Inter-governmental Service Agreement, or Inter-governmental Agreement, the detention standards under which it is inspected and the status of its compliance with PREA standards; and all fiscal year 2019 costs by category, as appropriate. In addition, the ICE Director shall continue to report to the Committees at least 30 days in advance of entering into any new or significantly modified detention contract or other detention agreement that does not meet or exceed the PBNDS–2011, as revised in 2016. Each report shall include a justification for why such contract or agreement requires different standards.
Immigration Enforcement at Sensitive Locations.—The Committee understands it is ICE’s policy that enforcement actions at or near sensitive locations—identified by ICE as schools, healthcare facilities, places of worship, religious or civil ceremonies or observances, and public demonstrations—should generally be avoided, and require either prior approval from an appropriate supervisory official for exigent circumstances necessitating immediate action. The policy is intended to ensure that anyone seeking to participate in activities or utilize services provided at such locations are free to do so without fear or hesitation. The Committee directs ICE to follow this policy and to broaden the scope of the category to include: courthouses; bus stops; USCIS offices; mental health, emergency, and social services centers; and other locations where community impacts should be better balanced against ICE law enforcement requirements.
Further, within 180 days of the date of enactment of this Act, ICE is directed, in collaboration with other DHS entities as needed, to provide a public report on enforcement actions at sensitive locations since October 1, 2017. The report shall include the total number of enforcement actions at sensitive locations, broken down by: field office; type of sensitive location; whether prior approval was given; what type of exigent circumstances existed, if any; and the number of non-targeted individuals who were also apprehended. It should also contain information on the number of enforcement actions occurring at courthouses and bus stops for each field office, including the number of individuals apprehended at each location, broken down by targeted and non-targeted individuals.
Improving Conditions at ICE Field Offices and Sub-Offices.—The Committee is concerned about the conditions and lack of adequate infrastructure at ICE’s Enforcement and Removal Operations field offices and sub-offices that service migrants. The Committee under-
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stands that visitors who appear at these facilities for an appointment or processing may be required to wait inordinate amounts of time, without shelter or shade. Further, there may be insufficient restroom or drinking water infrastructure. The Committee has also been made aware that visitors who appear at these facilities for appointments may experience difficulty while attempting to confirm their appointment letters via phone due to insufficient capacity, and many visitors have had trouble contacting an ICE employee who can speak their native language, including Spanish. To address these conditions, the Committee directs ICE to work with the General Services Administration (GSA) to determine what steps must be taken and what additional infrastructure is necessary at facilities in order to improve conditions and processing times, as well as to determine how to improve planning and design for future ICE ERO facilities. ICE is directed to provide a report on its findings to the Committee within 180 days of the date of enactment of this Act. ICE is also directed to ensure that proper oversight of conditions at its ERO field offices, sub-offices, and contractor facilities is conducted by its quality assurance teams. Finally, the Committee encourages ICE to permit the distribution of food and water by outside individuals or advocates to visitors who are waiting to be seen.
Parental Interests.—In the execution of ERO activities, ICE is directed to ensure that field personnel, including ERO officers, are appropriately trained on all agency policies and procedures involving detained parents and legal guardians, including ICE’s directive on the Detention and Removal of Alien Parents or Legal Guardians and time of arrest protocols to minimize harm to children.
Phone Access in Detention.—To the greatest extent possible, the Committee expects ICE to apply the terms of the Lyon v. ICE, et al. Settlement Agreement regarding detainee telephone access to each of its detention facilities and directs ICE to brief the Committee on the status of providing such access within 90 days after the date of enactment of this Act. The briefing shall include a list of facilities that fail to provide access to free, confidential calls to attorneys and non-attorneys; a justification for each such failure; the period of performance for the contract with the facility (if applicable), along with any option periods; and the steps and a timeline for requiring each facility to comply.
Rape Prevention in Immigration Detention Facilities.—The Committee encourages ICE to collaborate with the National PREA Resource Center, which is supported by the Department of Justice, to help facilitate PREA compliance. Within 60 days after the date of enactment of this Act, ICE shall brief the Committee on its planned schedule for achieving 100 percent compliance with PREA requirements, the results of completed PREA audits, and an assessment of whether the standards are effective in protecting vulnerable populations.
Reporting on Removals.—The Department shall continue to submit data on the deportation of parents of U.S.-born children semiannually, as in prior years, and shall also report semiannually on removals of honorably discharged members of the armed services.
Reporting on Criminality.—ICE is directed to continue monthly reporting regarding criminality, as described in House Report 116– 9, and shall further differentiate such individuals detained as a re-
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37

sult of interior enforcement efforts versus those from border security operations.
Risk Classification Assessment.—The Committee is concerned about ICE’s inconsistent treatment of similarly situated individuals, to include decisions on whether to release or detain; length of time in detention; whether to require a bond and the amount of such bond; custody classification level of those detained; and community supervision level of those not detained. Not later than 180 days after the date of enactment of this Act, ICE, in collaboration with the Office of the Immigration Detention Ombudsman, is directed to brief the Committee on the results of a reevaluation of its Risk Classification Assessment (RCA) process and to provide recommendations to improve the process. The Committee directs that the recommendations provide a strong preference for using ATD, especially in support of interior enforcement efforts, and clear guidance to describe situations when detention must be used, such as when the officer can clearly demonstrate with individualized evidence that a migrant poses a flight risk or a risk to public safety.
Transgender Detainees.—The Committee directs ICE to limit the detention of individuals who self-identify as transgender to facilities subject to a contract formally modified pursuant to Attachment 1 of the June 19, 2015 ICE memo entitled ‘‘Further Guidance Regarding the Care of Transgender Individuals,’’ unless the individual has voluntarily declined placement in such a facility after being informed of the opportunity to do so.
U Visas.—The Committee recognizes the value of the U visa program in protecting victims of violent crime and promoting public safety by enabling criminal investigations. The Committee directs ICE to provide a report within 90 days of the date of enactment of this Act on the number of individuals deported with a pending U visa application or when a U visa application had been denied.

Mission Support and the Office of the Principal Legal Advisor
Increases to Support Transparency.—The recommendation includes increases above the request of $2,000,000 for the Law Enforcement Systems and Analysis division to address increased demands for immigration data and analysis, including Committee requests for information, and $2,000,000 for the Office of the Chief Financial Officer for additional capacity to address the growing workload.
Minor Construction and Improvements to ICE Facilities.—The recommendation includes an increase of $9,425,000 above the request to reduce the backlog of necessary repairs and improvements to address unsafe or unfit detention facility conditions, and an increase of $406,000 above the request to support an Office of the Principal Legal Advisor facility consolidation project.
PROCUREMENT, CONSTRUCTION, AND IMPROVEMENTS

Appropriation, fiscal year 2019 ......................................................... Budget request, fiscal year 2020 ....................................................... Recommended in the bill ................................................................... Bill compared with:
Appropriation, fiscal year 2019 ...................................................... Budget request, fiscal year 2020 ...................................................

$45,559,000 78,770,000 76,270,000
+30,711,000 ¥2,500,000

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The recommendation includes the following increases above the request: $45,000,000 for construction and facility improvements to address major projects on ICE’s facilities backlog list; and $2,500,000 for the U.S. Title 8 Aliens and Nationality Initiative (T– 8) to accelerate modernization efforts of ICE’s immigration information technology systems, data platforms, and reporting and analytics capabilities. The recommendation does not include $50,000,000 proposed in the request for facility projects to support prior year hiring initiatives that were not funded in fiscal years 2018 and 2019 appropriations.

TRANSPORTATION SECURITY ADMINISTRATION

Appropriation, fiscal year 2019 ....................................................... Budget request, fiscal year 2020 ..................................................... Recommended in the bill ................................................................. Bill compared with:
Appropriation, fiscal year 2019 .................................................... Budget request, fiscal year 2020 .................................................

$7,600,462,000 7,298,720,000 7,879,691,000
+279,229,000 +580,971,000

Mission
The Transportation Security Administration (TSA) is charged with protecting U.S. transportation systems, while facilitating the flow of travelers and commerce.

OPERATIONS AND SUPPORT

Appropriation, fiscal year 2019 ....................................................... Budget request, fiscal year 2020 ..................................................... Recommended in the bill ................................................................. Bill compared with:
Appropriation, fiscal year 2019 .................................................... Budget request, fiscal year 2020 .................................................

$7,410,079,000 7,115,195,000 7,648,384,000
+238,305,000 +533,189,000

The recommendation includes $533,189,000 above the request, including: $24,545,000 to annualize the 2019 pay raise; $118,305,000 to provide a 2020 pay raise; $45,000,000 to continue the Law Enforcement Officer Reimbursement Program; $58,800,000 to continue the Visible Intermodal Prevention and Response Team program; $81,633,000 to continue legally mandated staffing at certain exit lanes; and $204,906,000 to maintain current services.
DCA Access Standard Security Program.—The Committee encourages TSA to work with partner agencies and stakeholders to improve the DCA Access Standard Security Program (DASSP). TSA is directed to provide a briefing on the DASSP not later than 90 days after the date of enactment of this Act.
Federal Flight Deck Officer Program.—The Committee recommends $20,017,000 for the Federal Flight Deck Officer (FFDO) and Flight Crew Training program, an increase of $3,320,000 above the request to maintain the current pace of training. Recent administrative changes to the program should provide more flexibility and a substantive increase in FFDO enrollment and retention. The Committee directs TSA to provide a briefing not later than 60 days after the date of enactment of this Act on FFDO enrollment, training, and recertification.
General Aviation Representative.—The Committee understands that TSA has appointed a full-time general aviation representative, as authorized by Public Law 115–254. Within 60 days of the date

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March 26, 2020
Joseph V. Cuffari U.S. Department of Homeland Security Office of Inspector General / MAIL STOP 0305 245 Murray Lane SW Washington, DC 20528-0305
Dianne Witte Interim Field Office Director, New Orleans ERO U.S. Immigration and Customs Enforcement Diane.L.Witte@ice.dhs.gov
Lana Khoury Deputy Director of ERO Custody Programs U.S. Immigration and Customs Enforcement Lana.Khoury@ice.dhs.gov
Keith Deville Warden, Winn Correctional Center LaSalle Corrections Winnfield, LA 71483
Chad Wolf Acting Secretary U.S. Department of Homeland Security Washington, DC 20528
Matthew T. Albence Acting Director U.S. Immigration and Customs Enforcement Washington, DC 20536
Dr. Stewart D. Smith Assistant Director for ICE Health Service Corps. U.S. Immigration and Customs Enforcement Washington, DC 20528
Cameron Quinn Officer for Civil Rights and Civil Liberties
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DHS Office for Civil Rights and Civil Liberties Washington, DC 20528
RE: Detention Conditions Impacting the Health and Safety of LGBTQI/HIV+ Immigrants Detained at the Winn Correctional Center in Winnfield, LA
Dear Field Office Director Witte, Deputy Director Khoury, and Warden Deville:
We, the undersigned organizations,1 believe in protecting the livelihood, health, and overall well-being of LGBTQI/HIV+ immigrants.2 Accordingly, we write this letter to express our urgent concerns regarding the ongoing detention and civil rights violations of ​a group of LGBTQI/HIV+ immigrants who are being detained at the Winn Correctional Center (“Winn”) in Winnfield, LA​. Many of these individuals are transgender women. ​We are alarmed by the COVID-19 pandemic and the potential for irreparable harm including death for migrant detainees, especially for LGBTQI/HIV+ immigrants detained at Winn. ​We request ​a response to this letter by 5 PM on Friday, March 27, 2020​, with specific information detailing: 1) when ICE officials and the Warden at Winn will meet with us to discuss these conditions; and 2) when DHS officials will begin the necessary investigations.
For over 9 months, representatives of the Santa Fe Dreamers Project (“SFDP”) and Immigration Equality have visited and/or provided limited legal services to those LGBTQI/HIV+ immigrants detained at Winn. ​SFDP has been working with these individuals primarily through its El Paso office, as their cases were all initially handled through video-teleconference by the Otero Immigration Court. All of the individuals SFDP and Immigration Equality have spoken with are (or were) seeking asylum in the United States because of the persecution they survived in their countries of origin—in most cases, because of their gender identity, sexual orientation, or political beliefs. The majority of these individuals were detained for 5-6 months before ever seeing an Immigration Judge.
We begin with the following four premises:
● The safest and best place for all asylum-seekers is with their communities and families, not in immigration detention. We support the abolition of immigration detention. Detention of asylum-seekers should not be a part of the asylum process.
1 We write jointly from: Immigration Equality, Al Otro Lado, Detained Migrant Solidarity Committee, Gender Justice, Trans Latin@ Coalition, VisibiliT, and Santa Fe Dreamers Project. 2 LGBTQUI/HIV+ refers to individuals who identify as lesbian, gay, bi-sexual, transgender, queer, or intersex and those who have the human immunodeficiency virus.
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● This is especially true for LGBTQI/HIV+ individuals who the Department of Homeland Security (DHS) has previously determined to be especially vulnerable to the conditions of immigration detention. W​e condemn the prolonged detention of LGBTQI/HIV+ immigrants.​ We also urge ICE to immediately release all LGBTQI/HIV+ people from civil immigration detention.
● When the government exercises its discretion to detain an individual, it takes on a legal obligation to ensure that the person is safe and receives all medically necessary care.3 ICE should not expose LGBTQI/HIV+ immigrants to more harm by placing them in detention facilities that do not take into consideration the specific needs of these communities and restrict their access to care.
● The COVID-19 pandemic will expose already vulnerable migrant detainees to a currently untreatable and potentially deadly disease. Protective public health measures such as social distancing and self-quarantining are impossible in detained settings. LGBTQI/HIV+ immigrants are especially vulnerable in detention settings. Releasing detained LGBTQI/HIV+ migrants is the only viable option for improving their COVID-19 pandemic health outcomes.
Per the 2015 ICE Transgender Care Memorandum,​ ​ICE must determine ​a respectful, safe, and secure environment for transgender individuals in ICE custody.​ This is identified in the Memo as: appropriate medical care; presence of staff with special training to work with identified transgender individuals in ICE custody; a tailored detention plan as developed by a Transgender Classification and Care Committee; and provisions that ensure transgender individuals detained by ICE have access to safety, security, and the ability to meet their hygienic needs.4 The memorandum additionally mandates the consideration of an immigrant’s transgender status upon initial detention—with placement preference given to facilities that operate a protective custody unit for transgender individuals—as well as when any subsequent transfer is requested. Finally, the Transgender Care memo sets standards for safety, privacy, and medical care of transgender individuals detained by ICE.
3 United Nations General Assembly, ​International Covenant on Economic, Social, and Cultural Rights,​ Art. 12, December 16, 1966, https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx; ​Zadvydas v. Davis​, 533 U.S. 678, 679 (2001) (acknowledging that immigration detention is civil); ​Youngberg v. Romero,​ 457 U.S. 307, 315-16, 324 (1982) (finding civil detainee was entitled to adequate food, shelter, clothing, medical care, and reasonable safety under the Fourteenth Amendment). 4 For standards of care ​see also,​ U.S. ICE, Detention Operations Manual: Medical Care (2000), https://www.ice.gov/doclib/dro/detention-standards/pdf/medical.pdf; U.S. ICE, Performance-Based National Detention Standards 2011, https://www.ice.gov/detention-standards/2011.
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Nationally, these minimal standards to ensure the health and safety of LGBTQI/HIV+ individuals in immigration detention are not being met​. For example:
● In May 2018, the Center for American Progress published a study concluding that “LGBT people in ICE custody are 97 times more likely to be sexually victimized than non-LGBT people in [immigration] detention.5”
● On March 25, 2019, the ACLU of New Mexico wrote a joint letter with Las Americas and the Santa Fe Dreamers Project detailing the grave conditions faced by gay men and transgender women detained at the Otero County Processing Center.6
● On July 9, 2019, twenty-nine transgender women and gender non-conforming immigrants held at Cibola County Correctional Center in New Mexico called for an investigation into poor medical services - including HIV care-- and mistreatment at the facility.7 This prompted an investigation by the DHS Office of Civil Rights and Civil Liberties, which ultimately substantiated the claims of dangerously inadequate medical care and ordered the transfer of all “medically vulnerable individuals” from the facility—including all 26 transgender women detained at Cibola at the time.
● On September 25, 2019, the Transgender Law Center, along with a number of concerned organizations, wrote to ICE regarding the agency’s failure to provide adequate medical
5 Sharita Gruberg, “ICE’s Rejection of Its Own Rules Is Placing LGBT Immigrants at Severe Risk of Sexual Abuse,“ Center for American Progress, https://www.americanprogress.org/issues/LGBTQI-rights/news/2018/05/30/451294/ices-rejection-rules-pl acing-lgbt-immigrants-severe-risk-sexual-abuse/ 6 Letter Kristin Greer-Love et al, to Wayne Cox, Acting Field Office Director of El Paso ERO (March 25, 2019), https://www.aclu-nm.org/sites/default/files/field_documents/advance_copy_of_3.25.2019_las_americas_s anta_fe_dreamers_project_aclu-nm_letter_to_dhs_re_otero.pdf​; see also Robert Moore, “Gay, transgender detainees allege abuse at ICE Facility in NM,” The Washington Post, (March 25, 2019), https://www.washingtonpost.com/immigration/gay-transgender-detainees-allege-abuse-at-ice-facility-in-n ew-mexico/2019/03/25/e33ad6b6-4f10-11e9-a3f7-78b7525a8d5f_story.html 7 Laura Gomez, “Migrants held in ICE’s only transgender unit plead for help, investigation in letter,” ​AZ Mirror​, July 9, 2019 https://www.azmirror.com/2019/07/09/migrants-held-in-ices-only-transgender-unit-plea-for-help-investig ation-in-letter/​.
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and mental health care to LGBTQI people and people living with HIV in immigration detention.8
● On January 14, 2020, members of Congress wrote to ICE demanding that the agency stop placing transgender migrants at risk of sexual abuse and assault in ICE custody.9
We now write to give you a brief summary of the on-going civil rights and civil liberties violations that have been documented at the ​Winn Correctional Center​.​ This information comes from in-person conversations, telephone communications, and written statements from dozens of LGBTQI/HIV+ individuals detained at Winn over the past year. Our clients and friends report the following:
Widespread Abuse and Mistreatment of LGBTQI/HIV+ individuals. ​LGBTQI/HIV+ individuals detained at Winn are not housed in an insulated unit that offers them additional protection from other detained individuals. Even self-identified transgender women are held with large cisgender male populations, where they face elevated risks of sexual assault, discrimination, and abuse.
● P. is one of two transgender women forced to share shower and bathroom facilities with nearly 50 cisgender men. The cisgender males detained in her unit regularly watch P. and other transgender women while they use the restroom and shower. She reports that men sometimes become aroused while watching her. P. tries to shower in the middle of the night to avoid being watched.
● Other women report having developed urinary tract infections because, out of fear of assault, they are forced to hold off from urinating for prolonged periods of time.
● M. is another transgender woman incorrectly housed amongst the all cisgender male population at Winn. M. reports that cisgender men detained at Winn often threaten her with violence and use homophobic and transphobic slurs toward her, such as “faggot.”
8 Letter from Transgender Law Center et al., to Dr. Stewart Smith, Assistant Director for ICE Health Services Corps et al. (Sept. 25, 2019), https://www.cvt.org/sites/default/files/attachments/u101/downloads/complaint_on_LGBTQ_detention_fin al_.pdf 9 Letter Mike Quigley et al, to Chad Wolf, Acting Secretary DHS and Matthew Albence, Acting Director ICE (Jan 14, 2020), https://quigley.house.gov/sites/quigley.house.gov/files/01.14.20%20ICE%20Letter.pdf
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● D. reports that one cisgender man threatened to fight her for being LGBTQI/HIV+. After that she did not go outside for recreation for fears she would be assaulted. On August 17, 2019, Winn staff forced her to go outside to play soccer with the cisgender men. Once on the field, and far removed from the play, the same man tackled D., breaking her leg. The officer refused to take a report of how D.’s leg was broken.
● J. reports severe verbal harassment and threats from cisgender men detained at Winn. One man called her “the plague of the earth” and threatened to insert a stick into her anus to “make her a man.”
● Many of the transgender women report attempts by cisgender men detained at Winn to force them to engage in sexual acts. When women refuse, the men threaten to kill them and call the women “faggots” or “whores.”
● LGBTQI/HIV+ individuals at Winn report a fear of humiliation or retaliation from Winn staff if they submit a PREA report to the facility.
Failure to Provide Access to Adequate Medical and Mental Health Care. ​Winn medical staff fails to provide timely and adequate medical care. This includes access to medically necessary hormone therapy and other gendering affirming care. The problem of inadequate medical care is particularly significant for people living with life-threatening illnesses like HIV, tuberculosis, and syphilis. HIV care is woefully inadequate at Winn, and HIV positive individuals are subjected to conditions and practices that put their life and health in serious jeopardy.
● After months of intense physical and verbal harassment by cisgender males detained at Winn, J., a transgender woman, attempted to take her life. She survived and was subsequently held in solitary confinement for a prolonged period of time. She reports being held naked for several days. She also reports Winn staff regularly passing by her cell to laugh at her and call her “crazy.”
● G., an individual living with HIV, reports a variety of serious issues with his care. G. has experienced numerous interruptions to his antiretroviral regime in detention, including going for days at a time without receiving his HIV medication. His medication is also given to him at inconsistent times each day potentially leading to serious side effects, including the kidney problems he is now experiencing. G.’s most recent urine analysis showed that his urine contained blood. G.’s HIV medication was changed while in detention, but there is no indication that the proper resistance testing was done before
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making the switch. G was not told what his new medication is, nor was he administered the proper blood work to track his “CD4” count, which is the essential indicator to track HIV health. Health care staff at Winn mistakenly measured his C4 count – a test that has nothing to do with HIV monitoring rather than his CD4 count. G. had to point this out to Winn staff and request that the appropriate blood test be provided. G. waited months to be seen by an HIV specialist, and when he final saw the specialist, he was not provided an interpreter and so could not communicate with the provider. G. has no way to monitor his own HIV care because ICE refuses to provide him with copies of his own medical records.
● M. has severe spinal issues. She reports only being allowed to see a doctor three times over the course of eight months in detention. She often experiences acute pain, but when she asks to see the doctor the request is delayed or denied.
● P. reported that she started experiencing pain in a tooth in December 2019. P. was told that because Winn does not have a dentist on-site, she would have to wait for medical attention and was given ibuprofen for pain. Two months later, she saw a dentist who extracted her tooth. During the two months, she lost a significant amount of weight and suffered intense pain.
● After breaking her leg, a doctor told D. that she was losing muscle in her leg and was in danger of losing her ability to walk. D. was prescribed physical therapy and given an elastic band for resistance training. However, officers at Winn confiscated the resistance band, thus denying D. her prescribed treatment.
● M. has also experienced severe tooth pain. She was told she needed to be in custody for six months before she could see a dentist.
● J. suffers from high levels of anxiety and erratic fainting spells. She has fainted on a number of occasions and hit her head in the unit. No changes have been made to her medical regime to reduce or manage her anxiety or incidents of fainting.
● P. receives medication for depression and is administered pills prior to bed at 9:00 pm, and with breakfast around 3:00 am. Overhead lights are kept on throughout the night. On weekends, bedtime is pushed back to midnight while breakfast remains at 3:00 am. This intentionally destabilizes those who are detained so that they cannot achieve an adequate sleep cycle, leaving them cognitively and emotionally impaired.
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● H. lost 20 pounds due to an intolerable tooth pain which left her unable to chew food. She was left in pain for over 2 months before she was able to see a dentist.
● The majority of the transgender women detained at Winn have made formal requests to receive medically necessary, gender-affirming care, including hormone replacement therapy. These requests have been denied.10 Some women report being told that they had “not been detained long enough” to receive hormone replacement therapy.
● One transgender woman reported a doctor at Winn telling her she was not, in fact, a transgender woman because she had not yet undergone surgery altering her genitalia. This was the basis for denying her request to receive hormone replacement therapy.
● Another woman was strongly discouraged from beginning hormone replacement therapy due to a medical provider’s stated concern that once the hormones took effect, she would suffer further, more-severe harassment from detained cisgender males due to the changes in her physical appearance.
● Nearly all LGBTQI/HIV+ individuals have submitted multiple formal requests for copies of their medical and mental health records to aid in their legal cases. All of these requests have been either denied or unacknowledged.
Discrimination and Verbal Abuse by Facility Staff. ​At times, Winn staff use homophobic and transphobic slurs against LGBTQI/HIV+ individuals and refuse to use the pronouns for transgender women that correspond with their gender identity.​ ​It is apparent that guards at Winn have not received adequate training on how to care for or work with transgender people.
● One transgender woman reports having been forcefully pushed in the middle of her back by guards at least three times, including when she was merely standing and reading her bible. Winn staff do not respect her name or pronouns.
10 Gender affirming care is often medically necessary for transgender individuals, and denial of such care while in custody arguably rises to the level of cruel and unusual. ​See Edmo v. Corizon, Inc​., 935 F.3d 757 (9th Cir. 2019); ​De'lonta v. Johnson,​ 708 F.3d 520 (5th Cir. 2019); ​Fields v. Smith,​ 653 F.3d 550 (7th Cir. 2011)).
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● Winn Officers regularly threaten transgender women with solitary confinement for arbitrary reasons, such as interpreting for other detained individuals.
● D., a gay male, reports being subject to regular homophobic verbal harassment from guards, as well as intimidation. On one instance, D. approached a guard in a crowded dining hall to make a request. Because D. was timid in his approach, the guard shouted at him: “Why don’t you go look for your boyfriend’s balls so you will have the courage to speak to me.” After his sexual orientation was exposed so publicly, D. reported an increased fear to use public spaces or bathroom facilities.
● One officer threatened a transgender woman detained at Winn with physical harm, going as far as to say he would beat to death any detained individuals who made him angry.
● Winn Officers regularly order the transgender women to “walk like men, not faggots” when they are escorted around the detention center. A cisgender female officer once walked pass a group of transgender women, instructed them to look at her buttocks, and stated “this is how a real woman walks.”
● H. reports that Winn staff enforce rules more harshly for LGBTQI/HIV+ individuals while cisgender individuals are allowed to break the same rules.
● Reports indicate that few, if any, of the Winn staff are fluent Spanish-speakers. Staff rely on a limited group of bilingual detained individuals to interpret and translate instructions, grievances, legal documents, and general procedures.
● The LGBTQI/HIV+ individuals at Winn report that they know of guards laughing at and destroying written grievances and requests they submit to the facility.
Failure to Timely Adjudicate Parole Requests or Consider Transfer Requests. ​Deportation Officers overseeing the cases of LGBTQI/HIV+ individuals routinely ignore parole requests submitted by the individuals or their legal counsel. The requests which are acknowledged, first remain pending for weeks, even months before a determination is made. This results in the prolonged detention of parole eligible individuals, who unnecessarily suffer irreparable harm in the interim.
● On January 21, 2020, counsel from Immigration Equality submitted a parole request on behalf of J. Counsel followed up with the client’s Deportation Officer (DO) by phone at
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least a dozen times and left numerous messages but DO never answered or returned their phone calls. On or around February 15, DO interviewed J. to determine his parole eligibility. During the interview, J. filled out a questionnaire provided to him by ICE, where J indicated that he was HIV-positive and needed immediate medical attention. J. also stated he did not feel comfortable in the dorm because he is gay. On or around February 22, DO denied J.’s parole request. He refused to provide J. a copy of Notification Declining to Grant Parole. J. made at least three requests for the copy of the Notification, but he did not receive a response. ● K. applied for parole without legal counsel on or around November 11, 2020. No response was received. On February 13, 2020, counsel from Immigration Equality submitted a comprehensive parole request on behalf of K, indicating that she was a medically vulnerable individual. The DO conducted a parole interview with K. but gave no indication that he had reviewed the parole request from Immigration Equality. On or around February 18, 2020, the DO denied K.’s parole without justification. On March 5, 2020, K. reported to the medical department that there was blood in her urine due to a severe kidney issue, which had been explained in her prior parole request. It was only then her parole was approved.
● Attorneys from Santa Fe Dreamers Project have submitted multiple individual and group transfer requests on behalf of the LGBTQI/HIV+ individuals at Winn—in October 2019, December 2019, January 2020 and February 2020. Few of these requests were answered, let alone acknowledged. Requests that were responded to were denied without explanation or justification. When legal counsel requested written determinations, including the factors considered and how current conditions are in compliance with the Transgender Care memo, no response was received.
The above information reflects the egregious conditions at the Winn Correctional Center and reveals blatant homophobia, transphobia, and a disregard for basic human safety. The above-mentioned individuals have submitted regular complaints to DHS, all of which remain unaddressed. In essence, t​hese LGBTQI/HIV+ asylum-seekers are indefinitely trapped in a detention center where they are at a heightened risk of medical negligence, sexual harassment and disproportionate systemic violence.
COVID-19:
On March 11, 2020, World Health Organization (WHO) Director-General Dr. Tedros Adhanom said that, “COVID-19 can be characterized as a pandemic.” The CDC notes that pandemics
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happen when new “viruses emerge which are able to infect people easily and spread from person to person in an efficient and sustained way.” The WHO says that “there is no evidence that current medicine can prevent or cure” COVID-19.
Detained individuals face an elevated risk of contracting COVID-19. According to Dr. Homer Venters, “When COVID-19 arrives in a community, it will show up in jails and prisons. This has already happened in China, which has a lower rate of incarceration than the U.S.”11 Or, as Dr. Anne Spaulding put it in a presentation to Correctional facility employees, “a prison or jail is a self-contained environment, both those incarcerated and those who watch over them are at risk for airborne infections. Some make an analogy with a cruise ship. Cautionary tale #1: think of the spread of COVID-19 on the Diamond Princess Cruise Ship, January 2020. Cautionary tale #2: Hundreds of cases diagnosed in Chinese prisons.”12
According to Dr. Chauolin Huang, “2019-nCoV caused clusters of fatal pneumonia with clinical presentation greatly resembling SARS-CoV. Patients infected with 2019-nCoV might develop acute respiratory distress syndrome, have a high likelihood of admission to intensive care, and might die”13 The CDC recently reported that, “Older people and people of all ages with severe underlying health conditions — like heart disease, lung disease and diabetes, for example — seem to be at higher risk of developing serious COVID-19 illness.”14According to another source, Jialieng Chen, “[M]ost of those who have died had underlying health conditions such as hypertension, diabetes or cardiovascular disease that compromised their immune systems.” 15
11 Dr. Homer Venters, ​Four Ways to Protect Our Jails and Prisons from Coronavirus​, The Hill, Feb. 29, 2020, https://thehill.com/opinion/criminal-justice/485236-4-waysto-protect-our-jails-and-prisons-from-coronavirus?rnd=1582932792. 12 Dr. Anne Spaulding, ​Coronavirus and the Correctional Facility: for Correctional Staff Leadership,​ Mar. 9, 2020, https://www.ncchc.org/filebin/news/COVID_for_CF_Administrators_3.9.2020.pdf. 13 Chaolin Huang, et al., ​Clinical Features of Patients Infected with 2019 Novel Coronavirus in Wuhan, China,​ 395 The Lancet 497 (2020), https://doi.org/10.1016/S0140-6736(20)30183-5 (also available at https://www.sciencedirect.com/science/article/pii/S0140673620301835). 14 Centers for Disease Control and Prevention, ​Coronavirus Disease 2019 (COVID-19), People at Higher Risk and Special Populations,​ Mar.7, 2020, https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/index.html. 15 Jieliang Chen, ​Pathogenicity and transmissibility of 2019-nCoV—A Quick Overview and Comparison with Other Emerging Viruses,​ Microbes and Infection, Feb. 4, 2020, https://doi.org/10.1016/j.micinf.2020.01.004.
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On March 23, 2020 the CDC released COVID-19 related guidance for detention facilities.16 This guidance urges detention facilities to:
● Implement social distancing of at least 6 feet between each individual.
● Provide incarcerated/detained persons and staff no-cost access to: soap, running water, hand drying machines or paper towels, and tissues, and hand sanitizer.
● Several times per day, clean and disinfect surfaces and objects that are frequently touched.
● Restrict transfers of incarcerated/detained persons to and from other jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding.
● Restrict incarcerated/detained persons from leaving the facility while under medical isolation precautions, unless released from custody.
● Note that if group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons.
● Expect shortages of all personal protective equipment including N95 respirators, face mask, eye protection, disposable examination gloves, and medical isolation gowns.
● Note that incarcerated/detained populations have higher prevalence of infectious and chronic diseases and are in poorer health than the general population, even at younger ages.
The CDC recognizes that ​detained populations are already medically vulnerable​. 17
Our LGBTQI/HIV+ clients at Winn are reporting troubling conditions specific to the COVID-19
16 Centers for Disease Control, ​Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities,​ March 23, 20202. https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-dete ntion.html. 17 ​Id.​
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pandemic. They include lack of medical attention for a detainee who had a days long fever, a sympton of COVID-19, crowded conditions, and a lack of sanitation supplies for detainees and staff alike.
● K. reports that as of March 20th Winn Officials had not addressed COVID-19 concerns with immigrant detainees, including failing to instruct detainees on handwashing and social distancing.
● Hand sanitizer is not available.
● During the week of March 16-20, thirty to thirty-five new detainees arrived at Winn and were immediately housed with the preexisting detained population.
● Dormitories are not being cleaned or sanitized.
● Some dormitories have 50 people in the same room sharing one sink, one toilet, and no meaningful access to medical attention or sanitation.
● A experienced a week long fever without being quarantined or tested for COVID-19.
These reports, taken with the above mentioned civil rights violations and existing lack of adaquate medical care, are alarming. Social distancing at Winn is virtually impossible. Winn is primed to have COVID-19 spread through the detained population like wildfire. It will be devastating and deadly. This is especially true for the already vulnerable LGBTQI/HIV+ immigrant population. Medically vulnerable detainees, especially LGBTQI/HIV+ migrants and those who are otherwise immunocompromised, should be released immediately.
Winn and ICE’s Legal Obligations: Over the past year, ICE and Winn have repeatedly failed to meet their most basic legal obligations to care for LGBTQI/HIV+ individuals in detention, raising serious questions about their compliance with the Prison Rape Elimination Act (“PREA”), ICE Performance-Based National Detention Standards (“PBNDS”18), and the U.S. Constitution.
18 U.S. I​MMIGRATION​ ​AND​ C​USTOMS​ E​NFORCEMENT​, P​ERFORMANCE​-B​ASED​ N​ATIONAL​ D​ETENTION​ S​TANDARDS 2011 (2016), https://www.ice.gov/doclib/detention-standards/2011/pbnds2011r2016.pdf.
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The most comprehensive of these standards, the 2011 Performance-Based National Detention Standards (2011 PBNDS), updated in 2016, set forth extensive medical care requirements for ICE. For instance, the 2011 PBNDS require appropriate physical, dental, and mental health care as well as pharmaceutical services, 24-hour access to emergency care, and timely responses to medical complaints for all detained people.19 They also require language services for individuals with limited English proficiency during any physical or mental health appointment, treatment, or consultation.20
The 2011 PBNDS also mandates that special consideration be given to people at risk of sexual assault, including individuals who have self-identified as members of the LGBTQI community.21 With specific regard to transgender individuals, the 2011 PBNDS require that those individuals who have been receiving hormone therapy when taken into ICE custody, maintain continued access to such therapy.22 The guidelines further demand that detained transgender people have access to “mental health care, and other transgender-related health care and medication based on medical need.”23 Once again, this complaint and others demonstrate that the DHS is failing to meet these standards and LGBTQI/HIV+ people are experiencing immense suffering as a result.
In addition to these generalized detention standards, ICE also issued a 2015 Memorandum concerning the care and safety of transgender immigrants in ICE custody. More specifically, the memorandum includes contract modifications for facilities to ensure access to adequate healthcare, including access to hormone therapy. The memorandum also states that during initial processing or risk classification assessment of an individual, the detention facility staff should inquire about a person’s gender identity24 and make individualized placement determination to ensure the person’s safety, including whether detention is warranted. Where feasible and appropriate, ICE should house transgender immigrants in facilities that are equipped to care for transgender people.25
19 U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards 2011, 257-81 (2016), https://www.ice.gov/doclib/detention-standards/2011/pbnds2011r2016.pdf. 20 ​Id. ​at​ ​264. 21 ​Id. ​at​ ​135. 22 ​Id. ​at 273. 23 ​Id. ​at 274. 24 U.S. Dep’t. of Homeland Security, ​Further Guidance Regarding the Care of Transgender Detainees,​ 2 (June 19, 2015) https://www.ice.gov/sites/default/files/documents/Document/2015/​TransgenderCareMemorandum.pdf. 25 ​Id.
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Our position is that ICE and its contractors blatantly disregard the health and safety of LGBTQI/HIV+ individuals in its custody and repeatedly fail to meet not only the federally required standards of care, but even its own internal detention standards. The countless reports of outright denial of medical treatment, combined with the continuous mistreatment and abuse of LGBTQI/HIV+ individuals, clearly demonstrates that DHS cannot house LGBTQI/HIV+ migrants safely.
Accordingly, we the undersigned organizations, ​demand the following actions be immediately taken to ensure the health, safety, dignity, and due process​ of the LGBTQI/HIV+ individuals presently detained at the Winn Correctional Center.
1. Grant all LGBTQI/HIV+ individuals detained at Winn immediate humanitarian parole and release them to family or community members who can properly care for them.
2. Schedule a meeting within one (1) week of receipt of this letter between U.S. Immigration and Customs Enforcement (“ICE”), the acting Warden at the Winn Correctional Center, and representatives of the undersigned organizations to discuss our concerns about the conditions in which ICE is confining LGBTQI/HIV+ individuals at the Winn Correctional Center.
3. Finally, we urge CRCL to use its authority under federal law26 to schedule a visit to Winn to fully investigate the civil rights and civil liberties violations outlined in this letter; recommend policy changes to address these violations; and oversee Winn and ICE’s implementation of policy changes.
In ordinary times it would be appropriate to suggest that an alternative to immediate release would be the immediate transfer of all LGBTQI/HIV+ individuals detained at Winn to Protective Care Units for LGBTQI/HIV+ individuals. However, the CDC recommends against transfers at this time to limit the spread of COVID-19.27 Therefore, the only responsible course of action is the immediate granting of humanitarian parole to all LGBTQI/HIV+ migrants detained at Winn. We are willing to discuss in detail the conditions described in this letter, with any individuals, agencies, or representatives willing to recommend and advocate for policy changes in line with the above recommendations. We urge ICE and those in charge of the Winn Correctional Center to make immediate changes to comply with the law, provide on-going oversight to ensure its
26 6 U.S.C. § 345(a). 27 Centers for Disease Control, ​Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities,​ March 23, 20202. https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-dete ntion.html.
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facilities and contractors do not fall out of compliance in the future, and immediately grant humanitarian parole to all LGBTQI/HIV+ migrants detained at Winn. If you have any questions about the above information please contact attorney, Héctor Ruiz, at hector@santafedreamersproject.org​ or Executive Director, Allegra Love, at allegra@santafedreamersproject.org​. Dated​: March 25, 2020
Sincerely, Santa Fe Dreamers Project
Immigration Equality Al Otro Lado
Detained Migrant Solidarity Committee Familia: Trans Queer Liberation Movement
Gender Justice LA Trans Latin@ Coalition VisibiliT CC’d:
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Case 1:20-cv-01072-CRC Document 4-20 Filed 04/23/20 Page 18 of 18 Members of the House Appropriations Subcommittee on Homeland Security Members of the House Subcommittee on Border Security, Facilitation, and Operations Members of the Senate Appropriations Subcommittee on Homeland Security Members of Senate Subcommittee on Homeland Security and Governmental Affairs Members of Congressional LGBTQ Equality Caucus Members of Congressional Transgender Equality Task Force
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September 25th, 2019
Dr. Stewart D. Smith Assistant Director for ICE Health Services Corps. Enforcement and Removal Operations Immigration and Customs Enforcement Department of Homeland Security Washington, DC 20528
Mr. Matthew Albence Acting Director U.S. Immigration and Customs Enforcement Department of Homeland Security Washington, DC 20528
Mr. Mark A. Morgan Acting Commissioner U.S. Customs and Border Protection Department of Homeland Security Washington, DC 20528
Ms. Cameron Quinn Officer for Civil Rights and Civil Liberties Office for Civil Rights and Civil Liberties Department of Homeland Security Washington, DC 20528
Mr. Joseph V. Cuffari Inspector General Office of Inspector General Department of Homeland Security Washington, DC 20528
RE: Failure to provide adequate medical and mental health care to LGBTQ people and people living with HIV in immigration detention facilities
Dear Dr. Smith, Mr. Albence, Mr. Morgan, Ms. Quinn, and Mr. Cuffari:
We, the undersigned organizations, file this complaint on behalf of current and formerly detained lesbian, gay, bisexual, transgender, and queer individuals and people living with HIV (LGBTQ, PLWHIV) in immigration detention facilities. This complaint details recent accounts of Immigration and Customs Enforcement’s (ICE) and Customs and Border Protection’s (CBP) provision of egregiously inadequate medical and mental health care, jeopardizing the health, safety, and lives of individuals in federal custody while they exercise their legal right to pursue their immigration claims and seek protection in the United States. ICE and CBP’s continued failure to provide such basic care is in clear violation of the U.S.
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Constitution, statutory law, and applicable detention standards.1 This failure has led to the deaths of multiple LGBTQ, PLWHIV migrants, and continues to cause irreparable harm.
In light of the substantial evidence of ICE's inability to safely house and adequately care for LGBTQ, PLWHIV individuals in its custody, we call for ICE to exercise its parole authority and release all LGBTQ, PLWHIV individuals on their own recognizance. We also urge the Office of Inspector General (OIG) to work with the Office for Civil Rights and Civil Liberties (CRCL) to immediately conduct a systemic investigation into the provision of medical and mental health care to LGBTQ, PLWHIV individuals in ICE and CBP custody. We call on ICE to comply with the OIG’s January 29, 2019 recommendation and use its contracting tools to hold accountable those detention facilities that fail to meet the applicable standards of care by ending their contracts and imposing financial penalties. Finally, we call on DHS to strengthen its oversight of all facilities to identify and promptly remedy abuses and medical neglect within these centers.
The Abuse of LGBTQ, PLWHIV Individuals in DHS Custody Is Well-Documented
The widespread abuse and mistreatment of LGBTQ, PLWHIV individuals in ICE custody is welldocumented. The Department of Homeland Security (DHS) has already received countless reports of LGBTQ, PLWHIV individuals’ experiences with verbal, sexual and physical violence, medical negligence, inhumane housing conditions, and overuse of solitary confinement in both public and private detention centers.2 Rather than being confined to a few detention centers, these reports are widespread and consistent, demonstrating the systemic inability of DHS to meet even basic standards of care for LGBTQ, PLWHIV migrants.
For example, just two months prior to Johana Medina’s death, a complaint was sent to DHS detailing the rampant discrimination and violence inflicted on LGBTQ individuals at Otero County Processing Center, the detention center where Johana Medina died as a result of the substandard care she received in DHS custody.3 Even after this complaint was received and after Johana Medina’s death, ICE continues to deny transgender women and gay and bisexual men at Otero basic health care and provides misinformation on how to access hormone therapy. In fact, an investigative report published in 2018 demonstrated that DHS has received more than 200 complaints of abuse and mistreatment from individuals housed at Otero
1 The United States is additionally obligated under international law to provide adequate health care for detained immigrants. Namely, the United States is a signatory to the International Covenant on Economic, Social, and Cultural Rights, which guarantees everyone a right to physical and mental health. United Nations General Assembly, International Covenant on Economic, Social and cultural Rights, Art. 12, December 16, 1966, https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx. 2 See National Immigrant Justice Center, Submission of Civil Rights Complaints Regarding Mistreatment and Abuse of Sexual Minorities in DHS Custody, available at http://www.immigrantjustice.org/sites/immigrantjustice.org/files/OCRCL%20Global%20Complaint%20Letter%20April%20 2011%20FINAL%20REDACTED.pdf; Sharita Gruberg, “Dignity Denied: LGBT Immigrants in U.S. Immigration Detention,” (Center for American Progress 2013) available at https://www.americanprogress.org/wpcontent/uploads/2013/11/ImmigrationEnforcement.pdf; Human Rights Watch, “Do You See How Much I’m Suffering Here? Abuse Against Transgender Women in US Immigration Detention,” (Human Rights Watch 2016) available at https://www.hrw.org/sites/default/files/report_pdf/us0316_web.pdf; Letter from Rep. Kathleen Rice to DHS Secretary Kirstjen Nielsen (May 30, 2018)(available at https://kathleenrice.house.gov/uploadedfiles/2018.05.30_lgbt_immigrants_in_ice_detention_letter_to_sec_nielsen.pdf). 3 ACLU New Mexico, Santa Fe Dreamers Project, and Las Americas: Immigrant Advocacy Center; Detention Conditions Impacting the Safety and Well-Being of LGBTQ Immigrants in the Otero County Processing Center, https://www.aclunm.org/sites/default/files/field_documents/advance_copy_of_3.25.2019_las_americas_santa_fe_dreamers_project_aclunm_letter_to_dhs_re_otero.pdf
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County Processing Center, and yet, Otero continues to operate today and DHS has failed to take adequate actions to improve conditions at the facility.4
Another complaint filed by the American Immigration Council (Council) and the American Immigration Lawyers Association (AILA) in 2018 detailed the lack of access to basic medical care and mental health care at the Denver Contract Detention Facility in Aurora, Colorado.5 DHS failed to meaningfully address the concerns raised in the complaint, and one year later, in June 2019, the Council and AILA supplemented the complaint with additional evidence of inadequate medical and mental health care.6 Specifically, the complaint includes the case of a transgender woman who reported she was denied access to hormone treatment, and was subjected to serious sexual and verbal harassment by facility guards and other detained individuals.
On July 9th, 2019, twenty-nine transgender women and non-binary individuals held at Cibola County Correctional Center in New Mexico called for an investigation into poor medical services—including HIV care—and mistreatment at the facility.7 In April, 2019, seven organizations, including the American Civil Liberties Union, investigated Cibola and reported that the center had inadequate medical and mental health care, abuses related to solitary confinement, discrimination and verbal abuse, and inappropriate meals, among other issues.8
The OIG’s own investigation of five ICE facilities, including Santa Ana City Jail where the previous transgender housing pod was located and Otero County Processing Center, “identified problems that undermine the protection of detainees’ rights, their humane treatment, and the provision of a safe and healthy environment” and “potentially unsafe and unhealthy detention conditions.”9 In an earlier inspection of the Essex County Correctional Facility, the OIG noted the “serious issues” it identified “not only constitute violations of ICE detention standards but also represent significant threats to detainee health and safety.”10
Rather than take effective action to address the numerous complaints of abuse and mistreatment of LGBTQ, PLWHIV individuals in detention, DHS has focused on subjecting an increasing number of people to these horrific conditions. The number of individuals in immigration detention is at a historical
4 Craig, Nathan, and Margaret Brown Vega. “‘Why Doesn’t Anyone Investigate This Place?’: Complaints Made by Migrants Detained at the Otero County Processing Center, Chaparral, NM Compared to Department of Homeland Security Inspections and Reports.” El Paso, TX: Detained Migrant Solidarity Committee (DMSC) and Freedom for Immigrants (FFI), 2018. 5 Failure to provide adequate medical and mental health care to individuals detained in the Denver Contract Detention Facility, https://www.americanimmigrationcouncil.org/sites/default/files/general_litigation/complaint_demands_investigation_into_in adequate_medical_and_mental_health_care_condition_in_immigration_detention_center.pdf 6 SUPPLEMENT—Failure to Provide Adequate Medical and Mental Health Care to Individuals Detained in the Denver Contract Detention Facility, https://www.americanimmigrationcouncil.org/sites/default/files/general_litigation/complaint_supplement_failure_to_provide _adequate_medical_and_mental_health_care.pdf 7 Laura Gomez, “Migrants held in ICE’s only transgender unit plead for help, investigation in letter,” AZ Mirror, July 9, 2019 https://www.azmirror.com/2019/07/09/migrants-held-in-ices-only-transgender-unit-plea-for-help-investigation-in-letter/. 8 Detention Conditions Impacting the Safety and Well-Being of Immigrants in the Cibola County Correctional Center in Milan, New Mexico. April, 2019 https://www.aclunm.org/sites/default/files/field_documents/2019_04_15_nm_stakeholders_letter_to_crcl_re_cibola_county_correctional_cent er.pdf 9 OIG-18-32 10 OIG-19-20
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high and keeps rising, despite the fact that many of these individuals are eligible for release. By the department’s own count, 300 individuals who identify as transgender have been in the custody and supposed care of ICE since October of 2018 alone. This is the highest number of transgender migrants in the care of the U. S. government ever recorded. At the same time, DHS has failed to take measures to ensure the basic health and safety of this population. It is unjustifiable for the U.S. Government to subject an increasing number of individuals, including those qualified as vulnerable populations such as LGBTQ, PLWHIV individuals, to these dangerous conditions.
DHS Has Consistently Demonstrated It Is Incapable of Providing Adequate HIV Care
The stories included in this complaint shed light on the effects of growing roadblocks in access to basic healthcare as well as lifesaving HIV care in detention due to chronic, systemic medical neglect and lack of oversight in detention. While ICE has adopted three sets of detention standards, including PBNDS 2011, it does not require contractors to adopt any recent standards when it enters into new contracts or contract extensions. The result is a “patchwork system in which facilities are subject to differing standards and some are subject to no standards at all”11, and people are outright denied access to care, delayed in receiving medical attention, and are left in conditions that exacerbate their physical and mental health ailments.
The risks that accompany substandard HIV care are serious, and they arise from the inconsistent or delayed access to treatment. This is why 2011 PBNDS standards have aimed—without success—to secure uninterrupted access to HIV/AIDS medication for people in detention.
The U. S. government recognizes that poor adherence to HIV treatment is associated with less effective viral suppression. The U. S. Department of Health and Human Services underscores that strict adherence to antiretroviral therapy is key to sustained HIV suppression, reduced risk of drug resistance, and survival, as well as decreased risk of HIV transmission.12 An unsuppressed viral load may risk the immediate health of HIV positive individuals and it will also risk creating treatment resistance. If patients fail to respond to their given drug regimen, they are moved to second line drugs, which may be more expensive or difficult to manage. 13,14
Evidence has shown that individuals with HIV who keep adherence to HIV medicine as prescribed can stay virally suppressed and thus have effectively no risk of transmission. In fact, the Centers for Disease Control and Prevention’s (CDC) HIV Treatment as Prevention Technical Fact Sheet reports a 96% reduction in HIV transmission risk among heterosexual mixed-status couples where the HIV-positive partner started antiretroviral therapy (ART) immediately versus those delaying ART initiation.15 Far too
11 https://immigrantjustice.org/research-items/toolkit-immigration-detention-oversight-and-accountability 12 US Department of Health and Human Services, “Guidelines for the use of antiretroviral agents in HIV-1-infected adults and adolescents”. Revised July 2019. https://aidsinfo.nih.gov/guidelines/html/1/adult-and-adolescent-arv/ 13 Kenneth L. Schaecher, Addressing Adherence Challenges Associated With Antiretroviral Therapy: Focus on Noninfectious Diarr, The Importance of Treatment Adherence in HIV, September 29, 2013. https://www.ajmc.com/journals/supplement/2013/a472_sep13_hiv/a472_sep13_schaecher_s231 14 Jane Mwangi, CDC Kenya (Centers for Disease Control and Prevention), Our Research in Kenya: Finding Ways to Improve HIV Treatment Access and Outcomes, https://blogs.cdc.gov/global/2012/07/26/our-research-in-kenya-finding-waysto-improve-hiv-treatment-access-and-outcomes/ 15 Centers for Disease Control and Prevention CDC, Evidence of HIV Treatment and Viral Suppression in Preventing the Sexual Transmission of HIV. HIV Treatment as Prevention Technical Fact Sheet. https://www.cdc.gov/hiv/pdf/risk/art/cdchiv-art-viral-suppression.pdf
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many people in detention are outright denied access to HIV-related care or experience significant delays. This delay of treatment is cruel, counterintuitive to ending HIV transmission, and causes irreparable harm.
Reports of Deficient Medical and Mental Health Care for LGBTQ, PLWHIV Individuals
Below are multiple accounts of medical negligence and mistreatment of LGBTQ, PLWHIV individuals in detention centers across the country. This by no means represents all of the stories of abuse and mistreatment, but rather provides a glance at the systemic harms and inadequate care provided to LGBTQ, PLWHIV individuals under the care of DHS and CBP. There are many stories not included here for fear of reprisal.
Detention Centers Managed by CoreCivic
Cibola County Correctional Center - Milan, New Mexico A. is a transgender woman from El Salvador who has been detained in Cibola County Detention Center for almost 20 months. A.’s medical records indicate she suffered from advanced syphilis and, according to a pro bono medical evaluation, her medical records indicate that her condition has progressed to neurosyphilis, increasingly affecting her cognitive abilities. Despite this evidence and her counsel’s advocacy, ICE has continuously failed to provide her penicillin, a well-known and easily accessible medication. ICE has also repeatedly refused to release A. from detention so she can get the medical treatment she requires.
Otay Mesa Detention Center - San Diego, California G. is a 34-year-old HIV positive Salvadoran trans woman and activist who worked to advance trans rights in Latin America and the Caribbean prior to applying for asylum and was detained in male housing for more than 6 months in Otay Mesa in 2017. During this time, her HIV medication was withheld. Additionally, she was misdiagnosed with tuberculosis. Rather than treating her HIV, she was overmedicated in attempts to treat tuberculosis she did not have.
Otay Mesa Detention Center - San Diego, California Y.E. is a transgender woman from Mexico. She was brutally raped, tortured, beaten and kept hostage by the cartels for months because she dressed as a woman. Again and again she was gang raped. The rapes caused tears in her anus and rectum. The rapes also resulted in her contracting HIV. After she presented herself at the border, lawfully asking for asylum, she was placed in a detention center and was taken off medication for HIV for a significant amount of time. In addition to requesting treatment for HIV, she repeatedly asked for help with the tears in her anus/rectum. The medical staff at the detention center refused to address it because the tearing did not happen at the facility and because they believed it to be too invasive. Because no treatment was given, she caught an infection that resulted in anal bleeding. She was held in custody for months before finally being released on parole.
Otay Mesa Detention Center - San Diego, California S.A.G.C. is an HIV positive transgender woman who has been repeatedly abused and raped because of anti-transgender bias in her home country of El Salvador. The severity of the abuse in her country was such that during the credible fear interview both the asylum officer and the translator needed a moment because of the horrors she described. Although her health was deteriorating in detention and she felt harassed for being a transgender woman in an all-male pod, she was kept in custody until she was granted a $2500 bond—even though she had letters of support from her sponsor and the community that would be
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accepting her. That bond amount was prohibitive to SA.G.C. and it was only after a bond fund paid for her release that she was able to get out of detention.
Otay Mesa Detention Center- San Diego, California B.C.H. is an asylee from El Salvador. He fled El Salvador after his life was threatened by gangs on account of his sexual orientation and political opinion. B.C.H. entered Otay Mesa Detention Center in May of 2018 weighing 220 pounds. When he was released in September of 2018, he weighed only 190 pounds. B.C.H. required serious psychological support due to his traumatic history of sexual abuse and assault. While at Otay Mesa, he mentioned to Al Otro Lado that he was seeing a psychologist, but at one point, despite the threat of imminent death should he return to El Salvador, he was certain he wanted to stop fighting his case and return to El Salvador due to the conditions at Otay Mesa. We are unsure what, if any, psychological treatment he was receiving, and his unaddressed trauma combined with his extreme weight loss raised serious red flags regarding the adequacy of medical care at the facility. Despite his severe weight loss and mental trauma, his parole bond was set at $10,000, an amount impossible for him to pay.
Otay Mesa Detention Center- San Diego, California S.Y.M.M. is a 47-year-old gay man from Honduras. He is blind in one eye and suffers from a myriad of health conditions, including hypertension and the growth of a cyst on his head. S.Y.M.M.’s ICE Medical Records indicate that the pain in his head resulting from the cyst on his scalp worsened significantly while detained. Additionally, at one point, one of his teeth became severely infected, and he was never treated for that ailment. S.Y.M.M.'s parole request was denied, and he was only able to leave the facility when Al Otro Lado submitted a new request. Even so, his bond was set at a prohibitively high $5,000. He was only released when a community organized to pay his bond.
Otay Mesa Detention Center- San Diego, California R.E.P.L. is a transgender woman from Guatemala who was sexually abused by her father and her uncles. When she tried to escape the constant sexual abuse of the men in her family, local police tracked her down, assaulted her, and returned her to them. When she finally escaped her family, R.E.P.L. was taken in by a woman who was affiliated with the 18th Street Gang. This woman forced her under duress to be a sex worker, and R.E.P.L. was held captivate for two years. Police gang-raped R.E.P.L. when she tried to escape that woman’s house and she had no choice but to flee Guatemala to seek protection in the United States. En route to the United States, R.E.P.L. was again violently gang-raped while in Mexico and believes she contracted HIV. R.E.P.L. requested asylum in January of 2019 and was subsequently detained at Otay Mesa Detention Center. She expressed her concern to staff at the facility that she was HIV positive, making countless requests in writing for an HIV test. Al Otro Lado staff reached out on numerous occasions to R.E.P.L.’s deportation officer to ensure she received the necessary testing but never received a response. While R.E.P.L. was detained at Otay, there was an outbreak of several infectious diseases, including mumps and chicken pox. Therefore, it was critical for her to know whether she had HIV or not, as her immune system may have been severely compromised. The lack of any initiative by the facility to ensure she was tested for HIV put her health at serious, life-threatening risk. Despite her traumatic past and serious health concerns, the immigration judge refused to grant her release on her own recognizance and set a bond in the amount of $1,500. She was only released after a community organized to pay her bond.
Cibola County Correctional Center- Milan, New Mexico C.L. is a transgender woman from Peru who was in detained for nearly five years. She was transferred from Santa Ana Jail in California to Cibola County Correctional Center when Cibola first opened its
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transgender unit. While in Cibola, she repeatedly requested medical care for Hepatitis C, which she’d been denied at Santa Ana, and continued to be denied treatment after the transfer. She was in need of urgent medical care several times while in detention, and recalls once being in the hospital for two weeks. She was shackled by her ankles and her wrists and two guards were posted outside her door. She wondered why they would do this when she was in no condition to escape.
Otay Mesa Detention Center- San Diego, California Y is a transgender HIV-positive woman from Mexico. Upon her arrival at the border, Y was detained in San Ysidrio, where immigration officials confiscated her HIV medicine and kept her in a freezing room for nine days. Y asked three times for her HIV medication back and was denied each time. Y was later transferred to Otay Mesa Detention Center, where she was once again denied her life-saving medication for an entire month. Furthermore, the Otay Mesa medical staff refused to provide adequate treatment for the injuries Y suffered during a brutal sexual assault in Mexico. In Otay Mesa, Y was housed with the male population and was harassed by two detained men and an ICE official. When she tried to make complaints about the harassment to the facility manager, the manager dismissed her by referring to her complaint as “gossip.”
Otay Mesa Detention Center - San Diego, California and Hudson County Correctional Facility Kearny, New Jersey E is a gay man from Honduras. Upon arrival to the United States, E was detained at the Otero County Processing Center and, later, at the Hudson County Correctional Facility. E faced continuous harassment in both detention facilities from guards and other detained individuals because of his sexual orientation. In Hudson, the officers and other individuals in detention constantly referred to E as “gay” instead of his name or other appropriate forms of address. E also had serious dental problems while he was in Hudson. However, the medical staff refused to provide E with the necessary medical treatment, in contradiction to the applicable Performance-Based National Detention Standards.
Otay Mesa Detention Center- San Diego, California P is a 38-year old Honduran citizen and transgender woman living with HIV. She entered without inspection at the southern border in California on February 2, 2019, and was detained at Otay Mesa for about 6 months. In Honduras, local police stopped P because she was dressed in women’s clothes and then they raped her. P’s employer in Honduras continuously harassed and threatened her until one day they hired people to beat her up in front of several witnesses who came forward. While she was detained at Otay Mesa, her HIV medication was delayed and she never received hormone therapy. As a result, her mental and physical health deteriorated.
Detention Centers Managed by GEO Group, Inc.
Adelanto Detention Center - Adelanto, California J. is a transgender man from El Salvador who has been detained in Adelanto Detention Center for about nine months. Before being detained, J. had been receiving gender-affirming hormone therapy for many years. Since he has been detained, however, J. has not received gender-affirming hormone treatment despite numerous requests. J.’s mental and physical health have significantly deteriorated as a result.
Adelanto Detention Center - Adelanto, California J. is a gay man, a national of Mexico, and a Franco-Gonzalez class member, who was deemed -- by an immigration judge -- as non-competent to represent himself during his removal proceedings due to his mental health. J. was diagnosed with the following mental health disorders: major neurocognitive disorder
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due to multiple etiologies with behavioral disturbance; amphetamine-type substance use disorder, severe, in a controlled environment; major depressive disorder, recurrent, severe with psychotic symptoms; unspecified neurodevelopmental disorder (history of a learning disability). Due to signs of his deteriorating health, in January 2018 his legal representative requested HIV testing for J. Despite being court ordered, the HIV test was not performed for more than seven months. J.’s medical records indicate that in August of 2018 he received a positive HIV diagnosis, and that GEO medical staff began antiretroviral treatment, over eight months after his legal representative first requested it.
Adelanto Detention Center - Adelanto, California I.S.I identifies as LGBTQ and has a diagnosis of bipolar disorder. She has been in ICE custody since September of 2018. Despite complications with her mental health, she was found competent by an immigration judge and denied a free appointed immigration attorney. Since then, she has attempted to die by suicide at least four times. Her attorney at the Los Angeles LGBT Center was unable to locate her client for over two weeks during one of these periods. She is not safe in ICE Custody and does not feel safe. She reports that the medical care she is receiving is not helping her.
South Texas Detention Facility - Pearsall, Texas A. is an HIV+ transgender woman asylum seeker who has been detained at the South Texas Detention Center (“STDC”) since December 2014. A. has suffered from severe medical problems and improper treatment since her arrival at STDC. She has lost more than 25 pounds (and is now severely underweight at 89 pounds) since the start of detention, and has been suffering from insomnia, nausea, and loss of appetite because of the side effects of her medication, and possible incompatibility of her hormone therapy and antiretroviral drugs administered by the detention center. She only gets 3 hours of sleep each night, or sometimes none at all. Because of the symptoms from her medication, she struggles to consume and retain food, and relies on vitamins purchased with her own funds from the commissary to obtain nutrition and sustenance.
Although A receives nutritional shakes to supplement her meals, she continues to experience nausea, and the underlying problems of her medication possibly interfering with each other, or mis-prescribed medication has yet to be sufficiently addressed.
In June and July, 2019, she experienced two incidents where she fainted and lost consciousness for hours. In the first incident, other individuals in detention asked the guards for medical help, but either because of a delay in dispatch or response, medical services providers did not reach A. until hours later. In the second incident, which occurred in the late morning, she was taken to an outside facility, where she was told that her lungs were swollen and that she had a sinus infection, and merely given acetaminophen and returned to the facility in the afternoon. Unfortunately, even though A has raised these issues with the facility and with ICE, her medical issues have not been comprehensively addressed, and she continues to rapidly lose weight as a result of her nausea and lack of sleep, and her health continues to deteriorate. She expresses a fear of dying at STDC.
Aurora Detention Facility - Aurora, Colorado L.M. is a transgender woman who was detained for six months in Aurora, where she was detained with men and was harassed on a regular basis. Soon after her arrival, she reported to detention center staff that she needed to continue the hormone treatment she had been receiving. Staff responded that she would be put on a list to see a doctor. However, L.M. did not receive a doctor’s appointment for over two months. At the appointment, the medical provider told her they would need to consult her medical records to find her hormone prescription, and if they could not find it, would need to refer her to a specialist. She did not
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receive any updates for another two months, at which point she received an appointment with a specialist, which was then canceled. L.M. finally received the appointment and her prescription the day before her release but never received the hormones.
Due to the abrupt end to her treatment, L.M. experienced nausea, difficulty sleeping, lack of appetite, mood changes, and depression during the six months she was detained. Due to the harassment she faced for being a transwoman detained with men, she reported these incidents to the detention center guards but their only response was to put her in solitary confinement, claiming it was for her own safety. She was put in solitary confinement several times for up to a month at a time, a practice that can rise to the level of inhuman and degrading treatment and even torture.
Detention Facilities Managed by LaSalle Corrections
Irwin County Detention Center- Ocilla, Georgia S. is a bisexual woman from Jamaica who is HIV positive and has been residing in the U.S. since she was four years old. She was abandoned and became homeless when she was around ten years old and was sexually exploited throughout her teenage years. Given her prostitution-related charges, she has been forced to remain in ICE custody throughout the pendency of her proceedings. Since being detained, she has frequently gone days without her HIV medication. She has to write a letter to the warden every month to receive her HIV medicine and if she does not write the letter, she does not receive her refill. Occasionally, she receives the wrong brand of HIV medication. The head of medical at the facility has also made it difficult for S. to receive blood work, leaving S. unable to monitor her levels. In addition, a nurse disclosed S.'s HIV status to the guards.
Irwin County Detention Center- Ocilla, Georgia C, an east Asian trans man, has been held in immigration detention for almost two years. For the first 19 months, he was held in solitary confinement solely because he is a transgender man. While in solitary, his health suffered due to inadequate medical care, including not receiving his blood pressure medicine, being given the wrong treatment for a severe illness which led to weeks of extreme stomach pain, and being fed food that made his diabetes worse. At one, point while he was getting a hormone shot, the person giving it to him was so incompetent that the syringe broke while inside his leg. Further, C has also been identified and confirmed to be a victim of trafficking by federal law enforcement. In fact, federal law enforcement confirmed that his convictions were tied to human trafficking but still, ICE refuses to release him because of his convictions. C was recently transferred out of Irwin Detention Center, but is still being held in immigration detention, despite ICE’s awareness of his victim status.
Detention Centers Managed by ICE
Krome Service Processing Center- Miami, Florida D. is a gay, HIV positive man from Russia. He had already applied for asylum, when he was unjustly detained in a Florida detention facility in 2017, while returning from a trip to the U.S. Virgin Islands. He went multiple days without access to antiretroviral medication and developed an opportunistic infection. Because he has a compromised immune system, this was life threatening. When he asked to see a doctor, D. was forced to spend multiple days in a freezing waiting room. ICE refused to release him until the Associated Press ran a story about his mistreatment.
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DHS is Violating Legal Standards by Refusing Medical Treatment and Delaying Care
The inhumane and punitive conditions described above are in direct contravention of established law and norms. It is the responsibility of DHS to hold the detention facilities under its purview to the legal requirements and to appropriately penalize them when they continuously harm migrants in their care.
Constitutional Protections
The Fifth Amendment Due Process Clause of the U.S. Constitution protects substantive rights of “all persons” present in the United States, including detained immigrants.16 As such, people in detention are entitled to, at a bare minimum, adequate medical care, as well as adequate food, shelter, clothing, and reasonable safety.17
Immigration detention is civil, not criminal, in nature.18 Unlike criminal detention, civil detention cannot be punitive and any restriction on a person’s liberty must be rationally related to a legitimate governmental goal.19 In the context of criminal detention, the Eight Amendment clearly prohibits “deliberate indifference” on the part of the detention staff to a detained individual’s “serious medical need[s].”20 Courts have held that people in civil detention are entitled to a standard of care greater than – or at the very least, equal to – the standard of care afforded to people in criminal detention.21 Indeed, the Ninth Circuit has held that, unlike people in criminal detention, civilly confined individuals need not prove “deliberate indifference” to demonstrate a violation of their Constitutional rights.22
The accounts of abuse and neglect detailed above describe profoundly deficient physical and mental health care, including the denial of life-saving HIV medication. As such, ICE and CBP have violated the higher Eighth Amendment standard, showing deliberate indifference to serious medical needs and failing to provide critical care. These failures on the government’s part, which have caused detained immigrants to endure debilitating pain, suffer serious injury and have placed them in mortal danger, amount to Constitutionally prohibited punishment. It is clear that LGBTQ, PLWHIV immigrants cannot be housed safely in detention and therefore should be released.
16 Zadvydas v. Davis, 533 U.S. 678, 693 (2001). 17 See Youngberg v. Romeo, 457 U.S. 307, 315-16, 324 (1982) (finding civil detainee entitled to adequate food, shelter, clothing, medical care and reasonable safety under the Fourteenth Amendment). 18 Zadvydas, 533 U.S. at 690 (acknowledging that immigration detention is civil). 19 Bell v. Wolfish, 441 U.S. 520, 535-539 (1979). 20 Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“prison official’s deliberate indifference to an inmate’s serious medical needs is a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment”). 21 Jones v. Blanas, 393 F.3d 918, 931-34 (9th Circ. 2004), cert denied, 546 U.S. 820 (2005) (a civilly detained person is entitled to “‘more considerate treatment’ than his criminally detained counterparts. . . . Therefore, when a [civil] detainee is confined in conditions identical to, similar to, or more restrictive than those in which criminal counterparts are held, we presume that the detainee is being subjected to ‘punishment.’” (internal citations omitted)); see also Youngberg v. Romero, 457 U.S. 307, 321-32 (1982) (“Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.”). 22 Jones 393 F.3d at 934; see also Hydrick v. Hunter, 500 F.3d 978, 994 (9th Cir. 2007) (“[T]he Eighth Amendment provides too little protection for those whom the state cannot punish.” (emphasis in original, citations omitted)).
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Statutory Law
Various federal and state statutes also protect detained immigrants. For instance, the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 provide protections from discrimination and mandate access to adequate and reasonable accommodations for LGBTQ, PLWHIV immigrants with physical and mental disabilities who are detained by ICE and CBP.23 Likewise, the Prison Rape Elimination Act imposes national standards for the prevention, reduction, and punishment of prison rape, including standards for the provision of physical and mental health services to individuals who have been the victim of sexual abuse.24 The stories above illustrate that not only are detention centers failing to provide even the most basic care to LGBTQ, PLWHIV after experiencing sexual violence, they are placing people in inhumane segregation leading to a further deterioration of physical and mental health. This has forced many LGBTQ, PLWHIV individuals to abandon viable claims for asylum and return to the violent conditions from which they fled in the first place. This is the very outcome asylum protections were created to prevent.
Detention Standards
In addition to these legal obligations, ICE and CBP must comply with their own set of standards, which are designed to protect detained immigrants. Notably, as currently applied, these standards have failed to translate into adequate physical and mental health care for LGBTQ, PLWHIV individuals due to inconsistent application, insufficient oversight and lack of accountability. In other words, ICE and CBP are failing to comply with their own standards.
The most comprehensive of these standards, the 2011 Performance-Based National Detention Standards (2011 PBNDS), updated in 2016, set forth extensive medical care requirements for ICE. For instance, the 2011 PBNDS require appropriate physical, dental, and mental health care as well as pharmaceutical services, 24-hour access to emergency care, and timely responses to medical complaints for all detained people.25 They also require language services for individuals with limited English proficiency during any physical or mental health appointment, treatment, or consultation.26 The stories above illustrate that far too many LGBTQ, PLWHIV individuals are flat out denied access to care or are left waiting for months on end for treatment.
For PLWHIV, the facility has more specific requirements. For example, it must provide medical care consistent with national recommendations and guidelines disseminated through the U.S. Department of Health and Human Services, the CDC, and the Infectious Diseases Society of America, and must provide access to all medications for the treatment of HIV currently approved by the FDA.27 Moreover, adequate supplies of such medications must be kept on hand to ensure newly detained individuals are able to
23 Americans With Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (1990), http://library.clerk.house.gov/reference-files/PPL_101_336_AmericansWithDisabilities.pdf.; Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (1973), https://www.gpo.gov/fdsys/pkg/STATUTE-87/pdf/STATUTE-87-Pg355.pdf. 24 6 C.F.R. §§ 115.81 - 115.83 (2014). 25 U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards 2011, 257-81 (2016), https://www.ice.gov/doclib/detention-standards/2011/pbnds2011r2016.pdf. 26 Id. at 264. 27 Id at 263.
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continue with their treatments without interruption.28 Detained immigrants are entitled to request an HIV test at any time.29 Clearly, this is not happening.
The 2011 PBNDS also mandate that special consideration be given to people at risk of sexual assault, including individuals who have self-identified as members of the LGBTQ community.30 With specific regard to transgender individuals, the 2011 PBNDS require that those individuals who were receiving hormone therapy when taken into ICE custody, maintain continued access to such therapy.31 The guidelines further demand that detained transgender people have access to “mental health care, and other transgender-related health care and medication based on medical need.”32 Once again, this complaint and others demonstrate that DHS is failing to meet these standards and transgender people are experiencing immense suffering as a result.
The other two national ICE standards — the National Detention Standards (NDS), issued in 2000 and the 2008 PBNDS – while less comprehensive than the 2011 PBNDS, also provide guidelines to ensure the health and safety of detained immigrants. These guidelines include provisions that establish access to health services,33 mental health screenings and treatment plans,34 and suicide prevention protocols.35 These standards also require detention facilities to provide medical treatment to PLWHIV.36
In addition to these generalized detention standards, ICE also issued a memorandum concerning the care of detained transgender immigrants in 2015. The memorandum sets forth guidance to ensure the safety of transgender immigrants in ICE’s custody. More specifically, the memorandum includes contract modifications for facilities to ensure access to adequate healthcare, including access to hormone therapy. The memorandum also states that during initial processing or risk classification assessment of an
28 Id. 29 Id. at 263. 30 Id. at 135. 31 Id. at 273. 32 Id. at 274. 33 U.S. Immigration and Customs Enforcement, Detention Operations Manual: Medical Care (2000), https://www.ice.gov/doclib/dro/detention-standards/pdf/medical.pdf.; U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards: Medical Care, 1 (2008), https://www.ice.gov/doclib/dro/detention-standards/pdf/medical_care.pdf. 34 U.S. Immigration and Customs Enforcement, Detention Operations Manual: Medical Care, 3 (2000), https://www.ice.gov/doclib/dro/detention-standards/pdf/medical.pdf.; U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards: Medical Care, 13-14 (2008), https://www.ice.gov/doclib/dro/detention-standards/pdf/medical_care.pdf. 35 U.S. Immigration and Customs Enforcement, Detention Operations Manual: Suicide Prevention and Intervention (2000), https://www.ice.gov/doclib/dro/detention-standards/pdf/suciprev.pdf.; U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards: Suicide Prevention and Intervention, 1-2 (2008), https://www.ice.gov/doclib/dro/detentionstandards/pdf/suicide_prevention_and_intervention.pdf. 36 U.S. Immigration and Customs Enforcement, Detention Operations Manual: Medical Care, 7 (2000), https://www.ice.gov/doclib/dro/detention-standards/pdf/medical.pdf.; U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards: Medical Care, 7-8 (2008), https://www.ice.gov/doclib/dro/detention-standards/pdf/medical_care.pdf.
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individual, the detention facility staff should inquire about a person’s gender identity37 and make an individualized placement determination to ensure person’s safety, including whether detention is warranted. Where feasible and appropriate, ICE should house transgender immigrants in facilities that are equipped to care for transgender people.38 ICE also has a Directive on Gender Dysphoria and Transgender Detainees which applies to all IHSC personnel and requires an IHSC medical provider to complete a physical examination for transgender individuals within two business days of intake and that a behavioral health provider must also perform a mental health evaluation for transgender patients within the same timeframe.39 Furthermore, IHSC “must initiate and/or continue hormone therapy for [gender dysphoria] detainees as clinically indicated and in accordance with the IHSC Clinical Guidelines for the Treatment of GD.”
Similarly, CBP has a set of standards to provide for the health and safety of individuals in its custody. These standards require CBP officials to inspect detained people for “any signs of injury, illness, or physical or mental health concerns . . . ,”40 and in cases of emergency, CBP officials must immediately call medical services.41 The standards also note that individuals known to be on life-sustaining or lifesaving medical treatment, LGBTQ people, and individuals with mental or physical disabilities may require additional care and oversight.42 Additionally the standards require that during transportation of a detained person, CBP officials must be on alert for signs of medical symptoms, and provide or seek medical care in a timely manner.43
While the strength of protections accorded by different detention standards varies, even the weakest standards set minimum requirements for the health and safety of detained people. Unfortunately, however, as the experiences of LGBTQ, PLWHIV individuals detailed in this letter demonstrate, ICE and CBP routinely fail to comply with the most basic requirements.
DHS Cannot Safely House LGBTQ, PLWHIV Individuals and Must Fix the Broken Oversight System that Allows These Offenses to Continue with No Accountability
ICE and CBP blatantly disregard the health of LGBTQ, PLWHIV individuals and repeatedly fail to not only meet legally required standards of care but even their own detention standards. The countless reports of outright denial of medical treatment and the continuous maltreatment clearly demonstrate that DHS cannot house LGBTQ, PLWHIV individuals safely. Furthermore, there is no reason to keep LGBTQ, PLWHIV people in detention in the first place.
Further, DHS is failing to meet their responsibility of oversight. DHS’s own reports demonstrate that contracted agencies who are responsible for investigations do not take their responsibilities seriously. What’s more, even when medical neglect and mistreatment is substantiated, DHS rarely uses its authority
37 U.S. Dep’t. of Homeland Security, Further Guidance Regarding the Care of Transgender Detainees, 2 (June 19, 2015) https://www.ice.gov/sites/default/files/documents/Document/2015/TransgenderCareMemorandum.pdf. 38 Id.
39 IHSC Directive: 03-25 effective March 15, 2017.
40 U.S. Customs and Border Protection, National Standards on Transport, Escort, Detention, and Search, 14 (Oct. 2015), https://www.cbp.gov/sites/default/files/assets/documents/2017Sep/CBP%20TEDS%20Policy%20Oct2015.pdf. 41 Id. at 17. 42 Id. at 19. 43 Id. at 6.
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to implement penalties and address the conditions that led to the harm in the first place. For example, in a report looking at 2018 and 2019 inspection reviews of ICE detention facilities, the OIG concluded that ICE’s monitoring systems do not ensure adequate oversight or systematic improvements in detention conditions, with some deficiencies remaining unaddressed for years.44 Further, the OIG found that ICE did not adequately hold detention facility contractors accountable for their lack of compliance with performance standards because they failed to use contracting tools to hold them accountable. 45
With this in mind, we demand that: ● First and foremost, ICE release all LGBTQ, PLWHIV people that are currently detained on their own recognizance. ● ICE comply with the OIG’s January 29, 2019, recommendation and use its contracting tools to hold accountable those detention facilities that fail to meet these standards for care by imposing financial penalties and cancelling contracts for facilities that consistently fail to meet the standards. ● The DHS OIG work with the CRCL to immediately conduct a systemic investigation into the provision of medical and mental health care to LGBTQ, PLWHIV individuals in ICE custody ● DHS must strengthen its oversight of facilities and improve its audits of facilities, ensure timely cooperation of components with OIG and CRCL investigations, increase its use of unannounced inspections, and improve grievance procedures and take meaningful measures to end retaliation against individuals in custody who exercise their right to file a grievance. ● DHS must ensure that all people in detention are aware of their legal rights through developing and disseminating information that details the medical care that they are entitled to. ● Ensure that people are not held in CBP longer than the minimal amount of time it takes for processing, no longer than 24 hours. ● Ensure that CBP provide all persons in custody with timely medical screenings by a licensed health professional and require an EMT or other certified health professional to be on-duty and available to give medical attention at all times in CBP processing and holding stations. Ensure that the health professionals are competent on transgender and HIV related health care. ● Create a thorough, independent, and regular investigation process and standards to ensure that CBP is meeting designated standards and to document incidents of neglect and abuse. Develop specific policies that detail penalties for CBP facilities with documented cases of abuse and medical neglect.
Conclusion
We were deeply saddened and angered to learn of the death of Johana Medina Leon, who died on June 1st, 2019 after spending seven weeks in ICE custody. Her death came almost a year to the day of the death of Roxsana Hernandez, another transgender woman who should not have been detained and who died while in ICE custody. Both of these women experienced medical neglect and the stories in this complaint demonstrate that, tragically, the circumstances around their deaths are not outliers but in fact the norm for the treatment of transgender, as well as lesbian, gay, bisexual, and people living with HIV in ICE and CBP custody. The well-documented mistreatment of LGBTQ, PLWHIV individuals demonstrates that ICE and CBP are unable to adequately care for LGBTQ, PLWHIV people, or really any individuals, in their care.
44 Office of Inspector General (OIG), ICE’s Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements, https://www.oig.dhs.gov/sites/default/files/assets/2018-06/OIG-18-67-Jun18.pdf 45 OIG, ICE Does Not Fully Use Contracting Tools to Hold Detention Facility Contractors Accountable for Failing to Meet Performance Standards, https://www.oig.dhs.gov/sites/default/files/assets/2019-02/OIG-19-18-Jan19.pdf
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Despite the frequent and ongoing complaints made to DHS, poor oversight and lack of accountability allows these conditions to continue. Neither DHS nor the detention centers that the department is responsible for overseeing are above the law and should receive appropriate consequences for these egregious offenses. If you have any questions about the above information, please contact Ash Stephens at Ash@transgenderlawcenter.org or Sharita Gruberg at sgruberg@americanprogress.org. Sincerely, Transgender Law Center Black LGBT Migrant Project Familia Trans Queer Liberation Movement Al Otro Lado Las Americas Immigrant Advocacy Center Center for American Progress Los Angeles LGBT Center Freedom for Immigrants Santa Fe Dreamers Project Southern Poverty Law Center Immigration Equality Center for Victims of Torture National Immigrant Justice Center National Center for Transgender Equality
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Case 1:20-cv-01072-CRC Document 4-23 Filed 04/23/20 Page 2 of 3 PO Box 8009
Santa Fe, NM 87504 Tel: (505) 490-2789 Fax: (505) 672-7912 allegra@santadredreamersproject.org www.santafedreamersproject.org
April 17, 2020
To Whom-May-Concern:
We are writing this letter in support and anticipation of all transgender identified individuals being released from detention as soon as possible. The Santa Fe Dreamers Project is a non profit legal services organization that provides free legal representation and advocacy to detained transgender individuals nationwide. We also support transgender individuals when they leave detention to help ensure a smooth transition into life in the US and that individuals are supported and informed to proceed with their legal cases. We have helped resettle transgender individuals from detention to 11 different states and 20 major us cities. We have also been a part of assisting with several large scale release events in New Mexico, Washington, Colorado, and Texas. If transgender individuals are released from detention as a result of this litigation, we will ensure that all of their humantariant needs are met including but not limiting food, shelter, transportation, clothing and medical care.
We understand that there may be a concern that releasing several dozen transgender individuals at the same time could be chaotic, but because of our extensive history supporting transgender people after being released from detention, we know that that the plan we have in place will be successful. In fact, this week, 8 of our clients were released from detention with almost no prior notice from the government However, because we have experience organizing for releases, we activated and managed the situation capably. We worked closely with legal services groups and humanitarian and LGBTQ support groups in Denver. We quickly raised money to purchase a block of hotel rooms for two weeks to facilitate quarantine before proceeding with their individual release plans.
The nature of our work in each detention center requires relationships with on the ground legal, humanitarian, and LGBTQ support groups at every site. Additionally, we work closely with major national partners who work in transgender rights and the liberation of immigrants from detention. Some of these partners include: RAICES, Casa de Paz, Trans Queer Pueblo, Florence Project, RMAIN, ISLA, Transgender Law Center, Freedom for Immigrants, National Immigrant Justice Center, TransLatina Coalition, Familia, Gender Justice LA, VisibiliT, LA LGBTQ Center, Black LGBTQIA Migrant Project, Queer Detainee Empowerment Project, Transcend

Case 1:20-cv-01072-CRC Document 4-23 Filed 04/23/20 Page 3 of 3 PO Box 8009
Santa Fe, NM 87504 Tel: (505) 490-2789 Fax: (505) 672-7912 allegra@santadredreamersproject.org www.santafedreamersproject.org
Arizona, Diversidad Sin Fronteras, Washington Immigrant Solidarity Network, and Entre Hermanos. Our partners in these local and nationwide coalitions, are ready and excited to swiftly organize for local releases. We are in an even more advantageous position because the Transgender Law Center has already secured nearly 100 thousand dollars to support the costs of hotel rooms and food throughout quarantine.
We are organized and funded. We recognize that a massive release could be considered challenging but we are prepared for this possibility. The energy, the cost, and the work it will take to coordinate housing and care for these individuals is easily worth securing their safety from the abject danger of detention during a deadly pandemic.
Please do not hesitate to contact me with concerns.
Sincerely,
Allegra Love Executive Director, Santa Fe Dreamers Project

Case 1:20-cv-01072-CRC Document 4-24 Filed 04/23/20 Page 1 of 2

Case 1:20-cv-01072-CRC Document 4-24 Filed 04/23/20 Page 2 of 2
April 16, 2020 To Whom It May Concern: I am the General Counsel of Wellspring Philanthropic Fund. Our foundation is prepared to provide Transgender Law Center a grant of twenty-five thousand dollars ($25,000) if transgender people are released from immigration detention as a result of its litigation. This grant may only be used to cover the humanitarian needs of transgender people released from detention, including but not limited to: housing, clothing, food, medical care and transportation. If you have any questions about this grant, please contact me. My information is below. Thank you. Sincerely,
Jennifer Reynoso General Counsel Wellspring Philanthropic Fund jreynoso@wpfund.org

Case 1:20-cv-01072-CRC Document 4-25 Filed 04/23/20 Page 1 of 2

Case 1:20-cv-01072-CRC Document 4-25 Filed 04/23/20 Page 2 of 2
April 15, 2020
To Whom It May Concern: My name is Francisco Buchting and I am the Vice President of Grants, Programs and Communications of Horizons Foundation. Horizons Foundation is a community foundation that has made millions of dollars in grants since 1980. Our foundation is prepared to provide Transgender Law Center a grant of $15,000 dollars if transgender people are released from immigration detention as a result of this litigation. This grant can only be used to cover the humanitarian needs of transgender people released from detention including but not limited to: housing, clothing, food, medical care and transportation. If you have any questions about this grant, please contact me. My information is below. Thank you for your time. Sincerely,
Francisco O. Buchting, Ph.D. Vice President of Grants, Programs, and Communications Horizons Foundation Email: fbuchting@horizonsfoundation.org Phone: (415) 398-2333 x116 Fax: (415) 398-4733 550 Montgomery Street, Suite 700 San Francisco, CA 94111 www.horizonsfoundation.org

Case 1:20-cv-01072-CRC Document 4-26 Filed 04/23/20 Page 1 of 2

Case 1:20-cv-01072-CRC Document 4-26 Filed 04/23/20 Page 2 of 2
Kolibri Foundation
To Whom It May Concern:
Our foundation is prepared to provide Transgender Law Center a grant of $15,000 if transgender people are released from immigration detention as a result of this litigation. This grant can only be used to cover the humanitarian needs of transgender people released from detention including but not limited to: housing, clothing, food, medical care and transportation. If you have any questions about this grant, please contact me. My information is below. Thank you for your time.
Sincerely,
Eileen Farbman President Kolibri Foundation Eileen.farbman@gmail.com (914) 260-0931

Case 1:20-cv-01072-CRC Document 4-27 Filed 04/23/20 Page 1 of 2

Case 1:20-cv-01072-CRC Document 4-27 Filed 04/23/20 Page 2 of 2
APRIL 14, 2020
Transgender Law Center PO Box 70976 Oakland, CA 94612
Dear Kris Hayashi, I am pleased to inform you that the Board of the Radical Imagination Family Foundation (RIFF) is prepared to provide a grant of $40,000 to the Transgender Law Center to support the provision of humanitarian aid for transgender people pending their release from immigration detention as a result of litigation. This grant is restricted to cover humanitarian needs including but not limited to: housing, clothing, food, medical care and transportation. Please feel free to reach out if you have any questions.
Sincerely,
Luke Newton Program Director
PO Box 961510 Boston, MA 02196

Case 1:20-cv-01072-CRC Document 4-28 Filed 04/23/20 Page 1 of 1
CERTIFICATE OF SERVICE
I, Matthew E. Kelley, hereby certify that a copy of the attached Motion for Temporary
Restraining Order and Request for Emergency Hearing, supporting documents and proposed
Orders, and the Complaint and supporting documents, were sent via courier on April 23, 2020 to:
Daniel Van Horn Chief, Civil Division U.S. Attorney’s Office 501 Third Street, NW, Third Floor Washington, DC 20530
Copies of the above-referenced documents in this case were sent via Federal Express on April
23, 2020 to:
Chad Wolf Acting Secretary of the U.S. Department of Homeland Security Office of the General Counsel U.S. Department of Homeland Security Washington, D.C. 20528
William Barr Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, N.W., Washington, D.C. 20520-0001
By: /s/ Matthew E. Kelley Matthew E. Kelley (Bar No. 1018026)

 
 Case 1:20-cv-01072-CRC Document 19 Filed 05/01/20 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

C.G.B., et al. Plaintiffs,
v. CHAD WOLF, et al.
Defendants.

) ) ) Case No. 1:20-cv-01072-CRC ) ) ) ) ) ) ) )

NOTICE OF FILING REDACTED EXHIBITS Pursuant to the Court’s Minute Order of April 24, 2020, Petitioners hereby submit

redacted versions of the declarations filed under seal as Exhibits 1-13 to their Motion for Temporary Restraining Order (Dkt. 4).

April 23, 2020

Respectfully submitted,

/s/ Matthew E. Kelley Matthew E. Kelley (Bar No. 1018126)

Gregory P. Copeland (D.D.C. Bar # NY0311) Sarah T. Gillman (D.D.C. Bar # NY0316) RAPID DEFENSE NETWORK 11 Broadway, Suite 615 New York, NY 10004-1490 Phone: (212) 843-0910 Fax: (212) 257-7033 Email: gregory@defensenetwork.org Email: sarah@defensenetwork.org

Leslie E. John (admitted pro hac vice) Elizabeth Weissert (admitted pro hac vice) Alex Levy (admitted pro hac vice) BALLARD SPAHR LLP 1909 K Street, NW - 12th Floor Telephone: (202) 661-2200 Facsimile: (202) 661-6299 Email: kelleym@ballardspahr.com Email: johnl@ballardspahr.com Email: weisserte@ballardspahr.com Email: levya@ballardspahr.com

Lynly S. Egyes (admitted pro hac vice) Transgender Law Center PO Box 70976 Oakland, CA 94612-0976 Telephone: (973) 454-6325 Facsimile: (917) 677-6614 Email: lynly@transgenderlawcenter.org

Counsel for Petitioners

Case 1:20-cv-01072-CRC Document 19-1 Filed 05/01/20 Page 1 of 3
Exhibit 1 to TRO Motion (C.G.B. Declaration)

Case 1:20-cv-01072-CRC Document 19-1 Filed 05/01/20 Page 2 of 3

I,

, declare as follows:

1. My legal name is

. My true name is

. I

was born on

and am a citizen of Mexico.

2. I identify as transgender. I am seeking asylum because I fear persecution in Mexico as a transgender woman.

3. I am currently detained in Florence Detention Center in Arizona. I have been detained here since January 2020.

4. I am not currently represented in my immigration case. My next hearing is a master

calendar hearing on

. I had a bond hearing scheduled for

, but it was

cancelled because all hearings at Florence Immigration Court were cancelled that week due to

the confirmed cases of COVID-19 at Florence.

5. If I am released, I would hope to stay with

, a volunteer from Trans Queer

Pueblo, which is an organization of LGBT immigrants of color.

is a U.S. citizen.

6. Until recently, I was held in the Alpha pod. Alpha pod has one big sleeping room with about 64 beds. They are bunk beds and are spaced about 3 feet apart.

7. On or about April 2, 2020, the person in the bunk above me began coughing a huge amount in the night. He also had a temperature and a sore throat. He was new to Alpha pod so he didn’t know the process to see the doctor until the other detainees told him. Then he requested a medical appointment. On April 7, 2020, the doctor checked him and gave him pills for his throat and his cough, but left him in Alpha pod. He continued coughing for the next two nights.

8. On April 9, 2020, I began to experience coronavirus-like symptoms. I had a temperature, was throwing up, and had pain in my throat, head, and bones. I was also losing hair. I went for a medical appointment. The nurses took my temperature; it was high. The nurses told me I had symptoms that were like coronavirus and they called the doctor. He took my temperature too. Then they gave me a coronavirus test and said the results would come out in 3 days, but they have not given me the results.

9. After the appointment, I was taken to a place with other people who were showing symptoms of coronavirus. I stayed there for approximately 3 days. I was afraid.

10. On April 12th, I was transferred to Echo pod, where they quarantine people who were or are sick. There are twelve people in Echo pod, two of whom have tested positive for coronavirus.

11. I have received no information from staff at the detention center about COVID-19.

Case 1:20-cv-01072-CRC Document 19-1 Filed 05/01/20 Page 3 of 3

12. In Echo pod, guards have told me that I can receive mail and use the phone, but I cannot send mail. They haven’t told me when I will be able to start sending out mail again.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
Executed on:

April 21, 2020 Date

________________________________ Signed by Joshua D. Bendor on behalf of
with her oral authorization and permission.

Case 1:20-cv-01072-CRC Document 19-2 Filed 05/01/20 Page 1 of 4
Exhibit 2 to TRO Motion (A.F. Declaration)

Case 1:20-cv-01072-CRC Document 19-2 Filed 05/01/20 Page 2 of 4

I,

, declare as follows:

1. My legal name is

. My true name is

born on

and am a citizen of Nicaragua. My alien number is

2. I identify as transgender. I am seeking asylum because

I was .

. I have not completed my application for political asylum yet, but I plan to file as soon as I can.

3. I am currently detained in La Palma Correctional Center in Arizona. I have been detained at La Palma since January 9, 2020. La Palma is the only detention center at which I have been housed since my arrival in the United States.

4. I was represented for bond in my immigration case by

, an attorney with a

private Phoenix-based law firm. My family communicated directly with her. Ms.

visited

me once, but due to COVID-19, she has not been able to visit me a second time.

, during

my bond hearing, she participated via telephone.

5. My next Master Calendar Hearing is on

, with Judge

My bond is set at

, but my family cannot afford to pay.

6. If I am released, I would stay with my cousin,

, in San

Francisco, California.

is a United States citizen

. I have

also made community connections in Arizona via Trans Queer Pueblo (an LGBTQ advocacy

group). While in detention in La Palma I met two friends from Cuba, both of whom were released

and live in Arizona. If released, I would promise to go to all of my hearings and continue to seek

political asylum.

7. I have no prior criminal history.

8. I was born with only one kidney and, according to the doctor at La Palma who I visited two weeks ago, I am healthy but could succumb quickly to infection because of this condition. The doctor told me to “drink a lot of water” to avoid infection. I have never been on dialysis or taken medication in the past, but I have been warned that if I do not take care of my kidney, I could get Chronic Renal Insufficiency (kidney failure). This condition has caused me pain in the past.

9. La Palma staff have done very little to educate or inform those of us who are detained about COVD-19. Mostly, they have put up some small posters with information posted around the facility. The posters are in Spanish and English. I have learned about COVID-19 mainly from the news on the television at La Palma. The “fixed” station is always in English, but when the guards are distracted, some detainees change the TV channel to Telemundo or Univision, in Spanish. Then we can understand the news better. When the guards get focused again, they change it back to the English station. Detainees do not get punished for changing the channel; it just gets changed back to English. I understand that it is a virus that spreads easily on clothes, between people, in saliva, and various other ways.

10. When those of us who are detained ask the La Palma guards about COVID-19, we are told that they “are not going to answer any questions that have to do with the coronavirus.” The guards refuse to give us information when we ask. I have received no in-person information about the

Case 1:20-cv-01072-CRC Document 19-2 Filed 05/01/20 Page 3 of 4
virus from the guards or the La Palma detention center. I have the impression that they want to avoid the subject.
11. I have heard from other detained people that there are between seven and eight detainees at La Palma who are infected with COVID-19, but we have not received a formal announcement from the La Palma staff about it. I have heard there are people isolated due to a COVID-19 infection but, to my knowledge, no one in my tank (living quarters) has been tested, including myself.
12. I am worried about the spread of COVID-19 because we are not able to keep our distance from other people in the detention center. Meals continue to happen in large groups of between 100‒120 people. We all eat at the same time. Although we are encouraged to sit apart while we eat, there is no way to stay six feet apart while we are in line for food. The tables are all connected so the furthest we are able to sit apart is about one foot. I have not seen any new precautions during mealtime related to COVID-19.
13. There is also not enough room in the other parts of the facility to stay six feet apart from everyone. I sleep in my cell alone because I am transgender, but there are about 120 people in my tank and about half of us (60 people) go out to the patio at a time. The patio is not big enough for us to remain six feet apart. For recreation, the library is closed and there are no more church services.
14. We do not have free access to hand sanitizer or soap. There has never been hand sanitizer and soap must be bought from the commissary. Instead, we are only given shampoo, which I use to wash my hands. I also use the shampoo to wash my clothes in the sink of my cell as I am afraid of them getting mixed with an infected person’s clothing in the laundry.
15. The detainees did not have access to protective face masks until April 14, 2020. At first, the guards would only give us a mask if we agreed to sign a form. I did not see the form and I am not sure what it said or what language it was in. To my knowledge, everyone refused to sign the form, including myself. No one would sign, so the guards took the masks away that day. Then, on April 14, the guards came back with the masks and let us take one free mask without signing the form. Everyone took a mask, but we were not informed on how to use or place the mask. I was told, “you only get one. If you damage it, we will not give you another one.” I have never been given gloves.
16. It usually takes three days to see a doctor but can at times take a week. To get a medical appointment, you must make a request and you are put on a list in order to be seen. I have had four in-person medical appointment since arriving at La Palma in January 2020, one doctor visit and three psychologist visits. Neither of the doctors used masks or gloves during any of the appointments. My friend in La Palma had a fever and signs of the flu. When my friend asked to see the doctor, my friend was told to follow the normal procedure: make a request and fill out the form to be seen.
17. I have never seen the La Palma staff wear gloves or masks, which also makes me concerned about the spread of COVID-19. The guards do not wear masks or gloves when they pat down the detainees after visitations. The guards inspect our cells and belongings about twice a week, but no gloves or masks are worn. I have never seen the guards wash their hands or use hand sanitizer.

Case 1:20-cv-01072-CRC Document 19-2 Filed 05/01/20 Page 4 of 4

18. I need hormone therapy to feel well, but I have not been able to receive treatment since my detention at La Palma. I was on hormone therapy for a year and a half in Nicaragua before arriving in the United States. By the time I got to La Palma, I had run out of my medication. I explained this to a nurse in La Palma, who told me to, “make a request.” I never got the medication. Later, I ran into a different nurse when I was on my way to the cafeteria. I pulled the nurse aside and said, “I was taking hormones and I need them again.” The nurse took my name and A number, but there was no follow up.
19. After I arrived at La Palma, I became depressed. I obtained a medical appointment with a psychologist, but the psychologist told me that I am “fine” and not depressed. However, my depression got worse and I started having suicidal thoughts. This led to my forced segregation for two and a half days in February 2020. I need to see a psychologist on a regular schedule and have requested this from La Palma. I was told I would have to put in a separate request each for each visit and would be placed on a list. I have only seen the psychologist three times.
20. I continue to suffer from depression, and I do not feel that my mental health is being adequately handled. Because of my kidney condition, I am at risk of infection and afraid for my health, so I stay in my cell, where I am housed alone, because I do not feel safe or conformable around others. My depression is made worse by the way people in detention treat me. No one understands what it means to be transgender or how to use the proper pronouns. They call me “he” and say, “there are no women here.” I am fighting hard against depression. I try to sleep instead of thinking about heavy things because I cannot afford to let my depression take over. My worst fear is getting sick in here because it means I will have to spend more time in detention.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
Executed on:

April 21, 2020 ____ Date

________________________________ Signed by Payslie M. Bowman on behalf of
with her oral authorization and permission.

Case 1:20-cv-01072-CRC Document 19-3 Filed 05/01/20 Page 1 of 5
Exhibit 3 to TRO Motion (M.M.S-M. Declaration)

Case 1:20-cv-01072-CRC Document 19-3 Filed 05/01/20 Page 2 of 5

RESPONDENT’S PERSONAL DECLARATION

I,

, a/k/a

, hereby

state under penalty of perjury that the following statements are true and accurate to the best of

my knowledge and belief:

BIOGRAPHIC INFO & GENDER IDENTITY

1. My name is in El Salvador on

. I am a transgender woman. I was born

. My A number is

.

IMMIGRATION & DETENTION HISTORY

2. I fled El Salvador because many people in the LGBT community are murdered and the government does nothing to protect us.
3. I have applied for asylum, withholding of removal, or protection under the Convention Against Torture as I fear torture or persecution if returned to El Salvador. I understand that the only way for me to remain in the United States is if I appear at all my court hearings and comply with any additional release requirements.

4. My case is currently being appealed to the BIA.

5. I have sponsors who are citizens who could take me in if I were to be released.

6. I have been detained for 11 months and three weeks. I have been detained at Tallahatchie, La Salle, and Winn Correctional Center. I am currently detained at Winn Correctional Center.

7. I have not been transferred recently, however on April 4, 2020, an ICE official named Julio here at Winn told me that they were working on my transfer to another detention center that would be better for me. Julio told me that the sexual harassment that I have experienced here at Winn is serious and that they are looking for a better situation for me.
8. While in detention I have been sexually harassed, and assaulted, by cisgender male detainees.

9. I am years old.

MEDICAL HISTORY

10. I do not smoke.

11. I am depressed, and my head, back, neck, and legs all hurt.

12. I was taking hormones in El Salvador, but I have been unable to access gender conforming medical care while in detention despite multiple requests.

Case 1:20-cv-01072-CRC Document 19-3 Filed 05/01/20 Page 3 of 5
13. I am taking an antidepressant and a sleeping pill, both of which were prescribed while I have been in detention.
14. I believe that because I am not receiving my hormone treatment that is why I am suffering so deeply from depression and anxiety attacks. I am not receiving the proper care and treatment I need.
15. There are some days when the nurses do not give me my medication. Even though the prescriptions state that I am to take my medications once a day, every day.
16. Part of my depression come from my proximity to lots of men.
. Until recently I was detained with around 40 cisgender men.
17. 15 days ago I was placed in segregation by myself. Segregation is not good for my anxiety or depression, I can feel my conditions worsening.
COVID-19 CARE & CONDITIONS AT WINN
18. I know from watching the news that COVID-19 is an illness of a large magnitude and it is very contagious.
19. I have not had any news in 15 days. I do not have access to a TV in segregation and cannot talk much to other detainees.
20. The only information or education on COVID-19 I have received from any guards or other staff, either before or during segregation, came from Julio, an ICE officer, who told me that you have to wash your hands and wear masks and gloves. As a detained person, I do not have access to masks or gloves.
21. The nurses do not use gloves or masks. The medical staff and guards have not told us anything about COVID-19.
22. I do not know if guards or detainees are being tested for COVID-19.
23. I have soap, but no disinfectant, no masks, and no gloves.
24. My shirts are washed every day, may pants are washed every other day, and I wash my underwear by hand every day.
25. I have seen guards wearing gloves, but only in the area where Court is. Otherwise they do not wear gloves or masks.
26. The guards come in to pat me down one to three times a day. The guards do not wear masks or gloves. The majority of the time, the guards that pat me down are cisgender

Case 1:20-cv-01072-CRC Document 19-3 Filed 05/01/20 Page 4 of 5
men. Though I am in segregation it is impossible for me to socially isolate.
27. There is always a guard about one meter from my room watching me because I am in segregation. The guards standing in front of my room are never wearing masks or gloves. Even if I was not searched daily it would still be impossible for me to keep socially distant.
28. I am seen in medical twice a month. Last time I went the medical providers were not wearing masks or gloves.
29. From my time being housed with the cisgender men, if a person is sick the person can go to the medical unit and they continue sleeping in the dorms with everyone else.
30. The cisgender men are kept in a room with 44 or so people. The beds are 1.5 meters apart. They share 1 bathrooms with 3 sinks and 3 toilets. They eat at the cafeteria with 52 people, 4 persons to a table.
31. That dorm is swept once a day by detainees. That is all the daily cleaning that is done in the dorm.
32. My cell in segregation is cleaned by me 1-2 times a week. I have to depend on officers bringing me cleaning solution in order to clean it and that is why the cleaning schedule varies..
33. I fear of contracting COVID-19 because of the lack of hygiene and protection here at Winn Correctional Center.
34. I have authorized Sarah Sanchez, legal assistant with Santa Fe Dreamers Project, to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. If required to do so, I will provide a signature when I am able to do so.

I, Sarah Sanchez, state the following under penalty of perjury pursuant to 28 U.S.C. § 1746: My name is Sarah Sanchez. I am a legal assistant with Santa Fe Dreamers Project.

Out of necessity in light of the COVID-19 pandemic, I was unable to meet

in person. Therefore, I signed

’s

declaration on her behalf and with her express consent.

Case 1:20-cv-01072-CRC Document 19-3 Filed 05/01/20 Page 5 of 5

I spoke with

via telephone and read her the entire text of the

declaration on April 17, 2020.

confirmed that all of the

information in the declaration is true and correct.

I declare under penalty of perjury that the foregoing is true and correct.

________________________ Signature

Case 1:20-cv-01072-CRC Document 19-4 Filed 05/01/20 Page 1 of 3
Exhibit 4 to TRO Motion (L.R.A.P. Declaration)

Case 1:20-cv-01072-CRC Document 19-4 Filed 05/01/20 Page 2 of 3

I,

, declare as follows:

1.

My legal name is

I was born on

was three or four years old.

. My true name is . I am a citizen of Mexico. I came to the United States when I

2.

I identify as transgender. I am seeking asylum because I fear persecution in Mexico as a

transgender woman.

3.

I am currently detained in La Palma Correctional Center in Arizona. I have been

detained in La Palma since December 16, 2019.

4.

I am represented in my immigration case by

of the Florence Project. I

communicate with her by phone. I filed my asylum application on

. I have an

individual hearing set for

. I have requested parole and a bond. I am awaiting a

decision on both requests.

5.

If I am released, I would stay with my family, including my grandfather who is a legal

permanent resident. I would promise to go to all of my hearings and continue to seek asylum.

6.

The staff at La Palma have not told us anything about COVID-19. There are signs about

COVID-19, but they are only in English. I speak English, so I can understand them, but most of

the other detainees cannot. The signs say to do basic things like wash your hands, keep your

distance from people, and if you’re sick, stay in.

7.

I know almost nothing about whether other detainees have COVID-19. I think that

some have, but that is only based on rumors. I have not heard of any detainees being tested for

COVID-19.

8.

It is impossible to keep six feet away from other people here. I am the only person in

my cell, but each cell normally has two people. We no longer go to the lunchroom to eat, but we

still eat together at tables, a foot or less away from each other. And we still congregate together,

whether it is to get ice, use the microwave, or watch TV. There is just no way to stay six feet

apart.

9.

We do not have soap or hand sanitizer. If you want soap, you have to buy it. They did

give us shampoo. I have some money, so I was able to buy soap, but many people can’t. If you

can’t buy soap and want to wash your hands, you have to use the shampoo. The shampoo isn’t

very good; it doesn’t even work well to wash your body or hair.

10. If you’re going to court, they give you a face mask for that one time. But they don’t tell you how to use it.

11. We are allowed to do laundry twice a week for the uniform and three times a week for the white clothes (underwear and sheets). They give us two pants and two shirts for the uniform. So our clothes are often dirty, but we have to wear them.

1

Case 1:20-cv-01072-CRC Document 19-4 Filed 05/01/20 Page 3 of 3

12. The guards and staff in the pod do not wear masks or gloves. I have not seen them wash their hands or use hand sanitizer.
13. I am very depressed, stressed, and panicked. My anxiety is through the roof. Throughout my detention, including during the coronavirus crisis, I have been verbally assaulted, intimidated, and insulted with homophobic slurs by other detainees, guards, and managers. Soon after I got here, I tried to talk to the psychologist about this abuse, but she said that she couldn’t do anything for me because we “aren’t big on trans rights here.” The one other time I was able to see a psychologist, it was for only a 5 or 10 minutes.
14. Sometimes when we shower, the other detainees bang on the doors with a bucket and call us names to intimidate us. They call me “maricon,” which means faggot. I told the corrections officers, but they don’t take it seriously. On a couple of occasions, the guard let people in the room while we (transwomen) were still showering. That terrified me.
15. A few days later, I told a manager what was going on with the men yelling at us and calling us names, and she dismissed it as not a big deal. Later, the same manager called me a “trannie.” When I told another manager, she called me a “trannie” too. A corrections officer said she didn’t like the unit I’m in now because there are a lot of “jotos,” which is another word for faggots. All of this makes me feel unsafe.
16. Sometimes, they do not let us shower. With the coronavirus, I want to make sure to shower. I have filed three or four grievances about being unable to shower. There is also a lot of bad mold in the showers.
17. If I am not released, I am worried that I could get sick. I also worry that I am in danger because the transphobia and homophobia is really bad here. I feel hopeless.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
Executed on:

April 21, 2020 Date

________________________________ Signed by Joshua D. Bendor on behalf of
with her oral authorization and permission.

2

Case 1:20-cv-01072-CRC Document 19-5 Filed 05/01/20 Page 1 of 5
Exhibit 5 to TRO Motion (K.S. Declaration)

Case 1:20-cv-01072-CRC Document 19-5 Filed 05/01/20 Page 2 of 5

RESPONDENT'S P[RSONAL DECT,ARATION

I'.l

, tt k u

, het'ah.t'.\tutc tttblet.penoll.l, pf pet.jury,that the

.fbllrn'ing.\tul(ilte ttl.\ (tt'c tt'ua (utd (k'L'm'crta to tlrc ht,.st of'm.t;knuriectgi utlttl ietie/':

BIOGRAPITIC INFO & GENDER IDENTITY

I My name is

I ant a transgender woman. I was born in Jarnaica on

. My A number is

INIMIGITA'|ION & D[]'TI'NI'ION HIS'TORY
2 I f'ear to return to Jamaica. Jamaica is very dangerous fbr transgender and homosexual
individuals I have received death threats from my family because I anr transgender The
government does not protect transgender Jamaicans.

I arn applying 1'or protection urtder the Conv'ention Against Tofiure as I fear tortLlre or
persecutiort if returnrrd to Jitntaica I understand that the only way fbr nte to remain in the tlnited States is it'lappear at all my coufi lrearings and cornply with any additional
rel ease reclui rem ents.

4 My CAT case is being appealed to the BIA I do not currently have a Court date.

-5 In

I was conr,,icted of

in

.

I u'as detaitted on or about \4arch 27,2019 I was initialty cletained at Nevada Souther. In AugLrst 2019 I rvas transf'erred fbr two weeks to Nye County and then returned. I am
currently detained at Nevada Southern Detention Center.

1 I iirl years old 8. I do not smoke I I contracted HIV in 2013

\I [] Dt('A t, It ts't'0tt\

10 lam takingantiretrovirals and my HIV is currrentlv controlled and undetectable.
il My bloodrvork is checked every three to fbLrr months

t2 I receive my rnedication once a day and can take it when I choose. However, it is
sometimes a fight to get my medication as the nurse do not always have it The nurses do
not wear gloves or nrasks when delivering rnedication

Case 1:20-cv-01072-CRC Document 19-5 Filed 05/01/20 Page 3 of 5
l3 ,\t the beuinning of Apri[ 2020 I was prescribecl horntones fbr gender aflirming care. I was taking hormones before being detained, but this was the first tirne in one vear that was able to access hormones while in detention.
14. I know that changes in hormorte prescriptions can weaken the immune system, but the prescribing doctor did not nterntion any sicle eflects
l'5. About two months ago I was prescribed Vistaril, arr anti-anxiety medication My anxiety has gone up since being detained, and has recently increased due to COVID-19.
COVID.I9 CARE & CONDITIONS AT' NEVADA SOTITHERN
l6 I krtow that COVID-lc) has sonre similarities with the t'lur, hower,,er it is extremely
dangerous especially tor nreclically'vulnerable people On March 27,2020I had afamily member die tiom COVID- 19.
l7 Frorn my fhmily and fiom the news I know that social distancing is required to stay saf'e
liom COVID- 19, and that hand rryashing is also very irnportant.
l8 Around the end ttl'N4arch 2020 an offlcial came into the dorm rvhere I am detained and gave a brief presentation about CIOVID-19 He said that we must wash our hands and
repofiifwegetsick HesaidthatstafTwerebeingcheckedforfeverbeforetheycamein
every day. He only spoke in English but did have a detainee translate into Spanish fbr him. He was not wearing gloves or a mask.
t9 During the prese'ntation thc olircial said that statl'rvoulcl be wearing ntasks ancl that tttasks woLrld be ar,'ailable to detainees Wc were tolcl that we could volunteer to make rlasks fbr the whole f acility.
20 Two days ago, on April 1 5,2020 we were told that one person at Nevada Southern has COVID-19, and that they had not told us fbr five days Yesterday, April 16.2020 we
were given cloth masks.
2l As ot'today. ,\pril 17. 2020 nrost stalT and rnost detainees are not wearing their masks
22 When I saw the doctor at the start of April, when hormones were prescribed to me, COVID-19 was not mentioned during the medical appointment.
_-1 'fhere is a sign by the rniclou'ave that says to rvash vour hands. It is in English and
Spani sh
24. I artr detained in cJonri w'ith 45 to 50 people. 'l'here are two transgender women in the dorm, the rest are cisgender men. There are two other dorms in the facility, one other for

Case 1:20-cv-01072-CRC Document 19-5 Filed 05/01/20 Page 4 of 5

men, and one for women.
25. I have not been violently harnred by any olthe cisgender men, but a f'ew nights ago night there was a rumor I was cltl'ering oral sex.-l'his was not true. lsee nlessages written on the bathroorn wall about us transgender women We are always being talked about by the cisgender men, so we try to keep to ourselves lbr saf'ety.
26. At the start of the pandemic three elderly men were removed from the unit, no one knows what happened to thenr, one was diabetic.
27 Idonotknowol'anvonebeingtestedforCOVID-lghere,andcertainlynotinmydorm Ido not know if the one person here who is conl'rn'neci was already tested before arriving or was tested here. A numberof people were transt'erred to Nevada Southern at the sarne tinte as the person with COVID- lq. They are all in quarantine together. I was told they are not being tested fbr COVID-19 as they have not reported symptoms.
28 Guards bring us lbod to eat in tlre dornr, at small tables that can seat four people.
29. I buy nry own shanrpoo, ancl the facility does have a bar of soap fbr those that cannot alford to buy their own. We cannot buy hand sanitizer, glclves, or disinf'ectant.
i0. Even afler masks were distributed, I have seen only one guard and one nurse wearing a
ntask, guards do not wear gloves, they do not socially distance.
I.l It is irnpossiLrle to socially distance in my donr
32. 'l-he f'loors are mopped once a day, the tables are cleaned after each meal, but the gym
area of the dorm is still being used and I do not know if it is ever cleaned
33. Detainees are paid one dollar a day to do the cleaning.
34. We are not let out ot'the dornr except to go to Cor,rrt or to medical.
35 With the pandemic I am terrifled fbr my life
36. I have authorized Charlie Flewelling, staff attorney with Santa Fe Dreamers Project, to sign on my behalf given the difhculty of arranging visitation and travel in light of the cun'ent COVID-19 pandenric l1'required tcl do so. I will provide a signature when I am atrle to do so
l, Charlie Flewelling" state the tbllowing under penalty of perjury pursuant to 28 U.S.C. $ 1746:
l. My name is Charlie Flewelling. I am a statl'attorney with Santa Fe Dreamers Project.

2 Out ot'necessity in light of the ('OVID- 19

I was unable to

in

'J'heretbre, I signed

's declaration on herbehalf and with her

Case 1:20-cv-01072-CRC Document 19-5 Filed 05/01/20 Page 5 of 5

express coltseltt.
3, I spoke with
on April 17"2020.
is true and correct.

via telephone and read her the entire text of the declaration confirmed that all of the information in the declaration

4z I declare under penalty of perjury that the foregoing is true and correct
s,Er*;

Case 1:20-cv-01072-CRC Document 19-6 Filed 05/01/20 Page 1 of 5
Exhibit 6 to TRO Motion (K.M. Declaration)

Case 1:20-cv-01072-CRC Document 19-6 Filed 05/01/20 Page 2 of 5

I'

RESPONDENT'S PERSONAL DECLARATION

, u'k'a

, hereby state utuler.penaltlt tf perjt*y thctt the

.fitllowiilg 'vtarenteilr,s ore true cnul uccttrctte to rhe"be,st rtf nt1, kttottretrge and berief:

I Mly name is

BIOGRAPHIC INT'O & G[NDER IDENTITY . My A number is I am a transgencler woman I was born in Haiti on

IMMIGRATION & DETENTION HISTORY

2

I flear to return
people in l{aiti

to Haiti and the

becausc: there is a great deal of violence towards transgender govenunent ofl-ers no protection fl"om this violence

I am applying fbr asylum, withholding of removal" or protection under the Convention

Against Torture as I fear torture or persecution ilreturned to
onlv way fbr me to remain in the United States is if I appear
conrply rvith any additiorral r-elcase. requirenrents.

Haiti. I understand that at all my court hearings

the and

N"ly case is currently.

currently

betbre

thc

IllA.

and

I

believe

that

I

do

not

have

a

Ctourt

clate

I do have a conviction for

in

in

I was detairred on or about N'1arch 27.2019 I have been detained at Nevada Southern Delention clenter fbr the erti.e cluratio. of'my detentiorr

7 lf released lwill live with rny father,

, who is a US citizen

8 I am years old {) I do not sntoke.

MEDICA I,, H ISTORY

l0 I am HIV positive. I contracted HIV about l0 years ago. II I am taking antiretrovirals which were begun when I was detained My HIV is currently
a1 an undetectable ler el Mv blood is checked every three to fbunnonihr.
t2 Since being detairled I started having anriety artacks lrverything was black, like Iwas trapped alone, atld wlten people are there, I f-eel Iike they are coming to get me. I was prescribed an antianxiety mecJication seven months ago, which hetpi Ouiing the day but I still feel the anxiety at night and oflen cannot sleep as a result. In January iozotasked

Case 1:20-cv-01072-CRC Document 19-6 Filed 05/01/20 Page 3 of 5
medical fbr stronger rnedicatio,, but nly request was denie<J
13. I have been taking gender atfirming hormones lbr about 20 years, and I have had access to hormones while in detention.
t4 Guards bring me my medication twice a day in the dormitory where I stay. Sometimes the guards do not have rny rneciications ancl I must go without I spoke with the doctor who said that I cannot miss any dosages, but that delir,'ery is out of his hands. When the
guards give me rnedication they do not wear nrasks but they do wear gloves
r5 I have filed flve or six grievances in my one year of detention, all have been about not receiving rny medicati on.
COVID.I9 CAR[] & CONDI'I'IONS AT'NEVADA SOI"JTHERN
l6 I krtow that COVID-lc) can be deadly especially tbr people who are older and people with rnedical vulnerabilities I know that to avoid COVID-19 we are supposed to wash our hands and observe social distancing of at least 6 f'eet between people at all times I learned this frorn watching the news.
t7 I have not l'eceivecl any intirrmation on COVID-19 fl-onr guards or any other detention
staf'f'
r8 I understand there was a short COVID-19 presentation in my dorm about three weeks ago. I was asleep in my bunk during the presentation because it was early in the morning. There was no attempt made to wake me. I understand that other detainees also missed the presentation because they were asleep. I do not believe there have been any other
presentati ons
l9 'l'here are sigtts about washine our hands that have been put up, but they say nothing about social distancing.
20 I sleep in a dorm with 46 people. I am one of two transgender women in the dorm with 44
cisgender rnen.
]I 1'heyarestill brirtginginpeoirlcrhere.OnoraboutApril l2,2O2Oapproximately 100
people were transf'errec{ into Ner,'acJa Southern At least one of the new transferees was positive fbr GOVID-19 All of the transferees are currently in quarantine.
22 We sleep in bunk beds that are close enough together that I can reach across the aisle and touch the next bed
23 'l'here is one bathroont with eight sinks and eight toilets that we all use

Case 1:20-cv-01072-CRC Document 19-6 Filed 05/01/20 Page 4 of 5

24, Laundry is done daily

25. Cleaning in the dorm is done by detainees who are paid one dollar a day. They mop the

l'loors once, olean the 'fhe bathroont usually

eating surlhces smells iike pee

afier

each

meal. and

clean

thebathroom

sometimes

26. We eat olt small tables. 'l'he tables have four chairs around tliem, but there is not enough room to flt four fbod trays on the table without stacking them.

27. We never leave tlte dorm, except to go to medical or to Couft, but this is how it has
always beerr

28 Orrce the ('0\'lD-19 pandenric started, guards removed three detainees who were each overtheageof65 Idonotknowiftheyarebeingisolated,iftheyaresick,orifthey
have been released

29 Sotne people are sicl< in rny dorm They are coughing and some have a fever. These sick people have been taken to nredical and then return to the dornr within one to two days. When detainees return fl'orl rledical, they do not have glol,es or masks.

30 We have soap that can be purchased tiom the cclmmissary We do not have disinf'ectant, we do not have gloves, we did not have masks.
31. Yesterday, April 16,2020 staflgave all detainees in my donn face masks However, none of the detainees or statlthat I have seen are wearinu, nrasks 'fhey are hand made cloth
masks.
32 I wanted to make my own mask, but I did have the materials to do sc'r. I wear the cloth mask that I was provided yesterday.
33 'fhe guards only wear gloves when they are inspecting personal property every few days Othcr than that, I have not see'n any guards wearing gloves. Cuards do not wear gloves *hen they pat us down on lear,irrg or returning fl'onr ntedioal or Clourt.
34. I have seen one staflrnember wear a mask in the medical unit, but that was it, even other staff in medical do not wear masks. I have never seen a guard wearing a mask.

3-5 We do not have hand sanitizer, and generally the stafldo not have hand sanitizer. I have seen one guard use hand sanitizer at night I have seen hirn use it multiple times, he uses a snrall bottle that he l<eeps in lris pocket
i6 It is impossible to keep socially distant in this detention facility
37 I have HIV and am medically vulnerable. t believe I will die if I get COVID-19 in
detention

Case 1:20-cv-01072-CRC Document 19-6 Filed 05/01/20 Page 5 of 5

i8 I have authorized Charlie Irlcwelling, statf attontey w'ith Santa Fe Dreamers Project, to
sign on rny behalf uiven thc'dil'tlculty o1'arranging l,isitation and travel in light of the
current COVID-19 pandemic lf required to do so, I will provide a signature when I am
able to do so
l, Charlie Flewelling, state the following under penalty ol perjr,rry plrrsuant to 28 U.S.C S 1746:
I My name is Charlie [ilewelline I am a stalf attorney w'ith the Santa Fe Dreamers Project.

?. Out of necessity in light of the COVID-19 pandemic, I was unable to meet

in person. Therefbre, I signed

s declaration on her

behalf and with her express consent.

3 I spoke with

viatelephone and reacl herthe entiretext of the

declaration on April 17 " 2020
information in the declaration is true and correct

confirmed that all of the

4I declare under penalty of perjurl, that the tbregoing is trLle and cclrrect
Signature

Case 1:20-cv-01072-CRC Document 19-7 Filed 05/01/20 Page 1 of 4
Exhibit 7 to TRO Motion (R.H. Declaration)

Case 1:20-cv-01072-CRC Document 19-7 Filed 05/01/20 Page 2 of 4

RESPONDENT’S PERSONAL DECLARATION

I,

a/k/a

, hereby state under penalty of perjury

that the following statements are true and accurate to the best of my knowledge and belief:

BIOGRAPHIC INFO & GENDER IDENTITY

1. My name is

. I am a transgender woman. I was born in Honduras on . My A number is

IMMIGRATION & DETENTION HISTORY

2. I am had to leave my country because of the violence and threats against me from society and the police because of my gender and sexual orientation.

3. I am applying for asylum, withholding of removal, or protection under the Convention Against torture as I fear torture or persecution if returned to Honduras. I understand that the only way for me to remain in the United States is if I appear at all my court hearings and comply with any additional release requirements.

4. I filed an affirmative asylum application before I was detained by ICE.

5. I currently have pending charges for pending in
arrested or had any contact with police.

as well as a charge for . But this the first time I have even been

6. I entered ICE custody on or around January 18, 2020. I am currently scheduled for my

first master calendar hearing with Judge

on

at

at the

Court.

7. I am detained at the Caroline Detention Facility.

8. If released I will go to Washington, DC to live at Casa Ruby an organization that helps LGBTQ+ youth.

9. I am years old.

MEDICAL HISTORY

10. I do not smoke.

11. I have asthma and have had it my whole life. I have an inhaler and use it three times a day to help me breathe better.
12. I also take hormones as part of my gender affirming medical care. Upon being detained my hormones were changed, and I experienced side effects including serve headaches.

Case 1:20-cv-01072-CRC Document 19-7 Filed 05/01/20 Page 3 of 4
13. I was told that my hormone prescription would be changed, but I have not heard anything about this since.
14. Medical care at Caroline is sparse, but I can eventually be seen in the med unit when I submit sick call requests. It is taking longer now. I was sick last week and this week finally was able to see a doctors and get some medicine. I had a cold. In the mother Captain said we had to With the Captain when they want they call someone to the doctor.
15. I see the psychologist here sometimes for my anxiety and sometimes I can’t sleep but I don’t get to go a lot.
16. The medicines I take now are: Albuterol (an inhalation solution to treat asthma), Hydroyzine Pamoate (an antihistamine to assist with sleep), Estradiol (an estrogen derivative hormone), Spironolactone (a diuretic to treat hypertension and edema), and Aspirin (to reduce pain and inflammation).
17. When I first got to Caroline I did not have an inhaler so I started feeling a tightening and itching in my chest. My room here can be really cold and that makes my chest feel like that.
18. Some of my medicines I have with me in the dorm and others are in the Medical unit.. Other we are taken in a group to get our medicine. Some of the officials use the gloves and masks, but not all of them and
19. We sent a request to ask for gloves and masks and disinfectant but
COVID-19 CARE & CONDITIONS AT CAROLINE
20. I sleep in a room of four people housed in a dorm of 35-40 people. I have experienced some harassment from the people I am detained with. I am in the male housing dorm here and there are no other transgender women that I know of.
21. A couple of weeks ago a dorm was put under quarantine and so the dorms are limited in moving around the facility. Each dorm goes by dorm to the dining hall and to the law library. The officers however are still moving between dorms and we see them wearing gloves and masks.
22. We have asked for gloves and masks, but the Officers tell us that there are not enough. They won’t give us anything to protect ourselves when we move around the facility.
23. There are still new people coming into Caroline but we I don’t know if they are getting tested. I heard that there are maybe 11 new people coming in. That is why we are worried because new people could bring the virus in and only the officers have masks or gloves.
24. The guards are still telling us that there are no cases of the virus here but we know that people are sick.

Case 1:20-cv-01072-CRC Document 19-7 Filed 05/01/20 Page 4 of 4

Because I live in a dorm with many people, it is impossible for me to keep socially distant. I am especially worried about getting sick, because I have asthma. I know the disease is bad for people who have trouble breathing. My lawyer and I tried to ask to be released because of my asthmas but they denied the request,

25. Most of the information I get about COVID-19 is from the news we watch every day. We have to watch it to get our information and that’s how we know what is happening outside. The officials did give us papers about how to wash our hands and that we need to try and stay apart but it isn’t helpful when they don’t give us the things to go by the rules. There is no soap for us and sometimes you can buy it but not everyone can. They yell at us if we are sit too close together but we have to be together all the time.

26. Yesterday [April 16, 2020] me and other made a request together to ask for the things we need so we can follow the rules and protect ourselves. But they keep telling us there is not enough

27. I have authorized my attorney to sign for me since she cannot come visit me. I can send a signed copy if required when I am able to do so.

I,

, state the following under penalty of perjury pursuant to 28 U.S.C. § 1746:

1. My name is Ana Dionne-Lanier. I am the attorney of the declarant.

2. Out of necessity in light of the COVID-19 pandemic, I was unable to meet Mr. in person. All social visits at the facility have been cancelled until further
notice and legal visits are not advised. In an abundance of caution my organization has halted all legal visits to prevent the spread of COVID-19. Therefore, I signed Ms.
’s declaration on her behalf and with her express verbal consent.

3. I spoke with Ms.

via telephone and readher the entire text of the declaration

on April 17. 2020. Ms.

confirmed that all of the information in the

declaration is true and correct.

I declare under penalty of perjury that the foregoing is true and correct.

Signature
Ana Dionne-Lanier 1612 K St. NW Suite 204 Washington, DC 20006 (202) 846-9589 ana@caircoalition.org

Case 1:20-cv-01072-CRC Document 19-8 Filed 05/01/20 Page 1 of 11
Exhibit 8 to TRO Motion (L.M. Declaration)

Case 1:20-cv-01072-CRC Document 19-8 Filed 05/01/20 Page 2 of 11

DECLARATION OF SHAQUILLE MCINTOSH

I,

, AKA

1, hereby state under penalty of perjury that the

following statements are true and accurate to the best of my knowledge and belief:

IDENTITY

1. My legal name is

and my A# is

.

2. I am a transgender woman and in all my communications, my true name is

3. I was born on

in Kingston, Jamaica.

4. In my asylum proceedings, I am represented by Center. We communicate regularly by phone.

of the Transgender Law

5. On

, I entered the U.S. at the

asylum. I have been detained for just over two months.

port of entry to apply for

6. I was first detained by CBP in San Ysidro, then transferred to San Luis, Arizona, until March 10th, when I was transferred to the Aurora ICE Processing Center in Aurora, CO, where I am currently detained.

7. I am seeking asylum in the U.S. based on the past persecution I received in Jamaica on account of being a transgender woman. .

8. I am afraid that if returned to Jamaica, I will again suffer physical harm and because targeted because I am transgender and it is acceptable to beat and kill transgender women there.

9. I recently passed my credible fear interview in front of an immigration judge and I am

waiting for my next hearing on

so that I can submit my asylum application to the

court.

10. My next court hearing is at the

Court on

at

11. If released, I guarantee that I will go to all of my future court hearings and any ICE appointments required.
PERSONAL HEALTH AND ACCESS TO MEDICAL CARE
12. I am years old and a nonsmoker.

1 My legal name is

. I am a transgender woman and my true name that I use

in all my personal interactions and communications is

.

1

Case 1:20-cv-01072-CRC Document 19-8 Filed 05/01/20 Page 3 of 11
13. My physical health is fine.
14. I do not have any physical health conditions that I came into the U.S. with.
15. I was receiving hormone replacement therapy when I entered the U.S. and I am currently taking 2mg of estradiol, 1 testosterone blocker, and a third medication to prevent blood clots from the estradiol.
16. I was taking 8mg of estradiol prior to coming to the U.S. but the doctors are only giving me 2mg because they have to “follow their protocols.” I do not believe the 2mg dose is working.
17. For hormone replacement therapy, I used to see an endocrine doctor every three months to make sure I am safe—they draw blood to ensure that the hormones are working and that I am receiving the correct dose.
18. In Mexico, my hormones were working really well.
19. I do not feel like my hormone treatment is being done properly in detention. In San Luis, I was not given my hormones because they said they could not find my medications after I was transferred from CBP custody.
20. In Aurora, it took 3-4 weeks to see a doctor and a full month to get back on hormones, but at ¼ of the dose I was receiving when I entered the U.S.
21. The doctors at Aurora just gave me the lowest dose of estradiol (2mg) and then when they tested my blood, they said they didn’t see any hormones in my blood so they kept me at the lowest dose.
22. Since being detained, I have developed a redness in my arms. I have asked the medical staff to look at it, but they have not given me any tests. The nurse said she does not know what it is and she was going to ask a doctor, but I have never seen a doctor for it. It looks abnormal, but it is not painful.
23. I am not on any medication for the redness in my arms and I do not know what it is. I told the nurse two weeks ago and they still have not looked at it. They do not care.
24. I do not have any mental health conditions that I came to the U.S. with. 25. Since being in the U.S., I have become depressed. The staff, especially the white officers,
are racist to me. They treat black detainees and staff differently and write me up because of my attitude and it’s depressing. 26. In segregation, the officers would bring my food and leave it outside on the floor by the trash can. Sometimes the white officers won’t even come in to offer me any breakfast. 27. I have had to wait several days to receive breakfast.
2

Case 1:20-cv-01072-CRC Document 19-8 Filed 05/01/20 Page 4 of 11
28. Some of the guards misgender me, referring to me as “he” or a “man.” They say, “Young man, sit down.”
29. Lieutenant Sylvestor once screamed at me, calling me a man, and said, “Not every officer is used to calling you ‘she,’” and he stood up to me like he wanted to hit me. I told him that he couldn’t hit me.
30. I don’t tell my psychologist about how depressed I am because I don’t want to be put back on suicide watch. I feel terrible. I’m sad and I cry. Sometimes I call my boyfriend and I cry and cry and cry to feel better.
31. I don’t trust the psychologist because he’s GEO staff and it will only make my situation worse if I’m honest with him about my feelings.
32. I don’t receive medication for depression, but when I was on suicide watch, they gave me medication and it made me feel really dizzy. I don’t know what that medication was.
33. I don’t think they can treat depression inside of this facility. They just give you pills, but I don’t want to take pills. If they wanted me to feel better, the staff could change how they deal with and speak to me, but we’re a long ways from that. COVID-19
34. I don’t know much about COVID-19. I heard on the radio and on the TV that it’s causing people to die.
35. I’ve heard about social distancing also on the radio and TV—I heard we have to stay 6ft apart.
36. I get most of my information from the TV and radio, but I am talking to staff, too. One staff member told me that the virus is here but they didn’t tell me where.
37. I talk to my boyfriend on the phone and he told me that someone in Aurora tested positive for the virus. He read about it online.
38. I have not received any education or information from the staff about COVID-19.
39. There are a lot of sick people in the detention center.
40. They take the sick people to the medical pod to stay there.
41. Some of the other detainees are isolated in a medical pod. On the doors of their room, there are posters that say, “Please use safety gear when entering this room.” When the officers visit these detainees, they have to wear face masks. It is my belief that these patients have COVID-19.
42. I don’t know what kind of symptoms they have because they are in isolation and I am currently in segregation in the medical unit.
3

Case 1:20-cv-01072-CRC Document 19-8 Filed 05/01/20 Page 5 of 11
43. It’s been two weeks since I was in general population.
44. I have never been tested for COVID-19 in this facility and I don’t know if they’re testing anyone, including staff.
45. Before I went to segregation two weeks ago, a transgender woman was separated from our dorm and transferred to another dorm by herself.
46. I heard this happened because she went to court and it turned out that one of the lawyers in court was sick so she had to be separated from everybody else.
47. I’m currently sleeping alone in medical segregation and I’ve been sleeping alone for two weeks.
48. Before segregation, I slept in a dorm with 12 other people. The dorm capacity sleeps 24.
49. I currently eat alone because I’m in segregation. Before segregation, I ate in groups of 2 or 3 people to a table.
50. Staff gives me bar soap for showers and for washing hands in my cell. I also have a little bottle of liquid body wash and shampoo.
51. Staff doesn’t provide us with hand sanitizer or face masks, and there are no hand sanitizer stations around the facility.
52. Hand sanitizer liquid is sold in the commissary for $3.16 according to the commissary sheet, but I don’t have money to buy any.
53. Face masks aren’t listed as an item available for purchase in the commissary.
54. Staff brings my laundry in every Monday. 55. My laundry is never washed properly-- I can see dirty marks and I tell staff that the clothes
are dirty and smell funky, but they just reply, “they’re washed.” 56. All of the guards wear basic plastic gloves like you see at the doctors. 57. Some of the guards wear face masks, the paper kind that nail salon employees use. 58. Some of the staff wear cloth face masks, but not all of the staff wear face masks. 59. I’m currently in medical segregation but I’m still physically close to staff, including
doctors. 60. When I take phone calls, staff stands about 3ft from me. And when I see the doctor, we sit
right across from one another at a short desk. 61. Whenever I have to be escorted through the halls and into different buildings, the staff
places a hand on my shoulder while we walk together.
4

Case 1:20-cv-01072-CRC Document 19-8 Filed 05/01/20 Page 6 of 11
62. I feel worried because I don’t want to get the virus. 63. It is impossible to know if the staff members have the virus because they aren’t getting
tested and the staff are going home and returning to the facility every day so they could have the virus without having symptoms and then spread it to us inside. 64. It feels really unsafe because the nurses once took my blood pressure and they were touching my body and I had to ask them if they changed their gloves because it’s unsanitary to reuse the same gloves. 65. I’ve seen nurses passing out medication to patients in different sections of medical without changing their gloves, so I asked them to change their gloves. 66. I ask the guards to sanitize the phone before I take a call. Sometimes they spray it with disinfectant, but not all the time. 67. I wish they would tell us the truth about the virus in the facility. I don’t want to wait until the virus sweeps through the whole facility and I catch it and I die. 68. I don’t feel safe in detention because the virus is here and in Colorado more generally. With officers coming in and out of the detention center, we don’t know who is bringing in the virus and they wouldn’t tell us about it anyway. 69. If I’m not released, I think I could get the virus and die without every telling my story and without getting asylum. 70. I don’t want to die in here.
ADDITIONAL INFORMATION
71. I have experienced harassment and abuse from staff members in detention. 72. On April 3rd, staff told me that I was going to segregation because I was ignoring the
detention officers. 73. One of the male lieutenants threw me to the ground, handcuffed me, and dragged me to
segregation which is about the length of a normal street block. 74. They handcuffed me very tightly and it caused me a lot of pain, leaving marks on my wrist. 75. They caused bruising on my arms and neck. 76. I still have pain from the force they used against me.
5

Case 1:20-cv-01072-CRC Document 19-8 Filed 05/01/20 Page 7 of 11
77. I tied a bedsheet in my room like I was going to kill myself and they called in six men, dressed in all black, and they put their shields in my face, dragged me to the ground, pepper sprayed me, and carried me off to medical.
78. When I spoke to the psychologist, they put me on suicide watch. 79. In suicide watch, 4 men held me down and tore off my robe leaving me naked in solitary. 80. One of the heavyset men kneeled, placing his leg on top me to restrain me while the Major
threatened to teargas me for not cooperating. 81. I still have pain from where the officer placed his leg on top of my leg. 82. Some of the white staff members come in and call me names like “male” and “man.” They
won’t address me as female. 83. One guard made fun of my mother, so I made fun of her mother and she wrote me up. 84. In March, the guards moved me from the group of transgender women and put me in a cell
with a cisgender man. I was so uncomfortable. 85. One staff member called me an infected person in front of another detainee. I was in the
dorm and a woman came in to make me change into an orange uniform. I refused to change and she said if I came to the door, she would fight me back. 86. I told her she couldn’t fight me because she was fat and her fat was covering her heart and she said, “Well you have HIV,” loudly in front of another man and I told her that wasn’t true. It really hurt because she lied about my health in front of other people. 87. There was a woman, Molly, who was released and she told me that she was afraid of seeing the doctors because they disclosed to everyone that she had syphilis. 88. The doctors can’t be trusted with private health information.
ABILITY TO FOLLOW SOCIAL DISTANCING GUIDELINES
6

Case 1:20-cv-01072-CRC Document 19-8 Filed 05/01/20 Page 8 of 11

89. I sleep alone in medical segregation, but in general the dorms are suited with bunk beds.

90. There are 24 beds, including top and bottom bunks.

91. Some of the bunks in the center of the dorms are side by side, so you sleep right next to

other people with a small metal divider between you.

92. If your bunk is near the wall, then you sleep only near the person on the same bunk. The

beds are bolted to the ground so you can’t move them.

93. During mealtime, each table can fit up to 4 people. Usually there are 2-3 people at a table.

And the tables are bolted to the ground so you can’t move them.

94. I’ve always showered by myself because I am not comfortable showering with other

people.

95. In each of the showers, there are 4 or 5 stalls with a small curtain.

96. I have a sink in my cell so I can wash at will.

97. In the dorms, you have to bring your own soap to wash your hands.

98. Detainees clean the bathrooms and common areas for $1 a day.

99. There’s a cleaning schedule and the officers will bring cleaning supplies, usually

disinfectant and gloves. Detainees don’t get masks.

100.

Sometimes the detainees don’t clean that well because they aren’t getting paid

much.

101.

The bathroom in my cell in segregation was very dirty. I saw a rat by the toilet and

it was freezing cold.

102.

One day in segregation, it was so cold that the officer asked her supervisor to fix

the heat but Lieutenant

asked her if she wanted the lieutenant’s jacket instead Our

7

Case 1:20-cv-01072-CRC Document 19-8 Filed 05/01/20 Page 9 of 11

noses were running because it was so cold and they didn’t do anything until 11pm when they moved me to medical.

INTERACTIONS WITH MEDICAL STAFF

103.

You can see a doctor every month or three months depending on your individual

schedule.

104.

I saw a doctor this past week to get my blood drawn, but before that I waited three

weeks to see a doctor after arriving at Aurora.

105.

My doctor doesn’t wear a mask or gloves. He conducted a physical examination of

my lungs, heart, and knee with his bare hands.

106.

The nurses wear gloves.

107.

During this physical exam, I wasn’t given anything, a mask or gloves, to wear.

108.

I receive my medication every morning. It’s a tablet that I take orally.

109.

The nurses distribute meds but they aren’t changing their gloves between patients.

I have to ask them to change their gloves.

110.

If a detainee is showing symptoms like a fever or coughing, they get reported to the

doctor and are taken out of the dorm, but I don’t know where they go.

111.

All of the officers in here wear gloves, but not all of them wear masks.

112.

Gloves are more common than masks amongst the officers.

113.

The nurses and doctors don’t always wear gloves and masks.

114.

The guards pat me down when it’s time to be escorted across the facility to medical

or to another building.

115.

If you are in medium or high security like I am right now, they will hold on to your

shoulder while they escort you down the halls throughout the facility.

8

Case 1:20-cv-01072-CRC Document 19-8 Filed 05/01/20 Page 10 of 11

116.

I don’t know if the guards are washing their hands because they use separate

restrooms from us.

117.

I’ve never seen guards use hand sanitizer on themselves.

118.

There are no hand sanitizer dispensers around the facility for detainees to use.

119.

There is no hand sanitizer available to detainees in court.

120.

The guards search and inspect my living quarters and personal belongings

whenever they want and all the time.

121.

When I’m in court, on a legal call, or in medical, I know the guards are searching

my things because my papers and personal things are in disarray.

122.

They wear gloves but no masks when they search my things.

123.

On average, I get physically searched one time per day. This includes my body and

my belongings. Guards wear gloves but no mask.

124.

No one from staff or medical has given me any information specifically about

COVID-19.

125.

I’ve learned about COVID-19 from the radio and tv and because there are some

signs on doors warning staff to wear masks and gloves before visiting patients.

126.

Staff let me take a legal call for this declaration in the “trauma room.” In that room,

I saw a sign that said, “COVID-19 Stop the Spread of Germs.” It’s the first time I’ve been

in that room and I’ve never seen that sign before. I believe this is an employee room.

9

Case 1:20-cv-01072-CRC Document 19-8 Filed 05/01/20 Page 11 of 11

I have .auth~~zed my attorney's representative to sign on my behalf given the difficulty of arranging v1s1tation and travel in light of the current COVID- l9 pandemic. If required to do so, I will provide a signature when I am able to do so.

~~ C0J,J

Michael A. Galvan

Date

Legal Assistant

On behalf of "

DECLARATION OF MICHAEL A. GALVAN
I, Michael A. Galvan, state the following under penalty of perjury pursuant to 28 U.S.C. § 1746:

My name is Michael A. Galvan. I am a legal worker authorized to conduct legal interviews

with "

by her counsel,

.

Out of necessity in light of the COVID-19 pandemic, I was unable to meet "

in person. Immigration and Customs Enforcement has suspended in-person visitation

at its facilities and limits in-person legal visits to those deemed essential. Therefore, I signed

"

's declaration on her behalf and with her express consent.

I spoke with " declaration. " declaration is true and correct.

via telephone and read her the entire text of the confirmed that all of the information in the

I declare under penalty of perjury that the foregoing is true and correct.

~ j) t\-,~~LJ

~ lv0 ,~

Michcl A. G~an

Date

10

Case 1:20-cv-01072-CRC Document 19-9 Filed 05/01/20 Page 1 of 4
Exhibit 9 to TRO Motion (M.J.J. Declaration)

Case 1:20-cv-01072-CRC Document 19-9 Filed 05/01/20 Page 2 of 4

RESPONDENT’S PERSONAL DECLARATION

I,

, a/k/a

hereby state under penalty of

perjury that the following statements are true and accurate to the best of my knowledge and

belief:

BIOGRAPHIC INFO & GENDER IDENTITY

1. My name is Honduras on

. I am a transgender woman. I was born in

. My A number is

.

IMMIGRATION & DETENTION HISTORY
2. I am applying for asylum, withholding of removal, or protection under the Convention Against Torture as I fear torture or persecution if returned to Honduras. I understand that the only way for me to remain in the United States is if I appear at all my court hearings and comply with any additional release requirements.

3. I have had a credible fear interview on have not been given a Court date.

, but have not received an answer yet, and

4. I have been detained for about one month and a half. I was originally at El Paso, was transferred to Florence, and then to the Aurora ICE Processing Center. I have not been given any information about why I have been transferred.

5. There are only 3 or 4 guards that treat us well, but the rest are disrespectful, give us dirty looks and make us feel unwelcomed.
MEDICAL HISTORY
6. I am years old.

7. I do smoke.

8. I do take hormones.

9. I am not taking any other medication.
10. The doctor at El Paso told me that I am prone to syphilis and diabetes. He did not give me medication for diabetes or syphilis. He put me on a diet where sugar, pasta, and bread were restricted because these foods would increase my chance of diabetes.

11. I am taking my hormones every day, but the nurse will bring them to me at different hours each day. Sometimes she comes at 8 am, sometimes at 10 am. I know that if someone is taking a medication every day, they should be taking it at the same hour each day, so this worries me.

Case 1:20-cv-01072-CRC Document 19-9 Filed 05/01/20 Page 3 of 4
COVID-19 CARE & CONDITIONS AT AURORA 12. I was told by staff once at Aurora to wash my hands. That is the only COVID-19
information I have had from staff. 13. I know from watching television that to avoid contracting COVID-19 that I need to wash
my hands often, wear gloves and masks, and avoid touching my face. 14. I saw on the news that there was someone at Aurora who has COVID-19, but the officials
have denied it. 15. I stay in a dorm of seven transgender women. 16. The beds spaced out with one bed’s distance between each other. 17. We aren’t able to practice social distancing during the day, because there’s many of us
watching TV or eating together. The only time we’re able to is when we sleep. 18. We often feel hungry even after eating because they don’t give us enough food. 19. We are only given body soap, and no gloves or masks. 20. We have two bathrooms in our dormitories with a shower and toilet. 21. Me and the other women I stay with clean our rooms and bathroom everyday after we eat
breakfast and dinner. 22. They give us disinfectant and two rags, one for the room and one for the bathroom. 23. The guards use gloves but no masks. 24. The guards come in every thirty minutes to check on us. Not all of them wear protective
gear. Some wear a mask, and some only wear gloves. 25. I do not know if the guards have hand sanitizer, I have not seen any bottles of sanitizer
around. 26. Our clothes are only washed every three or four days. 27. Five of the women I am detained with are HIV positive. They get their medications but
the times they are given their medications vary each day.

Case 1:20-cv-01072-CRC Document 19-9 Filed 05/01/20 Page 4 of 4

28. We are patted down every time we leave the library, go to medical, and go to the yard. The guards only wear gloves when they do this.
29. I do not believe that anyone in my dorm has been tested for COVID-19. None of women I live with have received a test.
30. I am scared of COVID-19. Two weeks ago I had a cough and I went to medical. I was scared it could be the Virus but the medic told me it was because of the weather and only gave me aspirin. I am scared of the virus because I am detained with other women and I am scared of getting infected by them or infecting other people.
31. I have authorized Nora Gonzalez, paralegal with Santa fe Dreamers Project, to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. If required to do so, I will provide a signature when I am able to do so.

I, Nora Gonzalez, state the following under penalty of perjury pursuant to 28 U.S.C. § 1746: 1. My name is Nora Gonzalez. I am a legal assistant for the Santa Fe Dreamers Project.

2. Out of necessity in light of the COVID-19 pandemic, I was unable to meet

in

person. The Aurora facility has suspended visitation due to the pandemic. Therefore, I

signed

’s declaration on her behalf and with her express consent.

3. I spoke with April 17th, 2020.
and correct.

via telephone and read her the entire text of the declaration on confirmed that all of the information in the declaration is true

I declare under penalty of perjury that the foregoing is true and correct.
________________________ Signature

Case 1:20-cv-01072-CRC Document 19-10 Filed 05/01/20 Page 1 of 4
Exhibit 10 to TRO Motion (D.B.M.U. Declaration)

Case 1:20-cv-01072-CRC Document 19-10 Filed 05/01/20 Page 2 of 4

RESPONDENT'S PERSONAL DECLARATION

1,

, alkla

, hereby state under penalty of

perjury that the following statements are true and accurate to the best of my knowledge and

belief:

BIOGRAPHIC INFO & GENDER IDENTITY

1. My name is Honduras on

. I am a transgender woman. I was born in

. My A number is

.

IMMIGRATION & DETENTION HISTORY 2. In Honduras was punished and threatened for being transgender.

3. I am applying for asylum, withholding of removal, or protection under the Convention Against Torture, as I fear torture or persecution if returned to Honduras. I understand that the only way for me to remain in the United States is if I appear at all my court hearings and comply with any additional release requirements.

4. I had a credible fear interview on

. I have not received a response yet, and I

do not know when I will have a Court date.

5. I have been detained for about two months. I was initially detained in El Paso. I was then transferred to Florence for a week, and then to Aurora. I am now detained at the Aurora ICE Processing Center. I have not been given a reason for why I have been transferred.

6. Here at Aurora, I have only been detained with other transgender women, so I have only had the opportunity to see how the guards interact with me and with other trans women. Some of the guards are respectful, but some of them treat us harshly and I feel that they look at us like we don't exist. Some of the guards do things like turn off the television while we are watching it, and yell at us harshly when they need to speak to us.
MEDICAL HISTORY

7. I am years old.

8. I do not smoke.
9. I take hormones, but no other medications.
10. I was told by the doctor here at Aurora that I am supposed to receive my hormones at the same time of day, every day. However, the staff who give me my hormone pills bring them at very different times: sometimes 8 a.m., sometimes 11 a.m.
11. About every three days, I am taken to the doctor for a medical checkup, and they take my temperature.

Case 1:20-cv-01072-CRC Document 19-10 Filed 05/01/20 Page 3 of 4
COVID-19 CARE & CONDITIONS AT AURORA
12. I have not received any information or education about COVID-19 from any officials at Aurora.
13. The only information I have received about COVID-19 came from watching the news.
14. We heard on the news that there was a case here in the Aurora detention center. The guards are saying that it is not true. But we are worried because we have heard that it kills people.
15. I understand that COVID-19 can cause fever, dizziness, breathing difficulties.
16. I have not seen anyone at Aurora being tested for COVID-19.
17. I am detained in a room with one other transgender woman. Until April 15th, I was detained in a room with six other transgender women. The beds were attached to the floor, so we could not move them apart. This meant we had to sleep about five feet from each other. Now that there are fewer of us, we are able to sleep farther apart.
18. I do not have access to any hand sanitizer, gloves, or masks. I have not asked for these things because the guards don't use them, and so I have assumed that it would be impossible for me to get them.
19. Our clothes are washed, but not as often as is wanted or needed. We each have two uniforms, and we are allowed to wash them every three days. If our clothes get dirty before the day to wash, we just have to wear the dirty clothes.
20. The other detainee and I do all the cleaning of our cell and bathroom. We have a broom to sweep the floor with, and we have rags and disinfectant for cleaning the tables and the bathroom. We do the cleaning three times a day.
21. The bathroom sink has been clogged for a long time, and we cannot fix it because we don't have the tools. We have a container that we have to use to bring the dirty water to the shower to dump it out. We have told the guards repeatedly about the problem with the sink, but nothing has been done about it.
22. When medication is delivered the medical staff wear gloves but do not wear masks. The guards also do not wear masks or gloves.
23. I have never seen any of the guards wash their hands or use hand sanitizer.
24. When I was first transferred here to Aurora, I was patted down, by a guard who was wearing gloves that time, but no mask.

Case 1:20-cv-01072-CRC Document 19-10 Filed 05/01/20 Page 4 of 4

25. I am afraid. I do not want to get sick and die.
26. I have authorized Maddie Thomson, attorney, and legal volunteer with Santa Fe Dreamers project, to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. If required to do so, I will provide a signature when I am able to do so.

I, Maddie Thomson, state the following under penalty of perjury pursuant to 28 U.S.C. § 1746:

1. My name is Maddie Thomson. I am a legal volunteer with Santa Fe Dreamers Project.

2. Out of necessity in light of the COVID-19 pandemic, I was unable to meet

r a/k/a

in person. Therefore, I signed

a/k/a

s declaration on her

behalf and with her express consent.

3. I spoke with

a/k/a

via

telephone and read her the entire text of the declaration on April 16, 2020.

a/k/a

confirmed that all of the

information in the declaration is true and correct.

I declare under penalty of perjury that the foregoing is true and correct.

ignature

Case 1:20-cv-01072-CRC Document 19-11 Filed 05/01/20 Page 1 of 4
Exhibit 11 to TRO Motion (K.R.H. Declaration)

Case 1:20-cv-01072-CRC Document 19-11 Filed 05/01/20 Page 2 of 4

I,

declare as follows:

1. My legal name is

My true name is

born on

and am a citizen of Guatemala. My alien number is

. I was .

2. I identify as transgender. I am seeking asylum because I have been persecuted for my LGBTQ+ identity. I have been threatened, and I survived a kidnapping attempt.

3. I am currently detained in La Palma Correctional Center in Arizona. I have been detained at La Palma since April 2019.

4. I have an appeal pending before the Board of Immigration Appeals. I am represented in

my immigration case by

who is my pro bono counsel on appeal. I communicate

with him mostly by mail.

5. ICE originally set my bond at $

, but the immigration judge reduced it to $

6. If I am released, I would stay with a friend named

, who is a

United States citizen and lives in Stamford, Connecticut. I also have friends who live in

Phoenix. I would promise to go to all of my hearings and continue to seek asylum.

7. I have no prior criminal history.

8. I am worried that I could get the COVID-19 virus because of the staff’s lack of preparation and safety measures. I know that the virus is very contagious and that everyone is exposed to it here.

9. The staff has only mentioned the virus one time. The case manager talked to us three weeks ago and told us to wash our hands and practice social distancing. The CoreCivic staff gave us a form to sign in exchange for a mask, but the form would release CoreCivic from liability if we got sick, and I did not sign it. Even though almost nobody signed the form, they passed out masks one and a half weeks ago, but the masks are supposed to be good for only two hours. The staff had one detainee translate the information into Spanish. They also put up some posters around the facility with information about COVID-19 in various languages, including Spanish. We are now brought food so that we do not go to the cafeteria, but everyone is together at a table or watching television in groups of 20 or 30 people.

10. My pod, which is called

, is next to

where the medical staff

brings those who are exhibiting symptoms and need supervision. Those detainees, and all new

detainees, use the same entrance that we do.

11. The guards do not generally use masks or gloves. For visitations, they wear gloves, but use the same pair of gloves to pat everyone down. They also inspect our cells once a month and wear the same gloves to inspect everything.

Case 1:20-cv-01072-CRC Document 19-11 Filed 05/01/20 Page 3 of 4

12. Two and a half weeks ago, I had flu-like or COVID-19-like symptoms. My head hurt, and I had a fever. I did not send a specific medical request because it can take two to three weeks to be seen, but I put these symptoms in the same medical request I made about a heart condition I have called tachycardia. I saw the nurse one week later. Despite my symptoms, the nurse told me that I was fine and did not give me any medicine, even pills for my headache. She also did not schedule me for a follow-up appointment. She did not give me a test for COVID-19, and I don’t know if anyone has been tested. I was not given a mask or gloves for my examination. The nurse had gloves, but not a mask. Nothing was done to stop the spread if I was contagious.

13. I learned that three people were infected with the virus last week and were bought from a

different pod to

for medical supervision. The facility does not tell us about patients,

but other detainees who work in the medical area tell us.

14. We are not able to keep our distance from other detainees. There are 120 people in a pod, with 2 in each cell. There is no space in the cells to stay 6 feet away from each other. The beds and chairs are very close to each other, with generally half a meter or less between them. We have to clean our own cells, and also the public spaces, using the same single mask that they recently gave us. We have no materials to make any other mask or protection.

15. We do not have any soap or hand sanitizer. We only receive shampoo, which we have to use to wash our hands too.

16. As I mentioned, I suffer from tachycardia and have since I was 20, when I had an attack that was almost a cardiac arrest. I had been taking medicine for it, and I got better, but until recently, I could not get medicine in detention. I had an attack recently. I felt my heart racing during the night, and during the day I had shortness of breath and nausea. I made a medical request, but one week passed before I saw the nurse. Despite my other COVID-19-like symptoms, the nurse said that I was okay and did not give me any medicine or make a follow-up appointment. When a doctor called me two weeks later for my one-year check-up (since being detained), the doctor gave me medicine for tachycardia. My tachycardia has returned in detention and is stronger than it was in the past.

17. I also suffer from anxiety, which has gotten worse in detention. The medical staff observed that my weight has gone up and down, by as much as 30 pounds in one month.

18. I do not feel safe at all in detention. Besides fear of the virus, I have been shouted at in the dining room and called a “marica” by other detainees, and other detainees have insulted and laughed at me. All of us trans women, including me, have asked for a change of detention center. Three other trans women agreed to be segregated, but after they were put in segregation at Eloy Detention Center for 8 days, they were brought back to La Palma Correctional Center and remain together with the rest of us.

Case 1:20-cv-01072-CRC Document 19-11 Filed 05/01/20 Page 4 of 4

I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.
Executed on:

April 21, 2020 Date

________________________________ Signed by Jeffrey B Molinar on behalf of
with her oral authorization and permission.

Case 1:20-cv-01072-CRC Document 19-12 Filed 05/01/20 Page 1 of 4
Exhibit 12 to TRO Motion (G.P. Declaration)

Case 1:20-cv-01072-CRC Document 19-12 Filed 05/01/20 Page 2 of 4

RESPONDENT’S PERSONAL DECLARATION

I,

, a/k/a

, hereby state under penalty of perjury that the

following statements are true and accurate to the best of my knowledge and belief:

BIOGRAPHIC INFO & GENDER IDENTITY

1. My name is

. I am a transgender woman. I was born in Honduras on

. My A number is

.

IMMIGRATION & DETENTION HISTORY

2. I in Honduras I experienced persecution due to my transgender status and fled. I am applying for asylum, withholding of removal, or protection under the Convention Against Torture as I fear torture or persecution if returned to Honduras. I understand that the only way for me to remain in the United States is if I appear at all my court hearings and comply with any additional release requirements.

3. I have been detained for 15 months, all at Imperial Regional Detention Facility.

4. I have a sponsor who will take me in if I am released.

5. I have not experienced any discrimination or abuse from the guards for being transgender?

6. I am years old.

MEDICAL HISTORY

7. I do not smoke.

8. While detained I have sometimes had a cold or flu, but I’m not having any symptoms now besides headaches for approximately four days.

9. I have received pain medication to treat my headaches. I have undergone testing in the medical unit to see if I am able to receive hormone treatment, but as of now am not taking hormones. I am not taking any other medication.

10. As of now, I have not been diagnosed with any conditions or illness. I am waiting to hear back about my test results from the doctor.

11. When I receive medicine like pain medication from the nurse, she wears gloves and a mask. I am currently in solitary because, while living in the dormitory, I developed a romantic relationship with a boy I met there. When the guards found out, the separated us and put me in solitary for a month as punishment because it is not permitted to have partners in the same dormitory while in detention. While in solitary, if I have a medical issue there is a button I can press in my cell if there is an emergency or I can submit a

Case 1:20-cv-01072-CRC Document 19-12 Filed 05/01/20 Page 3 of 4
request to be visited by the nurse the next day.
COVID-19 CARE & CONDITIONS AT IMPERIAL
12. The guards or some civil workers did a “charla”/informal presentation in the dormitory about COVID-19, and they told us about keeping distance, and told us that we should only eat 4 to a table, and wash our hands. The presentation was given in Spanish.
13. There have been a couple presentations, and they gave us papers with some information about how the virus is spread.
14. I do not know if anyone at Imperial has contracted COVID-19. They did an examination of all 64 people in our dorm. I do not believe that anyone was tested for COVID-19, we were told that if someone has a cough they will be isolated for 14 days.
15. Officials say we are all being “quarantined” because they limited activities where people would be together. They used to do English classes, but they stopped doing that. Officials stopped letting us use the library, and they limited the number of people who can be in the yard. Staff are still doing haircuts, but only one at a time. The last time I saw the staff giving haircuts, they were not wearing masks or gloves. Otherwise, the guards, the nurses, and the people working in the kitchen have protective equipment like gloves and masks.
16. There is a separate dorm for people who work in the kitchen or as cleaners.
17. There are 64 people in our dorm. We are on two levels and there are rooms of four people for sleeping. The bunk beds are two arm lengths apart. We eat together in small groups. We still line up to get food the same as we did before, with the same distance between us in line as we did before. Social distancing is not possible.
18. Out of the 64 people in our dorm, there are two transgender woman, including myself. The other 62 people are cisgender men. I have not experienced any harassment or abuse from those men.
19. Liquid soap is available, the kind you press a button for. On each floor, four sinks per grouping of 32 people, and there is one soap dispenser upstairs, with 2 soap dispensers downstairs. At first for several weeks we did not have access to masks, gloves, or hand sanitizer. However, a few days ago most of us in the dormitory received masks. We still do not have access to gloves or hand sanitizer.
20. The only people with both masks and gloves are those who work in the kitchen or clean. The guards wear gloves when they are searching people like they normally do. At first, the guards did not use masks but, as of a few days ago, I think that the detention center has become more organized because the guards now also wear masks.

Case 1:20-cv-01072-CRC Document 19-12 Filed 05/01/20 Page 4 of 4

21. The dormitory and bathrooms, including the tables, mirrors, sinks, and floors, are cleaned three times every day by other people who are detained at Imperial and who use masks and gloves while cleaning. They use a blue chemical that I think is a disinfectant.
22. Our personal space is checked about once a month and they usually let you know it will be inspected beforehand. In the fifteen months I have been detained, they have done checks of everyone in the dormitory at the same time four separate times. They do wear masks and gloves while doing these checks.
23. The guards usually do pat-downs when we are moving from place to place in the detention center, like when we leave the library or go outside to the yard. They use gloves and masks while doing the pat-downs.
24. I do not always feel safe, I do not know what is going to happen in here. It feels very uncertain. There are still new people coming in. Most visits have stopped, except for the legal visits.
25. I have authorized Grace Laria, paralegal with the Santa Fe Dreamers Project, to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. If required to do so, I will provide a signature when I am able to do so.

I, Grace Laria, state the following under penalty of perjury pursuant to 28 U.S.C. § 1746: 1. My name is Grace Laria. I am a legal assistant with the Santa Fe Dreamers Project.

2. Out of necessity in light of the COVID-19 pandemic, I was unable to meet

in person. Therefore, I signed

s declaration on her behalf and with her

express consent.

3. I spoke with on April 17, 2020. is true and correct.

via telephone and read her the entire text of the declaration confirmed that all of the information in the declaration

I declare under penalty of perjury that the foregoing is true and correct.

________________________ Signature

Case 1:20-cv-01072-CRC Document 19-13 Filed 05/01/20 Page 1 of 5
Exhibit 13 to TRO Motion (M.R.P. Declaration)

Case 1:20-cv-01072-CRC Document 19-13 Filed 05/01/20 Page 2 of 5

RESPONDENT’S PERSONAL DECLARATION

I,

, a/k/a

, hereby state under penalty of

perjury that the following statements are true and accurate to the best of my knowledge and

belief:

BIOGRAPHIC INFO & GENDER IDENTITY

1. My name is Salvador on

. I am a transgender woman. I was born in El

. My A number is

.

IMMIGRATION & DETENTION HISTORY

2. I fled El Salvador due to persecution, physical abuse, discrimination, and death threats due of my transgender identity and perceived sexual orientation.

3. I am applying for asylum, withholding of removal, or protection under the Convention Against Torture as I fear torture or persecution if returned to El Salvador. I understand that the only way for me to remain in the United States is if I appear at all my court hearings and comply with any additional release requirements.

4. I have a master hearing scheduled on

at Court.

with Judge

n at the

5. I was detained on June 11, 2019. I spent 40 days in the hielera before being transferred to Cibola On July 21, 2019. I was transferred to Otero, and in February 2020 I was transferred to El Paso. I am currently detained at the El Paso Processing Center.

6. I have sponsors who will take me if I am released.

7. While detained at Otero, I experienced discriminaton and verbal abuse due to my identity as a transgender woman. I communicated this to my lawyer. There was an official at Otero whose name was Montenegro who told me he would place me in solitary because I was “walking like a woman” through the hallways and that I needed to behave myself. He said that if I responded to him with a “lack of respect” he would tell the judge, which would negatively affect my immigration case.

MEDICAL HISTORY

8. I am years old.

9. I do not smoke.

10. I often feel depressed, stressed, and anxious and often have migraines as a result of head injuries I sustained in El Salvador while being tortured due to my gender identity.

Case 1:20-cv-01072-CRC Document 19-13 Filed 05/01/20 Page 3 of 5
11. I have respiratory issues. I often feel like I can’t breath, especially at night when I’m sleeping. I’ve had these issues since I was living in El Salvador but was never able to go to a doctor to get a check-up. I’m not sure why I have these issues, but I think they might be related to my depression. I’ve gone to the doctor in detention and am currently on a special diet to address my respiratory issues because the doctors linked these problems with obesity.
12. It feels like my heartbeat is too fast; when I sleep I have convulsions.
13. I often have nausea.
14. I have blood when I wipe after using the bathroom, and the medical unit initially diagnosed me with hemorrhoids and prescribed me medication. However, the symptoms continued and another doctor examined me and said that I actually did not have hemorrhoids. I still continue to find blood when I wipe after using the bathroom. It remains an undiagnosed issue.
15. My medical records indicate that I have symptoms of hypothyroidism, a diagnosis of Hepatitis A, abnormally high bilirubin, and abnormally high hemoglobin.
16. All my family has diabetes and while I do not have a formal diagnosis I know I am at risk of getting diabetes.
17. When I was at Otero I was taking ibuprofen, anxiety medication, allergy medication, and ear medication for an infection. Since being transferred to El Paso I only receive gender affirming hormones and my medical conditions are not being treated.
18. I have asked for medications, but I have not gotten anything.
19. To my knowledge, no one in detention whom I know is receiving medication.
20. Although no one I know in detention is receiving medication, I have seen medical staff wearing gloves and masks.
COVID-19 CARE & CONDITIONS AT EL PASO
21. I understand that people with COVID-19 are isolated because it can be contagious to others. I have to wash my hands with soap or shampoo when I touch objects. I must distance myself from other people. However, it is difficult to maintain distance between myself and others because we live in such close-quarters.

Case 1:20-cv-01072-CRC Document 19-13 Filed 05/01/20 Page 4 of 5
22. New arrivals at El Paso are quarantined in a different barrack for 14 days; they are wearing masks.
23. I learned about COVID-19 from ICE notices on the walls in the dorms giving preventative advice. Also I learned from watching the news that we should be using hand sanitizer but we do not have that in detention.
24. The only COVID-19 information I have received from staff is from the flyers which are in English, Spanish, and other languages. However, the way that I have principally learned about coronavirus is through the news and not through the detention center staff.
25. I don’t know that anyone here has COVID-19, but I doubt that they would tell us if there was someone with COVID-19 because they don’t want us to worry. In the news on Telemundo I saw that other detainees are complaining.
26. I do not know who is being tested at El Paso. Sick people are just isolated and put under medical observation.
27. I sleep in a barrack with 9 cisgender men. I am afraid to sleep in my barrack because I am afraid that they will abuse me.
28. We eat together in a dining hall, but at different times from the people in medical isolation.
29. I know that the detention center staff cleans the dining hall because I see them cleaning the room with disinfectant while we’re eating.
30. We have soap, but no masks, gloves, or hand sanitizer. There is no commissary to purchase protective equipment, just vending machines selling junk food.
31. The guards wear gloves and face masks.
32. We can wash our white clothes every day, but our blue uniforms are only washed twice a week.
33. We clean our barracks, specifically the sinks, phones, and tables, once every day with disinfectant.
34. The beds in the barrack are only three to four feet apart, so social distancing is impossible.
35. The guards do not inspect our personal property.
36. The guards pat us down daily while wearing gloves and masks.

Case 1:20-cv-01072-CRC Document 19-13 Filed 05/01/20 Page 5 of 5

37. There are five sinks available for the 20 people in our barracks that are only cleaned once a day only. They are also not cleaning the bathrooms enough, only once a day. We cannot disinfect on our own because we are not given the necessary chemicals to do it ourselves.
38. I am fearful that I may get infected with the virus. I am afraid that it would exacerbate my medical issues. I know that people with diabetes and respiratory issues are at a heightened risk of complications. I have also been experiencing respiratory issues since I was in El Salvador, for about five years, and understand that I am at higher risk for serious medical issues if I contract COVID-19.
39. I have authorized Grace Laria, paralegal with the Santa Fe Dreamers Project, to sign on my behalf given the difficulty of arranging visitation and travel in light of the current COVID-19 pandemic. If required to do so, I will provide a signature when I am able to do so.
I, Grace Laria, state the following under penalty of perjury pursuant to 28 U.S.C. § 1746:
1. My name is Grace Laria. I am a legal assistant for the Santa Fe Dreamers Project.

2. Out of necessity in light of the COVID-19 pandemic, I was unable to meet

in person. Therefore, I signed

s declaration on her

behalf and with her express consent.

3. I spoke with

o via telephone and read her the entire text of the

declaration on April 16, 2020.

confirmed that all of the

information in the declaration is true and correct.

I declare under penalty of perjury that the foregoing is true and correct.
________________________ Signature

 
 Case 1:20-cv-01072-CRC Document 21 Filed 05/05/20 Page 1 of 2

C.G.B., et al.,
v. WOLF, et al.,

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Petitioners, Respondents.

) ) ) Case No. 1:20-CV-01072-CRC ) ) MOTION FOR CLASS ) CERTIFICATION ) ) ) ) ) )

MOTION FOR CLASS CERTIFICATION Petitioners and the proposed class, by and through their undersigned counsel, hereby respectfully move this Court for an order certifying a class pursuant to Fed. R. Civ. P. 23. Petitioners ask this Court to certify a class consisting of all transgender people in civil immigration detention who are held, or who will be held, by Respondents in any U.S. detention center or facility during the pendency of the COVID-19 pandemic. The grounds for this Motion are set forth in the Memorandum of Law in Support of Petitioners’ Motion for Class Certification. A proposed form order accompanies this Motion. WHEREFORE, Petitioners move this Honorable Court to issue an order certifying the proposed class.

Case 1:20-cv-01072-CRC Document 21 Filed 05/05/20 Page 2 of 2

May 5, 2020
Gregory P. Copeland (D.D.C. Bar # NY0311) Sarah T. Gillman (D.D.C. Bar # NY0316) RAPID DEFENSE NETWORK 11 Broadway, Suite 615 New York, NY 10004-1490 Phone: (212) 843-0910 Fax: (212) 257-7033 Email: gregory@defensenetwork.org Email: sarah@defensenetwork.org
Lynly S. Egyes Transgender Law Center PO Box 70976 Oakland, CA 94612-0976 Telephone: (973) 454-6325 Facsimile: (917) 677-6614 lynly@transgenderlawcenter.org

Respectfully submitted,
/s/ Matthew E. Kelley Matthew E. Kelley (Bar No. 1018126)
Matthew E. Kelley (Bar. No. 1018126) Leslie E. John Elizabeth Weissert Alex Levy BALLARD SPAHR LLP 1909 K Street, NW - 12th Floor Telephone: (202) 661-2200 Facsimile: (202) 661-6299 Email: kelleym@ballardspahr.com Email: johnl@ballardspahr.com Email: weisserte@ballardspahr.com Email: levya@ballardspahr.com

Attorneys for Petitioners

2

Case 1:20-cv-01072-CRC Document 21-1 Filed 05/05/20 Page 1 of 21

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

C.G.B., et al.,
v. WOLF, et al.,

Petitioners, Respondents.

) ) ) Case No. 1:20-CV-01072-CRC ) ) ) ) ) ) ) ) )

MEMORANDUM OF LAW IN SUPPORT OF PETITIONERS’ MOTION FOR CLASS CERTIFICATION

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TABLE OF CONTENTS

Page

I. INTRODUCTION .............................................................................................................. 1

II. PROPOSED CLASS DEFINITION ................................................................................... 5

III. PROPOSED CLASS REPRESENTATIVES ..................................................................... 6

IV. ARGUMENT.................................................................................................................... 10

A. Legal standard....................................................................................................... 10

B. The Proposed Class Meets the Requirements of Rule 23(a)................................. 11

1. The proposed class is so numerous that joinder would be impractical................................................................................................. 11

2. The proposed class representatives present issues of fact and law in common with the class.............................................................................. 12

3. The claims of the proposed class representatives are typical of those of the class. ...................................................................................... 14

4. The proposed class representatives and class counsel can adequately represent the class................................................................... 15

C. The Proposed Class Meets the Requirements of Rule 23(b). ............................... 16

V. CONCLUSION................................................................................................................. 17

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Case 1:20-cv-01072-CRC Document 21-1 Filed 05/05/20 Page 3 of 21
TABLE OF AUTHORITIES Page(s)
Cases Barnes v. District of Columbia,
242 F.R.D. 113 (D.D.C. 2007).................................................................................................11 Damus v. Nielsen,
313 F. Supp. 3d 317 (D.D.C. 2018) .......................................................................10, 12, 13, 16 Fraihat v. U.S. Immigration and Customers Enforcement,
No. 5:19-cv-01546, 2020 U.S. Dist. LEXIS 72015 (C.D. Cal. Apr. 20, 2020) ............... passim Garnett v. Zeilinger,
301 F. Supp. 3d 199 (D.D.C. 2018) .............................................................................11, 14, 15 In re Navy Chaplaincy,
306 F.R.D. 33 (D.D.C. 2014).............................................................................................14, 15 Savino v. Souza,
No. 20-10617, 2020 U.S. Dist. LEXIS 61775 (D. Mass. Apr. 8, 2020) ........................4, 14, 15 Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338 (2011).....................................................................................................10, 12, 16 Other Authorities Fed. R. Civ. P. 23 ...........................................................................................................................10 Fed. R. Civ. P. 23(a) ............................................................................................................1, 10, 11 Fed. R. Civ. P. 23(a)(1)..................................................................................................................11 Fed. R. Civ. P. 23(b) ......................................................................................................1, 10, 16, 17 Fed. R. Civ. P. 23(b)(2)..................................................................................................1, 10, 16, 17 Fed. R. Civ. P. 23(g) ......................................................................................................................16

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I. INTRODUCTION Petitioners filed this action and requested emergency injunctive relief on behalf of a
highly vulnerable putative class: transgender individuals in civil immigration detention, all of whom are at grave risk of contracting COVID-19 because of the life-threatening conditions under which they are confined. Transgender people in civil immigration detention – many of whom came to this country seeking safety from violence and persecution because of their gender identities – are among the most vulnerable to infection and death during the current pandemic. Although federal authorities recognize the severe risks posed by outbreaks of the COVID-19 virus in immigration detention centers, Immigration and Customs Enforcement (“ICE”) has taken no specific measures to protect this especially vulnerable population. Common questions of both fact and law pervade this matter making class certification appropriate.
The requirements of Federal Rules of Civil Procedure 23(a) and 23(b) are met by the proposed class. The class is sufficiently numerous: ICE has attested that there are more than seventy-six transgender individuals being held in civil detention. Lederman Decl. ¶ 20 (ECF No. 20-8). All members of the class are bound together by common questions or law and fact – particularly whether, in the face of the lethal COVID-19 pandemic, the conditions of confinement at ICE detention facilities put transgender individuals at risk in a manner that amounts to unconstitutional punishment. The ten named Petitioners1 are proper class representatives because their claims are typical of the absent class members and because they and their counsel will adequately and vigorously represent the class. Finally, Rule 23(b)(2)
1 Thirteen named Petitioners initially brought this action on behalf of the putative class on April 23, 2020. Since then, three named Petitioners (L.RA.P., R.H. and G.P.) have been released from detention. Mullan Decl. ¶ 8 (ECF No. 20-12); Valenzuela Decl. ¶ 29 (ECF No. 20-13). Accordingly, they would not serve as representatives of the putative class.
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permits certification here because Respondents have acted or refused to act on grounds that apply generally to the class through creating and maintaining the conditions that put the class at imminent risk of contracting and suffering from COVID-19 in detention. Therefore, the requested injunctive relief would provide relief to each member of the proposed class.
Since the first confirmed case of COVID-19 in the United States in late January 2020, the number of infected people in this country has exploded to more than one million as of May 3, 2020, with more than 64,000 deaths, according to the U.S. Centers for Disease Control and Prevention (the “CDC”). See Cases of Coronavirus Disease (COVID-19) in the U.S., CDC, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html. COVID-19 is a respiratory illness that is spread through airborne droplets, such as those expelled when a person coughs or sneezes, or via contact with contaminated surfaces. Immigration detention centers are congregate facilities in which detainees live in close proximity. That fact makes them especially dangerous during pandemics such as COVID-19, which easily spreads from person to person, both through the air and on commonly used surfaces such as tables and toilets. Since ICE first reported a COVID-19 infection in one of its detention centers on March 19, 2020, outbreaks have spread to at least 34 detention centers across the country. As of May 4, 2020, ICE had publicly reported 645 confirmed cases of COVID-19 in those facilities, including 606 detainees and 39 staff members. See ICE Guidance on COVID-19 Confirmed Cases, https://www.ice.gov/coronavirus . At least eleven facilities where transgender detainees are housed are experiencing reported outbreaks with 236 detainees infected. Id.
ICE has systematically failed to provide transgender individuals in civil detention fundamental protections from the spread of COVID-19. Transgender people in immigration detention report that it is often impossible to practice social distancing and take other necessary

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measures that are required to protect from COVID-19. A.F. Decl. ¶ 12 (ECF No. 19-2). Beds and tables are bolted to the floor, forcing detainees to sleep and sit only a few feet from each other, and some detainees are still lining up in large groups for meals. A.F. Decl. ¶ 12 (ECF No. 19-2); L.M. Decl. ¶¶ 92-93 (ECF No. 19-8); D.B.M.U. Decl. ¶ 17 (ECF No. 19-10). Few guards and staff members wear face masks when interacting with detainees, and some wear no protective equipment at all. A.F. Decl. ¶ 17 (ECF No. 19-2); K.R.H. Decl. ¶ 11 (ECF No. 1911). Most detainees have not been provided with face masks; some do not have access to soap and must wash their hands with shampoo. M.M.S.-M. Decl. ¶ 23 (ECF No. 19-3); L.M. Decl. ¶ 51 (ECF No. 19-8); A.F. Decl. ¶ 14 (ECF No. 19-2). Detainees exhibiting symptoms such as coughing or fever on occasion are not given medical examinations or isolated from the rest of the population. A.F. Decl. ¶ 16 (ECF No. 19-2); M.J.J. Decl. ¶ 12 (ECF No. 19-9); K.R.H. Decl. ¶ 12 (ECF No. 19-11).
Detention centers have become death traps for transgender detainees. Gorton Decl. ¶¶ 12-13 (ECF No. 4-15). Transgender detainees are particularly susceptible to COVID-19 infection and, if they do become infected, are more likely to become seriously ill or die. Transgender people in ICE custody are far more likely to be the victims of abuse and sexual assault than non-LGBT detainees – this kind of unwanted close physical contact makes them more vulnerable to infection of COVID-19. Gorton Decl. ¶ 11 (ECF No. 4-15). Further, transgender detainees have not only suffered the trauma of being discriminated against, persecuted, tortured and raped because of their gender identity, but they also live with the constant stress of continuing discrimination, harassment and the risk of sexual assault. Gorton Decl. ¶ 10 (ECF No. 4-15); Franco-Paredes Decl. ¶ 17 (ECF No. 4-16). Such stress lowers their immune systems’ response to infection, meaning transgender detainees are more likely to

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become infected, become sick, and die from COVID-19. Gorton Decl. ¶ 10 (ECF No. 4-15); Franco-Paredes Decl. ¶ 17 (ECF No. 4-16). Because transgender individuals who have been prescribed medically necessary hormone replacement therapy must interact frequently with medical staff they are further exposed to risk of infection. Gorton Decl. ¶ 11 (ECF No. 4-15). ICE reports that three transgender men in custody receive hormone injections while 51 transgender women in custody receive daily hormone pills. Lederman Decl. ¶ 20 (ECF No. 208). Even Respondents’ medical expert concedes that transgender detainees as a group are more likely to have underlying medical conditions making them vulnerable, such as infection with HIV, diabetes and high blood pressure. Lederman Decl. ¶ 18 (ECF No. 20-8).
Several federal courts have recently certified or provisionally certified classes of civil immigration detainees in conjunction with ordering injunctive relief in the form of supervised release from detention. On April 8, 2020, in Savino v. Souza, the District of Massachusetts provisionally certified a class of all civil immigration detainees held at two detention centers in Massachusetts for their due process claim. No. 20-10617, 2020 U.S. Dist. LEXIS 61775 (D. Mass. Apr. 8, 2020). The Court recognized that “[t]hough there are indeed pertinent and meaningful distinctions among the various Detainees, there is a common question of unconstitutional overcrowding that binds the class together.” Id. at *10. Then on April 20, 2020, in Fraihat v. U.S. Immigration and Customers Enforcement, the Central District of California certified two classes of people in civil immigration detention who have certain specified risk factors or disabilities that place them at heightened risk of severe illness and death upon contracting the COVID-19 virus. No. 5:19-cv-01546, 2020 U.S. Dist. LEXIS 72015 (C.D.

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Cal. Apr. 20, 2020).2 Although some named Petitioners have risk conditions which could place them in one of the two Fraihat subclasses, the subclasses identified in Fraihat only encompass a portion of the putative class here, and the simple reality is that even those transgender detainees with identified medical conditions such as HIV have inexplicably not been released. Rather, this action is brought on behalf putative class of transgender people in civil immigration detention who are at higher risk of contracting and suffering from COVID-19 because of their identification as transgender people and ICE has taken no action to protect them. This suit seeks to protect this especially vulnerable putative class from infection and death.
The conditions in ICE detention violate the putative class members’ Fifth Amendment due process rights. Petitioners have requested that this Court issue an injunction mandating the release on parole or other supervised release of all transgender people in civil immigration detention so they may protect themselves against COVID-19. For purposes of the requested injunctive relief, Petitioners request that this Court provisionally certify a class of all transgender people in civil immigration detention who are held, or who will be held, by Respondents in any U.S. detention center or facility during the pendency of the COVID-19 pandemic. II. PROPOSED CLASS DEFINITION
All transgender people in civil immigration detention who are held, or who will be held, by Respondents in any U.S. detention center or facility during the pendency of the COVID-19 pandemic

2 ICE purports to have reviewed four of the named Petitioners in this case, L.M., M.J.J., D.B.M.U., and M.M.S.-M., for release under Fraihat but has denied each of their applications for release. TRO Opp. Br. at pp. 6-7 (ECF No. 20-1). ICE has not reviewed the cases of K.M. or K.S., who are both HIV positive. K.S. Decl. ¶ 9 (ECF No. 19-5); K.M. Decl. ¶ 10 (ECF No. 19-6). Respondents fail to provide any explanation as to why these detainees were not released or even considered for release, despite their underlying medical conditions warranting release.

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III. PROPOSED CLASS REPRESENTATIVES The proposed class representatives are the ten named Petitioners currently being held in
ICE custody as of the date of this filing. Petitioner C.G.B., f/k/a D.G.B., is a citizen of Mexico who has been detained at the Florence Detention Center (“Florence”) in Florence, Arizona, since January 2020. C.B.G. Decl. ¶¶ 1-3 (ECF No. 19-1). C.G.B., a transgender woman, is seeking asylum because she fears persecution in Mexico because of her transgender status. Id. C.G.B. was being held in a pod with approximately 64 other detainees when, on April 2, 2020, the newly arrived man in the bunk above her began coughing uncontrollably. Id. at ¶¶ 6-7. He was eventually seen by a doctor five days later, but was returned to the general population and the bunk above C.G.B. Id. C.G.B. has experienced COVID-19 symptoms since April 9, 2020. Id. at ¶ 8. She saw a doctor after she began vomiting, had a fever, had pain in her throat, head and bones, and began losing hair. Id. She had a COVID-19 test performed on April 9, 2020, but despite being told she would have results in three days, she was only told that her test resulted negative three weeks later on April 28, 2020 – after she had filed this suit. C.B.G. Second Decl. ¶ 4 (Exh. 1 to TRO Reply Br.).
Petitioner A.F., f/k/a O.E.R.F., is a citizen of Nicaragua who is detained at the La Palma Correctional Center (“La Palma”) in Eloy, Arizona. A.F. Decl. ¶¶ 1-3 (ECF No. 19-2). She has been in ICE custody since January 9, 2020. Id. A doctor at La Palma told A.F. that she is at greater risk for COVID-19 infection because she was born with only one kidney. Id. at ¶ 8. She is concerned because there is no way to practice social distancing at La Palma; for example, detainees have meals in groups of more than 100 people and cannot maintain a six-foot distance while waiting in line or eating. Id. at ¶ 12. She has not observed guards wearing face masks or gloves while interacting with detainees. Id. at ¶ 17.

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Petitioner M.M.S-M., f/k/a A.H.S-M., is a citizen of El Salvador who is detained at the Winn Correctional Center (“Winn”) in Winnfield, La. M.M.S.-M. Decl. ¶¶ 1-6 (ECF No. 19-3). She has been in ICE custody for nearly a year. Id. M.M.S-M., a transgender woman, is seeking asylum because she fears persecution and death in El Salvador because of her transgender status. Id. Because of her fear and anxiety from being housed with 40 cisgender men, M.M.S-M. has been placed in segregation, which is exacerbating her mental health issues. Id. at ¶¶ 16-17. Nurses at Winn do not wear gloves or masks, and neither medical staff nor guards have provided M.M.S-M. with information about COVID-19. Id. at ¶ 21.
Petitioner K.S., f/k/a J.H.S., is a citizen of Jamaica who is detained at the Nevada Southern Detention Center (“Nevada Southern”) in Pahrump, Nevada. K.S. Decl. ¶¶ 1-6 (ECF No. 19-5). She has been in ICE custody since March 27, 2019. Id. K.S., a transgender woman, is seeking asylum because she has received death threats from her family and fears persecution in Jamaica because of her transgender status. Id. K.S., who is living with HIV, has difficulty ensuring that she receives her antiretroviral medication as prescribed. Id. at ¶¶ 9-12. Staff at Nevada Southern, including medical staff, do not always wear gloves and masks. Id. at ¶ 30.
Petitioner K.M., f/k/a G.M., is a citizen of Haiti who has been detained at Nevada Southern since March 27, 2019. K.M. Decl. ¶¶ 1-6 (ECF No. 19-6). K.M., a transgender woman, is seeking asylum because she fears persecution and violence in Haiti because of her gender identity. Id. Staff at the facility sometimes do not provide K.M., who is living with HIV, with her antiretroviral medication, causing her to miss doses. Id. at ¶¶ 10-14. She has observed other detainees in her pod showing possible COVID-19 symptoms such as coughing and fever; those detainees received medical care but returned to the general population. Id. at ¶ 29.

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Petitioner L.M., f/k/a S.M., is a citizen of Jamaica who is detained at the Aurora Detention Center (“Aurora”) in Aurora, Colorado. L.M. Decl. ¶¶ 3-6 (ECF No. 19-8). She is seeking asylum because she has experienced beatings, death threats, discrimination and persecution in Jamaica because of her status as a transgender woman. Id. at ¶ 7. At Aurora, it took approximately 3-4 weeks for her to obtain an appointment with a doctor, who resumed her prescribed hormone treatments at one-quarter of her previous dose. Id. at ¶ 20.
Petitioner M.J.J., f/k/a O.H.J., is a citizen of Honduras who is detained at Aurora. M.J.J. Decl. ¶¶ 1-4 (ECF No. 19-9). She has been detained for about one month – originally at El Paso Processing Center (“El Paso”) in El Paso, Texas, then transferred to Florence, and eventually to Aurora. Id. M.J.J., a transgender woman, is seeking asylum because she fears persecution in Honduras because of her transgender status. Id. She is in a dorm with seven other transgender women, five of whom are HIV positive. Id. at ¶¶ 15, 27. She does not believe that anyone in the dorm has been tested for COVID-19. Id. at ¶ 29. She has not been given gloves or masks. Id. at ¶ 19. The guards at Aurora wear gloves but do not wear masks. Id. at ¶ 23.
Petitioner D.B.M.U., f/k/a W.E.M.U., is a citizen of Honduras who is detained at Aurora. D.B.M.U. Decl. ¶¶ 1-5 (ECF No. 19-10). She has been detained for more than a month – originally at El Paso, then transferred to Florence, and eventually to Aurora. Id. D.B.M.U., a transgender woman, is seeking asylum because she fears persecution in Honduras because of her transgender status. Id. She was detained in a room with six other transgender women. Id. at ¶ 17. She heard on the news that there was a confirmed case of COVID-19 at Aurora. Id. at ¶ 14. She does not have access to any disinfectants, gloves, or masks, and she has not seen anyone at Aurora being tested for COVID-19. Id. at ¶ 18.

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Petitioner K.R.H., f/k/a W.D.R.H., is a citizen of Guatemala who has been detained in ICE custody at the La Palma since the beginning of April 2020. K.R.H, Decl. ¶¶ 1-3 (ECF No. 19-11). K.R.H., a transgender woman, is seeking asylum because she fears persecution based on her LGBTQ+ identity in Guatemala, where she experienced threats and a kidnapping attempt. Id. She suffers from tachycardia (an abnormally rapid heartbeat) and anxiety. Id. at ¶ 16. In early April, K.R.H. suffered a headache and fever, which are potential symptoms of COVID-19, but a nurse at La Palma did not see her until a week later, did not test her for the virus, and did not provide medication for her symptoms. Id. at ¶ 12. K.R.H. is housed in a 120-person pod and does not have sufficient space in the pod to stay more than six feet away from other people; the detainees congregate in groups of 20 to 30 to have meals and watch television, and the beds in the two-person cells do not provide a six-foot distance for sleeping. Id. at ¶ 14. Three people from her pod tested positive for COVID-19, days after exhibits COVID-19 symptoms, and were taken to a hospital offsite. K.R.H. Second Decl. ¶ 5 (Exh. 4 to TRO Reply Br.). K.R.H. was told she would be in quarantine until May 11, 2020 and fears she may have been infected. Id.
Petitioner M.R.P., f/k/a J.N.R.P., is a citizen of El Salvador who has been detained since June 11, 2019. M.R.P. Decl. ¶¶ 1-5 (ECF No. 19-13). Since February 2020, she has been detained at El Paso. Id. She was previously detained at Cibola and Otero Detention Center (“Otero”) in Chaparral, New Mexico. Id. M.R.P., a transgender woman, is seeking asylum because she fled persecution, torture and death threats in El Salvador because of her transgender status. Id. She has respiratory issues, hypothyroidism, Hepatitis A, abnormally high bilirubin, and abnormally high hemoglobin. Id. at ¶¶ 11-15. She sleeps in a barrack with nine cisgender men. Id. at ¶ 27. The beds in the barrack are only three or four feet apart, so social distancing is impossible. Id. at ¶ 34. She is afraid that she will become infected with COVID-19 and that she

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will develop serious medical issues because people with respiratory issues are at a higher risk for serious symptoms if they contract COVID-19. Id. at ¶ 38. IV. ARGUMENT
A. Legal standard Federal Rule of Civil Procedure 23(a) establishes four requirements for certification of a class: (1) numerosity, that “the class is so numerous that joinder of all members is impracticable”; (2) commonality, that “there are questions of law or fact common to the class”; (3) typicality, that “the claims or defenses of the representative parties are typical of the claims or defenses of the class”; and (4) adequacy, that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). In addition to meeting these requirements under Rule 23(a), a putative class must also meet one of the requirements of Rule 23(b). Rule 23(b)(2) requires that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b). In other words, Rule 23(b)(2) requires that “a single injunction or declaratory judgment would provide relief to each member of the class.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011). Petitioners here seek provisional class certification in connection with their request that the Court grant the requested preliminary injunction. “In granting such provisional certification, the Court must still satisfy itself that the requirements of Rule 23 have been met.” Damus v. Nielsen, 313 F. Supp. 3d 317, 329 (D.D.C. 2018). The Court’s “analysis is tempered, however, by the understanding that such certifications may be altered or amended before the decision on the merits.” Id. (internal quotation marks omitted).

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B. The Proposed Class Meets the Requirements of Rule 23(a). 1. The proposed class is so numerous that joinder would be impractical.
The proposed class satisfies the requirement that the class be “so numerous that joinder of all members is impractical.” Fed. R. Civ. P. 23(a)(1). To establish numerosity, “a party need not provide a precise number of class members as long as there is a reasonable basis to estimate it.” Garnett v. Zeilinger, 301 F. Supp. 3d 199, 206 (D.D.C. 2018) (Cooper J.). Courts in this Circuit have considered a class of “at least forty members to presumptively meet the requirement of numerosity.” Id. (citing Barnes v. District of Columbia, 242 F.R.D. 113, 121 (D.D.C. 2007)).
Here, ICE has attested that at least seventy transgender people are currently being held in civil detention. Lederman Decl. ¶ 20 (ECF No. 20-8). The proposed class thus easily satisfies the numerosity requirement. The impossibility of joinder here is compounded by the exigent circumstances of the current COVID-19 pandemic. The Fraihat court recognized: “It would be inconvenient and difficult, if not impossible, for detainees to obtain timely relief by filing conditions of confinement suits for each detention facility or unit in the country. Given the many obstacles to accessing counsel during the COVID-19 pandemic, the Court is concerned that many putative class members would not be able to proceed on their own[.]” 2020 U.S. Dist. LEXIS 72015, at *53. So too here. The detention facilities have limited access to counsel by limiting visits to non-contact visits or only allowing in person visitation when specifically requested by counsel. Acosta Decl. ¶ 58 (ECF No. 20-2); Cantrell Decl. ¶ 28 (ECF No. 20-4); Ciliberti Decl. ¶ 30 (ECF No. 20-5); Davies Decl. ¶ 26 (ECF No. 20-6); Hodges Decl. ¶ 24 (ECF No. 20-7); Mros Decl. ¶ 13 (ECF No. 20-11). It would be difficult, if not impossible, for all transgender people in detention to obtain timely relief given the obstacles to access to counsel in the current pandemic. Proceeding by class is the most efficient means for them to obtain relief.

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2. The proposed class representatives present issues of fact and law in common with the class.
The putative class satisfies the requirement of commonality. Commonality requires that the plaintiff class has “suffered the same injury.” Wal-Mart Stores, 564 U.S. at 350. The Supreme Court has explained that the putative class’s “claims must depend upon a common contention” that is “capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the clams in one stroke.” Id. This court found commonality was satisfied in Damus v. Nielson when it provisionally certified a class of asylum seekers who had been found to have credible fear but were detained by ICE after being denied parole. 313 F. Supp. 3d at 332. This case also satisfies the requirement of a single common question that is shared by all members of the proposed class. Here, that overarching question, among others, is whether ICE’s failure to protect transgender people in detention from the risks of contracting, suffering, and dying from the COVID-19 pandemic in detention renders class members’ confinement a punishment that violates their constitutional due process rights. All of the class members have been subjected to unsafe conditions of confinement and a determination that Respondents’ conduct is unconstitutional will “resolve an issue that is central to the validity” of each of the putative class members’ claims. Wal-Mart Stores, 563 U.S. at 350.
Transgender people in immigration detention report it is often impossible to practice social distancing, they have not been provided with protective equipment such as face masks, and detainees exhibiting symptoms are not given timely medical attention or isolated from the rest of the population. A.F. Decl. ¶¶ 12, 16 (ECF No. 19-2); M.M.S.-M. Decl. ¶ 23 (ECF No. 19-3); L.R.A.P. Decl. ¶ 8 (ECF No. 19-4); L.M. Decl. ¶ 51 (ECF No. 19-8); M.J.J. Decl. ¶ 12 (ECF No. 19-9); K.R.H. Decl. ¶ 12 (ECF No. 19-11). Transgender detainees are particularly

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susceptible to COVID-19 infection and, if they do become infected, are more likely to become seriously ill or die because as a group they are more likely to have underlying medical conditions or suffer from harassment and assault making them vulnerable. Gorton Decl. ¶ 10 (ECF No. 415); Franco-Paredes Decl. ¶ 17 (ECF No. 4-16). Transgender people live with the constant stress of discrimination, harassment and the risk of sexual assault; such stress lowers their immune systems’ response to infection, meaning they are more likely to become infected, become sick, and die from COVID-19. Gorton Decl. ¶ 10 (ECF No. 4-15); Franco-Paredes Decl. ¶ 17 (ECF No. 4-16). Because transgender individuals on medically necessary hormone replacement therapy must interact frequently with medical staff they are further exposed to risk of infection. Gorton Decl. ¶ 11 (ECF No. 4-15). Transgender people in ICE custody are far more likely to be the victims of abuse and sexual assault than non-LGBT detainees – this kind of unwanted close physical contact makes them more vulnerable to infection of COVID-19. Gorton Decl. ¶ 11 (ECF No. 4-15). In the face of these increased risks, ICE has taken no specific measures to protect transgender people in their custody from the risk of infection of COVID-19.
The fact that transgender people are detained at different detention centers and thus that certain details relating to their conditions of confinement vary among class members does not defeat class certification. In Damus, this court held that that although “the asylum-seekers acknowledge that the circumstances of their detention may vary, […] they have sufficiently identified a common cause and injury as a result of the current parole regime and ICE’s departure from the mandates of the Parole Directive.” 313 F. Supp. 3d at 332. The Fraihat court also addressed this argument, finding that “[d]espite Plaintiffs’ admitted differences, each putative class member finds herself in similar situation. Each class member claims entitlement to a minimally adequate national rescue response from ICE.” 2020 U.S. Dist. LEXIS 72015, at

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*56; see also Savino, 2020 U.S. Dist. LEXIS 61775, at *21 (“the Court determines that the admittedly significant variation among the Detainees does not defeat commonality or typicality.”). The Savino court went on to hold that “[a]t bottom, a common question of law and fact in this case is whether the government must modify the conditions of confinement -- or, failing that, release a critical mass of Detainees -- such that social distancing will be possible and all those held in the facility will not face a constitutionally violative substantial risk of serious harm.” 2020 U.S. Dist. LEXIS 61775, at *21 (internal quotation marks omitted). The common question of whether detaining transgender people in conditions that increase their risks of contracting the deadly COVID-19 virus is shared by all putative class members.
3. The claims of the proposed class representatives are typical of those of the class.
The claims of the ten named Petitioners are typical of the putative class of transgender people in civil immigration detention. Typicality assesses “whether the class representatives have suffered injuries in the same general fashion as absent class members.” Garnett, 301 F. Supp. 3d at 209 (internal citation omitted). The facts and claims of each named representative “need not be identical” to those of the absent class members. Id. Typicality simply requires "sufficient factual and legal similarity between the class representative’s claims and those of the class to ensure that the representative’s interests are in fact aligned with those of the absent class members.” In re Navy Chaplaincy, 306 F.R.D. 33, 53 (D.D.C. 2014) (internal citation omitted).
Here, the interests of the ten named Petitioners and the proposed class members are aligned. The proposed class representatives are members of the class, have suffered the same injury of increased risk of infection as proposed class members, and have been injured by Respondents’ actions and inaction that have led to conditions of confinement that threaten the health and safety of all class members. There is no risk that issues involving named Petitioners

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individual claims will impede their litigation on behalf of the class. And, the fact that named Petitioners may be housed in different detention facilities from absent class members does not defeat typicality. The court in Savino found that “the admittedly significant variation among the Detainees does not defeat commonality or typicality.” 2020 U.S. Dist. LEXIS 61775, at *21. In so holding, the court recognized “the troubling fact that even perfectly healthy detainees are seriously threatened by COVID-19. To be sure, the harm of a COVID-19 infection will generally be more serious for some petitioners than for others. Yet it cannot be denied that the virus is gravely dangerous to all of us.” Id. Because the named Petitioners are challenging the same practices and seeking the same injunctive relief on behalf of the entire putative class they can fairly and adequately pursue the interests of the absent class members.
4. The proposed class representatives and class counsel can adequately represent the class.
The ten named Petitioners and their undersigned counsel can adequately represent the interests of absent class members. The D.C. Circuit recognizes two criteria for determining adequacy: “(1) that the named plaintiffs must not have antagonistic or conflicting interests with the unnamed members of the class and (2) that the named representatives must appear able to vigorously prosecute the interests of the class through qualified counsel.” Garnett, 301 F. Supp. 3d at 210 (internal quotation marks omitted). Here, the interests of the ten named Petitioners will not conflict with the interests or any class members because those interests are aligned. The named Petitioners have alleged the same injuries, arising from the same conduct by ICE, and they seek the same injunctive and declaratory relief which will apply equally to benefit all class members.
The named Petitioners are represented by the national law firm Ballard Spahr, LLP as well as two public interest organization with significant experience in the relevant legal areas:

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Rapid Defense Network, and the Transgender Law Center. Collectively, counsel have significant experience in the areas of immigration law, constitutional law, and class action litigation, and they have more than sufficient resources to vigorously prosecute this case. See Copeland Decl. attached as Exhibit 1, Egyes Decl. attached as Exhibit 2, John Decl. attached as Exhibit 3. For these reasons, counsel also satisfy the requirements of Rule 23(g) and should be appointed as class counsel.
C. The Proposed Class Meets the Requirements of Rule 23(b). The putative class satisfies the requirement of Rule 23(b)(2) because ICE has acted or refused to act on grounds generally applicable to the class such that the requested injunctive relief would provide relief to each class member. A proposed class must meet one of the three requirements of Rule 23(b). Rule 23(b)(2), which Petitioners invoke here, requires that "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). In other words, Rule 23(b)(2) requires that “a single injunction or declaratory judgment would provide relief to each member of the class.” Wal-Mart Stores, 564 U.S. at 360. Petitioners here seek declaratory and injunctive relief to address a systematic harm: ICE’s failure to take any action to protect transgender people in civil detention from contracting the deadly COVID-19 virus. This failure “is an agency action generally applicable to all class members, and a determination of whether that practice is unlawful would therefore resolve all members’ claims in one stroke.” Damus, 313 F. Supp. 3d at 334-35 (finding a putative class of detained asylum seekers met the requirements of Rule 23(b)(2) where they sought “declaratory and injunctive relief requiring [ICE’s] compliance with the Directive and mandating that the

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Field Offices provide the individualized parole determinations and protections required by such agency guidance”).
In Fraihat, the court found that ICE’s failure to protect people in civil immigration detention with risk factors or disabilities that place them at heightened risk of severe illness and death upon contracting the COVID-19 virus applied to the class generally. 2020 U.S. Dist. LEXIS 72015, at *63. Rule 23(b)(2) was satisfied where “[t]he putative class seeks declaratory and injunctive relief based on the asserted inadequacies of Defendants’ COVID-19 protocols and response.” Id. Moreover, the court found that “[f]or purposes of this inquiry, the fact that some class members may have suffered no injury or different injuries from the challenged practice does not prevent the class from meeting the requirements of Rule 23(b)(2).” Id. (internal citation omitted).
Petitioners have requested that this Court enter an injunction that would provide relief to each member of the proposed class of transgender people in civil immigration detention, thus meeting the requirements of Rule 23(b). V. CONCLUSION
For all of the foregoing reasons, Petitioners respectfully request that the Court enter an Order (1) certifying a class consisting of all transgender people in civil immigration detention who are held, or who will be held, by Respondent in any U.S. detention center or facility during the pendency of the COVID-19 pandemic, (2) appointing the ten named Petitioners as class representatives; and (3) appointing the undersigned counsel as class counsel.

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May 5, 2020
Gregory P. Copeland (D.D.C. Bar # NY0311) Sarah T. Gillman (D.D.C. Bar # NY0316) RAPID DEFENSE NETWORK 11 Broadway, Suite 615 New York, NY 10004-1490 Phone: (212) 843-0910 Fax: (212) 257-7033 Email: gregory@defensenetwork.org Email: sarah@defensenetwork.org
Lynly S. Egyes Transgender Law Center PO Box 70976 Oakland, CA 94612-0976 Telephone: (973) 454-6325 Facsimile: (917) 677-6614 lynly@transgenderlawcenter.org

Respectfully submitted,
/s/ Matthew E. Kelley Matthew E. Kelley (Bar No. 1018126)
Matthew E. Kelley (Bar. No. 1018126) Leslie E. John Elizabeth Weissert Alex Levy BALLARD SPAHR LLP 1909 K Street, NW - 12th Floor Telephone: (202) 661-2200 Facsimile: (202) 661-6299 Email: kelleym@ballardspahr.com Email: johnl@ballardspahr.com Email: weisserte@ballardspahr.com Email: levya@ballardspahr.com

Attorneys for Petitioners

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C.G.B. et al.,
v. WOLF et al.,

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Petitioners, Respondents.

) ) ) Case No.: 1:20-cv-01072 (CRC) ) ) DECLARATION OF GREGORY P. ) COPELAND IN SUPPPORT OF ) MOTION FOR CLASS ) CERTIFICATION ) ) DATED MAY 5, 2020 ) )

I, Gregory P. Copeland, declare under penalty of perjury that the following is true and correct:

1. I am attorney licensed to practice in the states of New York, Connecticut, and

New Jersey, and numerous federal courts. I was first admitted to practice in February 2010.

2. Since January of 2019, I have held the position of co-Legal Director of the

organization now known as the Rapid Defense Network (RDN). RDN is a New York State

incorporated nonprofit legal services organization specializing in federal habeas corpus litigation

for non-citizens detained by immigration authorities facing removal from the United States.

RDN has extensive experience litigating detention issues in impact litigation and habeas corpus

litigation across the county.

3. Prior to my present position at RDN, I served as the Supervising Attorney of The

Legal Aid Society of New York’s (LAS) Federal Practice within the Immigration Law Unit.

LAS is a non-profit legal aid provider based in New York City. Founded in 1876, it is the oldest

and largest provider of legal aid in the United States. I was employed by LAS from June 1, 2017

to January 1, 2019.

4. I joined LAS from Debevoise & Plimpton LLP, where I was a litigation associate

from October 2009 until May 2017, and a summer associate in 2008. Debevoise is a New York

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City based law firm founded in 1931 with approximately 800 lawyers across nine offices across three continents. During my time at Debevoise, the firm was recognized by ALM’s The American Lawyer as “2014 Litigation Department of the Year” and also placed No. 1 overall in The American Lawyer’s “10-Year A-List” – a ranking of the law firms who have earned the highest cumulative score on the A-List since its inception in 2003.
5. While at Debevoise, I represented a broad coalition challenging the constitutionality of the State of Connecticut’s public education funding laws as inadequate in failing to provide minimally sufficient educational opportunities and inequitable in not providing substantially similar educational opportunities for at risk students across the state’s low-income districts. I led a litigation team – as the only attorney admitted in Connecticut and most senior associate – during the course of a six-month trial that involved testimony from more than 50 witnesses to a successful result at trial. I also worked on substantial state and federal civil class actions at Debevoise, on both the plaintiff side (involving claims related to mortgage backed securities) and on the defense side (coordinating efforts involving automotive personal injury class claims in connection to, and interaction with, Federal Multidistrict Litigation and criminal and civil investigations by several state and federal agencies in over 30 U.S. jurisdictions pending simultaneously). For most of the time I worked at Debevoise, I was the associate coordinator for pro bono immigration matters, advising and supervising junior colleagues.
6. I am a member of the state bars of New York, Connecticut, and New Jersey, as well as the U.S. District Courts for Connecticut, the District of Columbia, New Jersey, and the Southern, Eastern, and Western Districts of New York, and the U.S. Courts of Appeals for the First, Second, Third, Fourth, Fifth, Ninth, Eleventh, and D.C. Circuits, and the U.S. Supreme Court. I am also a member of The American Immigration Lawyers Association, The Federal Bar
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Association, and The Federal Bar Council. I frequently present on habeas corpus litigation before local and national bar associations, law school clinics, and private law firms.
7. In addition to myself, Sarah T. Gillman, who is my RDN co-Legal Director, is also representing Petitioners and the putative class in this matter. Sarah T. Gillman is an attorney licensed to practice in the State of New York, with nineteen years of legal experience. She was employed by LAS from 2001-2018. From 2007 until 2017, Sarah worked for LAS’ Immigration Law Unit where she represented non-citizens who were detained and facing removal before the Executive Office of Immigration Review (EOIR) and the federal courts. During that time, she was held positions as a staff attorney and thereafter as a supervising attorney.
8. From 2012-2014, Sarah was an adjunct professor at the New York University School of Law’s Immigrant Rights Clinic and Advanced Immigrant Rights Clinic. Since January of 2019, Sarah has held the position of Legal Director for the Rapid Defense Network. Sarah is admitted to practice before the U.S. District Courts for the Southern, Eastern and Western Districts of New York, and the District of Columbia; and the U.S. Courts of Appeals for the Second, Third, Fifth, Ninth, Eleventh and D.C. Circuits.
9. Rapid Defense Network has extensive experience in litigating complex cases involving immigration matters before the Federal Courts. See Sean B. v. McAleenan, 412 F. Supp. 3d 472 (D.N.J. 2019); Joshua M. v. Barr, Civil Action No. 3:19cv770, 2020 U.S. Dist. LEXIS 29492 (E.D. Va. Feb. 20, 2020); E.O.H.C. v. AG United States, No. 20-1163, 2020 U.S. App. LEXIS 14121 (3d Cir. Apr. 20, 2020); Gayle v. Meade, No. 20-21553-Civ, 2020 U.S. Dist. LEXIS 76040 (S.D. Fla. Apr. 30, 2020); Campbell v. Dep't of Homeland Sec., No. 20-10354GG, 2020 U.S. App. LEXIS 12648 (11th Cir. Apr. 20, 2020); Vasquez v. Wolf, No. 20-55142, 2020 U.S. App. LEXIS 5869 (9th Cir. Feb. 26, 2020); Sillah v. Barr, No. 19-CV-1747 (VEC),
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2019 U.S. Dist. LEXIS 48493 (S.D.N.Y. Mar. 14, 2019); Emeli v. Edwards, Civil Action No. 1815029 (SRC), 2019 U.S. Dist. LEXIS 118585 (D.N.J. July 17, 2019).
10. During the time that Ms. Gillman and I were employed by The Legal Aid Society, we litigated a number of cases that involved complex cases involving immigration matters before the Federal Courts. See Xiu Qing You v. Sessions, No. 18-CV-5392 (GBD)(SN), 2019 U.S. Dist. LEXIS 130786 (S.D.N.Y. Aug. 2, 2019); Villavicencio Calderon v. Sessions, 330 F. Supp. 3d 944 (S.D.N.Y. 2018); Ramatu Kiadii v. Decker, 423 F. Supp. 3d 18 (S.D.N.Y. 2018); Brissett v. Decker, 324 F. Supp. 3d 444 (S.D.N.Y. 2018); Maldonado v. Lloyd, 2018 U.S. Dist. LEXIS 75902 (S.D.N.Y. May 4, 2018); Hernandez v. Decker, No. 18-CV-5026 (ALC), 2018 U.S. Dist. LEXIS 124613 (S.D.N.Y. July 25, 2018); Lopez v. Sessions, 2018 U.S. Dist. LEXIS 98712 (S.D.N.Y. June 12, 2018); N.T.C. et al. v. United States Immigration & Customs Enf't, No. 18cv-1626 DMS (JLB), 2018 U.S. Dist. LEXIS 229768 (S.D. Cal. Aug. 16, 2018); E.S.R.B. et al. v. Sessions, No. 18-6654, Dkt. No. 4 (S.D.N.Y. July 24, 2018); and S.N.C. v. Sessions, 2018 U.S. Dist. LEXIS 199761 (S.D.N.Y. Nov. 26, 2018).
11. Rapid Defense Network is currently counsel in three other multiplaintiff/petitioner matters pending before the United States District Court for the District of Columbia, the District Court for the Southern District of Florida, and the United States Court of Appeals for the District of Columbia Circuit. See O.M.G. et. al. v. Wolf et. al., No. 1:20-cv00786-JEB (D.D.C. March 28, 2020); Gayle v. Meade, No. 20-21553-Civ, 2020 U.S. Dist. LEXIS 76040 (S.D. Fla. Apr. 30, 2020); M.M.V. et. al. v. Barr et. al., No. 20-5106 (D.C. Cir. April 27, 2020).
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Case 1:20-cv-01072-CRC Document 21-3 Filed 05/05/20 Page 2 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

C.G.B., et al. Petitioners,
v. CHAD WOLF, et al.
Respondents.

) ) ) Case No. 1:20-cv-01072-CRC ) ) ) ) ) ) ) )

DECLARATION OF LYNLY S. EGYES IN SUPPORT OF PETITIONERS’ MOTION FOR CLASS CERTIFICATION I, Lynly S. Egyes Esq., in support of Petitioners’ Motion for Class Certification hereby certify under penalty of perjury as follows: 1. I am the Legal Director at Transgender Law Center and make this declaration in support of Transgender Law Center’s application to be named as co-counsel for the proposed Class in the above-captioned action. This declaration is based on my personal knowledge and it true to the best of my knowledge and belief. 2. I received my undergraduate degree from Ithaca College in 2003 and graduated from Benjamin Cardozo School of Law in 2009. 3. I am admitted to practice law in the state of New York and the state of New Jersey, the United States District Court for the Colorado, and the Supreme Court of the United States. I have also been admitted to appear pro hac vice in specific cases by numerous other district courts throughout the country. 4. My principle area of practice is Transgender Rights. I have eleven years of legal experience working in the areas of immigration, civil rights, human rights, human trafficking,

Case 1:20-cv-01072-CRC Document 21-3 Filed 05/05/20 Page 3 of 3
LGBT rights. 5. Transgender Law Center has extensive experience representing transgender plaintiffs in
matters including class actions and immigration matters. These include: Whitaker v. Kenosha Unified School District (E.D. Wis. 16-cv-943; 7th Cir. 16-3522), Saunders-Velez v. Colorado Department of Corrections (D. Colo. 17-cv-1654), Mott v. Kansas Dept of Health and Environment (Kan. Dist. Ct. 2016-cv-150), In Re The Name Change of E.N.R.F., In re: Yuen Mei Tsui, Raven v. Polis (Colo. Dist. Ct. 2019CV34492).
6. Transgender Law Center and I are committed to vigorously representing the proposed Class and to working collaboratively and efficiently with other class counsel.
7. Transgender Law Center has no conflicts of interest that would prevent us from providing zealous representation to the named Petitioners and the proposed Class.

Dated: May 4, 2020

By: Lynly S. Egyes

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

C.G.B., et al. Petitioners,
v. CHAD WOLF, et al.
Respondents.

) ) ) Case No. 1:20-cv-01072-CRC ) ) ) ) ) ) ) )

DECLARATION OF LESLIE E. JOHN IN SUPPORT OF PETITIONERS’ MOTION FOR CLASS CERTIFICATION I, Leslie E. John, Esq., in support of Petitioners’ Motion for Class Certification, hereby declare under penalty of perjury as follows: 1. I am a partner in the Philadelphia office of Ballard Spahr LLP (“Ballard”) and make this declaration in support of Ballard’s application to be named as co-counsel for the proposed Class in the above-captioned action. This declaration is based on my personal knowledge and it true to the best of my knowledge and belief. 2. I received my undergraduate degree from University of California, Berkeley in 1984 and graduated from the University of California Berkeley School of Law in 1987. 3. I am admitted to practice law in the states of California and Pennsylvania, the United States District Court for the Eastern District of Pennsylvania, the United States Court of Appeals for the Third Circuit, and before the U.S. Supreme Court. I have also been admitted to appear pro hac vice in specific cases by numerous other district courts throughout the country. 4. My principal area of practice focuses on complex civil litigation with an emphasis on antitrust and class action litigation. I have over thirty years of experience working on complex

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legal issues. I am ranked in Chambers USA and am among Benchmark Litigation’s Top 250 Women in Litigation nationwide.
5. Ballard associates Matthew Kelley, Elizabeth Weissert and Alexa Levy are also working with me on this matter.
6. Matthew Kelley is an associate in Ballard’s Washington D.C. office. Mr. Kelley represents media companies, journalists, filmmakers, and content creators in a wide range of legal issues, including First Amendment litigation. Before beginning his legal career, Mr. Kelley was an investigative reporter for the Associated Press and USA Today. He received his undergraduate degree from Kent State University in 1991 and graduated from the George Washington University Law School in 2012. Mr. Kelley is admitted to practice in the state of Virginia and the District of Columbia as well as the United States District Court for the District of Columbia. He has also been admitted to appear pro hac vice in specific cases by numerous other district courts throughout the country.
7. Elizabeth Weissert is an associate in Ballard’s Philadelphia office. Ms. Weissert practices complex civil litigation with an emphasis on antitrust litigation. She received her undergraduate degree from Smith College in 2013 and graduated from the University of Pennsylvania Law School in 2016. Ms. Weissert is admitted to practice in the State of Pennsylvania, the United States District Court for the Eastern District of Pennsylvania, and the United States Court of Appeals for the Third Circuit. She has also been admitted to appear pro hac vice in specific cases by numerous other district courts throughout the country.
8. Alexa Levy is an associate in Ballard’s Philadelphia office. Ms. Levy practices commercial litigation. She received her undergraduate degree from the University of Pennsylvania in 2016 and graduated from the George Washington University Law School in

DMEAST #40933574 v1

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Case 1:20-cv-01072-CRC Document 21-4 Filed 05/05/20 Page 4 of 5
2019. Ms. Levy is admitted to practice in the state of Pennsylvania. 9. Lawyers at Ballard have extensive experience representing plaintiffs in immigration
matters and class actions against detention centers. Over the past five years, Ballard attorneys have devoted more than 28,400 hours to representing individuals in pro bono immigration matters, including more than 900 hours on bond, parole, and other humanitarian release requests, and 3,500 hours providing legal support in immigration detention centers. Representatives matters in which Ballard attorneys have represented plaintiffs in suits against detention centers include: Tolton et al. v. Haddon et al., (D. Utah No. 4:20-cv-00003) (seeking injunction to prevent Defendants – state officials within the Utah Department of Corrections -- from depriving Plaintiffs of their right, as faithful adherents to Islam, to congregate for prayer, study, and religious ceremony); and Vega v. Mullen et al., (E.D. Pa. No. 5:16-cv-04620) (seeking injunction to prevent enforcement of policy at Berks County jail prohibiting incoming mail with crayon or colored pencil markings, in violation of detained individuals’ First and Fourteenth Amendment rights).
10. Ballard is a national law firm with more than 650 lawyers in 15 offices. Our litigators have experience in various types of litigation, including complex class actions.
11. Ballard and I are committed to vigorously representing the proposed Class and to working collaboratively and efficiently with other class counsel.
12. Ballard has no conflicts of interest that would prevent us from providing zealous representation to the named Petitioners and the proposed Class.

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I, Leslie John, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Dated: May 5, 2020 Media, Pennsylvania

By: Leslie E. John

DMEAST #40933574 v1

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Case 1:20-cv-01072-CRC Document 21-5 Filed 05/05/20 Page 1 of 1

C.G.B., et al.,
v. WOLF, et al.,

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Petitioners, Respondents.

) ) ) Case No. 1:20-CV-01072-CRC ) ) [PROPOSED] ORDER ) ) ) ) ) ) )

ORDER

IT IS ON THIS

day of ________ , 2020, hereby ORDERED that

Petitioners’ Motion to Certify a Class is GRANTED. The Court hereby order the following

class be certified with Petitioners C.G.B., A.F., M.M.S.-M., K.S., K.M., L.M., M.J.J., D.B.M.U.,

K.R.H., and M.R.P. as class representatives:

 All transgender people in civil immigration detention who are held, or who will be held, by Respondent in any U.S. detention center or facility during the pendency of the COVID-19 pandemic.
The Court designates Ballard Spahr LLP, Rapid Defense Network, and the Transgender

Law Center as counsel for the class pursuant to Federal Rule of Civil Procedure 23(g).

BY THE COURT:

_____________________________ Hon. Christopher R. Cooper United States District Judge

 
 Case 1:20-cv-01072-CRC Document 22 Filed 05/05/20 Page 1 of 33

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

C.G.B. et al.
v. WOLF et al.,

Petitioners, Respondents.

) ) ) Case No. 1:20-CV-01072-CRC ) ) ) ) ) ) ) ) )

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

Case 1:20-cv-01072-CRC Document 22 Filed 05/05/20 Page 2 of 33

TABLE OF CONTENTS

Page

I. INTRODUCTION .............................................................................................................. 1

II. NEW FACTUAL DEVELOPMENTS ............................................................................... 2

A. The Increasing Numbers of COVID-19 Cases in ICE Facilities Show Precautionary Measures Are Not Working............................................................. 3

B. Social Distancing Is Practically Impossible According To ICE’s Own Declarants. .............................................................................................................. 5

C. ICE Has Not Shown Its Pandemic Response Rules Are Being Followed.............. 6

D. Petitioners’ Declarations Contradict the Government’s Evidence. ........................ 7

E. COVID-19 Risks Unique to Transgender Women Have Emerged ........................ 7

III. PETITIONERS ARE ENTITLED TO THE REQUESTED INJUNCTIVE RELIEF ............................................................................................................................... 8

A. Petitioners Are Likely To Succeed On The Merits Of Their Claims. .................... 9

1. Failing to allow for social distancing and other containment measures is a violation of constitutional rights......................................... 10

2. Petitioners have shown a likelihood of success on their APA claim. ....... 16

3. Petitioners have shown entitlement to mandamus. ................................... 19

4. Petitioners do not rely exclusively on the Declaratory Judgment Act as the basis for jurisdiction................................................................. 21

B. Petitioners Have Shown Irreparable Injury........................................................... 21

C. The Balance of Equities and Public Interest Factors Favor Petitioners................ 23

D. Petitioners Can Obtain Relief on Behalf of a Conditional Class. ......................... 24

IV. ·CONCLUSION ............................................................................................................... 25

i

Case 1:20-cv-01072-CRC Document 22 Filed 05/05/20 Page 3 of 33
TABLE OF AUTHORITIES Page(s)
Cases Arana v. Barr,
No. 19-7924, 2020 U.S. Dist. LEXIS 77134 (S.D.N.Y. May 1, 2020) ...................................19 Arias v. Decker,
No. 20 Civ. 2802, 2020 U.S. Dist. LEXIS 64511 (S.D.N.Y. Apr. 10, 2020) ..........................22 Banks v. Booth,
No. 20-849, 2020 U.S. Dist. LEXIS 68287 (D.D.C. Apr. 19, 2020) .......................................12 Barbecho v. Decker,
No. 20-2821, 2020 U.S. Dist. LEXIS 66163 (S.D.N.Y. Apr. 14, 2020) .................................26 Basank v. Decker,
No. 20-2518, 2020 U.S. Dist. LEXIS 53191 (S.D.N.Y. Mar. 26, 2020) .................................22 Battle v. FAA,
393 F.3d 1330 (D.C. Cir. 2005) ...............................................................................................17 *Bell v. Wolfish,
441 U.S. 520 (1979)...........................................................................................................10, 11 Bent v. Barr,
No. 19-06123, 2020 U.S. Dist. LEXIS 62792 (N.D. Cal. Apr. 9, 2020) .................................24 Cabral v. Decker,
331 F. Supp. 3d 255 (S.D.N.Y. 2018)......................................................................................25 Castillo v. Barr,
No. 20-00605, 2020 U.S. Dist. LEXIS 54425 (C.D. Cal. Mar. 27, 2020).........................13, 24 In re Cheney,
406 F.3d 723 (D.C. Cir. 2005) .................................................................................................20 Coronel v. Decker,
No. 20-cv-2472, 2020 U.S. Dist. LEXIS 53954 (S.D.N.Y. Mar. 27, 2020) ......................16, 23 de Jesus Ortega Melendres v. Arpaio,
695 F.3d 990 (9th Cir. 2012) ...................................................................................................23 *DeShaney v. Winnebago County Dept. of Soc. Servs.,
489 U.S. 189 (1989)...........................................................................................................11, 21
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Case 1:20-cv-01072-CRC Document 22 Filed 05/05/20 Page 4 of 33
Diaz v. Barr, No. 4:20-01806, 2020 U.S. Dist. LEXIS 73788 (N.D. Cal. Apr. 27, 2020) ............................19
Ferreyra v. Decker, 2020 U.S. Dist. LEXIS 73986 (S.D.N.Y. Apr. 27, 2020) ................................................................................................................................13, 22, 25, 26
*Fraihat v. U.S. Immigration and Customs Enforcement, No. 5:19-cv-01546, 2020 U.S. Dist. LEXIS 72015 (C.D. Cal. Apr. 20, 2020) ............... passim
Garcia v. Acuff, No. 20-cv-357-NJR, 2020 U.S. Dist. LEXIS 73249 (S.D. Ill. Apr. 27, 2020) ........................13
Gayle v. Meade, No. 20-21553-Civ-COOKE/GOODMAN, 2020 U.S. Dist. LEXIS 76040 (S.D. Fla. Apr. 30, 2020) .................................................................................................10, 13, 17, 18
Gregory v. City of Rogers, Ark., 974 F.2d 1006 (8th Cir. 1992) (en banc) .................................................................................11
Helling v. McKinley, 509 U.S. 25 (1993)...................................................................................................................11
Jeferson V.G. v. Decker, No. 20-3644, 2020 U.S. Dist. LEXIS 65906 (D.N.J. Apr. 15, 2020) ......................................19
Jones v. Phyfer, 761 F.2d 642 (11th Cir. 1985) .................................................................................................11
Make the Rd. N.Y. v. McAleenan, 405 F. Supp. 3d 1 (D.D.C. 2019) .............................................................................................19
Mays v. Dart, No. 20-2134, 2020 U.S. Dist. LEXIS 62326 (N.D. Ill. Apr. 9, 2020) .....................................24
Mehmood v. Guerra, 783 F. App’x 938 (11th Cir. 2019) ..........................................................................................10
Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036 (9th Cir. 2012) .................................................................................................24
Nat’l Immigration Project of Nat’l Lawyers Guild v. Exec. Office of Immigration Review, No. 1:20-00852, 2020 U.S. Dist. LEXIS 74324 (D.D.C. Apr. 28, 2020)................................17
Power v. Barnhart, 292 F.3d 781 (D.C. Cir. 2002) .................................................................................................20
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Case 1:20-cv-01072-CRC Document 22 Filed 05/05/20 Page 5 of 33
*Refunjol v. Dir. ICE, No. 2:20-cv-2099, 2020 U.S. Dist. LEXIS 73334 (S.D. Ohio Apr. 27, 2020) ............12, 13, 22
Sallaj v. United States Immigration & Customs Enf’t, No. 20-167-JJM-LDA, 2020 U.S. Dist. LEXIS 72857 (D.R.I. Apr. 24, 2020) .......................13
Samirah v. Holder, 627 F.3d 652 (7th Cir. 2010) ...................................................................................................21
Sanchez-Penunuri v. Longshore, 7 F. Supp. 3d 1136 (D. Colo. 2013).........................................................................................21
Schilling v. Rogers, 363 U.S. 666 (1960).................................................................................................................21
Skelly Oil v. Phillips Petroleum Co., 339 U.S. 667 (1950).................................................................................................................21
Torres v. United States Dep’t of Homeland Sec., 411 F. Supp. 3d 1036 (C.D. Ca. 2019) ....................................................................................18
United States v. Forrest, 316 F. Supp. 3d 111 (D.D.C. 2018) .........................................................................................20
Wilbur v. U.S. ex rel. Kadrie, 281 U.S. 218 (1930).................................................................................................................21
*Zadvydas v. Davis, 533 U.S. 678 (2001).............................................................................................................9, 10
Statutes 8 U.S.C. § 1226(a) .........................................................................................................................19 8 U.S.C. § 1226(e) .........................................................................................................................19 8 U.S.C. § 1252(a)(2)(B)(ii) ..........................................................................................................19 28 U.S.C. § 1331............................................................................................................................21 28 U.S.C. § 1651(a) .......................................................................................................................21 28 U.S.C. § 1361............................................................................................................................21 Other Authorities Fifth Amendment .................................................................................................................9, 10, 16 Fed. R. Civ. P. 23 .....................................................................................................................24, 25
iv

Case 1:20-cv-01072-CRC Document 22 Filed 05/05/20 Page 6 of 33 ICE Guidance on COVID-19, Confirmed Cases, Immigration and Customs
Enforcement, www.ice.gov/coronavirus (last visited May 5, 2020) .............................3, 20, 22 Study Projects Significant Impact on Immigrants and Local Health Care if ICE
Detention Populations are Not Decreased, Government Accountability Project (Apr. 27, 2020) ................................................................................................20, 23, 24
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Case 1:20-cv-01072-CRC Document 22 Filed 05/05/20 Page 7 of 33
I. INTRODUCTION By holding transgender people in unsafe detention conditions during the COVID-19
pandemic, ICE has put them at the epicenter of a crisis. Even according to ICE’s own flawed statistics (which underreport cases by, among other things, leaving out employees of contractors who run their detention centers), confirmed cases of COVID-19 in the detention centers housing transgender detainees have risen by 157 percent in the days since April 22. Petitioners’ up-tothe-minute declarations document confirmed and suspected cases of COVID-19 among detainees housed in the same facilities and, riskier still, the same pods as Petitioners. In fact, another Petitioner likely has been exposed to the virus since this suit was filed. Even setting aside the fact that Respondents’ declarants often lack first-hand knowledge of conditions inside the detention facilities, their testimony shows that social distancing remains a practical impossibility and that ICE cannot ensure the Court that even its own rules are being meaningfully implemented. Respondents’ declarations confirm that the sleeping arrangements of many facilities are not compliant as beds are less than six feet apart.
Despite the fact that Petitioners and the class of transgender detainees they seek to represent are especially vulnerable to contracting COVID-19, Respondents confirm that ICE has taken no specific measures to protect them. Even Respondents’ medical expert confirms that transgender detainees are more likely to have co-morbidities and underlying conditions that are risk factors for contracting and suffering serious illness and death from COVID-19. Respondents do not contest that transgender detainees are subject to continual harassment and even sexual assault in ICE custody. The harassment—which often takes the form of unwanted touching, comments whispered in detainees’ ears or spitting upon detainees—exposes transgender detainees to transmission of the virus. Critically, it is doubly dangerous, as Petitioners’ medical expert opines the stress caused by continual harassment also compromises their immunity. And

Case 1:20-cv-01072-CRC Document 22 Filed 05/05/20 Page 8 of 33
medical risks such as hypercoagulation present special risks for transgender detainees on hormone therapy.
In short, Respondents have utterly failed to rebut Petitioners’ showing that they and the proposed class face an unacceptably and unconstitutionally high risk of contracting and suffering severe cases of COVID-19 in ICE detention. The continuing explosion of cases among ICE detainees dramatically demonstrates that ICE’s pandemic response is wholly inadequate and that ICE is not willing or able to protect transgender detainees. The supervised release of transgender detainees, in accordance with the plans and resources available to the class (which Respondents do not contend are unsatisfactory) is the only viable option to protect them. II. NEW FACTUAL DEVELOPMENTS
ICE currently has 73 transgender women and at least three transgender men1 in its detention facilities, according to Dr. Edith Lederman, ICE’s Senior Medical Adviser and transgender care “subject matter expert.” Lederman Decl. ¶¶ 1, 20 (ECF No. 20-8). Although ICE has released three2 of the original named Petitioners in this litigation, it has affirmatively decided not to release the four Petitioners detained at Aurora and continues to hold two detainees at the Southern Nevada facility who are living with HIV.
The government’s declarations reinforce the conclusion that transgender detainees in ICE custody are at an unacceptably high risk of contracting and suffering severe consequences of COVID-19. In addition, Petitioners submit with this Reply the supplemental declarations of Petitioners C.G.B., K.S., M.J.J. and K.R.H.; the declaration of an additional transgender
1 Dr. Lederman states that three transgender men in ICE detention are receiving injectable testosterone but does not explain whether there are other transgender men in ICE custody who do not receive such injections. Lederman Decl. ¶ 20 (ECF No. 20-8).
2 Respondents note that two Petitioners had been released as of the date of their Opposition; Petitioners have since learned that Petitioner L.R.A.P. also has been released.
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Case 1:20-cv-01072-CRC Document 22 Filed 05/05/20 Page 9 of 33
detainee, K.P.T.; supplemental declarations from Drs. R. Nick Gorton and Carlos FrancoParedes; and the additional expert declaration of Isa Noyola. (Attached as Exhibits 1-8).
A. The Increasing Numbers of COVID-19 Cases in ICE Facilities Show Precautionary Measures Are Not Working.
ICE’s own reporting illustrates that its precautionary measures have been ineffective at preventing coronavirus outbreaks in its detention centers. Between April 22 and May 5, 2020, the number of confirmed COVID-19 cases among detainees more than doubled, from 287 to 674. See ICE Guidance on COVID-19, Confirmed Cases, Immigration and Customs Enforcement, www.ice.gov/coronavirus (last visited May 5, 2020). The outbreaks are even worse at the 12 ICE facilities housing transgender detainees: ICE on May 5, 2020 reported 265 detainees with confirmed COVID-19 cases at those facilities, a 157% increase in the 13 days since April 22, 2020. One center holding transgender detainees, Otay Mesa, is a disaster: ICE reported a 195% increase in detainee COVID-19 cases there during those thirteen days, exploding from 42 to 124. Dr. Carlos Franco-Paredes, an infectious disease specialist who has treated transgender ICE detainees living with HIV, concludes that these statistics show “ICE’s attempts at infection control are failing.” Second Franco-Paredes Decl. ¶ 6 (Exh. 7).
Moreover, the numbers reported by ICE understate the extent of outbreaks at the vast majority of ICE facilities that are not directly operated by the agency itself. For example, the Davies declaration reveals that at Aurora, five employees of GEO Group, the contractor that operates the facility, have confirmed cases of COVID-19. Davies Decl. ¶ 15(c) (ECF No. 20-6). This lack of information is especially concerning given that two Aurora detainees have submitted declarations that staff there had falsely denied the presence of COVID-19 at the facility. See Mem. at pp. 16-17 (ECF No. 4-1). None of the government’s other declarants addressed the
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Case 1:20-cv-01072-CRC Document 22 Filed 05/05/20 Page 10 of 33
number of positive COVID-19 cases among the contract staff that has the most day-to-day contact with detainees.
As disturbing as the skyrocketing statistics are the sworn accounts of Petitioners in this case who document their continuing personal exposure to unsafe conditions. Tellingly, none of the government’s declarants dispute C.G.B.’s account of becoming an assumed COVID-19 victim: spending night after night with a bunkmate who was uncontrollably coughing and was sent back to the general population after a medical check, then coming down with symptoms including body aches, a fever, a cough and a sore throat that caused her to be isolated with other presumptive COVID-19 sufferers. C.G.B. Decl. ¶¶ 7-10 (ECF No. 19-1). In her second declaration, C.G.B. reports that doctors at Florence told her that she did not have COVID-19 on April 28, but they did not tell her that she had not had the virus previously. C.G.B. Second Decl. ¶ 4 (Exh. 1). The Florence facility’s acting clinical director states that C.G.B.’s test came back negative on April 11 but does not explain why C.G.B. was not notified of the results; nor does she explain why C.B.G. was treated as “presumptively positive” after the result came back and was quarantined on April 12 with positive cases. Malakhova Decl. ¶ 17 (ECF No. 20-10).
And since Petitioners’ initial papers were filed less than two weeks ago, another Petitioner has likely been exposed to COVID-19. In her second declaration, K.R.H. reports that, after showing COVID-19 symptoms for three days, on April 27, 2020 three people from her detention pod were taken to receive medical care. K.R.H. Second Decl. ¶ 5 (Exh. 4). She later found out that all three of those detainees tested positive for COVID-19. Id. She then asked a doctor if she could be tested but her request was denied. Id. This past Friday May 1, 2020, an ICE official at La Palma told K.R.H. and other detainees, in response to their questions about whether any of the detainees would be released because they all feared getting sick, that the
4

Case 1:20-cv-01072-CRC Document 22 Filed 05/05/20 Page 11 of 33
detainees were mistaken if they thought that anyone would be paroled. Id. at ¶ 13. Just three days ago, on May 2, three more detainees with high fevers were removed from the pod. Id. at ¶ 6. Both the statistics and Petitioners’ experiences support the conclusion that transgender detainees are not safe and are being exposed to an elevated risk of contracting COVID-19.
B. Social Distancing Is Practically Impossible According To ICE’s Own Declarants.
The government’s declarations show that it is practically impossible for detainees to practice the proper six-foot distancing recommended by the CDC. At the La Palma Correctional Center, for example, detainees sleep in 7-foot by 12.5-foot cells that contain two bunks just 38 inches apart. Ciliberti Decl. ¶¶ 11, 15 (ECF No. 20-5). Although the El Paso Processing Center is at 36% capacity, detainees still must sleep in bunks four feet apart. Acosta Decl. ¶¶ 9-10 (ECF No. 20-2). Similarly, at the Florence Detention Center, bunk beds are “three to four feet apart.” Malakhova Decl. ¶ 12 (ECF No. 20-10).
Other declarations simply omit any details that would allow the Court to determine if social distancing is possible or is being practiced. Quincy Hodges, acting assistant director of the New Orleans Field Office, states that at the Winn Correctional Center, “detainees are generally able to remain further apart while in their dormitory,” but does not state how far apart the bunks are, how large the common areas are, or whether the facility practices distancing measures such as leaving every other bunk empty. Hodges Decl. ¶ 14 (ECF No. 20-7). Other declarations similarly lack useful details about social distancing.
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C. ICE Has Not Shown Its Pandemic Response Rules Are Being Followed. The government’s declarations also are insufficient to show that the requisite pandemic response rules are being followed.3 Davies states that he “understand[s]” that – although ICE’s own rules require facilities to adhere to CDC guidelines – GEO “is incorporating” the CDC guidance “to educate its personnel and detainees and to develop its policies and practices at the Aurora CDF about COVID-19.” Davies Decl. ¶ 6 (ECF No. 20-6). Davies’ declaration is conspicuously silent regarding whether GEO personnel wear face masks; detainees report seeing guards frequently working without facemasks at Aurora. See Mem. at p. 15 (ECF No. 4-1). At La Palma, facility operator CoreCivic “is strongly encouraging social distancing with detainees,” but no detainees have been cited for violating that policy. Ciliberti Decl. ¶¶ 15-16, 18 (ECF No. 20-5). Dr. Sheri Malakhova, the acting clinical director of the Florence Detention Center, states that the facility “is cleaned daily and continuously,” but does not explain what that means. Malakhova Decl. ¶ 19(a) (ECF No. 20-10). The government’s declarants do not dispute testimony from Petitioners that HIV-positive detainees have been provided their antiretroviral medication at inconsistent times, increasing their chances of becoming immunocompromised. See Mem. at p. 19 (ECF No. 4-1). Nor does any government declarant explain why Dr. Carlos Franco-Paredes, an infectious disease specialist, was barred from seeing his transgender patients at Aurora after the COVID-19 pandemic began. See id. at pp. 18-19.
3 Many make their declarations not only on personal knowledge but also on “belief” and information obtained from other staff, documents and databases. See Hodges Decl. ¶ 2 (ECF No. 20-7); Davies Decl. ¶ 2 (ECF No. 20-6); Acosta Decl. ¶ 2 (ECF No. 20-2); Ciliberti Decl. ¶ 2 (ECF No. 20-5). The most extreme example of this problem is Dr. Sheri Malakhova, the Acting Clinical Director of the Florence Detention Center in Arizona, who states that she supervises medical care at that facility from her duty station in Tacoma, Washington, which is some 1,500 miles away. Malakhova Decl. ¶ 1 (ECF No. 20-10).
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D. Petitioners’ Declarations Contradict the Government’s Evidence. The first-hand observations of the Petitioners in this case contradict the general assertions in the government’s declarations about ICE’s pandemic response. K.R.H.’s second declaration, for example, contains troubling details about the situation inside La Palma, where ICE has reported 33 confirmed COVID-19 cases among detainees. K.R.H. states that detainees who are being punished for rule infractions are being sent to the same pod housing as detainees who are showing COVID-19 symptoms. K.R.H. Second Decl. ¶ 4 (Exh. 4). She also reports that detainees showing COVID-19 symptoms had to wait for days before being seen by medical staff. Id. at ¶ 5. This is consistent with other detainees’ declarations and shows that ICE has not implemented the medical practices its rules purport to require. See Mem. at p. 18 (ECF No. 4-1). A detainee at the Winn Correctional Center reports that when detainees sought to have meals delivered to their dormitory – a practice ICE touts as a safer option than having detainees congregate in cafeterias – the guards ordered them to continue having meals in large groups in the cafeteria, where tables are three feet apart. K.P.T. Decl. ¶¶ 16-19, 25 (Exh. 5). She also reports that guards and food service workers have been showing COVID-19 symptoms and some staff do not wear face masks. Id. ¶¶ 17-18, 22, 31. E. COVID-19 Risks Unique to Transgender Women Have Emerged One complication from COVID-19 that has only recently emerged in the medical literature is hypercoagulability, an increased tendency for potentially fatal blood clots to form. Second Declaration of R. Nick Gorton (“Second Gorton Decl.”) ¶ 7, (Exh. 6). As Petitioners’ expert Dr. Gorton explains, hypercoagulability also is a known side effect of the medically necessary hormone replacement therapy (HRT) prescribed to transgender women. Id. ¶ 8. Dr. Gorton states that the combination of these two factors makes transgender women on HRT far more vulnerable to this newly discovered and potentially fatal COVID-19 complication. Id.
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This development reinforces the fact that transgender detainees, as a group, face a significantly higher risk contracting a severe case of COVID-19 while in ICE detention.
Further, Respondents have not mentioned, let alone challenged, Petitioners’ showing that transgender detainees are highly likely to suffer harassment, abuse, violence and sexual assault while in ICE custody. As Dr. Gorton further explains, the harassment and fear of harassment place increased stress on transgender detainees, which can weaken their immune systems. Second Gorton Decl. ¶ 9. And as explained by Isa Noyola, a nonprofit executive who has worked with more than 100 transgender detainees, even verbal harassment is often done in close quarters, such as whispering in the transgender detainee’s ear, and also often involves spitting, which heighten the risk of infection specifically for Petitioners and the putative class. Declaration of Isa Noyola (“Noyola Decl.”) ¶¶ 7-8;10;16;27-28-14 (Exh. 8). K.P.T. reports that she has complained about harassment but nothing was done. K.P.T. Decl. ¶¶ 34-35 (Exh. 5).
In addition, new medical evidence has emerged that people living with HIV, such as two of the Petitioners and an unknown number of other transgender detainees, are more vulnerable to severe COVID-19 infections even if their HIV appears to be well controlled with medication. Second Franco-Paredes Decl. ¶¶ 8-10. Dr. Franco-Paredes therefore urges that all transgender detainees living with HIV be released from ICE custody to protect themselves and the public from further spread of COVID-19. Id. ¶ 10. III. PETITIONERS ARE ENTITLED TO THE REQUESTED INJUNCTIVE RELIEF
Petitioners have met their burden of showing they are entitled to preliminary relief irrespective of the standard that this Court employs. Respondents urge that a temporary restraining order is “reserved for cases where plaintiffs will show an irreparable injury before a preliminary injunction hearing is even held” and that “injury is of such ‘imminence’ that there is a clear and present need to equitable relief to prevent irreparable harm.” TRO Opp. Br. at pp.
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12-14 (ECF No. 20-1). Here, Petitioners have more than met their burden, particularly in light of the fact that Petitioners and the class of transgender detainees they seek to represent are especially vulnerable to contracting COVID-19 and ICE has taken no specific measures to protect them. Given that the number of confirmed COVID-19 cases in the detention centers at issue has more than doubled since Petitioners filed for preliminary injunctive relief 13 days ago and as graphically shown by ICE’s own statistics are certain to climb exponentially, Petitioners have shown their injuries are not just imminent but occurring now. Indeed, since this request for injunctive relief was filed, Petitioner K.R.H. was likely exposed to COVID-19 as three immigrant detainees in her pod tested positive and two more were removed since then as presumptively positive but she has been denied a test herself. K.R.H. Second Decl. ¶ 5-6 (Exh. 4). Given the well documented lapses in measures being taken at the detention centers to mitigate the spread of COVID-19 – as illustrated by declarations of present conditions at these facilities by Petitioners and unrebutted by Respondents’ declarations not based on first-hand knowledge—Petitioners have more than met their burden to demonstrate entitlement to emergency injunctive relief.
As set forth below, Respondents have failed to rebut Petitioners’ showing that they have demonstrated all four factors warranting preliminary relief.
A. Petitioners Are Likely To Succeed On The Merits Of Their Claims. Respondents’ efforts to minimize their obligations towards Petitioners should be rejected by this Court. The Fifth Amendment prohibits the government from holding civil detainees in conditions that constitute punishment. Zadvydas v. Davis, 533 U.S. 678, 690 (2001); U.S. Const. Amend. V. The law is clear that Respondents instead have a duty to protect and care for civil detainees, such as Petitioners, when the state affirmatively places them in a position of danger they otherwise would not have faced. Gayle v. Meade, No. 20-21553-Civ-
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COOKE/GOODMAN, 2020 U.S. Dist. LEXIS 76040, at *9-*10 (S.D. Fla. Apr. 30, 2020). As the court in Gayle recently found when concluding that civil detainees at three ICE detention centers in Florida had met their burden of showing that they were likely to succeed on the merits, “[t]here is record evidence demonstrating that ICE has failed in its duty to protect the safety and general well-being of Petitioners.” Id. at *10. The same is true in this case.
1. Failing to allow for social distancing and other containment measures is a violation of constitutional rights.
Respondents begrudgingly concede that immigration detention can implicate rights under the Fifth Amendment Due Process clause. TRO Opp. Br. at p. 15 (ECF No. 20-1). However, Respondents erroneously contend that the scope of the rights owed to immigration detainees is more constrained because they are not U.S. citizens, justifying denial of emergency relief. Id. In fact, people in immigration detention are civil (not criminal) detainees, and are entitled to the same rights as all other civil detainees. Zadvydas, 533 U.S. at 690; Gayle, 2020 U.S. Dist. LEXIS 76040, at *7 (citing Mehmood v. Guerra, 783 F. App’x 938, 941 (11th Cir. 2019)).
Even Respondents quickly abandon that argument, conceding, as they must, that the Fifth Amendment “requires that a pretrial detainee not be punished.” TRO Opp. Br. at p. 15 (ECF No. 20-1) (citing Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979)). Instead, Respondents argue that Petitioners have not shown that their conditions of confinement amount to punishment. They are mistaken.
Respondents ignore that, when the government detains or incarcerates a person, it has an affirmative duty to guarantee conditions of reasonable health and safety: “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 199-200 (1989); Helling v.
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McKinley, 509 U.S. 25, 32 (1993). Indeed, the Due Process Clause imposes a duty on state actors to protect or care for a detainee when the state places that detainee in conditions of danger he or she otherwise would not have faced. See Gregory v. City of Rogers, Ark., 974 F.2d 1006, 1010 (8th Cir. 1992) (en banc); see also Jones v. Phyfer, 761 F.2d 642 (11th Cir. 1985) (holding that a constitutional right of protection exists when there is a showing that plaintiff faces a special danger greater than the public at large). There can be no question that Respondents, by keeping transgender immigrants in unsafe detention conditions during the COVID-19 epidemic, have put Petitioners in danger they would not have otherwise faced if they were allowed to social distance and take other measures available to the public at large.
Moreover, Respondents have not shown that keeping Petitioners and the class in conditions that carry a significantly increased risk of infection, disease and death is “reasonably related to a legitimate goal.” TRO Opp. at p. 16 (ECF No. 20-1) (quoting Bell, 411 U.S. at 53839). Contrary to Respondents’ contention, id. at pp. 16-17, Petitioners do not contend that ICE must reduce the risk of infection to zero, but instead that it has failed to take sufficient actions to ensure that the risk is not unreasonably heightened. While the government certainly has a legitimate interest in enforcing immigration laws, its failure to protect transgender detainees from unreasonable risk constitutes the kind of “genuine privations and hardship over an extended period of time” that violate due process. Bell, 411 U.S. at 542. As the Southern District of Ohio observed when granting the release of three vulnerable ICE detainees, “this is not an interest that will necessarily supersede any catastrophic conditions in a detention center.” Refunjol v. Dir. ICE, No. 2:20-cv-2099, 2020 U.S. Dist. LEXIS 73334, at *9 (S.D. Ohio Apr. 27, 2020).
Respondents try to sweep aside the decision by Judge Kollar-Kotelly of this court rejecting arguments similar to those made by Respondents here that plaintiffs had not shown that
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the risks posed by the practices at the detention facility substantially raised plaintiffs’ risk of exposure over the risk experienced by the outside community. Banks v. Booth, No. 20-849, 2020 U.S. Dist. LEXIS 68287, at *27–*30 (D.D.C. Apr. 19, 2020) (finding that housing pretrial detainees during the COVID-19 pandemic in such a manner that they are unable to practice social distancing or take other necessary precautions creates an unreasonable risk of damage to detainees’ health). While Respondents claim the numbers of COVID-19 cases were different in that case, TRO Opp. Br. at p. 17 n. 33 (ECF No. 20-1), the doubling of confirmed cases in facilities housing transgender detainees since this case was filed just 13 days ago refutes that contention. Respondents do not refute Petitioners’ showing that their risk of infection is significantly increased while they are in ICE custody. See Mem. at pp. 7-9 (ECF No. 4-1). Respondents also have failed to rebut Petitioners’ showing that social distancing is practically impossible for ICE detainees; Judge Kollar-Kotelly found that a similar inability to social distance in D.C. jail facilities was a significant factor showing an unacceptable risk to detainees. Banks, 2020 U.S. Dist. LEXIS 68287, at *27-*28. The evidence before the Court is more than sufficient to establish that transgender detainees are subject to an unreasonable risk of danger by virtue of being detained in unsafe conditions.
Respondents cite a smattering of cases where courts have declined to find the risks posed by COVID-19 in ICE facilities constituted unlawful punishment. TRO Opp. Br. at pp. 16-17 (ECF No. 20-1). However, Respondents ignore numerous decisions, including a decision issued just last week concerning three ICE facilities in Florida, holding that ICE’s failures to provide for social distancing and to exercise other measures to protect against the spread of COVID-19 placed detainees at “a heightened risk of not only contracting COVID-19, but also succumbing to the fatal effects.” Gayle, 2020 U.S. Dist. LEXIS 76040, at *11. See, e.g., Castillo, 2020 U.S.
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Dist. LEXIS 54425, at *16 (plaintiffs established more than a mere likelihood of success on the merits of their due process claim where the conditions of confinement did not allow detainees to socially distance); Refunjol v. Dir. ICE, No. 2:20-cv-2099, 2020 U.S. Dist. LEXIS 73334, at *15-*16 (S.D. Ohio Apr. 27, 2020) (granting TRO on Due Process grounds and ordering immediate release of three ICE detainees); Garcia v. Acuff, No. 20-cv-357-NJR, 2020 U.S. Dist. LEXIS 73249, at *7-*8 (S.D. Ill. Apr. 27, 2020) (granting TRO on Due Process grounds and ordering immediate release of ICE detainee); Sallaj v. United States Immigration & Customs Enf’t, No. 20-167-JJM-LDA, 2020 U.S. Dist. LEXIS 72857, at *10-*11 (D.R.I. Apr. 24, 2020) (same); Ferreyra v. Decker, 2020 U.S. Dist. LEXIS 73986, at *41 (S.D.N.Y. Apr. 27, 2020) (granting TRO on Due Process grounds and ordering immediate release of four ICE detainees).
Here, evidence in the record establishes that social distancing at the detention centers is practically impossible, especially for transgender detainees; that adequate facilities and soap for handwashing, supplies for cleaning and disinfecting, and face masks continue not to be provided at all facilities; and that information at COVID-19 is only sporadically and incompletely provided. In support of their initial moving papers, Petitioners filed their own declarations based on current personal knowledge; the person taking the declaration verified that the information set forth therein, based exclusively on the Petitioner’s personal knowledge, was truthful and complete as of the day each was executed, that is, on either April 21 or April 22, 2020. With this reply, Petitioners provide additional declarations, again based on personal knowledge, that continue to document critical lapses. See Exhs. 1-5 (Supplemental declarations of Petitioners C.G.B., K.S., M.J.J., K.R.H. and declaration of additional transgender detainee K.P.T.). The second declaration of K.R.H., executed on May 4, 2020, continues to document the alarming spread of COVID-19 at La Palma. K.R.H. Second Decl. (Exh. 4). There she reports that, despite
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complaining of and showing COVID-19 symptoms on April 24, three detainees were not seen by
medical personnel and transferred out of the unit until April 27. Id. at ¶ 5. All three of the
transferred detainees tested positive for COVID-19. Id. Despite this likely exposure to the
virus, detention center staff have refused to test K.R.H. for COVID-19 or to provide K.R.H. with
a clean face mask. Id. at ¶¶ 8-9. In the last week, there have been days where no soap was given
to wash hands, and no cleaning supplies have been provided. Id. at ¶ 10. Two more detainees
have developed fevers and been transferred since then.
In contrast, Respondents provide declarations that are long on supposed practices, but
short on any indication that any of Respondents’ declarants actually observed these practices
being implemented or, if they did, when such observations took place. To the contrary,
Respondents’ declarations support many of the facts recounted by Petitioners, especially those
pertaining to social distancing. For example,
 At La Palma Correctional Center, detainees sleep in 7-foot by 12.5-foot cells that contain two bunks just 38 inches apart. Ciliberti Decl. ¶¶ 11, 15 (ECF No. 20-5).
 At El Paso Processing Center, detainees must sleep in bunks four feet apart. Acosta Decl. ¶¶ 9-10 (ECF No. 20-2).
 At the Florence Detention Center, bunk beds are “three to four feet apart.” Malakhova Decl. ¶ 12 (ECF No. 20-10). 4
4 Factual errors and inconsistencies also undercut the credibility of Respondents’ declarations. For example, Javier Lopez, the supervisory detention and deportation officer at La Palma, states that on February 13, 2020, Petitioners A.F. and L.R.A.P. each “declined to transfer to the Cibola County Correctional Center” which he asserts “has a dedicated housing unit for transgender detainees.” Lopez Decl. ¶¶ 5, 13 (ECF No. 20-9). However, ICE closed the transgender unit at Cibola in January 2020. See Love Decl. ¶ 4 (ECF No. 4-21). The unsigned declaration of Juan Acosta, deputy director of the El Paso Field Office, provides inconsistent information about M.R.P.’s housing arrangements. He states that she is housed in Building 7, Unit A “with 12 male detainees.” Acosta Decl. ¶ 71(a) (ECF No. 20-2). He then states that Building 7, Unit A normally holds 64 detainees and is at 19% capacity, which would be roughly equivalent to 13 detainees (13 out of 64 is actually 20%). Id. ¶ 71(b). But he then states, in the very next sentence, that Building 7, unit A “is housing 37 detainees (including M.R.P.)” without explaining the discrepancy. Id. ¶ 71(b).
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Respondents’ Opposition also fails to rebut Petitioners’ showing that transgender detainees are at increased risk of contracting COVID-19 and suffering serious complications and even death when they do. Most notably, Respondents altogether ignore that transgender detainees are subject to assault and harassment at alarming rates due to their status as transgender people. This fact has dual implications: first, transgender detainees cannot practice social distancing because of the harassment they face, and second, they suffer from anxiety and other mental health conditions that compromise immune response, making them vulnerable to COVID-19 infection. Second Gorton Decl. ¶ 9 (Exh. 6); see also Noyola Decl. ¶¶ 5-14 (Exh. 8) (describing how verbal harassment of transgender detainees often involves close contact or spitting, which could spread infection, and that widespread sexual abuse increases transgender detainees’ risk); K.P.T. Decl. ¶ 34 (Exh. 5) (detainee subject to sexual assault from two male detainees).
Nor do Respondents deny that transgender detainees have increased risk of having underlying health conditions putting them at higher risk. In fact, Respondents’ medical expert, Dr. Edith Lederman, admits transgender people are more likely to have co-morbidities that make them more vulnerable to infection. Lederman Decl. ¶ 18 (ECF No. 20-8). The discrimination and social stigma experienced by transgender people is an important reason these co-morbidities are much more prevalent in transgender people, a fact that Dr. Lederman implicitly acknowledges in noting that transgender detainees are additionally screened for sexually transmitted infections such as HIV upon intake. Id. at ¶ 16; see also Second Gorton Decl. ¶ 4 (Exh. 6) (noting this practice recognizes the increased rates of sexually transmitted infections suffered by transgender detainees, a factor that heightens their COVID-19 risk). Respondents also document that two Petitioners are living with HIV and accordingly are
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immunocompromised, yet Respondents have kept them in detention. See Cantrell Decl. ¶¶ 45-46 (ECF No. 20-4).
Despite evidence of these risks, Respondents have made no showing, and in fact do not even argue, that they have taken any measures designed to protect the especially vulnerable group of transgender people in ICE detention. This fact alone merits a finding that Petitioners are likely to succeed on the merits of their due process claim. See Coronel v. Decker, No. 20-cv2472, 2020 U.S. Dist. LEXIS 53954, at *17 (S.D.N.Y. Mar. 27, 2020) (“As to the specific and especially vulnerable detainees at issue in this litigation, the Government has taken no preventative action at all.”). In short, there is ample evidence justifying the conclusion that Respondents have placed Petitioners and all transgender detainees in danger and refused to protect them. In so doing, Respondents have violated their Due Process rights under the Fifth Amendment.
2. Petitioners have shown a likelihood of success on their APA claim. Respondents concede that “Accardi has come to stand for the proposition that agencies may not violate their own rules and regulations to the prejudice of others.” TRO Opp. Br. at p. 22 (ECF No. 20-1) (quoting Battle v. FAA, 393 F.3d 1330, 1336 (D.C. Cir. 2005)). Respondents claim that Petitioners cannot prevail on their Accardi claim because (1) ICE’s Pandemic Response Requirements (“PRR”) is not a final rule, (2) Petitioners cannot show that ICE has failed to ensure that its detention centers follow ICE Pandemic Requirements, and (3) Petitioners have not established that ICE’s failures are the result of agency decision-making. None of these arguments has merit. As set forth in Petitioners’ opening brief, it is incumbent on agencies to follow their own rules and regulations. Boilerplate in Respondents’ declarations confirms that ICE’s PRR “sets forth specific mandatory requirements expected to be adopted by all detention facilities housing
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ICE detainees.”5 Hodges Decl. ¶ 10 (emphasis added) (ECF No. 20-7); see also Davies Decl. ¶ 7 (ECF No. 20-6); Ciliberti Decl. ¶ 9 (ECF No. 20-5); Cantrell Decl. ¶ 6 (ECF No. 20-4); Valenzuela Decl. ¶ 12 (ECF No. 20-13); Malakhova Decl. ¶ 9 (ECF No. 20-10); Mros Decl. ¶ 15 (ECF No. 20-11). Further, as the court in Gayle held, “It is abundantly clear that ICE is required to comply with CDC guidelines pursuant to its own regulations and policy statements.” 2020 U.S. Dist. LEXIS 76040, at *14. Specifically, in rejecting arguments similar to those that Respondents pose here, the court reasoned that ICE is an agency that operates its detention centers under a set of National Detention Standards, including ICE’s 2011 Performance-Based National Detention Standards. These standards require that the CDC guidelines for the prevention and control of communicable diseases “shall be followed” and further require facilities to comply with current and future plans of federal, state and local authorities addressing public health issues including communicable diseases. The court concluded that Petitioners were likely to succeed on the merits of their Accardi claims because “ICE had flouted its own guidelines by, inter alia, failing to ensure each detainee practices social distancing.” Id.; see also Torres v. United States Dep’t of Homeland Sec., 411 F. Supp. 3d 1036 (C.D. Ca. 2019) (allegations that ICE did not follow agency standards for the treatment of detainees stated
5 Respondents cite to Nat’l Immigration Project of Nat’l Lawyers Guild v. Exec. Office of Immigration Review (“NIPNLG”), No. 1:20-00852, 2020 U.S. Dist. LEXIS 74324 (D.D.C. Apr. 28, 2020) to support their argument that Petitioners cannot state an APA claim, but that case is inapposite. In NIPNLG, the petitioners sought a TRO that would require the EOIR to: (1) postpone all in-person detained hearings, with the exception of bond hearings; (2) provide for the automatic adjournment of any scheduled hearing or any court-ordered deadline, including for bond proceedings; and (3) require ICE to provide VTC and teleconference capabilities and to take a number of detailed and specific steps relating to counsel communications. Id. at *15. As such, the EOIR and ICE policies at issue in that case are not the ones being challenged in this case. Id. at *29-31. Therefore, the NIPNLG Court’s determination that detainees were not likely to succeed in establishing a final agency action or one that was arbitrary and capricious is not applicable to the policies at issue here.
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Accardi claim). The facts that the court cited in Gayle, such as the lack of the necessary six feet between beds, the presence of COVID-19 at facilities and yet the failure to distribute adequate personal protective equipment and the lack of adequate quantities of hygiene and cleaning supplies are all present here. See infra at §§ II.B, II.C.
The Gayle court also rejected Respondents’ contentions that ICE is in “substantial compliance” with the applicable policies because “‘substantial compliance’ does not pass muster under the Accardi doctrine.” 2020 U.S. Dist. LEXIS 76040, at *15. The court held that flexibility within the CDC guidelines does not defeat an Accardi claim because certain aspects of the guidelines are mandatory: “ICE is required to restrict transfers, quarantine newly detained individuals, allow appropriate social distancing, perform pre-intake screening, and supply detainees with sufficient hygiene and cleaning supplies.” Id. Respondents’ contention that there was not a final agency decision also lacks merit. The court in Fraihat readily disposed of that argument. “A final relevant decision is ICE’s apparent failure to enforce compliance with its policy documents.” Fraihat v. U.S. Immigration and Customs Enforcement, No. 5:19-cv-01546, 2020 U.S. Dist. LEXIS 72015, at *68 (C.D. Cal. Apr. 20, 2020).
Lastly, Respondents contend that 8 U.S.C. § 1252(a)(2)(B)(ii) precludes APA review in this case. TRO Opp. Br. at pp. 23-24 (ECF No. 20-1). Courts in this Circuit have repeatedly rejected similar arguments, holding instead that where, as here, “plaintiffs challenge an overarching agency action as unlawful[,] . . . Supreme Court and Circuit precedent dictate that such a challenge does not fall within § 1252’s jurisdictional bar.” Make the Rd. N.Y. v. McAleenan, 405 F. Supp. 3d 1, 32 (D.D.C. 2019) (alterations in original) (citation omitted). Likewise, 8 U.S.C. § 1226(e) does not bar Petitioners’ APA claim because Petitioners are not
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challenging any decision by any immigration judge; the APA claim involves ICE’s failure to adhere to its own rules regarding the conditions at its detention facilities.6
3. Petitioners have shown entitlement to mandamus. Respondents contend that “[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary circumstances.” Opp. at 25 (ECF No. 20-1) (quoting Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002) (internal quotation marks omitted)). The circumstances at hand are extraordinary. ICE reports at least 713 confirmed COVID-19 cases in its detention centers, including 674 detainees and 39 ICE staff members. See ICE Guidance on COVID-19, Confirmed Cases, Immigration and Customs Enforcement, www.ice.gov/coronavirus (last visited May 5, 2020). A recent study projects that within 90 days, 100% of immigration detainees in ICE facilities could contract COVID-19. See Study Projects Significant Impact on Immigrants and Local Health Care if ICE Detention Populations are Not Decreased, Government Accountability Project, www.whistleblower.org/press/study-projects-significant-impact-on-immigrants-andlocal-health-care-if-ice-detention-populations-are-not-decreased/ (Apr. 27, 2020). The study also projects that the “most optimistic scenario” within the next 90 days is that “coronavirus
6 Further, courts across the country have rejected the argument set forth by Respondents that this Court may not order the release of Petitioners who have been denied bond. See, e.g., Arana v. Barr, No. 19-7924, 2020 U.S. Dist. LEXIS 77134 (S.D.N.Y. May 1, 2020); Diaz v. Barr, No. 4:20-01806, 2020 U.S. Dist. LEXIS 73788 (N.D. Cal. Apr. 27, 2020); Jeferson V.G. v. Decker, No. 20-3644, 2020 U.S. Dist. LEXIS 65906, at *12-*13 (D.N.J. Apr. 15, 2020). While 8 U.S.C. § 1226(e) bars review of a challenge to an immigration judge’s discretionary determinations, district courts “retain[] jurisdiction . . . to determine whether the Government properly cured the identified constitutional error.” See Arana, 2020 U.S. Dist. LEXIS 77134, at *22-*23 (citation omitted). This is because Petitioners are not seeking release on bond pursuant to 8 U.S.C. 1226(a), but they are “arguing that [their] substantive due [process] rights have been violated because [they are] being subjected to conditions of confinement which amount to punishment under the Due Process Clause.” Jeferson V.G., 2020 U.S. Dist. LEXIS 65906, at *12-*13.
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outbreaks among a minimum of 58 ICE facilities (52%) would overwhelm ICU beds within a 10mile radius, and outbreaks among a minimum of 3 facilities (3%) would overwhelm local ICU beds within a 50-mile radius.” Id. This projection operates under the assumption that every ICU bed would be made available for sick detainees. Id.
This Court has recognized that “the mandamus statute ‘confers jurisdiction on the district courts over actions…to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the [petitioner].’” United States v. Forrest, 316 F. Supp. 3d 111, 119 (D.D.C. 2018) (quoting In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005)) (holding that a writ of mandamus is the proper vehicle to employ to compel the Parole Commission to comply with applicable procedural requirements). Respondents ignore that the government’s affirmative duty to guarantee conditions of reasonable health and safety to detainees is mandatory, not discretionary. See, e.g., DeShaney, 489 U.S. at 199-200. Further, mandamus relief “is employed to compel action, when refused, in matters involving judgment and discretion.” SanchezPenunuri v. Longshore, 7 F. Supp. 3d 1136, 1147 n. 13 (D. Colo. 2013) (quoting Wilbur v. U.S. ex rel. Kadrie, 281 U.S. 218 (1930)) (citing Samirah v. Holder, 627 F.3d 652 (7th Cir. 2010) (authorizing mandamus relief to require the Attorney General to consider exercising discretion)).
A writ of mandamus may be issued to command the government to take “whatever steps are necessary” to grant the warranted relief to Petitioners. See Samirah, 627 F. 3d at 665 (commanding the Attorney General to take whatever steps necessary to enable plaintiff to reenter the U.S. for the limited purpose of acquiring adjustment of status). Here, Petitioners are entitled to conditions of reasonable health and safety. While the government has discretion to determine how to comply with this duty, under the current circumstances, there is no adequate remedy other than release to provide Petitioners with the required protections.
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4. Petitioners do not rely exclusively on the Declaratory Judgment Act as the basis for jurisdiction.
Contrary to Respondents’ assertion, Petitioners do not rely exclusively on the Declaratory Judgment Act as the basis for jurisdiction. See Compl., at pp. 12-13 (ECF. No. 3). This Court has jurisdiction pursuant to 28 U.S.C. § 1651(a), the All Writs Act; 28 U.S.C. § 1331, Federal Question jurisdiction; and 28 U.S.C. § 1361. See id. Further, as Respondents acknowledge, the Declaratory Judgment Act creates a remedy in cases otherwise within the Court’s jurisdiction. See Schilling v. Rogers, 363 U.S. 666, 677 (1960) (citing Skelly Oil v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950)). Here, because Petitioners are likely to succeed on the merits of their due process and APA claims, this case is within the Court’s jurisdiction, independently of their Declaratory Judgment Act claim.
B. Petitioners Have Shown Irreparable Injury. Respondents’ argument that Petitioners have failed to demonstrate an irreparable injury is without merit. Courts across the country have recognized that the risk of severe and possibly fatal infection with a virus that has no cure while in civil immigration detention constitutes irreparable harm warranting a temporary restraining order. See, e.g., Ferreyra, 2020 U.S. Dist. LEXIS 73986, at *19; Arias v. Decker, No. 20 Civ. 2802, 2020 U.S. Dist. LEXIS 64511, at *8 (S.D.N.Y. Apr. 10, 2020); Basank v. Decker, No. 20-2518, 2020 U.S. Dist. LEXIS 53191, at *13-*14 (S.D.N.Y. Mar. 26, 2020). The Southern District of Ohio, for example, discussed an apt analogy: if civil immigration detainees were housed in a facility in the path of a hurricane and the facility was likely to suffer major damage, emergency release of those detainees would unquestionably be constitutionally necessary. Refunjol, 2020 U.S. Dist. LEXIS 73334, at *9-10. There, as here, ICE detainees “are in the eye of a storm” and are “uniquely in the path of that storm,” such that release is the only way to safeguard them. Id. In Fraihat, the Central District
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of California remarked that, “[e]ven in the early days of the pandemic, and with few exceptions, courts did not hesitate to find irreparable harm as a result of potential COVID-19 exposure in prison and detention, including in facilities where there had not been a confirmed case.” 2020 U.S. Dist. LEXIS 72015, at *81-*82. As the Fraihat court also acknowledges, “[a]t this stage of the pandemic, the threat is even clearer.” Id.
Respondents contend that Petitioners have not shown that any one Plaintiff is imminently at risk of infection. See TRO Opp. Br. at p. 27 (ECF No. 20-1). The rapidly growing number of confirmed COVID-19 cases in detention centers, as well as the projection that 100% of immigration detainees in ICE facilities could contract COVID-19 within 90 days if detention center populations are not decreased, demonstrates that every single immigration detainee is imminently at risk of infection. See ICE Guidance on COVID-19, Confirmed Cases, Immigration and Customs Enforcement, www.ice.gov/coronavirus (last visited May 5, 2020); See Study Projects Significant Impact on Immigrants and Local Health Care if ICE Detention Populations are Not Decreased, Government Accountability Project, www.whistleblower.org/press/study-projects-significant-impact-on-immigrants-and-local-healthcare-if-ice-detention-populations-are-not-decreased/ (Apr. 27, 2020). Petitioners’ declarations, including those submitted with this brief, graphically document the imminent risk of infection. See Exhs. 1-5; Exhs. 1-13 to TRO Motion (ECF Nos. 19-1 – 19-13)
Further, courts have repeatedly recognized that vulnerable populations with pre-existing medical conditions are at an even higher risk of serious illness or death if they do become infected. See, e.g., Coronel v. Decker, 2020 U.S. Dist. LEXIS 53954, at *7 (S.D.N.Y. Mar. 27, 2020) ("Due to their serious underlying medical conditions, all [p]etitioners face a risk of severe, irreparable harm if they contract COVID-19”). Here, Petitioners have demonstrated that
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transgender detainees, as a group, are at a greater risk of contracting the virus that causes COVID-19 than the general population and, if they do become infected, are more likely to become seriously ill or die. Gorton Decl. ¶ 10 (ECF No. 4-15); Franco-Paredes Decl. ¶ 17 (ECF No. 4-16). Respondents have not rebutted those experts. Therefore, Petitioners have demonstrated that their continued detention constitutes irreparable harm warranting a temporary restraining order.
C. The Balance of Equities and Public Interest Factors Favor Petitioners. Respondents ignore that “[i]t is always in the public interest to prevent the violation of a party’s constitutional rights.” de Jesus Ortega Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012). Further, “there can be no public interest in exposing vulnerable persons to increased risks of severe illness and death.” Fraihat, 2020 U.S. Dist. LEXIS 72015, at *82-*83. A failure to protect detainees most vulnerable to severe COVID-19 infections also puts the public health at risk by increasing the potential that local hospitals and ICUs will be overwhelmed. See id; see also Study Projects Significant Impact on Immigrants and Local Health Care if ICE Detention Populations are Not Decreased, Government Accountability Project, www.whistleblower.org/press/study-projects-significant-impact-on-immigrants-and-local-healthcare-if-ice-detention-populations-are-not-decreased/ (Apr. 27, 2020) (“in the most optimistic scenario, coronavirus outbreaks among a minimum of 58 ICE facilities (52%) would overwhelm ICU beds within a 10-mile radius”). Despite Respondents’ assertions that some Petitioners present a flight risk, courts have acknowledged that the risk that detainees will flee, given the current global pandemic, is very low, and have granted temporary restraining orders where detainees have proposed a concrete and suitable release plan. See Bent v. Barr, No. 19-06123, 2020 U.S. Dist. LEXIS 62792 (N.D. Cal. Apr. 9, 2020); Castillo v. Barr, No. 20-00605, 2020 U.S. Dist. LEXIS 54425, at *15 (C.D. Cal. Mar. 27, 2020). Respondents notably do not take
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issue with the adequacy of Petitioners’ release plan, including the substantial funds that have been raised to safely shelter all released class members.
D. Petitioners Can Obtain Relief on Behalf of a Conditional Class. Rule 23(b)(2) permits certification of a conditional class for the purpose of granting preliminary injunctive relief. See Mays v. Dart, No. 20-2134, 2020 U.S. Dist. LEXIS 62326, at *9 (N.D. Ill. Apr. 9, 2020) (citing Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012)). Where Petitioners have not yet obtained class certification, the Court can issue class-wide relief on behalf of the conditional class. See id. (“[A] district court has general equity powers allowing it to grant temporary or preliminary injunctive relief to a conditional class.”) (collecting cases). Petitioners are filing a motion for class certification and accompanying brief concurrently with this reply. In their motion for class certification, Petitioners demonstrate that they do in fact satisfy the rigorous Rule 23 analysis. Class-wide injunctive relief is legally available in this case, even to mandatorily detained Petitioners. See Ferreyra, 2020 U.S. Dist. LEXIS 73986, at *37 (courts have the authority to order release of mandatorily detained petitioners held in violation of their due process rights) (citing Cabral v. Decker, 331 F. Supp. 3d 255, 259 (S.D.N.Y. 2018) (collecting cases)). Where a mandatorily detained petitioner is eligible for release, the court can impose conditions of release that will address concerns such as risk of flight or risk of danger to the public. See id. As Respondents acknowledge, the Central District of California has already granted a preliminary injunction on behalf of a class of immigrant detainees. See Fraihat, 2020 U.S. Dist. LEXIS 72015 at *5. The defendants in Fraihat raised the issue that detainees held under different statutory mandates have different, conflicting interests, but the court held that “whatever the particular detention authority [d]efendants might invoke, the due process violations asserted arise from the same systematic failures, and could overcome a more
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generalized detention mandate.” Id., at *61 n.22. Similarly, here, all Petitioners are entitled to release because they are all being held in violation of their due process rights. While some named Petitioners have medical conditions that could place them in one of the two Fraihat subclasses, the subclasses identified in Fraihat only encompass a portion of the putative class here. Indeed, Respondents have already denied relief under Fraihat to four Petitioners. Davies Decl. ¶¶ 47, 63, 81, 98 (ECF No. 20-6). Two additional Petitioners are living with HIV and yet there is no evidence that ICE had considered their release. Moreover, the status of detainees as transgender people is not a factor that ICE is considering in its release decisions. Thus, the pendency of that action will not provide an effective remedy for Petitioners here.
Lastly, class-wide injunctive relief is appropriate here because there is commonality among the class-members and granting a conditional class promotes judicial efficiency. The health risks posed by COVID-19 to transgender detainees and the constitutional claims presented in this case do not turn on facts unique to each Petitioner, beyond their having identity characteristics that make them more vulnerable to the virus. See Ferreyra, 2020 U.S. Dist. LEXIS 73986, at *6 (denying Respondents’ request to sever action into five individual habeas petitions where health risks posed by COVID-19 and constitutional claims did not turn on facts unique to each petitioner). Conditional class-wide injunctive relief is also necessary to address the immediate risk to Petitioners’ health. See Barbecho v. Decker, No. 20-2821, 2020 U.S. Dist. LEXIS 66163, at *4 (S.D.N.Y. Apr. 14, 2020). IV. ·CONCLUSION
For all of the foregoing reasons, as well as those asserted in their opening brief, Petitioners respectfully request that the Court enter an Order granting Petitioners’ requested injunctive relief.
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May 5, 2020
Gregory P. Copeland (D.D.C. Bar # NY0311) Sarah T. Gillman (D.D.C. Bar # NY0316) RAPID DEFENSE NETWORK 11 Broadway, Suite 615 New York, NY 10004-1490 Phone: (212) 843-0910 Fax: (212) 257-7033 Email: gregory@defensenetwork.org Email: sarah@defensenetwork.org
Lynly S. Egyes Transgender Law Center PO Box 70976 Oakland, CA 94612-0976 Telephone: (973) 454-6325 Facsimile: (917) 677-6614 lynly@transgenderlawcenter.org

Respectfully submitted,
/s/ Matthew E. Kelley Matthew E. Kelley (Bar No. 1018126)
Matthew E. Kelley (Bar. No. 1018126) Leslie E. John Elizabeth Weissert Alex Levy BALLARD SPAHR LLP 1909 K Street, NW - 12th Floor Telephone: (202) 661-2200 Facsimile: (202) 661-6299 Email: kelleym@ballardspahr.com Email: johnl@ballardspahr.com Email: weisserte@ballardspahr.com Email: levya@ballardspahr.com

Attorneys for Petitioners

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CERTIFICATE OF SERVICE I hereby certify that, on this date, I caused the foregoing Reply Memorandum of Law in Support of Petitioners’ Motion for a Temporary Restraining Order to be filed and served electronically via the Court’s ECF System upon counsel of record.

Dated: May 5, 2020

/s/ Matthew E. Kelley Matthew E. Kelley

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Second Declaration of R. Nick Gorton, M.D., DABEM
1. I, R. Nick Gorton, M.D., am a physician licensed to practice medicine in the state of California. I am board certified in Emergency Medicine and practice both as an emergency physician at Sutter Davis Hospital in Davis, California, and as a primary care provider at LyonMartin Health Services in San Francisco, California. Lyon-Martin is an historically LGBTQ clinic. Over half of my patients identify as transgender. I have treated hundreds of transgender patients in the 15 years I have practiced at Lyon-Martin. As both an EM and primary care physician I am familiar both with the nature of COVID-19 and the particular vulnerabilities of certain populations, including transgender people, to infection and complications from SARSCoV-2 (the virus that causes COVID-19).
2. As I stated in my previous declaration, transgender people as a group have greater risks of infection by and for life-threatening complications from SARS-CoV-2.
3. I have read the declaration of Capt. Edith Lederman, M.D., M.P.H., submitted by the government in this litigation.
4. Dr. Lederman states in Paragraph 16 of her declaration that ICE detainees who selfidentify as transgender at intake “are additionally screened for sexually transmitted infections including HIV.” This practice by ICE recognizes that transgender people as a group, in contrast with other detainees, are more likely to contract sexually transmitted infections. As I stated in my previous declaration, rates of HIV infection among transgender women are as high as 25% in some studies and even higher in transgender women of color. The same social conditions that put transgender people at higher risk for STIs also put them at higher risk for other infections, including COVID-19.
5. The guidance from the Centers for Disease Control and Prevention (CDC) regarding risk factors for COVID-19 is not an exhaustive list of every condition that may place a person at higher risk of contracting or suffering serious complications.
6. While being transgender is not a mental or physical illness, gender dysphoria (distress at having one’s body not conform to one’s gender identity) that is treated by hormone replacement and other medical and surgical interventions is a serious, chronic condition. In my medical judgment, gender dysphoria is one of the chronic health conditions that should be considered a risk factor for COVID-19 requiring the release of detainees for medical reasons.
7. Because SARS-CoV-2 is a novel virus, our understanding of its effects is constantly evolving. One complication of COVID-19 infection that has recently come to light in the medical literature is hypercoagulability, a condition that causes the formation of blood clots throughout the circulatory system, potentially causing life-threatening strokes, heart attacks, or damage to other organs.1 In fact, heparin and tissue plasminogen activator, anticoagulants used to
1 E.g., Panigada M., Bottino N., Tagliabue P., Grasselli G., Novembrino C., Chantarangkul V., Pesenti A., Peyvandi F., Tripodi A. (2020). Hypercoagulability of COVID-19 patients in Intensive Care Unit. A Report of Thromboelastography Findings and other Parameters of Hemostasis. Journal of Thrombosis and Haemostasis, doi: E.g., Panigada M., Bottino N., Tagliabue P., Grasselli G., Novembrino C., Chantarangkul V., Pesenti A., Peyvandi

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treat heart attacks and strokes have been demonstrated to decrease mortality and severity of respiratory disease respectively in severely ill patients with COVID-19.2
8. Hypercoagulability also is a known side effect of the hormone replacement therapy (HRT) that is a medically necessary treatment for transgender women diagnosed with gender dysphoria. HRT also increases risk of atherosclerosis causing heart attacks and strokes in transgender women. As a result, it is my medical opinion that transgender women receiving HRT are at a significantly increased risk of experiencing a potentially fatal arterial blood clot (resulting in a heart attack or stroke) if they become infected with COVID-19 and likely have an increased risk of developing severe or critical COVID-19 for the same reason that the risk of severe or critical COVID-19 is increased in other diseases that are prone to developing vascular disease, such as diabetes and hypertension. Because of this heightened risk, I have begun prescribing anticoagulant medication for some of my female transgender patients receiving HRT even if they are not otherwise at risk for blood clots.
9. As I mentioned in my previous declaration, another reason transgender detainees as a group are at high risk of contracting and experiencing severe complications from COVID-19 is because of the high rates of violence and sexual assault against them. First, assaults, especially sexual assaults, require the kind of close contact that will spread the virus from an infected person to an uninfected person. Second, the fear of such assaults also puts transgender detainees at high risk of serious illness from COVID-19. Because transgender people as a whole are subject to high levels of persecution and sexual violence – indeed, that violence is the reason many transgender detainees fled their home countries – they are particularly attuned to that risk when they are in confined settings where there are no avenues to escape abuse. That means that transgender detainees are justifiably in constant fear of assault. We know that such chronic psychological stress is associated with impaired immune function and response which renders them more vulnerable to infectious diseases such as COVID-19. In addition, that chronic psychological stress-induced suppression of immune function has been shown to cause an increased risk for atherosclerotic vascular disease. Thus, transgender patients face an additional threat of complications of COVID-19. Not only is their immune system suppressed by chronic stress and their risk of vascular disease increased by HRT, but the stress induced changes in their immune system increase their risk of vascular disease even further. This doubly increases vascular disease in concert with their suppressed immune systems placing them at risk for more vascular complications and severe or critical COVID-19 is they become infected.
F., Tripodi A. (2020). Hypercoagulability of COVID-19 patients in Intensive Care Unit. A Report of Thromboelastography Findings and other Parameters of Hemostasis. Journal of Thrombosis and Haemostasis, doi: 0.1111/jth.14850, https://doi.org/10.1111/jth.14850; Giannis, D., Ziogas, I. A., & Gianni, P. (2020). Coagulation disorders in coronavirus infected patients: COVID-19, SARS-CoV-1, MERS-CoV and lessons from the past. Journal of Clinical Virology, 104362.
2 Tang, N., Bai, H., Chen, X., Gong, J., Li, D., & Sun, Z. (2020). Anticoagulant treatment is associated with decreased mortality in severe coronavirus disease 2019 patients with coagulopathy. Journal of Thrombosis and Haemostasis; Wang, J., Hajizadeh, N., Moore, E. E., McIntyre, R. C., Moore, P. K., Veress, L. A., ... & Barrett, C. D. (2020). Tissue plasminogen activator (tpa) treatment for COVID‐19 associated acute respiratory distress syndrome (ARDS): a case series. Journal of thrombosis and haemostasis.

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I, Carlos Franco-Paredes, M.D., M.P.H., hereby declare as follows:
1. I have read the declaration of Capt. Edith Lederman, M.D., M.P.H., submitted in this litigation.
2. For more than 20 years, I have been caring for marginalized groups or individuals. I believe that relying solely on scientific facts paints an incomplete picture of the life journey of people that we care for as physicians. In fact, that caring for others particularly during public health emergencies or natural disasters is what defines as individuals.
3. Without exception, all transgender women seeking asylum have fled to the US seeking protection from torture, sexual violence, or other forms of persecution. Every single patient that I have the honor of caring for as a physician, have a profound history of trauma leading to high rates of depression, anxiety, and post-traumatic stress disorder. Many experience prolonged periods of detention while immigration courts adjudicate their asylum claims or are deported for civil immigration violations. While in detention, many transgender women routinely undergo harassment, sexual assault, and solitary confinement. In some immigration detention centers, there is no routine provision of gender affirming care (hormonal therapy). From a medical perspective, many transgender women may also have chronic medical conditions such as systemic arterial hypertension or diabetes mellitus. Two transgender females have died under ICE custody and in both cases; there has been evidence of medical neglect.
4. Detention and incarceration of any kind involves large groups of people living in cohorts in confined spaces creating many challenges for curbing the spread of COVID-19 including immigration detention centers. The current epicenters of COVID-19 transmission are conglomerate settings such as nursing homes, long-term care facilities, jails, prisons, and immigration detention centers.
5. This is concerning because, similar to other viral pathogens, SARS-CoV-2 is closely dependent on human interactions. Since early April, custodial institutions have been the epicenter of outbreaks of infections at rates far exceeding those in nonincarcerated communities because of overcrowding, insufficient sanitation, poor ventilation, and inadequate healthcare.
6. In fact, immigration detention centers have reported many cases and outbreaks among detainees and staff. Many of these outbreaks are rapidly spreading. On April 22, 2020, ICE reported that 287 detainees and 35 ICE staff members had confirmed COVID-19 cases. Nine days later, on May 1, 2020, ICE reported 522 confirmed cases among detainees and 39 among staff members. Several facilities have severe outbreaks, such as the Otay Mesa facility, which reported a 150% increase in the number of detainees with confirmed cases, from 42 to 105. These large increases indicate that ICE’s attempts at infection control are failing.

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7. I agree with Dr. Lederman’s statement in paragraph 18 of her declaration that transgender people are more likely to have underlying health conditions that make them more vulnerable to infection. The discrimination and social stigma experienced by transgender people is an important reason these co-morbidities are much more prevalent in transgender people including hypertension, deep-venous thrombosis, and diabetes mellitus (metabolic syndrome), a fact that Dr. Lederman acknowledges in stating in paragraph 16 that transgender detainees are additionally screened for sexually transmitted infections such as HIV upon intake.
8. As an infectious disease physician specialized in the care of patients living with HIVinfection, I can attest that I care for many transgender females living with HIVinfection and currently detained at the Aurora, CO Immigration Detention Center. However, achieving control of this viral infection is fragile; and requires frequent clinical monitoring by specialized physicians that treat HIV-infection. The lack of frequent clinical monitoring by an infectious diseases specialist may cause her to develop potential life-threatening side effects from her medications, occurrence of immune reconstitution syndromes in those with recent achievement of viral suppression, or treatment failure due to the development of resistance of the virus to the medications. As shown in the SMART trial published in 2015 in the New England Journal of Medicine, the risk of AIDS is not zero among patients receiving antiretroviral therapy, even among those who had full viral suppression while receiving antiretroviral therapy. This finding indicates that damage to the immune system may occur much earlier in the course of HIV infection and patients remain at risk of severe infections including infectious pneumonias.
9. The first case series of individuals living with HIV-infection with COVID-19 confirms that even those individuals who have achieved viral suppression may develop severe manifestations of COVID-19. In this recently published case series, 80% of patients with HIV-infection admitted to the hospital had undetectable virus in their bloods and 40% require intensive care management. There were no deaths reported in this study. However, this study demonstrates that COVID-19 may cause severe disease in individuals with HIV-infection regardless of achieving virologic control.
10. Transgender detainees who are HIV-positive are at particularly risk of developing severe forms of COVID-19 and therefore should be released so that they may protect themselves and the community for further spread of infection.
11. The combination of fear, stress, history of trauma and abuse, and high prevalence of chronic medical conditions such as diabetes mellitus and hypertension compound to increase the structural vulnerability of this group of individuals while in detention. It is my professional opinion based on scientific facts but also on caring as a physician for many of them, that releasing them on the basis of humanitarian parole would reduce the chances of poor clinical outcomes caused by COVID-19 in case any of them become infected. In immigration detention centers, jails and prisons, the pandemic of COVID-19 is just starting. We need to urgently protect the most

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vulnerable detainees inside immigration detention centers and the transgender community is an extremely fragile one.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed on this fifth day of May 2020 at Aurora, Colorado, United States.
______________________________ Carlos Franco-Paredes, M.D., M.P.H. Associate Professor of Medicine Division of Infectious Diseases Department of Medicine Division of infectious Diseases Program Director Infectious Disease Fellowship Training Program, University of Colorado References:
1. Connors JM, Levy JH. COVID-19 and its implication for thrombosis and anticoagulation. Blood. 2020 Apr 27. pii: blood.2020006000. doi: 10.1182/blood.2020006000. [Epub ahead of print].
2. Blanco JL, Ambrosioni J, Garcia F, Martínez E, Soriano A, Mallolas J, Miro JM; COVID-19 in HIV Investigators. COVID-19 in patients with HIV: Clinical case series. Lancet HIV 2020; Apr 15. Pii: S2352-3018(20)30111-9. doi: 10.1016/S23523018(20)30111-9.
3. Hargreaves J, Davey C; Group for lessons from pandemic HIV prevention for the COVID-19 response. Three lessons for the COVID-19 response from pandemic HIV. Lancet HIV. 2020 Apr 9. pii: S2352-3018(20)30110-7. doi: 10.1016/S23523018(20)30110-7.

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Declaration of Isa Noyola:
1. My name is Isa Noyola and I am the Deputy Executive Directive of Mijente, a political, digital, and advocacy hub for Latino organizing and movement building. My responsibilities at Mijente include providing advocacy and support to transgender people who are either currently being detained or who have recently been released from immigration detention. Prior to working at Mijente, I worked at Transgender Law Center and El/Ella. At both organizations I worked directly with detained and recently detained transgender people providing case management, direct services, and community connection. I also engaged in advocacy and organizing on behalf of transgender people in detention.
2. I have been working with detained or recently released transgender detainees for over 15 years. Through my work, I have gained expertise on a number on issues including experiences of transgender people in detention, interviewing victims of trauma and working with victims of human trafficking.
3. Throughout my career, I have served as a speaker at over 100 trainings, workshops and panels about issues connected to transgender people in immigration detention. In April 2017, I testified at a congressional briefing on LGBT immigration. In November 2015, I testified at the first congressional hearing on the violence against the transgender community held by the Congressional LGBT Equality Caucus. In July 2016, I spoke at the LGBTI National Conference on trans immigration and country conditions report briefing.
4. There have been many times throughout my career where I have been called on by government agencies including the FBI, police departments, and Department of Homeland Security (“DHS”) to provide technical assistance and expertise on issues impacting transgender people in detention and trafficking of transgender people.
5. I have toured multiple different immigration detention centers including Otay Mesa detention center, Prairieland detention Center, Tacoma at NW Detention Center, Stewart detention center, Irwin detention center, Cibola detention Center, Prairieland and Houston detention center. Because of these tours, I am familiar with the layouts of these detention centers, where people sleep, where people socialize, and how much ability people have to social distance.
6. I have worked with or interviewed at least 100 transgender people who were either detained at the time or had spent time in detention. Through this work, transgender people have shared with me their experiences of trauma, harassment and assault they experienced in detention.
7. Everyone I spoke with experienced some form of harassment while in detention. Verbal harassment was pervasive and happened on a daily and sometimes even hourly basis to all of the transgender people I have worked with.

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8. Verbal harassment towards transgender people happened both by other detainees as well as by people who work in the facility. In some instances, other detainees would yell derogatory terms from across the cell but often times the name-calling would be up close and personal. Sometimes the person would whisper the derogatory terms in their ear while touching parts of their body. Sometimes, a person would invade the transgender person’s space while screaming derogatory words at them, while at other times the words would be yelled in their faces. The harassment often would focus on the transgender person’s body, the person not acting enough like a man, and included sexual innuendos and usually homophobic or transphobic words. This type of in-your-face harassment occurred at least twice a day for most transgender people I spoke with. The people who tried to report the harassment, reported that either nothing was done or they would become the target of harassment by the guards. People expressed how hopeless they felt because there was no way to stop the constant stream of verbal harassment.
9. The majority of people I have interviewed or provided services to reported that verbal harassment occurred regularly by both male and female guards. Sometimes the harassment would take the form of purposefully and maliciously misgendering someone. Other times it would be derogatory names, or comments about the victim’s physical appearance. Countless numbers of people shared with me that guards would say things to them like “walk like a man,” or call them a derogatory homophobic or transphobic names. Most of the time, these types of comments were done in front of other detainees.
10. Another common form of harassment that transgender people face in detention is spitting. I heard from many people that they would regularly get spit on either up close by other detainees who were passing by or by people who were farther away. People reported to me that this felt incredibly dehumanizing.
11. Many people reported to me that verbal harassment would often escalate into physical abuse as time went on. This would include pushing and shoving and punching while also using transphobic or homophobic slurs.
12. Countless numbers of transgender people I have worked with also experienced some form of sexual assault while in detention. The sleeping arrangement and general layout and conditions of the detention center make transgender people a target. Many transgender people have described the sleeping arrangements to me and through my multiple tours of a detention center, I have witnessed them myself. It is important to understand that the majority of transgender women are detained in the same sleeping areas with cisgender men. This means that if the sleeping areas are dormitory style with bunkbeds, the person above them or next to them is most likely a cisgender man. In some facilities, there are beds clustered together. Other facilities have small cells that hold two beds within a larger general area outside. This means that transgender women are regularly in close quarters with cisgender men where they are locked in with no way out.
13. It was very common to hear stories of sexual violence by cell or dormmates. In these reports often times the sexual violence would start with unwanted touching at night. The perpetrator would come into the transgender person’s bed and nonconsensually touch the

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transgender person. Frequently, the women I spoke with reported that as time went on, the sexual violence would increase. What would start as unwanted touching of someone’s breasts would lead to a person being forced to stroke genitals, oral sex and penetrative sex. Some transgender women reported being assaulted by multiple people.
14. There was a small percentage of transgender victims that attempted to report the sexual harassment to the guards but in all of the stories I heard, none experienced a positive outcome or a positive change in their situation after reporting. Almost everyone I spoke with felt like they were punished for reporting because most were sent to solitary confinement for days or sometimes a week at a time. This would mean 23 hours a day of complete isolation and the only people who they would be able to interact with were the guards. During this time, some guards would make transphobic comments like, “I don’t know why you’re complaining you know that you liked it. You wanted this to happen. You wanted him to do that to you.” On some occasions I heard reports of guards fondling victims in these scenarios because they were isolated with no one around to report it.
15. Most people, after finding out that victims are sent to solitary if they reported the violence, would make a choice not to report. People said they felt safer in general population rather than being the direct target of the guards in isolation and because after being released from solitary confinement not one woman I spoke with reported being protected by the person who assaulted them. Therefore, reporting often meant the violence worsened after the victim was released from solitary confinement. In the cases of transgender people who were not put into isolation or solitary confinement after reporting, the guards at the detention facilities took no action with their reports of sexual violence.
16. Transgender people in detention also reported sexual harassment by the guards as well, the people whose job it was to keep them safe. Transgender people reported that the sexual harassment occurred during the strip searches. As such it often went unnoticed by other guards. While doing the search, a guard would fondle a transgender person’s breasts or other body parts in ways that were not standard for a strip search. Many people described to me situations where a guard would fondle their breast with a hand while whispering derogatory or sexualized comments in the victim’s ear. So many of the transgender women I worked with have recounted the feeling of their hot breath on their neck while their breasts and other body parts were being touched.
17. Due to my expertise and experience working with transgender people in immigration detention, I have participated in many working groups to try and create safer spaces in detention. In 2015, I was a member of a group that was working with the Department of Homeland Security to designate transgender people as a vulnerable population due to the high level of sexual violence that transgender people face in detention.
18. As a part of this effort, in June 2016 myself and a number of transgender women had a meeting with many people from the Department of Justice and the Department of Homeland Security including Alejandro Mayorkas, former Deputy Secretary of the Department of Homeland Security and Serena Hoy, former Senior Counselor of the

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Department of Homeland Security Serena Hoy. The people I accompanied were all transgender women who had been sexually assaulted in immigration detention. During that meeting, all of the women had a chance to share their stories. The meeting was very powerful and at the end of the meeting, multiple officials apologized to the transgender women for failing them in immigration detention.
19. After that meeting, I had many conversations with officials from the Department of Homeland Security and I was fairly confident that transgender people would be added to the list of vulnerable populations. However, a new administration came into the White House and all of the top officials I had worked with from the Department of Homeland Security left for other jobs. But it was made clear to me by officials at Department of Homeland Security there was an understanding that transgender people are not safe in detention and vulnerable due to the higher risk of sexual and physical violence.
20. I have also worked with a number of transgender women and transgender men who have been victims of human trafficking. Unfortunately, due to societal understanding and biases around human trafficking, transgender people are often not seen as victims and therefore are rarely screened for trafficking victimization. As the Trafficking Persons Report explains, “Due to social biases, LGBTI victims are also more likely to be penalized for acts committed as a result of being subjected to trafficking.” See U. S. DEP’T OF STATE, 2016 Trafficking in Persons Report, (Jun. 2016.)
21. I have seen many cases where an immigration attorney claims they screened a transgender person for trafficking victimization but, only to learn later, that person did not screen well and did not have an understanding of trafficking in transgender communities. For example, I have worked with multiple people who had criminal convictions on their record who were victims of trafficking and the convictions were a direct result of their victimization. These victims had convictions for manslaughter, drunk driving, petty theft, credit card fraud, identity theft, all of which, we later found out, were victims of human trafficking and were actually forced or coerced to engage in the illegal activity. Most of these people had lost their immigration case in front of their immigration judge and it was only after an expert on human trafficking met them and provided a proper screening, were they able to access immigration status and a release from detention.
22. One common tactic that many transgender victims reported to me, is having a trafficker call the police on the victim. Often times, these situations ended with the victim having a protective order against them and the trafficker using the order to maintain further control over the victim. That is why it is not uncommon for victims to have convictions for domestic violence.
23. While there is pervasive lack of screening of a transgender victims, there are certain federal agencies, including Federal Bureau of Investigations, that take seriously the victimization of transgender people and provide protection and support for these victims. However, in my experience working with many transgender victims, Department of Homeland Security is not one of those agencies. In fact, even after a transgender person

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is confirmed as a victim, a transgender victim is still not released from immigration detention and the conviction is frequently still held against them. I have only seen this happen to transgender people; I know of many cisgender people who are released from detention after identification as victims.
24. For example, I supported a case where a young transgender woman was in jail for drug related charges. She cooperated with the FBI who agreed she was a trafficking victim. Her attorney worked with the local prosecutor as well as defense attorney but because there was a detainer issued for her, even if all of the charges were dropped, she would still be taken into detention. The FBI tried to advocate for her and even applied for a special immigration status but, Department of Homeland Security refused to lift the detainer despite the fact that she was a trafficking victim, confirmed and cooperating with the FBI and in jail solely because of crimes she was forced into. Department of Homeland Security maintained she should go into immigration detention first and took the position that the FBI could sort it out later when she was able to get immigration status. The only reason the detainer was eventually lifted was because the victim was living with cancer and I surmise DHS realized that her treatment in detention would be very costly.
25. In another case I supported, a transgender man who was determined to be a victim of human trafficking by Homeland Security Investigations, FBI, and the U.S. Attorney’s office. He was interviewed by all of these agencies all of whom agreed he was a victim. They all also determined that his convictions, all nonviolent credit scams, were also tied to human trafficking. Department of Homeland Security refused to release him despite the confirmation they received from all of these federal agencies. A District Court Judge even vacated the one conviction that made him deportable and confirmed his victimization but Department of Homeland Security still refused to release him. Even after his attorneys won his case to terminate the proceedings in immigration court and at that point, Department of Homeland Security still refused to release him because the government “might want to appeal his case.” Fortunately, his attorney was able to secure a governor’s pardon and after over two years of being held in detention, he was finally released.
26. I have been working with organizations who provide services to trafficking victims for most of my career. I have only seen or heard of Department of Homeland Security treating transgender trafficking victims this way; namely, persistently failing to screen them as victims and refusing to release them from detention even when the reason they are detained is a direct result of their victimization. These are not the only examples I have of this type of horrific behavior and treatment to transgender trafficking victims.
27. Due to all of my work and interviews with over 100 transgender people that have spent time in immigration detention, I know it is not possible for transgender people to adhere to social distancing guidelines and stay safe from COVID-19 in immigration detention. Even if there is soap, hand sanitizer, and plenty of space in a detention center, it is important to understand that transgender people have very limited ability to control their own safety in a detention center. The rapid verbal harassment, spitting and unchecked

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sexual abuse that is a constant and daily experience for transgender detainees make it clear that anyone who wants to have access to transgender people in detention, will be able to do so. They will not be able to socially distance and keep themselves safe from COVID-19 no matter how many masks are handed out or how much hand sanitizer people are giving people. The only way to keep transgender people safe from COVID-19 is to release them from detention.
28. The verbal, physical and sexual harassment transgender people suffer in detention is well documented in multiple reports. Our own government found that LGBT people are 97 times more likely to be sexually assaulted in immigration detention than their cisgender or heterosexual counterparts. When you have no control over who is touching your body, breathing heavily in your ear, and spitting at you, social distancing is not possible. I urge you to release transgender people from detention so they can have a real chance of avoiding COVID-19 infection.

_________________________ Signature

05/5/2020 Date

Case 1:20-cv-01072-CRC Document 22-8 Filed 05/05/20 Page 8 of 13
Isa Noyola
isa@mijente.net 510-409-8173
EMPLOYMENT HISTORY
Present Mijente, Phoenix, AZ - Deputy Director
Organizational Growth & Financial Management ● Oversee organiza onal ﬁnancials, protocols and periodic audits. ● Assess and advise on prospec ve projects, opportuni es for growth and poten al threats. ● Develop organiza onal budget in collabora on with na onal Director. ● Lead eﬀorts to develop diverse sources of revenue
Staff Coordination & Supervision ● Develop methods and processes to measure organiza onal performance and impact. ● Design format and systems for staﬀ accountability and support. ● Organize staﬀ and organiza onal leadership planning mee ngs and team building events. ● Cul vate healthy organiza onal culture, create inten onal space to name and shape exis ng dynamics.
Organiza onal Development & Opera ons ● Direc ng, maintain and update human resources, including personnel policies, compliance and hiring, beneﬁts and more. ● Implement employee policies administer payroll and beneﬁts ● Manage facili es and vendors, order supplies ● Handle accounts receivable/payable and help teams with various admin tasks
2014-2018 Transgender Law Center (TLC), Oakland, CA - Deputy Director External
● Expand and sustain the organiza on's impact and resources. ● Represent the organiza on in high-level mee ngs movement and funders. ● Build and steward rela onships with current and prospec ve founda ons and major
donors and solicit funds.

Case 1:20-cv-01072-CRC Document 22-8 Filed 05/05/20 Page 9 of 13
● Work closely with staﬀ to develop and implement strategic communica ons including messaging research.
● Assist in developing strategic responses to emerging and ongoing policy issues primarily on a na onal level, including health care access, economic jus ce, racial jus ce, student safety, prisoners’ rights, and immigrants’ rights.
● Support the development of community-facing public educa on materials, including ‘know your rights’ materials and training curricula.
● Serve as an org and movement spokesperson. ● Work with Development Director to create and implement short-and long-term
fundraising strategies ● Assure the organiza on and its mission, program and services are presented in strong,
posi ve image to relevant stakeholders. ● Conduct and develop training on transgender rights for various audiences, including
healthcare providers, employers, and policymakers. ● Develop and maintain close working rela onships and coali ons with transgender
groups, organiza onal partners, and community leaders.
Internal ● Lead the organiza on in visioning, assessing and implemen ng the strategic plan ● Oversee management of organiza onal resources and the day-to-day management of TLC ● Ensure the delivery of high quality programs while managing for current and future growth. ● Assist in developing strategic responses to emerging and ongoing needs ● Directly supervise director-level staﬀ. ● Promote Board’s engagement in genera ve thinking, strategic planning, resources/ﬁnancial development and overall organiza onal eﬀec veness and help build the capacity of the board ● Oversee management of the human resource of the organiza on and recruit retain and foster a mul cultural and diverse mul disciplinary results drive staﬀ ● Promote a posi ve oﬃce culture based in fun, commitment to shared values, and mutual respect and caring. ● Facilitate cross department collabora on and strengthen internal communica ons ● Oversee organiza onal eﬀorts in areas of management coaching, leadership development, annual planning, and professional growth opportuni es for staﬀ. ● Oversee yearly budget for board approval, prudently manage organiza ons resources and oversee the ﬁnancial status of the organiza on.

Case 1:20-cv-01072-CRC Document 22-8 Filed 05/05/20 Page 10 of 13
2010 – 2014 Lavender Youth Recrea on and Informa on Center (LYRIC), San Francisco, CA - Program Manager
● Develop and implement arts based social jus ce, event planning, and facilita on curricula. Topics includes the intersec ons of environmental jus ce, queer and trans history, trans libera on, immigra on, and race.
● Cul vate collabora ve partnerships with SFUSD, Youth Employment Coali on members, LGBT organiza ons, immigrant rights, and neighborhood CBOs.
● Manage programma c, administra ve and repor ng requirements for Dept. of Children Youth & Families.
● Provide weekly leadership workshops and supervision sessions for 20 youth interns. ● Recruit and retain interns to ensure succession in leadership roles as staﬀ at LYRIC ● Supervise and develop six staﬀ members in youth development prac ces, an -
oppression frameworks, curriculum development and evalua on. ● Assist in strategic planning process to align organiza onal prac ces with SLI program. ● Co-created and planned annual Youth and Elder Brunches at Trans March. ● Hosted and planned seven LGBTQ youth dances for 200+ bay area youth ages 12-24.
2006-Present El/La para Transla nas, San Francisco, CA - Na onal Advocate and Advisory Board Member
● Supervised direct service staﬀ and held weekly troubleshoo ng/feedback sessions about programs and par cipants.
● Engage in local and na onal advocacy around: trans women immigrants, TWOC violence, and linking resources to trans community.
● Entered client data and prepared month end reports. ● Prepared presenta ons for city government oﬃcials, community mee ngs, and
academic conferences. ● Facilitated supervision training for new staﬀ, providing them tools to use and how to
structure weekly work plans that are eﬀec ve and mely.
KEYNOTES, PRESENTATIONS, AND WORKSHOPS
● Feb 2018 - Shaping Jus ce Conference speaker, University of Virginia Law School ● October 2017- Stanford Law La nx Heritage month speaker ● May 2017 Lavender Gradua on Keynote University of Towson

Case 1:20-cv-01072-CRC Document 22-8 Filed 05/05/20 Page 11 of 13
● April 2017 Presented on Capitol Hill at the LGBT immigra on congressional brieﬁng ● February 2017 University of Riverside Asterisk Conference keynote ● February 2017 UC Santa Barbara trans revolu on series keynote ● December 2016 AIDS Philanthropy summit – trans issues and deten on plenary ● November 2016 Race Forward conference intersec onal movements opening plenary ● July 2016 Mexico City LGBTI Na onal Conference trans immigra on and country
condi ons report brieﬁng ● July 2016 GIFT Money for our movements closing plenary ● July 2016 Lavender Law #Endtransdeten on campaign workshop ● March 2016 LGBT Funders Funding Forward conference trans issues plenary ● February 2016 UC Santa Cruz Sister Solidarity keynote ● January 2016 ESSIE Jus ce group convening decarcera on panel ● December 2015 Mijente Lanzate convening closing keynote ● December 2015 US Human Rights Network biannual conference panel plenary ● November 2015 LGBT Congressional Equality Caucus Hearing on Violence Against the
Transgender Community ● November 2015 Oberlin College Trans libera on speaker series keynote ● October 2015 UCLA Eighth Annual CRS Symposium, Race and Resistance: Against Police
Violence panel ● July 2015 University of New Mexico MALCS conference panel – Trans Migra on ● April 2015 Stanford University - Raza day keynote ● March 2015 INCITE Color of Violence panel – Intersec onal Struggles ● August 2014 Horizons Founda on panel- “Transcending the Divide: Gaining a Be er
Understanding of Transgender Issues” ● July 2014 Northern New Mexico College - Mujeres Ac vas en Letras y Cambio Social
Summer Ins tute - “El/La Herstory & Roundtable discussion about Transla na Visibility”. ● June 2014 California Associa on of Human Rela ons Organiza ons panel- “Transgender
Non-discrimina on, Training & Law Enforcement”. ● June 2014 Na onal Lawyers Guild Far West Regional Conference panel- "Not One More:
Resis ng Mass Deporta on and Repression of the Poli-Migra in the Bay Area and beyond”. ● June 2014 Eric Quezada Center for Culture & Poli cs - “Stop proﬁling & s gma zing trans women: An evening with Monica Jones & Bay Area trans libera on organizers” panel. ● March 2014 Chico State Gender and Sexuality Equity Center First Annual ● Trans Conference - “El/La Herstory and Transla na Visibility” presenta on. ● November 2013 UCSF LGBT Resource Center - “TDoR: Violence in Transla na

Case 1:20-cv-01072-CRC Document 22-8 Filed 05/05/20 Page 12 of 13
Community” panel. ● August 2013 The California Wellness Founda on Conference on the Health and Well-
Being of Transi on-Age Youth - “Developing Leadership Skills in Youth.” workshop. ● June 2013 Lambda Legal, CUAV, & El/La para TransLa nas Community Forum - “Figh ng
An -Trans Violence.” panel. ● December 2012 San Jose State Ethnic Studies Dept. “Joteria Panel: QueerTrans Ac vism
and Art” ● October 2012 Choice USA Reproduc ve Jus ce Conference “Voice from Other
Movements” panel. ● September 2012 University of New Mexico Associacion de Joteria, Arts,Ac vism, &
Scholarship “Non-Proﬁt Models for Queer & Trans Youth of color Empowerment” workshop. ● August 2012 SoulForce- “Race, Sexuality, Gender, Class, & Faith”
PROFESSIONAL DEVELOPMENT
2018 Move to End Violence Movement Makers Leadership Fellowship 2018 Radical Aliveness Leadership and Self Transforma on Training Program 2013 Rockwood Leadership Ins tute Fellowship for LGBTQ Leaders 2013 Esalen Ins tute -Radical Aliveness Core Energe cs Ins tute -Radically Alive Leadership 2012 Compass Point - Leadership program for execu ves serving transi on-age youth. 2012 Compass Point - Supervision training parts 1 & 2 2012 Pedagogy & Theatre of the Oppressed Ins tute 2011 School of Unity and Libera on (SOUL) - Training the Trainers 2010 Oﬃce of Minority Health - La no mentoring training ins tute for HIV preven on agencies 2006 Na onal Network of Immigrant Rights Ins tute 2004 Franklin Covey 7 Habits of Highly Eﬀec ve Leaders
EDUCATION
2002 Bachelors of Art in Poli cal Science, Lee University – Cleveland, TN 1997 High School Diploma, Washington High School – Fremont, CA

Case 1:20-cv-01072-CRC Document 22-8 Filed 05/05/20 Page 13 of 13
ADVISORY BOARDS & MEMBERSHIPS
2019 Interna onal Trans Fund grant maker 2018-Present Radical Imagina on Family Fund adviser 2018- Present BreakOUT youth 2018 Mijente Leadership Circle 2018 Groundswell grant maker for Libera on fund 2014 Present- Familia: Transgender & Queer Libera on Movement 2015 United We Dream – Queer Undocumented Immigrant Project 2014 Sheroes Project For Center of Excellence for Transgender Health 2014 Transgender Health Services for SF Health DPH 2010 San Francisco Youth Employment Coali on

 
 Case 1:20-cv-01072-CRC Document 32 Filed 05/11/20 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

C.G.B. et al., Petitioners,
v. CHAD WOLF, Acting Secretary U.S. Department of Homeland Security et al.,
Respondents.

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Civil Action No. 20-01072 (CRC)

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RESPONDENTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PETITIONERS’ MOTION FOR CLASS CERTIFICATION

Case 1:20-cv-01072-CRC Document 32 Filed 05/11/20 Page 2 of 33
TABLE OF CONTENTS Table of Authorities ............................................................................................................. i Factual Background .............................................................................................................2
A. Proposed Class Representatives................................................................................2 B. Relevant Detention Facilities ....................................................................................4 Legal Standard .....................................................................................................................4 Argument .............................................................................................................................6 I. The Court Lacks Jurisdiction To Certify An Injunctive Class ...................................6 II. The Proposed Class Does Not Satisfy Rule 23’s Requirements ...............................8
A. The Proposed Class Lacks The Commonality Required Under Rule 23(a)(2) and 23(b)(2) .............................................................................................................8
1. Putative Class Members’ Medical Conditions Are Not Common...............11 2. Putative Class Members’ Conditions of Confinement Are Not Common...15 3. Legally Available Relief Is Not Common To The Class .............................19 4. Release Is Not A Common Remedy ............................................................22 B. Petitioners Cannot Adequately Represent the Interests of the Putative Class ..24 Conclusion .........................................................................................................................27

Case 1:20-cv-01072-CRC Document 32 Filed 05/11/20 Page 3 of 33
TABLE OF AUTHORITIES Cases Am. Immigration Lawyers Ass’n v. Reno, 199 F.3d 1352 (D.C. Cir. 2000) ................................. 20 Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ................................................................ 24 Barbecho v. Decker, Civ. A., No. 20-2821, 2020 WL 1876328 n.2 (S.D.N.Y. Apr. 15, 2020)... 14 Bennett v. Blanchard, 802 F.2d 456 (6th Cir. 1986)..................................................................... 26 Buleishvili v. Hoover, Civ. A., No. 20-0607, 2020 WL 1911507 (M.D. Pa. Apr. 20, 2020) ....... 10 Califano v. Yamasaki, 442 U.S. 682 (1979) ............................................................................... 4, 8 Camacho Lopez v. Lowe, Civ. A., No. 20-563, 2020 WL 1689874 (M.D. Pa., Apr. 7, 2020)..... 18 Carlson v. Landon, 342 U.S. 524 (1952) ...................................................................................... 21 Castro v. United States Dep’t of Homeland Sec., 835 F.3d 422 (3d Cir. 2016) ........................... 20 Comcast Corp. v. Behrend, 569 U.S. 27 (2013) ......................................................................... 4, 5 Crawford v. Bell, 599 F.2d 890 (9th Cir. 1979)............................................................................ 25 Damus v. Nielsen, 313 F. Supp. 3d 317 (D.D.C. 2018) ................................................................ 15 Demore v. Kim, 538 U.S. 510 (2003) ........................................................................................... 19 Derron B., et al. v. Tsoukaris, No. 20-3679, 2020 WL 2079300 (D.N.J. Apr. 30, 2020) ...... 14, 18 DHS v. New York, No. 19A785, 140 S.Ct. 599 (2020)................................................................. 26 E. Bay Sanctuary Covenant v. Barr, 934 F.3d 1026 (9th Cir. 2019)............................................ 26 Ferreyra v. Decker, Civ. A., No. 20-03170, 2020 WL 1989417 (S.D.N.Y. Apr. 27, 2020) .. 13, 16 Gillespie v. Crawford, 858 F.2d 1101 (5th Cir. 1988).................................................................. 26 Gordon v. Lynch, 842 F.3d 66 (1st Cir. 2016)................................................................................ 7 Halliburton Co. v. Erica P. John Fund, Inc., 134 S. Ct. 2398 (2014) ............................................ 4 Hamama v. Adducci, 912 F.3d 869 (6th Cir. 2018) ........................................................................ 6 Hartman v. Duffey, 19 F.3d 1459 (D.C. Cir. 1994) ........................................................................ 5
i

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Horns v. Whalen, 922 F.2d 835 (4th Cir. 1991) ........................................................................... 25 Hoyte v. District of Columbia, 325 F.R.D. 485 (D.D.C. 2017) .................................................... 24 Jennings v. Rodriguez, 138 S.Ct. 830 (2018) ................................................................. 6, 7, 10, 19 Keepseagle v. Vilsack, 102 F. Supp. 3d 205 (D.D.C. 2015) ................................................... 24, 25 Kleindienst v. Mandel, 408 U.S. 753 (1972)................................................................................. 20 Lujan v. G&G Fire Sprinklers, Inc., 532 U.S. 189 (2001) ........................................................... 10 Matter of Sanchez, 20 I. & N. Dec. 223 (BIA 1990) .................................................................... 22 McNeil v. Guthrie, 945 F.2d 1163 (10th Cir. 1991) ..................................................................... 25 Nat’l Ass’n of Reg’l Med. Programs, Inc. v. Mathews, 551 F.2d 340 (D.C. Cir. 1976)............... 24 Nielsen v. Preap, 139 S. Ct. 954 (2019) ....................................................................................... 19 Reno v. Am. Arab Anti-Discrimination Comm., 525 U.S. 471 (1999)........................................ 6, 7 Richardson v. L’Oreal USA, Inc., 991 F. Supp. 2d 181 (D.D.C. 2013) ....................................... 25 Savino v. Souza, 2020 WL 1703844, (D. Mass. Apr. 8, 2020) ............................................... 10, 12 Shvartsman v. Apfel, 138 F.3d 1196 (7th Cir. 1998) .................................................................... 26 Twelve John Does v. District of Columbia, 117 F.3d 571 (D.C. Cir. 1997)................................. 24 U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950)............................................................. 21 U.S. v. Bell, No. 17-20183, 2020 WL 1650330 (E.D. Mich. Apr. 3, 2020) ................................. 23 U.S. v. Flores Molina, No. 19-00102, 2020 WL 1640182 (N.D. Ala. Apr. 2, 2020) ................... 23 U.S. v. Martin, No. PWG-19-140-13, 2020 WL 1274857 (D. Md. Mar. 17, 2020) ..................... 17 U.S. v. Peralta-Sanchez, 847 F.3d 1124 (9th Cir. 2017) .............................................................. 20 U.S. v. Terrance Boatwright, No. 19-00301, 2020 WL 1639855 (D. Nev. Apr. 2, 2020) ........... 23 Umarbaev v. Lowe, Civ. A., No. 20-413, 2020 WL 1814157 (M.D. Pa. April 9, 2020).............. 17 United Farm Workers v. Chao, 593 F. Supp. 2d 166 (D.D.C. 2009) ........................................... 13 Verma v. Doll, Civ. A. No. 20-14, 2020 WL 1814149 (M.D. Pa. Apr. 9, 2020).......................... 23
ii

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Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ........................................................... passim Statutes 8 U.S.C. § 1221............................................................................................................................... 6 8 U.S.C. § 1225......................................................................................................................... 7, 20 8 U.S.C. § 1225(b)(1) ................................................................................................................... 20 8 U.S.C. § 1226(a) .................................................................................................................. 21, 22 8 U.S.C. § 1226(c) .................................................................................................................... 2, 19 8 U.S.C. § 1231(a) ........................................................................................................................ 20 8 U.S.C. § 1231(a)(2)................................................................................................................ 2, 20 8 U.S.C. § 1232............................................................................................................................... 6 8 U.S.C. § 1252(e)(1).................................................................................................................... 20 8 U.S.C. § 1252(e)(1)(A) .............................................................................................................. 20 8 U.S.C. § 1252(f)(1) .................................................................................................................. 6, 7 Rules Fed. R. Civ. P. 23 ................................................................................................................... passim Regulations 8 C.F.R. § 235.6(a)(1)(ii) .............................................................................................................. 21 8 C.F.R. § 236.1(c)(8) ................................................................................................................... 22 8 C.F.R. §§ 236.1(d)(1)................................................................................................................. 22 Other Authorities CDC, Coronavirus and Travel in the United States, https://www.cdc.gov/coronavirus/2019-
ncov/travelers/travel-in-the-us.html (last visited May 8, 2020) .............................................. 22 CDC, Groups at Higher Risk for Severe Illness, at https://www.cdc.gov/coronavirus/2019-
ncov/need-extra-precautions/groups-at-higher-risk.html (last visited May 11, 2020)................ 2 CDC, Transgender Persons, https://www.cdc.gov/lgbthealth/transgender.htm (last visited May 8,
2020).......................................................................................................................................... 11 iii

Case 1:20-cv-01072-CRC Document 32 Filed 05/11/20 Page 6 of 33 CDC, Travel: Frequently Asked Questions and Answers, https://www.cdc.gov/coronavirus/2019-
ncov/travelers/faqs.html (last visited May 8, 2020) ................................................................. 23 Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97 (2009) ........................................................................................................................................ 6, 11 Sharita Gruberg ICE’s Rejection of Its Own Rules Is Placing LGBT Immigrants at Severe Risk of
Sexual Abuse Center for American Progress (2018), https://www.americanprogress.org/issues/lgbtq-rights/news/2018/05/30/451294/icesrejectionrules-placing-lgbt-immigrants-severe-risk-sexual-abuse/ (last visited May 8, 2020).. ................................................................................................................................................... 13
iv

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Petitioners, transgender immigration detainees, brought suit alleging the conditions of their confinement place them at “grave risk” of contracting and falling seriously ill from COVID-19. Mem. In Support of Mot. for Class Certification (“Motion”) at 1, ECF No. 21-1. They contend that these conditions violate their due process rights, as well as the rights of all transgender detainees, and seek an injunction ordering the release of all transgender detainees. Id. at 5. To obtain such relief, Petitioners request certification of a class of “[a]ll transgender people in civil immigration detention who are held, or who will be held, by Respondents in any U.S. detention center or facility during the pendency of the COVID-19 pandemic.” Id. at 1.
It is an extraordinary request. It is extraordinary on its face, as the scope includes not just detainees currently held, but also detainees to be held in the future, includes detainees in any detention facility across the country, and would last “during the pendency of the COVID-19 pandemic.” It is extraordinary because any detainee’s risk from COVID-19 is inherently uncommon, requiring an individualized examination of each detainee’s health, the conditions of that detainee’s confinement, and whether the requested relief is actually more protective of COVID-19 risks. Finally, Petitioner’s request is extraordinary because it asks this Court to release people from detention regardless of the legal basis for detention, which varies by detainee and is thus another uncommon fact that requires an individualized assessment. Accordingly, Petitioners have not shown and cannot show that the proposed class possesses the “commonality” required under Federal Rule of Civil Procedure (“Rule”) 23(a)(2) and 23(b)(2). Furthermore, by tethering all transgender detainees to Petitioners’ case, certifying a class would deprive other transgender detainees – including some who might otherwise request expedited or other distinctive treatment – of seeking their own relief. This creates a fundamental class
1

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conflict that undermines the “adequacy” of Petitioners’ representation as required by Rule 23(a)(4).
Accordingly, Respondents request that the Court deny Petitioners’ misguided motion for class certification.
FACTUAL BACKGROUND A. Proposed Class Representatives The proposed class representatives are ten transgender ICE detainees, most of whom are young and are not otherwise at higher risk for severe illness from COVID-19 according to the CDC. 1 Only two of the ten, for instance, have medical conditions that the CDC classifies as medical conditions that might place one at higher risk for severe illness from a COVID-19 infection. Id. K.M. is a 37-year-old citizen of Haiti who is HIV positive. K.M. Decl. ¶¶ 1, 8 (ECF No. 19-6); Cantrell Decl. ¶ 46. Similarly, K.S. is a 34-year-old citizen of Jamaica who is HIV positive. K.S. Decl. ¶¶ 1, 9 (ECF No. 19-5); Cantrell Decl. ¶ 45. Both, however, are detained pursuant to “mandatory detention” statutes. K.M. is detained under 8 U.S.C. § 1226(c), which requires that the Government detain deportable aliens convicted of certain crimes. Cantrell Decl. ¶ 44. K.S. is detained under 8 U.S.C. § 1231(a)(2), which requires that the Government detain aliens during their removal period. Id. ¶ 40. Four Petitioners allege that they have medical conditions that are among those the CDC considers as placing them at higher COVID-19 risk. M.R.P. is a 22-year-old citizen of El Salvador who alleges having been diagnosed with Hepatitis A, high hemoglobin count, and indications of hyperthyroidism. M.R.P. Decl. ¶¶ 1, 8-17 (ECF No. 19-13); Acosta Decl. ¶ 72. K.R.H. is a 26-
1 CDC, Groups at Higher Risk for Severe Illness, at https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/groups-at-higher-risk.html (last visited May 11, 2020).
2

Case 1:20-cv-01072-CRC Document 32 Filed 05/11/20 Page 9 of 33
year-old citizen of Guatemala who alleges to have had asthma as a child and to have tachycardia (rapid heartbeat) now. K.R.H. Decl. ¶¶ 1, 16 (ECF No. 19-11); Ciliberti Decl. ¶ 41. A.F. is a 25year-old citizen of Nicaragua with no documented medical conditions, but alleges to have one kidney. A.F. Decl. ¶¶ 1, 8 (ECF No. 19-2); Ciliberti Decl. ¶ 39.
The fourth of those petitioners is C.G.B., a 31-year-old citizen of Mexico, who alleges that she tested negative for COVID-19, but had “coronavirus-like symptoms” and was treated by Florence Detention Center as a “presumptive positive.”2 C.G.B. Decl. ¶ 8; Malakhova Decl. ¶ 30. C.G.B. has no medical conditions that would place at a risk of severe illness from COVID19. C.G.B. Decl. ¶¶ 1 (ECF No. 19-1); Malakhova Decl. ¶ 29. To the contrary, in fact, C.G.B. may have a lower COVID-19 health risk if she had contracted and recovered from a COVID-19 infection. See, NIH Director’s Blog, Study Finds Nearly Everyone Who Recovers From COVID19 Makes Coronavirus Antibodies, at https://directorsblog.nih.gov/2020/05/07/study-findsnearly-everyone-who-recovers-from-covid-19-makes-coronavirus-antibodies/ (last visited May 8, 2020) (“Although more follow-up work is needed to determine just how protective these antibodies are and for how long, these findings suggest that the immune systems of people who survive COVID-19 have been primed to recognize SARS-CoV-2 and possibly thwart a second infection.”).
The remaining four Petitioners3 lack a documented physical medical condition. M.J.J. is a 22-year-old citizen of Honduras with no documented medical conditions. M.J.J. Decl. ¶¶ 1, 6-11
2 Mayo Clinic News Network, False-negative COVID-19 test results may lead to false sense of security, at https://newsnetwork.mayoclinic.org/discussion/false-negative-covid-19-test-resultsmay-lead-to-false-sense-of-security/. 3 Although there were 13 named Petitioners at the beginning of this lawsuit (see ECF No. 3 at 4– 10), ICE has released 3 of them, and as Petitioners conceded at the May 6, 2020 hearing, the released petitioners’ claims are now moot.
3

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(ECF No. 19-9); Davies Decl. ¶ 60. D.B.M.U. is a 19-year-old citizen of Honduras with no documented medical conditions. D.B.M.U. Decl. ¶¶ 1, 6-11 (ECF No. 19-10); Davies Decl. ¶ 76. M.M.S.M. is a 22-year-old citizen of El Salvador with no documented physical medical conditions M.M.S.M. Decl. ¶¶ 1, 9-17 (ECF No. 19-3); Davies Decl. ¶ 96. Finally, L.M. is a 23-year-old citizen of Jamaica who admits her “physical health is fine” and “do[es] not have any physical health conditions that [she] came into the U.S. with.” L.M. Decl. ¶¶ 3, 12-14 (ECF No. 19-8); Davies Decl. ¶ 43.
B. Relevant Detention Facilities The ten proposed class representatives are housed in five detention facilities. When the suit was filed, the then thirteen named Petitioners were housed at eight detention facilities. The five facilities are Aurora Contract Detention Facility in Aurora, CO, housing L.M., M.J.J., D.B.M.U., and M.M.S.M.4; El Paso Processing Center in EL Paso, TX, housing M.R.P.; Florence Detention Center in Florence, AZ, housing C.G.B.; the La Palma Correctional Center in Eloy, AZ, housing A.F. and K.R.H.; Nevada Southern Detention Center, in Pahrump, NV, housing K.M. and K.S. Mot. at 9.
LEGAL STANDARD The class action is “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). To fall within the exception, “Plaintiffs wishing to proceed through a class action must actually prove—not simply plead— that their proposed class satisfies each requirement of Rule 23.” Halliburton Co. v. Erica P. John
4 The Motion states that M.M.S.M. is detained at Winn Correctional Center. Mot. at 7. But that has not been true since April 24, 2020. Hodges Decl. ¶ 34.
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Fund, Inc., 134 S. Ct. 2398, 2412 (2014). A courts may certify a class only if plaintiffs present “evidentiary proof” sufficient to withstand a “rigorous analysis” of Rule 23’s requirements. Behrend, 569 U.S. at 33.
Under this standard, a party seeking certification of a proposed class bears the burden of demonstrating that the required elements of Rule 23(a) exist: (1) the proposed class is so numerous that joinder of all members is impracticable (“numerosity”); (2) there are questions of law or fact common to the class (“commonality”); (3) the claims or defenses of the named plaintiffs are typical of the claims or defenses of the class (“typicality”); and (4) the named plaintiffs will fairly and adequately protect the interests of the class (“adequacy of representation”). In addition to meeting the requirements set forth in Rule 23(a), the proposed class must also qualify under Rule 23(b)(1), (2), or (3). See, e.g., Hartman v. Duffey, 19 F.3d 1459, 1468 (D.C. Cir. 1994). In this case, Plaintiffs seek certification under Rule 23(b)(2), which permits class certification where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “The key to the (b)(2) class is ‘the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011) (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97, 131–32 [2009]).
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ARGUMENT I. The Court Lacks Jurisdiction To Certify An Injunctive Class
Both in their briefing and at oral argument, Petitioners left no doubt that they effectively seek only one remedy: immediate, blanket release of all transgender detainees. The option of seeking the Court’s assistance in implementing changes at detention facilities to protect Petitioners from COVID-19 during their detention seems to have fallen by the wayside. To grant Petitioners their requested relief, however, the Court would have to enjoin or restrain the normal operations of the various detention statutes. And 8 U.S.C. § 1252(f)(1) expressly prohibits any court from doing so on a classwide basis.
“Regardless of the nature of the action or claim… no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [8 U.S.C. §§ 1221–1232], other than with respect to the application of such provisions to an individual alien against whom proceedings … have been initiated.” 8 U.S.C. § 1252(f)(1). In the eyes of the Supreme Court, this provision is a bar on “classwide injunctive relief against the operation of §§ 1221–1231” with a carve out that applies to “individual cases.” Reno v. Am. Arab AntiDiscrimination Comm., 525 U.S. 471, 481–82 (1999). The Supreme Court in Jennings v. Rodriguez, 138 S.Ct. 830, 847 (2018), indicated that § 1252(f)(1) would apply to constitutional claims like those raised by Petitioners, because they seek to enjoin the ordinary application of the detention statutes as unconstitutional. See id. 851. Lest there be any doubt, Congress entitled this provision “[l]imit on injunctive relief,” and it unquestionably prohibits class-based injunctions while preserving individual access to a habeas writ and all forms of equitable relief. See also Hamama v. Adducci, 912 F.3d 869, 878–79 (6th Cir. 2018) (“Nevertheless, we find that 8 U.S.C. § 1252(f)(1) bars the district court from entering class-wide injunctive relief for the
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detention-based claims. In our view, Reno [525 U.S. 471] unambiguously strips federal courts of jurisdiction to enter class-wide injunctive relief for the detention-based claims.”); Gordon v. Lynch, 842 F.3d 66, 71 (1st Cir. 2016) (instructing district court to “reexamine its position on the inapplicability of § 1252(f)(1) – which expressly provides a ‘[l]imit on injunctive relief’ in the context of [§1226(c)]”).
Here, if the Court were to grant Petitioners’ request for blanket release of all transgender detainees and for a prohibition on future detention of transgender detainees during COVID-19, it would inarguably “enjoin or restrain the operation of” 8 U.S.C. §§ 1225; 1226; 1231, which are statutes that would likely apply to absent transgender putative class members just as they apply to petitioners. To order all transgender detainees released notwithstanding the statutory provisions mandating detainment would clearly “enjoin or restrain” their operation—which § 1252(f)(1) expressly forbids. Siddiqui et al v. ICE, No. 20-cv-793 R&R (NEB/ECW) (D. Minn. Apr. 28, 2020 42–43) (“However, the Court does agree with Federal Respondent that the Court does not have jurisdiction to grant class-wide injunctive relief as 8 U.S.C. § 1252(f)(1) unambiguously precludes this Court from granting class-wide injunctive relief that would effectively restrain operation of §§ 1221-31.… Therefore, while section 1252(f)(1) does not preclude individual claims, which the present motion addresses, it bars injunctive relief on behalf of a class.”) (citing Jennings, 138 S. Ct. at 851).5
5 Section 1252(f)(1) does not explicitly bar classwide declaratory relief (although it does bar anything that would “restrain the operation” of the detention statutes) but that is little solace to Petitioners because they “filed this action and requested emergency injunctive relief on behalf of” a putative class. Mot. at 1 (emphasis added).
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Accordingly, if the Court determines that Petitioners’ continued detention violates the Due Process Clause or the Administrative Procedure Act, it must grant relief, if at all, on an individual basis. The Court lacks jurisdiction to grant classwide injunctive relief. II. The Proposed Class Does Not Satisfy Rule 23’s Requirements
A. The proposed class lacks the commonality required under Rule 23(a)(2) and 23(b)(2)
The Supreme Court has repeatedly held that “[i]t is not the raising of common ‘questions’— even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Wal–Mart, 564 U.S. at 350. The commonality requirement is uniquely rigorous when applied to a class—like the proposed class here—seeking certification under Rule 23(b)(2). For certification under Rule 23(b)(2), plaintiffs must show that “relief is available to the class as a whole” and that the challenged conduct is “such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Id. at 360. Accordingly, Petitioners have the burden of demonstrating that factual or legal differences among putative class members are unlikely to bear on one’s entitlement to relief. See id.
To clarify the determination before the Court, if the factual differences have the likelihood of changing the outcome of the legal issue, then class certification is not appropriate. Cf. Califano v. Yamasaki, 442 U.S. 682, 701 (1979); Wal-Mart, 564 U.S. at 350-51, 360. Satisfaction of Rule 23(a)(2) for a class under Rule (b)(2), therefore, requires a common legal problem “of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 564 U.S. at 350 (emphasis added).
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Petitioners assert that they meet the commonality requirement because all members of the proposed class share a single common question, “whether ICE’s failure to protect transgender people in detention from the risks of contracting, suffering, and dying from the COVID-19 pandemic in detention renders class members’ confinement a punishment that violates their constitutional due process rights.” Mot. at 12, 16. But “‘[a]ny competently crafted class complaint literally raises common ‘questions.’” Wal-Mart, 564 U.S. at 349 (citing Nagareda, 84 N.Y.U. L. REV. 97, 131–32). Petitioners’ purported question does not provide any more indication of commonality than the questions raised in Wal-Mart: “For example: Do all of us plaintiffs indeed work for Wal–Mart? Do our managers have discretion over pay? Is that an unlawful employment practice? What remedies should we get?” Id.
Petitioners’ claims allege COVID-19 health risks resulting from the conditions of their confinement. Resolution of these claims turn on consideration of factual and legal circumstances that are not shared by the class as a whole. Petitioners’ allegations that “they are unable to practice social distancing;” that they are “unable” to “take other precautions to contain the spread of the virus;” and that ICE detention facilities have not “followed even the minimal COVID-19 response requirements that ICE itself sets forth” necessarily raise questions with answers that vary based on the conditions each putative class member faces at each individual detention facility. TRO Mot. at 10, 29. Likewise, Petitioners’ allegation that the putative class members are being “put at unreasonable and unconstitutional risk of infection, disease and death” during this pandemic requires an individualized analysis of each specific circumstance, most notably their medical history. See, e.g., Pet. ¶ 1. Similarly, the Court cannot render Petitioners’ primary requested relief—an injunction ordering the release of all transgender detainees—classwide
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because of the individual differences in the statutory bases of their detention and in the living arrangements should they be released.
Petitioners’ proposed class not only fails the Rule 23 commonality inquiry under the class certification principles articulated by the Supreme Court, but it is also inconsistent with a proper due-process analysis. Indeed, the Supreme Court recently reiterated in Jennings that a class action may not be the proper vehicle to resolve such due process claims because due process “calls for such protections as the particular situation demands.” 138 S. Ct. at 852 (remanding to the Court of Appeals to consider this question) (internal quotation and citations omitted); see also, Lujan v. G&G Fire Sprinklers, Inc., 532 U.S. 189, 196 (2001) (“The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.”). Here, whether any transgender class member’s detention amounts to punishment or is unconstitutionally excessive in relation to legitimate government interests is a function of each individual’s COVID-19 risk, which itself turns on each putative class member’s medical condition and that member’s conditions of confinement. Where commonality “requires the plaintiff to demonstrate that the class members ‘have suffered the same injury,’” the facts of this case in relation to the proposed class makes commonality unattainable. Wal-Mart, 564 U.S. at 349-50; see also Buleishvili v. Hoover, Civ. A. No. 20-0607, 2020 WL 1911507, at *12 (M.D. Pa. Apr. 20, 2020) (explaining that “relief in these cases must be individualized” and articulating factors courts should consider: (1) the petitioner’s condition; (2) the detention space itself; and (3) the facility’s efforts to prevent or mitigate detainee exposure to the virus, and (4) the initial basis and continued justification for the petitioner’s detention).6
6 Petitioners’ reliance on Savino v. Souza, 2020 WL 1703844, (D. Mass. Apr. 8, 2020) provides little support for their nationwide class. There, the proposed class covered two local facilities within the District of Massachusetts.
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1. Putative class members’ medical conditions are not common There is no dispute that an individual’s COVID-19 risk is a function of one’s age and underlying health. The CDC has concluded that people who are above the age of 65 or who have one of a discrete set of underlying health conditions are at a higher risk for severe illness from COVID-19. See note 1, supra. In this case, only two of the ten Petitioners have a health condition that the CDC considers would place them at higher risk. See page 2, supra. Petitioners implicitly acknowledge that COVID-19 risk is not the same for all transgender persons, because if all transgender persons had the same risk, then there would have been no need for Petitioners’ recitation of their individual medical histories in their declarations or their proffered experts asserting that a greater share of transgender persons have certain underlying health conditions than cisgender persons. See Gorton Decl 1 ¶ 10.A–E (ECF No. 4-15) (explaining transgender people “as a group” have higher rates of various risk factors). Petitioners attempt to sidestep the lack of commonality on medical conditions by emphasizing other aspects of their identity as transgender individuals. 7 Those other aspects, however, do not increase the risk associated with COVID-19, which is, after all, the purported cause that underlies this action. Petitioners argue that “[t]ransgender detainees are particularly susceptible to COVID-19 infection and, if they do become infected, are more likely to become
7 Notably, “transgender” is a broad term encompassing a diverse group of individuals. According to the CDC, “Transgender is an umbrella term for persons whose gender identity or expression (masculine, feminine, other) is different from their sex (male, female) at birth.” https://www.cdc.gov/lgbthealth/transgender.htm (last visited May 8, 2020). Thus, even determining whether an alien fits within this group requires an individualized analysis. What is more, the nature of this group may create the need for even further levels of individual review— an injunction prohibiting ICE from detaining any transgender person could prompt unscrupulous individuals to falsely claim to be a member of this group simply to avail themselves of this extraordinary relief.
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seriously ill or die.” Mot. at 3. Putting aside the statistical likelihood of transgender persons having underlying health conditions placing them at greater risk, Respondent’s evidence rebuts Petitioners’ contention, and Plaintiffs’ evidence fails to support it.
Captain Edith Lederman, M.D., M.P.H. is a physician licensed to practice medicine in the state of California, a specialist in Infectious Disease, and ICE Health Service Corps’s (“IHSC”) subject matter expert for transgender care. She stated that the CDC guidelines do not identify being a transgender person as a risk factor for COVID-19, and the CDC has not identified transgender individuals as being inherently at higher risk for severe illness due to COVID-19. Lederman Decl. ¶¶ 11, 13 (ECF No. 20-8). Further, she explained that current scientific research does not indicate that transgendered individuals are inherently at greater risk than any other group or the general population for contracting COVID-19 or suffering an adverse outcome from COVID-19. Id. ¶ 17. And she stated that there are no known underlying immunocompromising issues related to being transgender which would place transgender individuals at higher risk for COVID-19. Id. On the other hand, Dr. Nick Gorton opines on behalf of Petitioners that transgender persons suffer “minority stress” and have higher rates of mental illness, but he offers no scientific evidence that either condition (neither of which is exclusive to the transgender community) makes a person more at risk of COVID-19 infection or illness.8 Gorton Decl. ¶ 10 (ECF No. 4-15).
8 None of Petitioners’ other experts establishes otherwise. Petitioners claim that transgender women on hormone replacement therapy are at a higher risk of hypercoagulability (an increased tendency for potentially fatal blood clots), which they also claim is a complication from COVID19. ECF No. 22 at 13. But current CDC guidelines do not identify hypercoagulable states (whether congenital or acquired) as an underlying risk factor for worse outcomes in connection with COVID-19 infection, even though there are reports of thromboembolic phenomena, such as the formation of a blood clot, associated with COVID-19 infection. Lederman Supp Decl ¶¶ 2,4. And the CDC does not list any medication class as making a patient more vulnerable to COVID19, except immunosuppressants. Lederman Supp Decl ¶ 5. Further, not all transwomen take
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Plaintiffs’ allegation that transgender persons are more likely to be the victims of sexual
assault than non-LGBT detainees and, thus, more vulnerable to COVID-19 infection is similarly attenuated.9 Significantly, none of the original 13 Petitioners who submitted declarations in this
case alleges that she has been physically or sexually assaulted while in ICE detention, much less
by an individual actively suffering from COVID-19. It is also speculative that a detainee
suffering from COVID-19 would assault a transgender detainee or that an asymptomatic
COVID-19 positive detainee would ignore the social distancing education and risk contracting
COVID-19 by assaulting a potentially asymptomatic COVID-19 positive transgender detainee.
See United Farm Workers v. Chao, 593 F. Supp. 2d 166, 171 (D.D.C. 2009) (“speculative
injuries” insufficient to show irreparable harm); ECF No. 20-1 at 14 (citing cases).
In support of their TRO motion, Petitioners raise the scientifically untethered assertion
that “health risks posed by COVID-19 to transgender detainees . . . do not turn on facts unique to
each Petitioner, beyond their having identity characteristics that make them more vulnerable to
the virus.” TRO Reply at 25. Petitioners cited as support Ferreyra v. Decker, Civ. A. No. 20-
03170, 2020 WL 1989417, at *2 (S.D.N.Y. Apr. 27, 2020), even though the court actually stated:
hormone therapy or seek to take hormone therapy, and Estrogen (the component of hormone therapy that potentially increases the risk of hypercoagulability for some transwomen) is not a component of hormone therapy for transmen. Lederman Decl 2 ¶ 3. 9 It seems Dr. Gorton overstates the likelihood of assault on transgender ICE detainees in myriad ways. Putting aside the fact that the three reports Dr. Gorton references in ¶ 11 all address men’s correctional facilities and prisons—not civil immigration detention facilities, the “97 times more likely to be sexually victimized” number includes lesbian, gay, and bisexual detainees—in addition to transgender detainees. Plus, the article Dr. Gorton cites for this “97 times more likely” statistic concedes that it “assum[es] each report of sexual violence is substantiated and involves a separate victim”—two major assumptions. See Sharita Gruberg ICE’s Rejection of Its Own Rules Is Placing LGBT Immigrants at Severe Risk of Sexual Abuse Center for American Progress (2018) https://www.americanprogress.org/issues/lgbtqrights/news/2018/05/30/451294/ices-rejectionrules-placing-lgbt-immigrants-severe-risk-sexualabuse/ (last visited May 8, 2020).
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“Here, the health risks posed by COVID-19 and the constitutional claims presented do not turn on facts unique to each Petitioner beyond their having preexisting conditions that make them vulnerable to the virus.” Id. at 4. (emphasis added). Thus, that court did consider the individual medical circumstances. Id. at 2–3, 5. Further, Ferreyra was a multi-party habeas petition, rather a nationwide class action, as Petitioners proffer before this Court. Id. at 5. As noted, supra, asserting a nationwide class presents numerous obstacles that were simply not present in Ferreyra.
Petitioners also rely on Barbecho v. Decker, Civ. A. No. 20-2821, 2020 WL 1876328, at *3 n.2 (S.D.N.Y. Apr. 15, 2020), in which the court undertook in depth analyses of the petitioners’ health conditions and found that their specific medical conditions do not appear in the CDC guidance defining groups at higher risk for severe illness from COVID-19. Id. at 6–7 and n.2 (explaining that, although two petitioners had a history of smoking, “smoking itself is not an identified CDC risk factor; rather, being immunocompromised is an identified risk factor, and smoking, in turn, is listed as a condition that may cause a person to be immunocompromised… These Petitioners have not offered any evidence that their histories of smoking have caused them to be immunocompromised” and, although another petitioner offered evidence that high blood pressure may place him at a heightened risk of developing complications from COVID-19, “that condition is not currently identified by the CDC as placing him at a higher risk of severe illness from COVID-19”).
Here, the proposed class members’ differing risk profiles preclude a single, indivisible remedy, because not all risk profiles necessitate the same precautions. Indeed, “a petitioner’s individual circumstances (that is, his or her medical condition) are critical to the analysis.” Derron B., et al. v. Tsoukaris, No. 20-3679, 2020 WL 2079300, at *8 (D.N.J. Apr. 30, 2020).
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And whether an individual’s claimed medical condition actually puts her at a higher risk of infection and illness from COVID-19 must be evaluated along with the conditions at the particular facility where she is detained, including the medical treatment and special accommodations being afforded her, as discussed, infra.
2. Putative class members’ conditions of confinement are not common Petitioners are not challenging a policy universally applicable to all detention facilities.10 Instead, Petitioners attempt to apply a gloss of commonality by stating the “overarching” issue is “ICE’s failure to protect transgender people” from the pandemic. Yet as their Petition makes abundantly clear, Petitioners challenge the conditions at the detention facilities and their “failure to follow [ICE’s] own regulations.” Pet. ¶ 114; see generally Pet. ¶¶ 66-114 (alleging failures by the facilities housing Petitioners with respect to social distancing, hand-washing and hygiene, protective equipment, and information and training). There is no escaping the fact that Petitioners can prove that these “failures” constitute punishment in violation of due process only by looking at each detention facility individually and by similarly analyzing the impact on each putative class member. The individualized nature of the analysis is reflected in recent decisions by other federal district courts evaluating conditions of confinement challenges under the Fifth Amendment. Some courts have found the detention facilities were taking measures to adequately protect the detainee population such that continued detention did not “amount to punishment.” See, e.g., Toure v. Hott, No. 1:20-cv-395, 25–26 (Apr. 29, 2020) (explaining the measures the two facilities had taken in response to COVID-19, including education, screening, testing, providing soap and
10 This is why Petitioners’ reliance on Damus v. Nielsen is misplaced. At issue there was whether five ICE field offices were engaged in a policy of “de facto parole denial” in contravention of the Parole Directive. 313 F. Supp. 3d 317, (D.D.C. 2018).
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masks, and operating well below capacity, and rejecting the plaintiffs’ claim that “there is nothing Defendants can do that would adequately protect Plaintiffs inside the walls of the detention facilities”); Peter O.C. v. Tsoukaris, No. 20-4622, 6–8 (SDW) (D.N.J. May 7, 2020) (denying ICE detainee’s petition for release after detailing the “numerous concrete steps to alleviate and mitigate the risk COVID-19 presents” that the facility had taken); Barco v. Price, No. 2:20-cv-350-WJ-CG, 7–9, 15–16 (D.N.M. May 1, 2020) (rejecting the plaintiffs’ claim that “there are no adequate measures that can ensure they avoid exposure to COVID-19 while detained at Otero” after detailing the numerous measures the facility had taken, such as operating at 60% capacity, adjusting activities to allow for social distancing, testing and isolating detainees with COVID-19 symptoms, cleaning with disinfectant chemicals, and giving detainees hygiene kits). Other courts found certain detention facilities were coming up short. See, e.g., Ferreyra v. Decker, Civ. A. No. 20-03170, 2020 WL 1989417, at 21–22 (S.D.N.Y. Apr. 27, 2020) (finding that the measures the facilities had taken were insufficient to protect the plaintiffs with preexisting conditions that make them vulnerable to the virus. where, for instance, detainees had to wait a week to see a doctor after complaining of cough, fever, and respiratory issues, and showers and phones were not being cleaned or disinfected regularly).
Respondents are confident that the record establishes that none of the detention facilities relevant to Petitioners’ claims is subjecting Petitioners to conditions that amount to punishment. Nonetheless, Petitioners can prove otherwise only by analyzing each facility’s performance, as they did in their Petition (albeit using information that was wrong, unsubstantiated, or no longer accurate). See generally Pet. ¶¶ 66-114. For example, Petitioners allege that they are unable to social distance, but that is in part a function of facility capacity, which varies, and how facilities
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maximize lower detainee capacity.11 As another example, Petitioners allege they had inadequate information and education regarding COVID-19, an allegation that only can be verified by determining if a given facility was providing written material or oral presentations.
Furthermore, whether the risk to detainees is excessive in a due process context requires an assessment of a particular detainee in relation to a particular detention facility. In other words, it is not simply that the Court has to look at each class member and each facility individually; instead the Court must look at the intersection of both at an individual level. For example, even if a particular individual falls into the CDC’s high-risk category, the facility may be further sheltering that person from COVID-19 exposure or providing adequate medical care to a detainee with COVID-19. See, e.g., Umarbaev v. Lowe, Civ. A. No. 20-413, 2020 WL 1814157, at *7 (M.D. Pa. April 9, 2020) (denying release of petitioner with risk factors who had been receiving medical care in detention and monitored during 14-day quarantine period and where facility has taken steps to address COVID-19, and noting that the “success of each petition will depend not only on the circumstances of the petitioner before the Court, but also on a rapidly changing landscape that includes the state of the COVID-19 pandemic, current conditions in ICE facilities, and the evolving response by ICE and facility officials to medical needs”); U.S. v. Martin, No. PWG-19-140-13, 2020 WL 1274857, at *4 (D. Md. Mar. 17, 2020) (prisoner had diabetes, high blood pressure and asthma but not sufficient to rebut the “Government’s proffer that the correctional and medical staff were implementing precautionary and monitoring practices to protect detainees from exposure to COVID-19”). Indeed, some courts have held that
11 For example, at Nevada Southern, detainees sleep in bunk beds that are positioned approximately six feet apart, and only one detainee occupies each bunk bed (Cantrell Decl. ¶17; Cantell Supp Decl. ¶ 30), and at Winn, detainees sleep in single beds that are three feet apart separated by a storage chest and are not attached to any other beds, and the detainees can usually sleep with an empty bed in between them (Hodges Supp Decl. ¶¶ 14, 16).
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individuals who have contracted COVID-19 were not entitled to release because they failed to demonstrate that the detention facility was failing to provide proper medical treatment. Derron B., 2020 WL 2079300, at *11 (D.N.J. Apr. 30, 2020) (denying TRO filed by petitioners who tested positive for COVID-19, where both were receiving daily examinations, during which their subjective complaints were recorded, and their vital signs and other relevant testing (such as temperature) were reviewed and documented); Camacho Lopez v. Lowe, Civ. A. No. 20-563, 2020 WL 1689874, at *7 (M.D. Pa., Apr. 7, 2020) (finding no deliberate indifference when a detainee tested positive for COVID-19 and whose condition further deteriorated, given that he was placed in the medical isolation dorm as soon as he tested positive for COVID-19, was closely monitored thereafter, and was later taken to a local hospital).
Detainees housed in the same facility may have different experiences—especially when that detainee is transgender or has an underlying health condition that carries a higher risk of infection and illness from COVID-19. For example, although four named Petitioners are detained at Aurora, two of them (L.M. and M.M.S-M.) are in segregated housing, while two others (D.B.M.U. and M.J.J.) are in dorm rooms shared with six other detainees (the dorms have a capacity to hold up to 24 detainees). Davies Decl. ¶¶ 38–39, 92–93, 55–56, 71–72. Similarly, at La Palma, transgendered detainees are offered the opportunity to voluntarily transfer to a designated facility that houses transgender female detainees. Davies Decl. ¶ 14. If detainee declines, the facility will offer the detainee the opportunity to be placed in a single cell. Id. And during the intake process at Florence Detention Center, transgendered detainees are offered the option to stay in protective custody single cell or the general population dormitory; C.G.B. chose the latter. Malakhova Supp Decl. ¶ 12. Upon arrival to the Winn Correctional Center, transgender detainees are offered protective custody in a single cell. Hodges Supp Decl. ¶ 15.
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3. Legally available relief is not common to the class The relief that is legally available to the class is not common among all putative class members. Petitioners ignore the fact that they and the putative class members are detained pursuant to a variety of different statutes, including statutes that do not allow for their release. As a consequence, Petitioners’ claims cannot be resolved “in one stroke,” and class certification is, therefore, inappropriate. Petitioners cannot reasonably argue that their proposed class does not include transgender criminal aliens. As noted, supra, certain criminal aliens are held pursuant to 8 U.S.C. § 1226(c), which prohibits release from detention during removal proceedings. Congress has mandated that section 1226(c) applies to aliens who have committed certain dangerous crimes and to those who have connections to terrorism” and that the statute “forbids” their release, requiring that those criminal aliens “be arrested and detained without a chance to apply for release on bond or parole.” Nielsen v. Preap, 139 S. Ct. 954, 960 (2019) (emphasis added). Congress enacted this mandate because it was “justifiably concerned that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers.” Demore v. Kim, 538 U.S. 510, 513 (2003). And in Jennings, the Supreme Court reaffirmed that § 1226(c) mandates detention without a bond hearing for the duration of the administrative process. Jennings, 138 S.Ct. at 847. Thus, immigration judges do not have authority to release aliens detained under § 1226(c) on bond. See 8 C.F.R. § 1003.19(h)(2)(i)(D) (“[A]n immigration judge may not redetermine conditions of custody imposed by [DHS] with respect to… [a]liens in removal proceedings subject to section 236(c)(1) of the Act….”). K.M. is detained pursuant to U.S.C. 1226(c). See Cantrell Decl. ¶¶ 40, 44.
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Petitioners’ proposed class also includes transgender aliens without a final order of
removal, who may be detained under 8 U.S.C. § 1231(a). Under § 1231(a), DHS “shall detain”
an alien “[d]uring the removal period.” 8 U.S.C. § 1231(a)(2). Thus, Congress has further
directed that detention of those aliens is mandatory, and K.S. is mandatorily detained under
§ 1231(a)(2). See Cantrell Decl. ¶¶ 40, 44.
Petitioners’ proposed class further includes transgender aliens seeking admission to the
United States who are placed in expedited removal proceedings under 8 U.S.C. § 1225 and can
be ordered removed by an immigration officer without a hearing before an immigration judge.12
For those aliens found inadmissible at a port of entry, as well as those apprehended between the
ports of entry and subject to expedited removal, Congress has plenary power to define the
process provided to such aliens. See e.g., Kleindienst v. Mandel, 408 U.S. 753, 766 (1972);
Peralta-Sanchez, 847 F.3d at 1135–36; Castro v. United States Dep’t of Homeland Sec., 835 F.3d
422, 445–46 (3d Cir. 2016). As the Supreme Court has long held, in those circumstances,
12 Expedited removal proceedings under 8 U.S.C. § 1225 are limited to aliens arriving in the United States, “whether or not at a designated port of arrival;” and “aliens who are physically present in the U.S. without having been admitted or paroled, (2) who are found within 100 air miles of the U.S. international land border, and (3) who cannot establish that they have been physically present in the United States for the immediately preceding fourteen days.” U.S. v. Peralta-Sanchez, 847 F.3d 1124, 1130 (9th Cir. 2017) (citing 8 U.S.C. §§ 1225(a)(1), (b)(1)(A)(iii)(II); 8 C.F.R. § 235.3(b)(1); 69 Fed. Reg. at 48880) (internal quotations omitted).
Section 1252(e)(1)(A) provides in no uncertain terms that “no court may enter declaratory, injunctive, or other equitable relief in any action pertaining to an order to exclude an alien in accordance with section 8 U.S.C. § 1225(b)(1) except as specifically authorized in a subsequent paragraph of this subsection.” 8 U.S.C. § 1252(e)(1)(A). Section 1252(e)(1)(B) prohibits a court from certifying a class under Rule 23 “in any action for which judicial review is authorized under a subsequent paragraph of this section.” 8 U.S.C. § 1252(e)(1). Congress has specifically barred class actions challenging the expedited removal processes or allowing for injunctive relief outside of the stricture of section 1252(e). Thus, this Court should deny Petitioners’ motion for class certification because the proposed class cannot include aliens seeking admission and placed in expedited removal proceedings. See Am. Immigration Lawyers Ass’n v. Reno, 199 F.3d 1352, 1359 (D.C. Cir. 2000).
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“[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned” and “it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543–44 (1950); see also Carlson v. Landon, 342 U.S. 524, 537 (1952) (“The power to expel aliens is essentially a power of the political branches of government, which may be exercised entirely through executive officers, with such opportunity for judicial review of their action as Congress may see fit to authorize or permit.”).
For aliens subject to expedited removal, an exception exists for those who express an intention to apply for asylum or a fear of persecution. These aliens are referred to an asylum officer for a credible fear interview. 8 U.S.C. § 1225(b)(1)(A)(ii). If the asylum officer finds that the alien lacks a credible fear, the alien shall be removed subject to a limited opportunity to request review by an immigration judge of the asylum officer’s negative credible fear determination. 8 U.S.C. § 1225(b)(1)(B)(iii)(III). If the asylum officer finds that the alien has expressed a credible fear of persecution, the alien is referred to an immigration judge for removal proceedings. 8 U.S.C. § 1225(b)(1)(B)(ii), 8 C.F.R. § 235.6(a)(1)(ii). With few exceptions, such aliens are not entitled to a bond hearing and may only be released from custody subject to DHS’s parole power. L.M., M.R.P., M.J.J., and D.B.M.U. are detained under § 1225(b). See Davies Decl. ¶¶ 33, 34, 36; 20-2, Acosta Decl. ¶ 70; 20-6, Davies Decl. ¶¶ 54, 70.
The proposed class also covers those aliens held in the Government’s discretion under 8 U.S.C. § 1226(a). Section 1226(a) provides for discretionary detention “pending a decision on whether the alien is to be removed from the United States.” 8 U.S.C. § 1226(a). Aliens detained under 8 U.S.C. § 1226(a) are automatically assessed for bond eligibility, and may be released on
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bond if “the alien…demonstrate[s] to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.” 8 C.F.R. § 236.1(c)(8). An alien who is denied bond may request a custody redetermination hearing conducted by an immigration judge at any time before the final order of removal is issued. 8 U.S.C. § 1226(a); 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1), 1003.19; see also Matter of Sanchez, 20 I. & N. Dec. 223, 225 (BIA 1990). Petitioners ask this Court to eschew the individualized factual considerations and simply enact a bright-line rule requiring the release of all transgender detainees. C.G.B., A.F., K.R.H., and M.M.S-M. are detained under § 1226(a). See Bourne Decl. ¶¶ 5, 11; Lopez Decl. ¶¶ 4, 15; Davies Decl. ¶ 88.
By seeking a classwide injunction ordering Respondents to release individuals being held pursuant to a statute mandating detention (or under a statute granting discretion to Respondents) raises thorny and individualized jurisdictional issues that are not common to the class.
4. Release is not a common remedy Petitioners assert that the dangers posed by the virus “can be remedied only by the detainee’s immediate release to safer areas.” Pet. ¶ 114; see also Mot. at 5. Whether release would increase, decrease, or have no impact on detainees’ risk from COVID-19, however, is another inherently individualized consideration. To resolve that question, the Court must consider factors that include the social distancing and hygiene required in detention; whether a putative class member would have space and resources to practice social distancing and increased hygiene outside detention; how a released individual would travel to the host’s destination in light of the CDC suggested travel guidelines13; and the healthcare resources to
13 See CDC, Coronavirus and Travel in the United States, https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-in-the-us.html and CDC, Travel:
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which a putative class member would have access upon release—especially considering the comprehensive medical resources available to ICE detainees. See ECF No. 20-1 at 11–12 (summarizing extensive medical care at the facilities at issue in this case).
Courts have denied release when the alternative was not shown to present a lower risk of contracting COVID-19. See Verma v. Doll, Civ. A. No. 20-14, 2020 WL 1814149, at *6 (M.D. Pa. Apr. 9, 2020) (denying release despite Verma being “uniquely susceptible to contracting” COVID-19 because the “record is devoid of evidence of his individual circumstances” including “any evidence to suggest that he will be safer if he were released from ICE custody”); U.S. v. Bell, No. 17-20183, 2020 WL 1650330, at *7 (E.D. Mich. Apr. 3, 2020) (denying release to pretrial inmate because among other things, the inmate did not explain how his release would minimize his risk of contracting the virus); U.S. v. Terrance Boatwright, No. 19-00301, 2020 WL 1639855, at *3 (D. Nev. Apr. 2, 2020) (denying the prisoner’s request for temporary release because he did not demonstrate that his risk of contracting COVID-19 while in custody is significantly higher than if he were released); U.S. v. Flores Molina, No. 19-00102, 2020 WL 1640182, at *1 (N.D. Ala. Apr. 2, 2020) (denying inmate release because of COVID-19 because no explanation as to how inmate would be protected in public rather than in jail).
Here, although Petitioners have purported to have submitted varying levels of detail regarding their plans for release, none is insufficient to establish that release is indeed “safer” than their current location. For instance, D.B.M.U., L.M., M.J.J., and K.S. did not articulate any release plan at all. M.M.S-M. and M.R.P. simply stated that they had sponsors who would take them in if they are released. M.M.S-M. Decl. ¶ 5 (ECF No. 19-3); M.R.P. Decl. ¶ 6 (ECF No. 19-
Frequently Asked Questions and Answers, https://www.cdc.gov/coronavirus/2019ncov/travelers/faqs.html (both last visited May 8, 2020).
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13). C.G.B. and K.M. named a person with whom they planned to stay, but did not state where that person was located, the nature of the alternative living conditions or available medical care, or how they planned to travel there. C.G.B. Decl. ¶ 5 (ECF No. 19-1); K.M. Decl. ¶ 7 (ECF No. 19-6). K.R.H. and A.F. named locations but provided little additional relevant information. K.R.H. Decl. ¶ 6 (ECF No. 19-11) (currently detained in Arizona and planning to stay with a friend in Stamford, Connecticut); A.F. Decl. ¶ 6 (ECF No. 19-2) (currently detained in Arizona and planning to stay with a cousin in San Francisco, California). Petitioners’ failure to establish safer alternatives cuts against their release, but, more importantly for purposes of this motion, demonstrates that the relief Petitioners demand requires an individualized inquiry rendering inappropriate classwide injunctive relief under Rule 23(b)(2). Wal-Mart, 564 U.S. at 350
B. Petitioners cannot adequately represent the interests of the putative class Finally, the proposed class fails to satisfy the adequacy prong of Rule 23(a). “‘Two criteria for determining the adequacy of representation are generally recognized: 1) the named representative must not have antagonistic or conflicting interests with the unnamed members of the class, and 2) the representative must appear able to vigorously prosecute the interests of the class through qualified counsel.” Twelve John Does v. District of Columbia, 117 F.3d 571, 575– 76 (D.C. Cir. 1997) (quoting Nat’l Ass’n of Reg’l Med. Programs, Inc. v. Mathews, 551 F.2d 340, 345 (D.C. Cir. 1976)). The adequacy requirement “serves to uncover conflicts of interest between named parties and the class they seek to represent.” Hoyte v. District of Columbia, 325 F.R.D. 485, 490 (D.D.C. 2017) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997) (internal citation omitted). Conflicts of interest prevent named plaintiffs from satisfying the adequacy requirement if they are “fundamental to the suit and ... go to the heart of the
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litigation.” Keepseagle v. Vilsack, 102 F. Supp. 3d 205, 216 (D.D.C. 2015) (quoting Newberg on Class Actions § 3:58 (5th ed. 2014)).
At the heart of this class action is Petitioners’ request for an injunction ordering the release of class members because of the conditions of confinement. According to Petitioners, the “conditions in ICE detention” violate the Fifth Amendment due process rights of transgender detainees. Mot. at 5. Accordingly, Petitioners have requested “an injunction mandating the release . . . of all transgender people in civil immigration detention so that they may protect themselves against COVID-19, and “[f]or purposes of the requested relief, Petitioners request that this Court provisionally certify a class.” Id. Yet there is a fundamental conflict between Petitioners and unnamed class members—whether the present action is actually the best way to “protect themselves against COVID-19.”
Certifying the proposed nationwide class locks all transgender detainees into resolving the issue of COVID-19 safety issue in this case. Rule 23(b)(2) is “mandatory” in that Rule 23 “provides no opportunity for (b)(1) or (b)(2) class members to opt out, and does not even oblige the District Court to afford them notice of the action.” Wal-Mart, 564 U.S. at 362; see also Richardson v. L’Oreal USA, Inc., 991 F. Supp. 2d 181, 197 (D.D.C. 2013).
If this Court certifies a class here, transgendered aliens in ICE detentions would likely find themselves with no ability to raise any other forthcoming challenge, presuming those individuals even agreed that release would render them safer from contracting COVID-19, rather than less safe. Multiple courts of appeals have upheld dismissals of a case if there is a parallel class action raising the same or substantially similar issues. See, e.g., Crawford v. Bell, 599 F.2d 890, 892-93 (9th Cir. 1979) (a district court may dismiss “those portions of [the] complaint which duplicate the [class action’s] allegations and prayer for relief”); McNeil v. Guthrie, 945
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F.2d 1163, 1165–66 (10th Cir. 1991) (individual suits for injunctive and declaratory relief cannot
be brought where a class action with the same claims exists); Horns v. Whalen, 922 F.2d 835,
835 & n.2 (4th Cir. 1991); Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir. 1988) (once a
class action has been certified, “[s]eparate individual suits may not be maintained for equitable
relief”); Bennett v. Blanchard, 802 F.2d 456, 456 (6th Cir. 1986) (affirming dismissal of a case
when the plaintiff was a member in a parallel class action).
This creates a conflict between Petitioners and unnamed class members. As proposed,
the merits of the putative class case will necessarily be based on the evidence developed by
Petitioners, which is a reflection of the conditions of confinement at the five facilities housing
Petitioners as well as the medical risks Petitioners themselves have from COVID-19. A class
member who may have a higher COVID-19 risk, presumably from more serious underlying
health conditions than the relatively young and healthy Petitioners, and who may be subject to
harsh detention conditions, unlike Petitioners here, would likely be denied an alternative route to
relief. Putative class members thus would have no chance to seek speedier or particularized
relief by filing individual federal court petitions. This creates a fundamental conflict at the heart of the litigation.14
14 Even apart from the adequacy requirement there is good reason to be wary of Petitioners’ onesize-fits-all approach. Nationwide injunctions are generally disfavored. See, e.g., Shvartsman v. Apfel, 138 F.3d 1196, 1201 (7th Cir. 1998) (declining to certify a nationwide class where varying law and circumstances impacted validity of class claims); E. Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1029–30 (9th Cir. 2019) (staying the injunction outside the Ninth Circuit because “all injunctions—even ones involving national policies—must be ‘narrowly tailored to remedy the specific harm shown’” and explaining that “‘[n]ational injunctions interfere with good decisionmaking by the federal judiciary’” and “‘deprive’ other parties of ‘the right to litigate in other forums’”) (citations omitted). See also DHS v. New York, No. 19A785, 140 S.Ct. 599, 600 (2020) (Gorsuch, J., concurring) (on application for stay: “By their nature, universal injunctions tend to force judges into making rushed, high-stakes, low-information decisions. The traditional system of lower courts issuing interlocutory relief limited to the parties at hand may require litigants and courts to tolerate interim uncertainty about a rule’s final fate and proceed more
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CONCLUSION For the foregoing reasons, Respondents respectfully request that the Court deny Petitioners’ Motion for Class Certification.

Dated: May 11, 2020 Washington, D.C.

Respectfully submitted, TIMOTHY J. SHEA, D.C. Bar #437437 United States Attorney
DANIEL F. VAN HORN, D.C. Bar # 924092 Chief, Civil Division
BY: /s/ Sean Tepe SEAN M. TEPE, DC Bar #1001323 Assistant United States Attorney United States Attorney’s Office Civil Division 555 Fourth Street, N.W. Washington, D.C. 20530 Telephone: 202-252-2533

slowly until this Court speaks in a case of its own. But that system encourages multiple judges and multiple circuits to weigh in only after careful deliberation, a process that permits the airing of competing views that aids this Court’s own decisionmaking process. The rise of nationwide injunctions may just be a sign of our impatient times. But good judicial decisions are usually tempered by older virtues.”) (internal citations omitted).
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 Case 1:20-cv-01072-CRC Document 35 Filed 05/13/20 Page 1 of 23

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

C.G.B., et al.,
v. WOLF, et al.,

Petitioners, Respondents.

) ) ) Case No. 1:20-CV-01072-CRC ) ) ) ) ) ) ) ) )

REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PETITIONERS’ MOTION FOR CLASS CERTIFICATION

Case 1:20-cv-01072-CRC Document 35 Filed 05/13/20 Page 2 of 23

TABLE OF CONTENTS

Page

I. INTRODUCTION .............................................................................................................. 1

II. FACTUAL BACKGROUND ............................................................................................. 4

III. ARGUMENT ...................................................................................................................... 6

A. The Court Has Jurisdiction To Certify This Class.................................................. 6

B. The Proposed Class Meets the Requirements of Rule 23(a)................................... 8

1. Common issues of fact and law pervade this class. .................................... 9

a. That class members may have differing medical conditions does not defeat certification where they are all at risk.................. 11

b. All class members are being confined in conditions that violate their due process rights. .................................................... 13

2. The class representatives adequately represent the interests of the proposed class. .......................................................................................... 14

C. The Proposed Class Meets the Requirements of Rule 23(b). ............................... 16

1. Requested Injunctive Relief of Release is Legally Available................... 16

2. Respondents’ Other Arguments Are Untenable. ...................................... 17

IV. CONCLUSION................................................................................................................. 18

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TABLE OF AUTHORITIES Page(s)
Cases Arana v. Barr,
No. 19-7924, 2020 U.S. Dist. LEXIS 73788 (N.D. Cal. Apr. 27, 2020) .................................16 Ferreyra v. Decker,
No. 20 Civ. 3170, 2020 U.S. Dist. LEXIS 73986 (S.D.N.Y. Apr. 27, 2020) ..........................16 *Fraihat v. U.S. Immigration and Customs Enforcement,
No. 5:19-cv-01546, 2020 U.S. Dist. LEXIS 72015 (C.D. Cal. Apr. 20, 2020) ............... passim *Gomes v. Acting Secretary,
No. 20-cv-453, 2020 U.S. Dist. LEXIS 77945 (D.N.H. May 4, 2020) .........................3, 11, 13 Rivas v. Jennings,
No. 20-cv-02731, 2020 U.S. Dist. LEXIS 76788 (N.D. Cal. Apr. 29, 2020) ................3, 11, 12 Rodriguez v. Marin,
909 F.3d 252 (9th Cir. 2018) ...............................................................................................7, 17 *Roman v. Wolf,
No. EDCV 20-00768, 2020 U.S. Dist. LEXIS 72080 (C.D. Cal. Apr. 23, 2020)................................................................................................ passim *Savino v. Souza, No. 20-10617, 2020 U.S. Dist. LEXIS 61775 (D. Mass. Apr. 8, 2020) .......................... passim Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)...................................................................................................................9
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I. INTRODUCTION Since Petitioners filed their request for provisional class certification last week, the
COVID-19 crisis among civil immigration detainees in Immigration and Customs Enforcement (“ICE”) custody has worsened exponentially. As of May 13, 2020, ICE reports 881 confirmed COVID-19 cases among 1,736 detainees who have been tested, and one detainee has died of COVID-19. https://www.ice.gov/coronavirus (last visited May 13, 2020); see “Salvadoran man in ICE custody passes away in San Diego” May 7, 2020, available at https://www.ice.gov/news/releases/salvadoran-man-ice-custody-passes-away-san-diego. A transgender woman being held in detention at Otay Mesa, who is seeking to be added to this suit as a Petitioner, has tested positive for COVID-19.1 See ECF No. 30. And Respondents admit that another transgender detainee was considered “presumptively positive” for COVID-19. Malakhova Decl. ¶ 30 (ECF No. 20-10).
Against this backdrop of ever-widening infection and death, Respondents argue that the provisional certification of approximately seventy transgender individuals being held in civil immigration detention during this pandemic is “an extraordinary request.” Class Cert. Opp. at p. 1. This pandemic is an extraordinary circumstance and, though federal authorities recognize the severe risks posed by outbreaks of the COVID-19 virus in immigration detention centers, ICE has taken no specific measures to protect the especially vulnerable population of transgender immigration detainees.
In opposing class certification, Respondents spend more time arguing that this Court should deny the relief that Petitioners have requested in their motion for a temporary restraining
1 Petitioners’ counsel have also been informed that one additional transgender detainee at Otay Mesa has tested positive for COVID-19.

Case 1:20-cv-01072-CRC Document 35 Filed 05/13/20 Page 5 of 23
order than they do in arguing that class certification is not appropriate.2 Indeed, Respondents protest that “Petitioners’ request is extraordinary because it asks this Court to release people from detention regardless of the legal basis for detention[.]” Class Cert. Opp. at p. 1. What is truly extraordinary here is Respondents’ effort to ignore the single most relevant case to Petitioners’ motion – Fraihat v. U.S. Immigration and Customers Enforcement. No. 5:19-cv01546, 2020 U.S. Dist. LEXIS 72015 (C.D. Cal. Apr. 20, 2020). In Fraihat, the Central District of California certified two nationwide classes of people in civil immigration detention. The Fraihat court dealt with almost all of the issues Respondents raise here as obstacles to class certification, summarily rejecting them. Particularly, the Fraihat court certified nationwide subclasses, disagreeing that differences “between facilities and between the degree of COVID-19 threat to each individual” “defeat commonality.” Id. at *55. The Fraihat court also rejected the argument that class certification was defeated by individual differences in immigration status, finding Plaintiffs in that case “ask the Court to determine whether ICE’s systematic actions, or failures to act, in response to COVID-19 amount to violations of the class members’ constitutional or statutory rights. As a result, the same injunction or declaratory judgment would provide relief to all class members, or to none of them, and the Court concludes Rule 23(b)(2)’s requirements are satisfied.” Id. at *64. Yet, the case is not cited once in Respondents’ brief.
In fact, in addition to Fraihat, four other district courts have granted motions for provisional certification of classes of civil immigration detainees in the wake of the COVID-19 pandemic. In Savino v. Souza, the District of Massachusetts provisionally certified a class of all civil immigration detainees at two Massachusetts facilities who had brought due process claims.
2 Respondents also spend time making inappropriate comments about the membership about the proposed class that are not based in fact or law. Class Cert. Opp. at p. 11, note 7.
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No. 20-10617, 2020 U.S. Dist. LEXIS 61775 (D. Mass. Apr. 8, 2020). The Court recognized that “[t]hough there are indeed pertinent and meaningful distinctions among the various Detainees, there is a common question of unconstitutional overcrowding that binds the class together.” Id. at *10. In Roman v. Wolf, the Central District of California certified a class of civil immigration detainees being held at the Adelanto detention center who were at “various stages in their respective immigration proceedings.” No. EDCV 20-00768 TJH (PVCx), Slip Op. at p. 3 (C.D. Cal. Apr. 23, 2020). In Rivas v. Jennings, the Northern District of California certified a class of all civil immigration detainees being held at two detention facilities. No. 20cv-02731-VC, 2020 U.S. Dist. LEXIS 76788 (N.D. Cal. Apr. 29, 2020). And in Gomes v. Acting Secretary, the District of New Hampshire certified a class of all civil immigration detainees being held at one facility. No. 20-cv-453, 2020 U.S. Dist. LEXIS 77945 (D.N.H. May 4, 2020). These cases confirm that class treatment is appropriate here.
Petitioners ask this Court to provisionally certify a class of all transgender detainees for purposes of their due process claims. Certification of the proposed class of transgender people being held in civil immigration detention during the pendency of the COVID-19 pandemic meets each of the requirements under Rule 23. Respondents argue that certification is inappropriate because Petitioners have not shown commonality, arguing “any detainee’s risk from COVID-19 is inherently uncommon.” Id. But the same would be true for any class of civil immigration detainees and, as set forth above, several have been certified. All members of the proposed class are bound together by the common question of whether, in the face of the lethal COVID-19 pandemic, the conditions of confinement at ICE detention facilities puts them at risk in a manner that amounts to unconstitutional punishment. Petitioners have presented evidence from medical practitioners specializing in infectious diseases and the treatment of transgender patients showing
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that transgender people in ICE detention are particularly susceptible to COVID-19 infection and, if they are infected, are more likely to become seriously ill or die. See Gorton Decls. (ECF Nos. 4-15, 22-6); Franco-Paredes Decls. (ECF Nos. 4-16, 22-7). In addition to increased risk of underlying medical conditions, transgender people being held in civil immigration detention all have an increased risk of contracting COVID-19 and thus present a common question of whether ICE has violated their due process rights by failing to protect them from this risk. In particular, Petitioners presented unrebutted expert testimony that transgender people in detention are more likely to contract COVID-19 because they are more likely to be assaulted or harassed, thus exposing them unwillingly to the transmission of the disease. Gorton Decl. ¶ 10 (ECF No. 4-15). That class members are held at different detention centers does not defeat Petitioners’ motion for class certification as no detention center has taken steps necessary to protect them and no detention center has policies that protect this vulnerable group of detainees. II. FACTUAL BACKGROUND
Since filing their motion for class certification, Petitioners have also filed a motion to join two additional transgender women being held in civil immigration detention as Petitioners. ECF No. 31. Both of these additional Petitioners are members of the proposed class.
M.I.M.M. is a transgender woman who has tested positive for COVID-19 while in the custody of ICE. M.M.I.M. Decl. ¶¶ 2-9 (ECF No. 28-1). While detained at the Otay Mesa Detention Center in San Diego, California, M.I.M.M. had to stay in close quarters with other detainees showing COVID-19 symptoms. Id. In early April 2020, when M.I.M.M. began experiencing symptoms including body aches, a cough and a fever, she requested a visit to the infirmary, where she sat in a waiting area with eight other detainees; the nurse said she was not obligated to treat M.I.M.M. and told her to return to her living area if she did not want to wait.
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Id. It was not until April 27, 2020 that M.I.M.M. was tested for COVID-19, and facility staff informed her on May 4, 2020, that she had tested positive for the viral infection. Id.
Y.Z., f/k/a U.Z., is a transgender woman from Kyrgyzstan being held at the Imperial Regional Detention Facility in Calexico, California. Y.Z. Decl. ¶ 2 (ECF No. 28-2). She describes being unable to practice social distancing because her assigned bunk is close enough for her to reach out and touch the man in the bunk next to her and because detainees must line up for meals or to use the bathroom and are not kept apart. Id. at ¶¶ 5-6. Y.Z. also describes being harassed by both facility staff and other detainees. One detainee offered to pay her for sex; another yelled at her during the night; and another threatened to “break [her] neck.” Id. at ¶¶ 15, 20. Although Y.Z. recently suffered symptoms of a respiratory ailment, she was not tested for COVID-19. Id. at ¶¶ 8-9.
ICE has not deemed any of the ten original Petitioners worthy of release under Fraihat. Acosta Supplemental Decl. ¶ 77 (ECF No. 33-1) (“M.R.P. does not have a vulnerability described under FRAIHAT”); Cantrell Supplemental Decl. ¶ 60 (ECF No. 33-5) (“K.S. and K.M. are not suitable for release”); Cantu Decl. ¶ 23 (ECF No. 33-11) (“C.G.B. does not fall into any of the risk categories for either sub class”); Ciliberti Supplemental Decl. ¶ 47 (“A.F. and K.R.H. are not part of either Fraihat subclass”) (ECF No. 33-6); Davies Supplemental Decl. ¶¶ 45, 53, 62, 69 (ERO reviewed custody of L.M., M.J.J., D.B.M.U., and M.M.S.-M. pursuant to Fraihat and declined to release them) (ECF No. 33-3). It is not clear who at ICE is making these Fraihat determinations, what criteria are being considered, and what record, if any, is maintained of these decisions. The irregularity of these Fraihat reviews is highlighted by the cases of K.S. and K.M. Since Petitioners filed their motion for class certification, ICE reviewed the cases of K.M. and K.S., both of whom are living with HIV, for release under Fraihat. ICE confirmed that K.M.
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and K.S. have “risk factors due to their HIV status” but nonetheless “ICE has determined the [sic.] K.S. and K.M. are not suitable for release.” Cantrell Supplemental Decl. ¶ 60 (ECF No. 33-5). III. ARGUMENT
A. The Court Has Jurisdiction To Certify This Class. This Court has jurisdiction to provisionally certify Petitioners’ proposed class. In fact, Respondents never challenged this Court’s jurisdiction to hear this due process case, thus waiving the jurisdictional argument they seek to make now. In any event, none of Respondents’ arguments about the propriety of class wide injunctive relief affect this Court’s power to grant class certification. Respondents claim this Court lacks jurisdiction to certify the proposed class due to purported limitations on injunctive relief in the immigration context, arguing “if the Court determines that Petitioners’ continued detention violates the Due Process Clause or the Administrative Procedures Act, it must grant relief, if at all, on an individual basis.” Class Cert. Opp. at p. 8. But this argument fundamentally misapprehends the nature of this action as well as the interplay of these laws at the class certification stage. Respondents claim that “in their briefing and at oral argument, Petitioners left no doubt that they effectively seek only one remedy: immediate, blanket release of all transgender detainees.” Id. at p. 6. While Petitioners do seek such relief, it is only one aspect of the relief that Petitioners seek. In fact, Petitioners’ “Complaint for Declaratory and Injunctive Relief” makes quite clear that Petitioners are seeking both declaratory and injunctive relief in this action. See Compl. (ECF No. 1) “Prayer for Relief.” Petitioners specifically request that this Court “[d]eclare that Respondents’ conduct constitutes a danger to public health and safety;” “[d]eclare that Respondents’ detention of Petitions and class members creates an undue risk of infection, disease and death, and is therefore unconstitutional in violation of the Fifth Amendment;” and
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“[d]eclare that Respondents have violated the Administrative Procedures Act[.]” Id. It is for Petitioners, not Respondents, to characterize the relief sought.
Moreover, it is appropriate for this Court to certify this class based on Petitioners’ request for declaratory as well as injunctive relief. Respondents argue that this Court is prohibited from certifying Petitioners’ proposed class because 8 U.S.C. § 1252(f)(1) expressly prohibits any court from enjoining or restraining the normal operations of the various detention statutes on a classwi de basis. Class Cert. Opp. at p. 6. But, Respondents concede, as they must, that “Section 1252(f)(1) does not explicitly bar classwide declaratory relief[.]” Id. at p. 7. In fact, the Savino court outright rejected the argument Respondents are attempting to make here, holding “this provision does not bar declaratory relief and therefore poses no obstacle to class certification.” 2020 U.S. Dist. LEXIS 61775, at *15-16 (emphasis added) (“With six Justices of the current Supreme Court now on record stating that section 1252(f) does not bar declaratory relief, and because that is the better reading of the statute, the Court adheres to that view.”) And, like the plaintiffs in Savino, Petitioners here seek both injunctive and declaratory relief, removing any purported obstacle to the requested class certification.
Nor has Respondents’ argument that this Court would lack jurisdiction to grant class wide injunctive relief fared any better. In Rodriguez v. Marin, the Ninth Circuit held that § 1252(f)(1) does not on its face bar class actions or class wide relief. 909 F.3d 252, 256 (9th Cir. 2018) (remanding to the district court to “decide in the first instance whether § 1252(f)(1) precludes classwide injunctive relief”). More recently, the Ninth Circuit confirmed in Padilla v. Immigration & Customers Enforcement, that “§ 1252(f)(1) did not bar the district court from granting preliminary injunctive relief for this class of noncitizens, each of whom is an individual noncitizen against whom removal proceedings have been initiated.” 953 F.3d 1134, 1151 (9th
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Cir. 2020). And two of the courts that recently granted provisional class certification to classes of civil immigration detainees expressly rejected the argument Respondents make here, recognizing the availability of classwide injunctive relief. Roman v. Wolf, No. EDCV 20-00768 TJH (PVCx), 2020 U.S. Dist. LEXIS 72080, at *25 (C.D. Cal. Apr. 23, 2020) (“The INA does not deprive this Court of jurisdiction to grant class-wide injunctive relief for a class of noncitizens where each member of the class is, as here, an individual and not an organization.”); Savino, 2020 U.S. Dist. LEXIS 61775, at *16 (“This is not to suggest that injunctive relief will be categorically unavailable in this case.”).
Although Respondents attempt to frame their argument as a bar to class certification, they are arguing about the merits of Petitioners’ requested relief. Their argument that this Court “lacks jurisdiction to grant classwide injunctive relief” does not bear on the Court’s jurisdiction to grant class certification. Class Cert. Opp. at p. 8. It is not necessary for the Court to resolve these merits issues at the class certification stage. Rather, “[a]t this class certification stage, it is enough to establish that the Court could provide a classwide remedy in the form of a declaratory judgment or injunctive relief.” Savino v. Souza, 2020 U.S. Dist. LEXIS 61775, at *16. Since the Court could grant such relief here, there is no jurisdictional bar to class certification.
B. The Proposed Class Meets the Requirements of Rule 23(a). The proposed class of transgender individuals in civil immigration detention meets each requirement of Federal Rule 23(a): numerosity, commonality, typicality, and adequacy. Despite the fact that Respondents do not contest Petitioners have met the requirement of numerosity, they make the baffling argument that “even determining whether an alien fits within this group [of transgender detainees] requires an individualized analysis.” Class Cert. Opp. at p. 11, note 7. This contention is nonsensical in light of the fact that ICE maintains records of transgender detainees and Respondents’ own medical expert confirmed that at least seventy
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transgender people are currently being held in civil detention. Lederman Decl. ¶ 20 (ECF No. 20-8). Respondents go on to argue that “the nature of this group may create the need for even further levels of individual review” as “an injunction prohibiting ICE from detaining any transgender person could prompt unscrupulous individuals to falsely claim to be a member of this group simply to avail themselves of this extraordinary relief.” Class Cert. Opp. at p. 11, note 7. This offensive insinuation reveals a cavalier attitude towards the thirteen original Petitioners and the two additional class members seeking to join as Petitioners, all of whom are transgender women seeking asylum from violence and persecution they have faced in their home countries as a result of their gender identities. Because Respondents do no contest that Petitioners have satisfied the requirements for numerosity and typicality, Petitioners will not further address those requirements here.
1. Common issues of fact and law pervade this class. Class certification is appropriate in this case because all proposed class members have suffered the same injury. The common question of fact and law is whether ICE’s failure to protect transgender people in detention from the risks of contracting, suffering, and dying from the COVID-19 pandemic renders class members’ confinement a punishment that violates their constitutional due process rights. All of the class members have been subjected to unsafe conditions of confinement resulting from the lack of any policies or practices sufficient to protect transgender persons in detention and a determination that Respondents’ conduct is unconstitutional will “resolve an issue that is central to the validity” of each of the putative class members’ claims. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Petitioners have presented expert medical testimony demonstrating that transgender detainees are particularly susceptible to COVID-19 infection because they are more likely to have underlying medical conditions and to suffer from assault in detention. Gorton Decl. ¶ 10
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(ECF No. 4-15); Gorton Second Decl. ¶¶ 6-9 (ECF No. 22-6); Franco-Paredes Decl. ¶ 17 (ECF No. 4-16); Frano-Paredes Second Decl. ¶¶ 3, 7, 11 (ECF No. 22-7). Despite their arguments in opposition to class certification, Respondents’ own expert admits that “transgender individuals may be more likely to have co-morbidities or underlying conditions which are risk factors for COVID-19”. Lederman Decl. ¶¶ 16, 18 (ECF No. 20-8) (explaining that transgender detainees additionally are specifically screened for HIV, a recognized COVID-19 risk factor). Respondents similarly present no evidence (expert or otherwise) to refute Petitioners’ evidence that transgender people in ICE custody are far more likely to be the victims of abuse and sexual assault than non-LGBT detainees and that this kind of unwanted close physical contact makes them more vulnerable to infection of COVID-19. Gorton Decl. ¶ 10 (ECF No. 4-15); Gorton Second Decl. ¶¶ 6-9 (ECF No. 22-6); Franco-Paredes Decl. ¶ 17 (ECF No. 4-16). Respondents’ counsel quibble with the accuracy of three different studies supporting Dr. Gorton’s contention, rather than dispute that there is in fact an increased risk of unwanted physical contact for detainees who are transgender. In the face of these increased risks of infection, ICE has taken no specific measures to protect transgender people in their custody from the risk of COVID-19. This common failure underlies the claim of each proposed class member.
Many courts have found that classes of civil immigration detainees met the commonality requirement despite differences in underlying health conditions, conditions of detention, and status of immigration proceedings. Fraihat, 2020 U.S. Dist. LEXIS 72015, at *56 (“[T]he factual differences are not of the sort that likely affect entitlement to relief or that are likely to change the outcome of the legal analysis.”); Savino, 2020 U.S. Dist. LEXIS 61775, at *21 (“[A]dmittedly significant variation among the Detainees does not defeat commonality or typicality.”); Roman v. Wolf, No. EDCV 20-00768 TJH (PVCx), slip op. at p. 4 (“commonality is
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established because the common question that will generate common answers apt to drive resolution of this litigation is whether the putative class members’ Fifth Amendment substantive due process rights are being violated”); Rivas v. Jennings, 2020 U.S. Dist. LEXIS 76788, at *4 (“The government’s arguments regarding commonality, typicality, adequacy, and Rule 23(b) do not defeat class certification”); Gomex v. Acting Secretary, 2020 U.S. Dist. LEXIS 77945, at *8 (“Petitioners need only articulate a single common question to meet the commonality requirement. […] That requirement is met here.”)
a. That class members may have differing medical conditions does not defeat certification where they are all at risk.
The common question of ICE’s failure to protect transgender detainees from the risks of COVID-19 presented by the proposed class members is not affected by the fact that some class members may have greater health risks than others. Respondents argue that commonality is defeated because proposed class members’ “medical conditions are not common.” Class Cert. Opp. at p. 11. In support of this argument, Respondents point out that Petitioners “acknowledge that COVID-19 risk is not the same for all transgender persons[.]” Id. But Petitioners have never argued that all transgender people have the same exact risk of infection or complications from COVID-19. If this were the standard, no court could certify any class in this context as no two individuals have the exact same risk. Rather, Petitioners have demonstrated that certain medical and environmental factors, including the increased risk of assault in ICE detention, put transgender detainees at a higher risk than detainees who are not transgender.
Several courts have rejected Respondents’ argument that differences in medical conditions among proposed class members defeats commonality. In Fraihat, the government argued “Plaintiffs themselves have varying medical conditions and risk factors.” 2020 U.S. Dist. LEXIS 72015, at *55. The Fraihat court succinctly rejected argument as follows: “This person
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may die of COVID-19 because of hypertension, and that one may die because of HIV. Yet across all facilities and individuals, the question remains: is ICE required to adopt a global response, and is that response adequate?” Id. at *56. Respondents point out that here they believe that only two of the named Petitioners have health conditions that would place them in the Fraihat subclasses.3 But other courts have recognized that the danger of COVID-19 is not limited to people with CDC-recognized health conditions and, in fact, that risk can support certification of classes including people who do not have any underlying health conditions whatsoever. Savino, 2020 U.S. Dist. LEXIS 61775, at * 23 (“The case law supports a finding of commonality for class claims against dangerous detention conditions, even when some detainees are more at risk than others.”); Rivas v. Jennings, 2020 U.S. Dist. LEXIS 76788, at *5 (“Nor, incidentally, is exposure to the virus a significant danger merely to people in high-risk groups.”).
Federal Rule 23 “does not mandate that every putative class member share every fact in common.” Roman v. Wolf, No. EDCV 20-00768 TJH (PVCx), Slip Op. at p. 4. And it is true that Petitioners and putative class members do not share the exact same medical histories or histories of harassment or assault. But ICE has recognized that transgender detainees, as a class, are more likely to have certain underlying health conditions, including HIV which suppresses the immune system. This increased probability, combined with transgender detainees’ higher risk of COVID-19 infection due to assault in detention, is common to the class and supports class
3 ICE makes much of the fact that “only two of the ten Petitioners have health conditions that the CDC considers would place them at higher risk.” Class Cert. Opp. at p. 11. Yet, despite the fact that both K.S. and K.M. are living with HIV, an underlying medical condition that the CDC and Fraihat court have recognized puts them at higher risk for COVID-19, ICE has nonetheless declined to release them. Cantrell Supplemental Decl. ¶ 60 (ECF No. 33-5) (“K.S. and K.M. are not suitable for release”). Moreover, Respondents have seemingly brushed aside medical conditions of other Petitioners with no explanation whatsoever.
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certification regardless of Petitioners’ individual medical conditions, which may place them individually at higher risk still.
b. All class members are being confined in conditions that violate their due process rights.
The fact that transgender people are detained at different detention centers and thus that certain details relating to their conditions of confinement vary among class members does not defeat commonality. The Fraihat court certified nationwide subclasses of civil immigration detainees being held in dozens of detention centers across the country, finding that “[d]espite Plaintiffs’ admitted differences, each putative class member finds herself in similar situation. Each class member claims entitlement to a minimally adequate national rescue response from ICE.” 2020 U.S. Dist. LEXIS 72015, at *56. Here, despite being housed at different facilities, each proposed class member is claiming the same injury – ICE has taken no action to protect transgender detainees in the wake of the COVID-19 pandemic. This common question supports class certification. See Gomes v. Acting Secretary, 2020 U.S. Dist. LEXIS 77945, at *7 (“Petitioners claim that respondents have subjected the putative class to the same injury: policies and practices (or the lack thereof) that put their health at substantial risk of harm by inhibiting their ability to practice social distancing during the COVID-19 pandemic.”)
Respondents argue that Petitioners cannot prove that ICE’s failures to protect them from COVID-19 “constitute punishment in violation of due process only by looking at each detention facility individually and by similarly analyzing the impact on each putative class member.” Class Cert. Opp. at p. 15. But ICE does not, and cannot, dispute that it has taken no action whatsoever (whether in policy or practice) to protect Petitioners and the putative class from COVID-19. Respondents argue that class certification is inappropriate because detainees “may have different experiences – especially when that detainee is transgender or has an underlying
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health condition that carries a higher risk of infection and illness from COVID-19.” Id. at p. 18. Yet that is precisely the point. ICE has failed to implement any standard measures to protect transgender detainees. The Fraihat court found that “the variety of facility COVID-19 countermeasures tends to support Plaintiffs’ contention that ICE has failed to institute the wellordered, mandatory relief effort to which they claim entitlement.” 2020 U.S. Dist. LEXIS 72015, at *56. The same is true here. ICE has failed to institute any relief for transgender detainees. The common question of whether detaining transgender people in conditions that increase their risks of contracting the deadly COVID-19 virus is shared by all putative class members.
2. The class representatives adequately represent the interests of the proposed class.
Respondents’ argument that the ten named Petitioners will not adequately represent the interest of the class ignores the entire purpose of class actions. The ten named Petitioners are all members of the proposed class, as are the two additional transgender women who are seeking to be added as Petitioners. The interests of the ten named Petitioners will not conflict with the interests or any class members because those interests are aligned. The named Petitioners have alleged the same injuries, arising from the same action or inaction by ICE, and they seek the same injunctive and declaratory relief which will apply equally to benefit all class members.
Respondents again misapprehend the function of class action litigation. Respondents paternalistically argue that if the court certified the proposed class “transgendered [sic.] aliens in ICE detentions would likely find themselves with no ability to raise other forthcoming challenge, presuming those individuals even agreed that release would render them safer from contracting COVID-19, rather than less safe.” Class Cert. Opp. at p. 25. Respondents have presented no evidence of any transgender detainee who believes that that release from detention would render
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them less safe from the risk of COVID-19. Similarly, Respondents argue that “a class member who may have a higher COVID-19 risk, presumably from more serious underlying health conditions […] and who may be subject to harsh detention conditions, unlike Petitioners here, would likely be denied an alternative route to release.” Id. at p. 26. But Respondents, who have the records of all transgender persons in civil immigration detention, have presented evidence of no such individual. Nor could they without admitting that they have subjected transgender individuals in their custody to “harsh detention conditions.” This argument is thus pure speculation.
Respondents go on to argue that there is a conflict of interest between the ten named Petitioners and unnamed class members because “the merits of the putative class will necessarily be based on the evidence developed by Petitioners.” Id. at p. 26. That is the value of class action litigation. As the Fraihat court recognized, “[i]t would be inconvenient and difficult, if not impossible, for detainees to obtain timely relief by filing conditions of confinement suits for each detention facility or unit in the country. Given the many obstacles to accessing counsel during the COVID-19 pandemic, the Court is concerned that many putative class members would not be able to proceed on their own, a fact which further highlights the impracticability of joinder.” 2020 U.S. Dist. LEXIS 72015, at *53. Respondents have presented no evidence of any actual conflict of interest between the named Petitioners and un-named class members beyond those they have invented from whole cloth. In fact, Petitioners’ motion to join two additional transgender women in immigration detention as named Petitioners demonstrates that class members who were unnamed at the time of filing this class certification motion in fact agree that their interests are aligned with those of the proposed class representatives.
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C. The Proposed Class Meets the Requirements of Rule 23(b). 1. Requested Injunctive Relief of Release is Legally Available.
Respondents argue that Petitioners ignore the fact that they and the putative class members are detained pursuant to different immigration statutes, including statutes that typically do not allow for release. Class Cert. Opp. at p. 22. Contrary to Respondents’ assertion, Petitioners addressed this issue in their reply brief in support of their motion for a temporary restraining order, the appropriate forum for arguments on the merits of Petitioners’ claims for relief. See ECF No. 22, Section III.A.2. As set forth in Petitioners’ reply, district courts retain jurisdiction to grant release if the Government fails to cure violations of Petitioners’ constitutional due process rights. See Arana v. Barr, No. 19-7924, 2020 U.S. Dist. LEXIS 77134, at *22-23 (S.D.N.Y. May 1, 2020); ECF No. 22 at 19. And courts have jurisdiction to order release even of people who are being mandatorily detained if they are being held in violation of their due process rights. See Ferreyra v. Decker, No. 20 Civ. 3170, 2020 U.S. Dist. LEXIS 73986, at *37 (S.D.N.Y. Apr. 27, 2020) (“courts have the authority to order those held in violation of their due process rights released, notwithstanding § 1226(c)”).
As determined by the Fraihat court, the requested injunctive relief of release is legally available to all immigration detainees, regardless of their immigration status, and therefore the proposed class meets the requirements of Rule 23(b)(2). 2020 U.S. Dist. LEXIS 72015, at *64 (C.D. Cal. Apr. 20, 2020) (“[T]he same injunction or declaratory judgment would provide relief to all class members, or to none of them, and the Court concludes Rule 23(b)(2)’s requirements are satisfied.”); see also Roman v. Wolf, No. EDCV 20-00768 TJH (PVCx), Slip Op. at p. 4 (“While Petitioners and the putative class members are at various stages in their respective immigration proceedings, Petitioners alleged that the conditions of their detention at Adelanto, […] in light of the COVID-19 pandemic, violate their Fifth Amendment substantive due process
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rights.”) In Fraihat, the government tried and failed to convince the court that class certification was defeated because the proposed class members were held under different statutory mandates. See 2020 U.S. Dist. LEXIS 72015, at *61 n.22 (C.D. Cal. Apr. 20, 2020) (“[W]hatever the particular detention authority Defendants might invoke, the due process violations asserted arise from the same systematic failures, and could overcome a more generalized detention mandate.”) (citing Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018) (“We have grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional . . . .”)). Here, Petitioners assert the same constitutional violations as in Fraihat, but on behalf of transgender detainees – a distinct, vulnerable, high-risk group. Therefore, the “specter of a conflict between class members who are ‘mandatorily’ detained and those who are not” is as meaningless here as it was determined to be in Fraihat. See id.
2. Respondents’ Other Arguments Are Untenable. Respondents additionally argue that class certification is inappropriate under Rule 23(b) (2) because whether release would “increase, decrease, or have an impact on detainees’ risk from COVID-19 [...] is another inherently individualized consideration.” Class Cert. Opp. at p. 22. Respondents cannot make this argument with a straight face. On the one hand, of the 1,736 civil immigration detainees that ICE has tested for COVID-19, 881 have tested positive – more than 50%. https://www.ice.gov/coronavirus (last visited May 13, 2020). On the other hand. Petitioners have certified to the Court that a coalition of organizations supporting transgender detainees, including the Santa Fe Dreamers Project and the Transgender Law Center, has put together a plan to support the release of transgender immigration detainees to allow the safe shelter of all released detainees, allowing them to follow CDC guidelines to prevent the spread of COVID-19. Love Decl. (ECF No. 4-23). The coalition has amassed nearly $100,000 in funds to facilitate these release plans. Id. Respondents argue that, though “Petitioners have purported to
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have submitted varying levels of detail regarding their plans for release, none is insufficient [sic.] to establish that release is indeed ‘safer’ then their current location.” Class Cert. Opp. at p. 23. It is not clear the level of detail in a release plan that ICE would consider sufficient to demonstrate that release would be safer than continued confinement in detention facilitates where confirmed cases of this deadly infectious disease are increasing exponentially. Regardless, named Petitioners and their counsel have committed to provide the funds, sponsors, and resources necessary to ensure that safe release is possible for all proposed class members.
IV. CONCLUSION For all of the foregoing reasons, as well as those presented in Petitioners’ opening brief,
Petitioners respectfully request that the Court enter an Order (1) certifying a class consisting of all transgender people in civil immigration detention who are held, or who will be held, by Respondent in any U.S. detention center or facility during the pendency of the COVID-19 pandemic, (2) appointing the ten named Petitioners as class representatives; and (3) appointing the undersigned counsel as class counsel.

May 13, 2020
Gregory P. Copeland (D.D.C. Bar # NY0311) Sarah T. Gillman (D.D.C. Bar # NY0316) RAPID DEFENSE NETWORK 11 Broadway, Suite 615 New York, NY 10004-1490 Phone: (212) 843-0910

Respectfully submitted,
/s/ Matthew E. Kelley Matthew E. Kelley (Bar No. 1018126)
Matthew E. Kelley (Bar. No. 1018126) Leslie E. John Elizabeth Weissert Alex Levy BALLARD SPAHR LLP 1909 K Street, NW - 12th Floor Telephone: (202) 661-2200 Facsimile: (202) 661-6299
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Fax: (212) 257-7033 Email: gregory@defensenetwork.org Email: sarah@defensenetwork.org
Lynly S. Egyes Transgender Law Center PO Box 70976 Oakland, CA 94612-0976 Telephone: (973) 454-6325 Facsimile: (917) 677-6614 lynly@transgenderlawcenter.org

Email: kelleym@ballardspahr.com Email: johnl@ballardspahr.com Email: weisserte@ballardspahr.com Email: levya@ballardspahr.com

Attorneys for Petitioners

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CERTIFICATE OF SERVICE I hereby certify that, on this date, I caused the foregoing to be filed and served electronically via the Court’s CM/ECF system upon all counsel of record.

Dated: May 13, 2020

/s/ Matthew E. Kelley Matthew E. Kelley

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 Case 1:20-cv-01072-CRC Document 36 Filed 05/14/20 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

C.G.B., et al. Petitioners,
v. CHAD WOLF, et al.
Respondents.

) ) ) Case No. 1:20-cv-01072-CRC ) ) ) ) ) ) ) )

RESPONSE TO RESPONDENTS’ SUPPLEMENT TO RECORD CONCERNING FRAIHAT
Petitioners respectfully submit this response to Respondents’ Supplement to Record (ECF No. 31):
During the May 6, 2020 telephonic hearing on Petitioners’ motion for a temporary restraining order, this Court closely questioned the parties regarding the processes Immigration and Customs Enforcement is using to evaluate detainees pursuant to the preliminary injunction in Fraihat v. U.S. Immigration & Customs Enforcement, No. EDCV 19-1546 JGB (SHKx), 2020 U.S. Dist. LEXIS 72015 (C.D. Cal. Apr. 20, 2020). At the end of the hearing, the Court directed Respondents to supplement the record with answers to several specific questions about how ICE is complying with the Fraihat order. See Transcript of Telephonic Motion Hearing (“Tr.”) at 71:11-21 (May 6, 2020).
The Court directed Respondents to provide a “better explanation of the standards that are being applied in these Fraihat reviews,” specifically including:
 Who is making the determinations;  What standards they are applying; and

Case 1:20-cv-01072-CRC Document 36 Filed 05/14/20 Page 2 of 6
 What process is used in determining “who gets one and who doesn’t get one,” i.e., which detainees will be recommended for release.
Tr. at 71:11-21. Neither the Supplement to Record (“Supp.”) nor the attached Declaration of Russell Hott (“Hott Decl.”) contains any such information. Rather, the Government simply represents that it has identified more than 4,400 potential subclass members and that “ICE has been conducting new custody reviews as soon as possible following the identification of subclass members.” Id. at 2; see also Hott Decl. ¶ 18 (same).
The Supplement does not even attempt to answer all of the Court’s questions. Accordingly, in this Response, Petitioners provide additional information available in the public record in Fraihat relevant to the Court’s requests.
The Government has been only slightly less opaque in the Fraihat litigation itself. In a joint status report regarding injunction-related discovery in Fraihat, the Government stated that once a detainee is identified as a subclass member, ICE Enforcement and Removal Operations offices make custody redeterminations. See Joint Meet and Confer Statement Regarding Plaintiffs’ Notice and Information/Document Requests (“Fraihat Joint Stmt.”) at 12, Fraihat, No. EDCV 19-1546 JGB (SHKx), (C.D. Cal. filed May 8, 2020) (ECF No. 147).1 The Government also stated that those ERO offices “do not review medical files and do not determine if a detainee has or does not have a risk factor.” Id.2
1 A true and correct copy of the Fraihat Joint Statement is attached hereto as Exhibit 1. 2 The Government stated that medical professionals are determining whether detainees have
the health risk factors that qualify them for membership in the Fraihat subclasses, but asserted that “ICE cannot provide the identity of the person who made the risk factor determination, that individual’s qualifications, nor the date the determination was made because such information would require the manual review of thousands of records and is disproportionate to the needs of this case.” Fraihat Joint Stmt. at 14.
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The Government also stated that it could not provide the Fraihat plaintiffs with the names of those officials making custody redeterminations, nor could it state the reasons for each refusal to release a subclass member, because doing so would require manual review of thousands of records. Fraihat Joint Stmt. at 19. The only specific criterion used in the custody redeterminations that the Government mentioned was its statement that ICE will not release any detainee held pursuant to 8 U.S.C. § 1226(c), which the Government contends prohibits release of those detainees (a contention Petitioners here and the Fraihat plaintiffs dispute). Id.
The Court also directed Respondents to provide the status of the Fraihat reviews of each named Petitioner. Tr. at 71:11-14. The declarations Respondents filed on May 11 reveal that ICE has denied Fraihat relief to each named Petitioner, either because ICE determined they were not members of a Fraihat subclass or denied them release.
Respondents’ declarations indicate serious flaws and inconsistencies in the Fraihat review process. For example, ICE denied release, purportedly because of their criminal convictions, to K.S. and K.M., both of whom are living with HIV and have other medical risk factors. See Supplemental Cantrell Decl. ¶¶ 58-62 (ECF No. 33-5). However, K.S.’s convictions were for nonviolent crimes (conspiracy to commit theft and possession of a credit card without the owner’s consent), id. ¶ 49, and in the midst of this pandemic other courts have ordered the release of ICE detainees convicted of far more serious crimes than theft or battery. See, e.g., Zaya v. Adducci, No. 20-10921, 2020 U.S. Dist. LEXIS 76549, at *21-23 (E.D. Mich. Apr. 30, 2020) (extending TRO granting immediate release to ICE detainee convicted of seconddegree murder, domestic violence, and selling cocaine); Bent v. Barr, No. 19-cv-06123-DMR, 2020 U.S. Dist. LEXIS 62792, at *27 (N.D. Cal. Apr. 9, 2020) (granting TRO and ordering release on condition of providing a suitable release plan of detainee convicted of voluntary
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manslaughter and attempted murder); Leandro R. P. v. Decker, No. 20-3853 (KM), 2020 U.S.

Dist. LEXIS 67607, at *27-29 (D.N.J. Apr. 17, 2020) (granting TRO and ordering release of ICE

detainee convicted of multiple crimes including attempted strangulation, possession of stolen

property, criminal contempt, and petit larceny).

The Government’s process for reviewing detainees’ medical histories also is suspect.

ICE has refused to classify M.R.P. as a Fraihat subclass member despite the fact that she is

infected with Hepatitis A and liver disease is a specific risk factor. See Supplemental Acosta

Decl. ¶¶ 75, 77 (ECF No. 33-1). ICE also has refused to classify K.R.H. as a subclass member

despite her history of childhood asthma and ongoing treatment for tachycardia. See

Supplemental Ciliberti Decl. ¶¶ 47, 49 (ECF No. 33-6).

None of these internal agency reviews appear to be subject to any independent oversight,

right of appeal by any detainee or any other indicia of due process.

Petitioners respectfully submit that Respondents’ failure to answer the Court’s

straightforward questions starkly illustrates the kind of systemic shortcomings in the

management of civil detainees that have left Petitioners with no choice but to turn to the Court

for relief from their unconstitutional conditions of confinement.

May 14, 2020

Respectfully submitted,

Gregory P. Copeland (D.D.C. Bar # NY0311) Sarah T. Gillman (D.D.C. Bar # NY0316) RAPID DEFENSE NETWORK 11 Broadway, Suite 615 New York, NY 10004-1490 Phone: (212) 843-0910

/s/ Matthew E. Kelley Matthew E. Kelley (Bar No. 1018126)
Matthew E. Kelley (Bar. No. 1018126) Leslie E. John (admitted pro hac vice) Elizabeth Weissert (admitted pro hac vice) Alex Levy (admitted pro hac vice) BALLARD SPAHR LLP 1909 K Street, NW - 12th Floor Telephone: (202) 661-2200 Facsimile: (202) 661-6299

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Fax: (212) 257-7033 Email: gregory@defensenetwork.org Email: sarah@defensenetwork.org
Lynly S. Egyes (admitted pro hac vice) Transgender Law Center PO Box 70976 Oakland, CA 94612-0976 Telephone: (973) 454-6325 Facsimile: (917) 677-6614 lynly@transgenderlawcenter.org

Email: kelleym@ballardspahr.com Email: johnl@ballardspahr.com Email: weisserte@ballardspahr.com Email: levya@ballardspahr.com

Attorneys for Petitioners

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CERTIFICATE OF SERVICE I hereby certify that, on this date, I caused the foregoing Response to Respondents’ Supplement to Record to be served via the Court’s CM/ECF system upon all counsel of record.

Dated: May 14, 2020

/s/ Matthew E. Kelley Matthew E. Kelley

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 Case 1:20-cv-01072-CRC Document 42 Filed 06/02/20 Page 1 of 78

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

C.G.B.1, et al., Plaintiffs, v.
CHAD WOLF, et al., Defendants.

Case No. 20-cv-1072 (CRC)

MEMORANDUM OPINION Plaintiffs, ten transgender women in the custody of Immigration and Customs Enforcement (“ICE”), have sued the Secretary of Homeland Security and the Attorney General of the United States based on their roles in overseeing the nation’s civil immigration detention system. Asserting that their continued detention during the COVID-19 pandemic violates the Constitution and the Administrative Procedure Act (“APA”), Plaintiffs seek an order directing ICE to immediately release all transgender civil detainees across the country and not to detain any additional transgender immigrants until the pandemic ends. Before the Court are: (1) a motion to certify a class of all transgender detainees held in ICE custody, now and in the future; (2) a motion to join two new named Plaintiffs; and (3) an emergency motion for a temporary restraining order. For the reasons that follow, the Court denies all three motions.

1 In order to protect Plaintiffs’ privacy, the Court will refer to all named plaintiffs by their preferred acronyms.

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I. Background A. COVID-19 Pandemic The details of the COVID-19 pandemic are by this point well-known. COVID-19 is a
contagious disease caused by the novel coronavirus SARS-CoV-2. Decl. of R. Nick Gorton (“Gorton Decl.”) ¶ 3, Pl. Mot. for Temporary Restraining Order (“TRO Mot.”), Exh. 14. Although the virus only emerged in early 2020, by March the President of the United States had declared a national state of emergency and the World Health Organization had declared a global pandemic. As of June 1, 2020, there have been 1,761,503 diagnosed cases of COVID-19 and 103,700 deaths in the United States alone. Centers for Disease Control and Prevention (“CDC”), Cases in the U.S. (June 1, 2020).2
Symptoms of COVID-19 vary considerably between individuals. Some who are infected do not display any noticeable symptoms. Gorton Decl. ¶ 6. Others experience fevers, coughs, difficulty breathing, and body aches, although the severity of those symptoms varies. Id. ¶ 4. In a minority of individuals, however, COVID-19 results in serious illness or death. Id. The CDC has identified certain factors that are associated with an increased risk of becoming severely ill: being 65 years old or older, having an underlying medical condition such as a chronic lung disease or serious heart condition, and having a compromised immune system. CDC, People Who Are at Higher Risk for Severe Illness (Apr. 15, 2020).3 Relevant here, being transgender is
2 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html. 3 https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higherrisk.html.
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not one of the CDC-recognized risk factors. See id.; Decl. of Captain Edith Lederman, M.D. (“Lederman Decl.”) ¶ 10, TRO Opp., Exh. 8.
COVID-19 is highly contagious. It spreads primarily through person-to-person contact, when people are within six feet of one another. See CDC, How to Protect Yourself & Others (Apr. 15, 2020).4 When infected people cough, sneeze, or talk, they produce airborne respiratory droplets that may be inhaled by others standing nearby. Id. People may also contract the virus through contact with contaminated surfaces. See CDC, Cleaning & Disinfection for Households (May 7, 2020).5 Symptoms, such as fever, cough, and shortness of breath, typically appear two to fourteen days after exposure. Even those who are asymptomatic are capable of spreading the disease. Gorton Decl. ¶¶ 4, 6. The most effective ways to prevent contracting the virus are to employ social distancing (staying at least six feet away from other people), to wash one’s hands frequently, and to cover one’s mouth and nose with a mask when around others. See CDC, How to Protect Yourself & Others (Apr. 15, 2020). To date, there is no vaccine or cure for COVID19.
B. ICE’s Response to COVID-19 in Detention Centers Civil immigration detention centers, which typically house highly transient populations in close quarters, are difficult environments in which to prevent the spread of a dangerous contagion like COVID-19. Recognizing this, ICE and the CDC have taken several steps to contain the virus in detention facilities.
4 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html. 5 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cleaningdisinfection.html.
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First, ICE has reduced the number of detainees in each of its facilities. On March 18, 2020, ICE announced that its Enforcement and Removal Operations (“ERO”) section, which oversees the departure of removable immigrants from the United States, would exercise its discretion to focus enforcement on individuals subject to mandatory detention based on criminal convictions. ICE, Updated ICE Statement on COVID-19 (Mar. 18, 2020).6 For other categories of immigrants, ERO would exercise its “discretion to delay enforcement actions until after the crisis or utilize alternatives to detention, as appropriate.” Id. About two weeks later, ICE released guidance instructing the directors of its various field offices to identify detainees held in their facilities who fell within the CDC-recognized high-risk categories and to make individualized determinations regarding their continued custody. ICE, Docket Review Guidance (Apr. 4, 2020).
ICE, in conjunction with the CDC, has also taken measures to prevent the spread of COVID-19 at detention facilities. On March 27, 2020, the CDC published advisory guidance on best practices for correctional and detention facilities (“CDC Detention Facility Guidelines”). CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional & Detention Facilities (Mar. 27, 2020). That guidance recommends that facilities reduce transfers of detainees; perform pre-intake screening for all new entrants; eliminate inperson visits; clean commonly touched areas multiple times a day; provide detainees with free access to soap, running water, paper towels, and tissues; and implement social distancing strategies, such as reassigning bunks to provide more space between detainees and staggering meals. See id. The CDC guidance recognizes, however, that not all of its recommended
6 https://www.ice.gov/news/releases/updated-ice-statement-covid-19.
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strategies would be feasible in every facility, as facilities vary in physical layout and available resources. Id.
The same day that the CDC released its Detention Facility Guidelines, ICE issued an “Action Plan” for containing COVID-19. ICE, Mem. on Coronavirus 2019 (COVID-19) Action Plan, Revision 1 (Mar. 27, 2020). The plan drew heavily from the CDC guidance, affirming that “[t]he CDC remains the authoritative source for information on how to protect individuals and reduce exposure to COVID-19.” Id.
Building on its Action Plan, on April 10, 2020, ICE released a document entitled COVID-19 Pandemic Response Requirements (“PRR”), which includes more definitive measures designed to prevent the spread of COVID-19 in detention facilities. ICE, Pandemic Response Requirements (Apr. 10, 2020). Developed in consultation with the CDC, the PRR “set[] forth specific mandatory requirements expected to be adopted by all detention facilities housing ICE detainees, as well as best practices for such facilities, to ensure that detainees are appropriately housed and that available mitigation measures are implemented[.]” Id. at 3 (emphasis in original). The PRR provide that “all detention facilities housing ICE detainees must . . . comply with the following” preventative measures:
• Personal Protective Equipment: o “Cloth face coverings should be worn by detainees and staff (when PPE supply is limited) to help slow the spread of COVID-19.”
• Hygiene: o “Require all persons within the facility to maintain good hand hygiene by regularly washing their hands with soap and water for at least 20 seconds[.]” o “Provide detainees and staff no-cost, unlimited access to supplies for hand cleansing, including liquid soap, running water, hand drying machines or disposable paper towels, and no-touch trash receptacles.”
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o “Post signage throughout the facility reminding detained persons and staff to practice good hand hygiene and cough etiquette[.]”
• Cleaning Practices
o “Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response[.]”
o “Several times a day using household cleaners and Environmental Protection Agency-registered disinfectants, clean and disinfect surfaces and objects that are frequently touched, especially in common areas (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment).”
• Intake Procedures:
o “Perform pre-intake screening for all staff and new entrants for symptoms of COVID-19.”
o “If staff have symptoms of COVID-19 (fever, cough, shortness of breath): they must be denied access to the facility.”
o “If any new intake has symptoms of COVID-19:  Require the individual to wear a face mask.  Ensure that staff interacting with the symptomatic individual wears recommended PPE.  Isolate the individual and refer to healthcare staff for further evaluation.  Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective isolation and necessary medical care.”
• Social Distancing:
o “Although strict social distancing may not be possible in congregate settings such as detention facilities, all facilities housing ICE detainees should implement the following measures to the extent practicable:
o Efforts should be made to reduce the population to approximately 75% of capacity.
o Where detainee populations are such that such cells are available, to the extent possible, house detainees in individual rooms.
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o Recommend that detainees sharing sleeping quarters sleep ‘head-to-foot.’
o Extend recreation, law library, and meal hours and stagger detainee access to the same in order to limit the number of interactions between detainees from other housing units.
o Staff and detainees should be directed to avoid congregating in groups of 10 or more, employing social distancing strategies at all times.
o Whenever possible, all staff and detainees should maintain a distance of six feet from one another.
o If practicable, beds in housing units should be rearranged to allow for sufficient separation during sleeping hours.”
• For suspected or confirmed COVID-19 cases:
o “Isolate the individual immediately in a separate environment from other individuals. Facilities should make every possible effort to isolate persons individually. Each isolated individual should be assigned his or her own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options. Only individuals who are laboratory-confirmed COVID-19 cases should be isolated as a cohort. Do not cohort confirmed cases with suspected cases or case contacts.”
o “If the number of confirmed cases exceeds the number of individual isolation spaces available in the facility, then ICE must be promptly notified so that transfer to other facilities, transfers to hospitals, or release can be coordinated immediately. Until such time as transfer or release is arranged, the facility must be especially mindful of cases that are at higher risk of severe illness from COVID-19. Ideally, ill detainees should not be cohorted with other infected individuals. If cohorting of ill detainees is unavoidable, make all possible accommodations until transfer occurs to prevent transmission of other infectious diseases to the higher-risk individual (For example, allocate more space for a higher-risk individual within a shared isolation room).”
Id. at 7–15 (emphases in original). While the PRR impose these “mandatory” requirements at all
detention centers, they also indicate that the requirements are “dynamic” and “will be updated as
additional/revised information and best practices become available.” Id. at 3.
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C. Injunctions Entered Against ICE Plaintiffs’ challenge arises in the context of other requests for injunctive relief against ICE in connection with the ongoing pandemic. Most importantly here, in Fraihat v. ICE, Judge Bernal in the Central District of California certified a class of “[a]ll people who are detained in ICE custody who have one of the [CDC-recognized] Risk Factors placing them at heightened risk of severe illness and death upon contracting the COVID-19 virus.” No. 5:19-cv-1546-JGB (SHKx), 2020 WL 1932570, at *16 (C.D. Cal. Apr. 20, 2020).7 The court proceeded to issue a preliminary injunction that, inter alia, ordered ICE to identify and track all ICE detainees with CDC-designated risk factors; to “make timely custody determinations for detainees with Risk Factors, per the latest Docket Review Guidance”; to “promptly issue a performance standard or a supplement to their Pandemic Response Requirements . . . defining the minimum acceptable detention conditions for detainees with the Risk Factors, regardless of the statutory authority for their detention, to reduce their risk of COVID-19 infection pending individualized determinations or the end of the pandemic”; and to “monitor and enforce facility-wide compliance with the Pandemic Response Requirements and the Performance Standard.” Id. at *29. Since the issuance of the Fraihat injunction, the Government has identified more than 4,400 noncitizens in custody who possess CDC-designated risk factors. Joint Meet & Confer Statement 11, Fraihat v. ICE, No. 5:19-cv-1546-JGB-SHK (C.D. Cal. May 8, 2020), ECF No. 147. The agency’s identification process is ongoing: “ICE reports that the agency continues to
7 Judge Bernal also certified a second subclass, covering detainees whose disabilities place them at heightened risk of severe illness upon contracting COVID-19, that is not relevant to this case. Fraihat, 2020 WL 1932570, at *16.
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identify and track existing and new detainees with risk factors and disabilities that qualify them as subclass members.” Id. Those determinations—of whether a detainee has a health condition that places her in the Fraihat class—are made by medical professionals who evaluate detainees’ health records and then flag each high-risk detainee as a member of the Fraihat class, so that he or she can be further tracked. Id. Once identified as a member of the Fraihat class, each detainee is then evaluated by an ERO officer, who determines whether continued custody is appropriate. Id. at 11–12.
In addition to the nationwide Fraihat injunction, several district courts have entered preliminary injunctions requiring specific ICE facilities within their jurisdictions to evaluate whether high-risk detainees should be released and to comply with ICE’s PRR and the CDC Detention Facility Guidelines. See, e.g., Rodriguez Alcantara v. Archambeault, No. 20-cv-0756 DMS (AHG), 2020 WL 2315777, at *7–10 (S.D. Cal. May 1, 2020); Gayle v. Meade, No. 2021553-CIV, 2020 WL 2086482, at *7 (S.D. Fla. Apr. 30, 2020); Roman v. Wolf, No. 5:20-cv00768-TJH (PVCx), 2020 WL 1952656, at *8 (C.D. Cal. Apr. 23, 2020).
One of these facility-specific injunctions requiring the release of detainees has been stayed on appeal. In Roman, the district court entered an injunction requiring ICE to fully implement CDC Detention Facility Guidelines and to release a certain number of detainees at California’s Adelanto Processing Center. 2020 WL 1952656, at *8. After the government filed an emergency appeal, the Ninth Circuit stayed the district court’s order to release detainees but let stand the part of the injunction requiring ICE’s “substantial compliance with guidelines issued
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by the [CDC] for correctional and detention facilities to follow in managing COVID-19.” Roman v. Wolf, No. 20-55436, 2020 WL 2188048, at *1 (9th Cir. May 5, 2020) (per curiam).8
D. Plaintiffs’ Detention
The named Plaintiffs are ten transgender women who are detained at five detention
centers that are all managed by private contractors: the Florence Correctional Center
(“Florence”) and La Palma Correctional Center (“La Palma”) in Arizona; the Nevada Southern
Detention Center (“Nevada Southern”) in Nevada; the Aurora Detention Center (“Aurora”) in Colorado; and the El Paso Processing Center (“El Paso”) in Texas.9 Plaintiffs are held pursuant
to various provisions of the Immigration and Nationality Act (“INA”): Some are mandatorily
detained as required by 8 U.S.C. §§ 1225(b), 1226(c), or 1231(a)(2), while others are detained
pursuant to the Government’s exercise of discretion under § 1226(a). Plaintiffs vary in age from
19- to 37-years-old. Some Plaintiffs suffer from serious health conditions, including HIV, while
8 In analogous litigation involving criminal defendants, other courts of appeals have stayed district court injunctions that required prison administrators to take specific steps to address COVID-19. In Valentine v. Collier, 956 F.3d 797 (5th Cir. 2020) (per curiam), the Fifth Circuit stayed an injunction granting relief to a class of “disabled and high-risk” inmates held in a “prison for the elderly and infirm” that had experienced an outbreak of COVID-19 and several related deaths, id. at 799, and the Supreme Court denied a motion to vacate that stay (over a statement respecting the denial of an application to vacate the stay from Justices Sotomayor and Ginsburg), No. 19A1034, 2020 WL 2497541 (U.S. May 14, 2020). Similarly, the Eleventh Circuit stayed a COVID-19-related district court injunction obtained by “medically vulnerable” inmates that required the prison’s administrators to “employ numerous safety measures to prevent the spread of COVID-19 and impose[d] extensive reporting requirements.” Swain v. Junior, 958 F.3d 1081, 1085 (11th Cir. 2020).
9 The original complaint named thirteen plaintiffs, but three (R.H., L.R.A.P., and G.P.) have been released since the start of this litigation. As Plaintiffs’ counsel acknowledged at the motion hearing, the release of those plaintiffs moots their claims. Transcript of Hearing on TRO Mot. (“TRO. Tr.”) 3:14–4:4 (May 6, 2020). Additionally, while M.M.S-M. was at one time held at the Winn Detention Facility in Louisiana, she is now held at Aurora in Colorado. 2d Decl. of Greg Davies ¶ 66, Supp. TRO Opp., Exh. 32. Accordingly, the conditions at Winn are no longer relevant to this litigation.
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others describe themselves as in good health. The Court will first describe facts that are common to all five facilities where the Plaintiffs are held before turning to facts specific to the individual facilities and Plaintiffs. All five facilities where named Plaintiffs are held (collectively, “Detention Centers”) have ramped up their responses to COVID-19 since the start of this litigation. The Court will describe only the current state of affairs at each facility.
1. Facts Common to All Five Detention Centers The Government has provided the Court with evidence supporting the following facts. This evidence consists of documents reflecting ICE’s guidelines and policies as well as declarations from ICE officials and personnel with knowledge of the conditions at the relevant facilities. These agency declarations carry a presumption of good faith and are thus entitled to a degree of deference. See California v. Trump, No. 19-cv-960 (RDM), 2020 WL 1643858, at *11 (D.D.C. Apr. 2, 2020) (applying the “‘presumption of good faith’ that the courts typically accord agency declarations and affidavits”) (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)); cf. United States v. Armstrong, 517 U.S. 456, 464 (1996) (“[I]n the absence of clear evidence to the contrary, courts presume that [public officers] have properly discharged their official duties.” (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14–15 (1926)); U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001) (“[A] presumption of regularity attaches to the actions of Government agencies[.]”). While Plaintiffs dispute some of the Government’s assertions, those disputes will be discussed as part of the Court’s evaluation of Plaintiffs’ claims. The Court will begin with the Government’s account only for the sake of organizational clarity. The Detention Centers have worked to comply with ICE’s PRR and the CDC’s Detention Facility Guidelines. 2d Decl. of Sheri Malakhova (“2d Malakhova Decl.”) ¶¶ 9–10, Supp. TRO Opp., Exh. 10; 2d Decl. of Jason Ciliberti (“2d Ciliberti Decl.”) ¶¶ 8–9, Supp. TRO Opp., Exh. 6;
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2d Decl. of Matthew Cantrell (“2d Cantrell Decl.”) ¶¶ 10, 23, Supp. TRO Opp., Exh. 5; 2d Decl. of Greg Davies (“2d Davies Decl.”) ¶¶ 21–22, Supp. TRO Opp., Exh. 3; 2d Decl. of Juan L. Acosta (“2d Acosta Decl.”) ¶ 38, Supp. TRO Opp., Exh. 1. All facilities have reduced their detainee populations to levels significantly below capacity. Decl. of John Cantú (“Cantú Decl.”) ¶ 5, Supp. TRO Opp., Exh. 11; 2d Ciliberti Decl. ¶ 11; 2d Cantrell Decl. ¶ 27; 2d. Davies Decl. ¶ 6; 2d Acosta Decl. ¶¶ 7, 9. And the Detention Centers try to facilitate social distancing among the remaining detainees as much as possible. Cantú Decl. ¶ 8; 2d Ciliberti Decl. ¶¶ 21–22; 2d Cantrell Decl. ¶¶23–24; 2d Davies Decl. ¶¶ 34–35; 2d Acosta Decl. ¶ 14. Sleeping configurations have been modified in order to promote social distancing. Because Detention Centers are operating significantly under capacity, beds are now apportioned in a manner that maximizes space between detainees, such as by assigning one detainee per bunk bed or requiring them to sleep head-to-foot. Cantú Decl. ¶ 15; 2d Ciliberti Decl. ¶ 13; 2d Cantrell Decl. ¶ 30; 2d Davies Decl. ¶ 30; 2d Acosta Decl. ¶ 12. The Detention Centers have also altered dining arrangements, by bringing meals to detainees in their units instead of having them congregate at the cafeteria (so-called “satellite feeding”) or by staggering use of the cafeteria so that only one or two detainees eat at each table. Cantú Decl. ¶ 8; 2d Ciliberti Decl. ¶¶ 17, 22; 2d Cantrell Decl. ¶ 34; 2d Davies Decl. ¶¶ 41, 50, 59; 2d Acosta Decl. ¶ 54. Additionally, Detention Centers display posters throughout the housing units and common areas, in both Spanish and English, that explain social distancing and proper hygiene. Cantú Decl. ¶ 21; 2d Ciliberti Decl. ¶ 41; 2d Cantrell Decl. ¶ 43; 2d Davies Decl. ¶¶ 31, 34; 2d Acosta Decl. ¶ 17.
Further, in line with the requirements of the PRR and the CDC Detention Facility Guidelines, Detention Centers ensure that detainees have free access to PPE and cleaning supplies. Every detainee is given soap, which is replaced according to a set schedule or when a
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detainee requests more, and access to bathrooms that are always open. Cantú Decl. ¶ 20; 2d Ciliberti Decl. ¶ 37; 2d Cantrell Decl. ¶ 39; 2d Davies Decl. ¶ 31; 2d Acosta Decl. ¶ 30. Every detainee also receives a mask, which is replaced according to a set schedule or upon request. Cantú Decl. ¶ 20; 2d Ciliberti Decl. ¶ 37; 2d Cantrell Decl. ¶ 39; 2d Davies Decl. ¶ 31; 2d Acosta Decl. ¶ 37. Staff at Detention Centers are also provided PPE, including masks and gloves, which they are required to wear when in contact with detainees. Cantú Decl. ¶ 20; 2d Ciliberti Decl. ¶ 36; 2d Cantrell Decl. ¶ 37; 2d Davies Decl. ¶ 16; 2d Acosta Decl. ¶¶ 44, 57–58.
Detention Centers have also enhanced cleaning practices to combat the virus. Commonly used objects, like phones, tablets, dining tables, door handles, and faucets, are cleaned multiple times a day. Cantú Decl. ¶ 20; 2d Ciliberti Decl. ¶ 37; 2d Cantrell Decl. ¶ 36; 2d Davies Decl. ¶ 31; 2d Acosta Decl. ¶¶ 33–35.
Detainees are provided continual access to medical care and, if requested, can see a medical provider within 24 hours of requesting care. 2d Malakhova Decl. ¶ 17; 2d Ciliberti Decl. ¶ 34; 2d Cantrell Decl. ¶ 20; 2d Davies Decl. ¶ 28; 2d Acosta Decl. ¶¶ 18, 29. Detainees who present COVID-19 symptoms are referred to medical care, isolated, and tested. 2d Malakhova Decl. ¶ 14; 2d Ciliberti Decl. ¶¶ 28–29; 2d Cantrell Decl. ¶¶ 16, 19–20; 2d Davies Decl. ¶ 24; 2d Acosta Decl. ¶ 27. If detainees are known to have been exposed to someone with COVID-19, they are placed in “cohorts” with restricted movement for fourteen days, during which time they are monitored daily for fever and symptoms of respiratory illness. 2d Malakhova Decl. ¶ 15; 2d Ciliberti Decl. ¶ 32; 2d Cantrell Decl. ¶ 16; 2d Davies Decl. ¶ 27; 2d Acosta Decl. ¶ 28.
All staff and vendors are temperature screened before they are allowed to enter the facilities. Cantú Decl. ¶ 10; 2d Ciliberti Decl. ¶ 35; 2d Cantrell Decl. ¶ 42; 2d Davies Decl. ¶ 33;
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2d Acosta Decl. ¶ 46. Similarly, upon arrival at any facility, each detainee is screened for the signs and symptoms of COVID-19. 2d Malakhova Decl. ¶ 11; 2d Ciliberti Decl. ¶ 40; 2d Cantrell Decl. ¶¶ 14–15; 2d Davies Decl. ¶ 23; 2d Acosta Decl. ¶ 22. Further, all new detainees are assigned to a staggered housing location for a fourteen-day medical observation, in order to keep newly admitted detainees from potentially infecting the general population. 2d Malakhova Decl. ¶ 14; 2d Ciliberti Decl. ¶ 40; 2d Cantrell Decl. ¶ 16; 2d Davies Decl. ¶ 25; 2d Acosta Decl. ¶ 25. After fourteen days, if everyone in that cohort is symptom-free, they can join the general population.
The Court now turns to the conditions at the relevant Detention Centers. 2. Florence (Arizona) Correctional Center
Florence currently houses 216 detainees, out of a total capacity of 392 detainees (55% capacity). Cantú Decl. ¶ 5. Ten detainees have tested positive for COVID-19. (The Government has not indicated how many detainees have been tested). 2d Malakhova Decl. ¶ 18. Additionally, two detainees (including Plaintiff C.G.B.) displayed COVID-19 symptoms, although both tested negative. Id. All twelve detainees have recovered and no longer show symptoms of COVID-19. Id.
The only named Plaintiff held at Florence is C.G.B., a 31-year-old Mexican national detained under 8 U.S.C. § 1226(a), which permits ICE, at its discretion, to detain noncitizens who are awaiting final removal decisions. Decl. of Kevin Bourne (“Bourne Decl.”) ¶¶ 5, 7, 10– 11, TRO Opp., Exh. 3. She came into ICE custody following her arrest in Arizona for identity theft, possession of dangerous drugs, and possession of drug paraphernalia. Id. ¶¶ 7, 10.10 She is
10 Those criminal charges remain pending. Bourne Decl. ¶¶ 7, 10.
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currently in removal proceedings and is charged with overstaying a visa, in violation of 8 U.S.C. § 1227(a)(1)(B). Id. ¶ 8. C.G.B. has not been diagnosed with any high-risk medical condition and does not take any medication. 2d Malakhova Decl. ¶ 19. ICE therefore determined that she is not part of the Fraihat class of higher-risk detainees. Cantú Decl. ¶ 23.
In early April 2020, C.G.B. reported that the man sleeping in the bunk above her began to display symptoms of COVID-19. Decl. of C.G.B. (“C.G.B. Decl.”) ¶ 7, TRO Mot., Exh. 1. Several days later, C.G.B. also began to experience COVID-19 symptoms. She then went to a medical appointment, where she was given a test for COVID-19. Id. ¶ 8. Thereafter, she was cohorted with other detainees suspected of having COVID-19; however, her test came back negative. Id. ¶¶ 9–10. She has since recovered from whatever illness she may have had and returned to the general population. Cantú Decl. ¶ 14.
C.G.B. is housed with 35 other detainees in a unit that has a maximum capacity of 64 detainees (55% capacity). Id. Her unit has 32 bunk beds. Given the reduced number of detainees in her unit, officers have encouraged detainees to relocate to empty beds to promote social distancing. Id. ¶ 15. Detainees are also encouraged to spread out and eat their meals at dining tables or benches or in their living quarters. Id. ¶ 18.
3. La Palma (Arizona) Correctional Center La Palma has a maximum capacity of 3,240 detainees and is currently at 47% capacity, housing 1,531 detainees. 2d Ciliberti Decl. ¶ 11. Of the 66 detainees who have been tested for COVID-19, 53 have tested positive. Id. ¶ 35. Of those 53 detainees, 19 are currently receiving treatment and 34 have recovered. Id. In addition, 13 staff members have tested positive for COVID-19, of which three have recovered. Id. Two named plaintiffs, A.F. and K.R.H., are housed at La Palma.
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a. A.F. A.F. is a 25-year-old native and citizen of Nicaragua detained at ICE’s discretion pursuant to 8 U.S.C. § 1226(a). She is in removal proceedings and is charged as inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) (being present in the United States without being admitted or paroled) and § 1182(a)(7)(A)(i)(I) (being present in the United States without a valid entry document). Decl. of Javier Lopez (“Lopez Decl.”) ¶ 4, TRO Opp., Exh. 9. An immigration judge (“IJ”) set bond, but A.F. has not posted it. Id. ¶ 6. A.F. reports that she was born with one kidney and therefore is at a higher risk for kidney failure. Decl. of A.F. (“A.F. Decl.”) ¶ 8, TRO Mot., Exh. 2. Although A.F. previously took hormone therapy and has requested to continue that therapy at La Palma, she has not received the medication. Id. ¶ 18. She has not been diagnosed with a CDC-recognized medical condition that would increase her risk to COVID-19. Consequently, ICE concluded that A.F. is not part of the Fraihat class of higher-risk detainees. 2d Ciliberti Decl. ¶ 47. A.F. sleeps alone in an individual cell, which is in a unit that has 60 two-person cells. Id. ¶¶ 12, 14. In order to encourage social distancing, meals are prepared at a central location and then brought to her housing unit. Id. ¶¶ 17, 22.
b. K.R.H. K.R.H. is a 27-year-old citizen of Guatemala also detained pursuant to 8 U.S.C. § 1226(a). She is in removal proceedings and is charged as inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) (being present in the United States without being admitted or paroled). Lopez Decl. ¶ 15. An IJ set bond, which she unsuccessfully appealed to the Board of Immigration Appeals (“BIA”). Id. ¶ 18. She has not posted bond. An IJ has ordered K.R.H. removed to Guatemala and her appeal of that decision is pending. Id. ¶¶ 21–22. She has a history of mild
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asthma, as well as tachycardia (rapid heartbeat). She takes medication for her tachycardia, but no hormone therapy. Decl. of K.R.H. (“K.R.H. Decl.”) ¶ 49, TRO Mot., Exh. 11. She has not been diagnosed with a CDC-recognized medical condition that would make her more vulnerable to COVID-19. Id. Accordingly, ICE concluded that she is not a member of the Fraihat class. Id. ¶ 47.
K.R.H. is housed in a unit that has 93 detainees and is at 77% capacity. 2d Ciliberti Decl. ¶ 15. At her request, she shares a cell—which includes two beds, a seating area, a sink, and a toilet—with one other transgender detainee. Id. Like A.F., K.R.H. receives her meals in her housing unit. Id. ¶¶ 17, 22.
4. Nevada Southern Detention Center Nevada Southern houses both ICE civil immigration detainees and U.S. Marshals Service detainees. There are currently 152 detainees in the 250-detainee facility (61% capacity). 2d Cantrell Decl. ¶ 27. No ICE detainees have been tested for COVID-19. Id. ¶ 40. Two U.S. Marshals Service inmates have been tested; one tested positive and has been placed in isolation, where he is receiving medical treatment. Id. Two named plaintiffs, K.M. and K.S., are held at Nevada Southern. K.M. and K.S. are held in a unit with 48 bunk beds that is currently operating at 39% capacity. Id. ¶ 31. They are able to keep six feet apart by sleeping head-to-toe in adjacent beds that are a few feet apart. Id. ¶ 33. Meals are delivered to their dormitory, which has 24 tables with four seats each, and detainees are monitored to ensure that they spread out among the tables. Id. ¶ 34.
a. K.M. K.M. is a 37-year-old citizen of Haiti who is detained pursuant to 8 U.S.C. § 1226(c), which mandates detention for noncitizens convicted of offenses carrying a sentence of a term of
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imprisonment of at least one year. K.M.’s conviction was for battery with use of a deadly weapon. 2d Cantrell Decl. ¶¶ 53–55. In 2019, an IJ denied K.M.’s application for asylum and ordered her removed to Haiti. Id. ¶ 56. Thereafter, the IJ sua sponte reconsidered his decision, found her to be not removable, and terminated proceedings.11 Id. The Government’s appeal of that decision is pending with the BIA. Id. K.M. takes hormone therapy. Decl. of K.M. (“K.M. Decl.”) ¶ 13, TRO Mot., Exh. 6. She has several medical conditions, including HIV. 2d Cantrell Decl. ¶ 59. In accordance with Fraihat, ICE medical personnel identified K.M. as being part of the class due to her HIV status. However, an ERO officer determined that she was not suitable for release. Id. ¶ 62.
b. K.S. K.S. is a 34-year-old citizen of Jamaica subject to detention under 8 U.S.C. § 1231(a)(2), which requires detention of noncitizens following the completion of removal proceedings. 2d Cantrell Decl. ¶ 53. A legal permanent resident since 2002, she was placed into removal proceedings in 2013 following a criminal conviction. Id. ¶ 49. Thereafter, K.S. failed to appear at a scheduled removal hearing and was ordered removed in absentia. Id. ¶ 50. Subsequently, removal proceedings were reopened, but she again failed to appear and therefore was again ordered removed in absentia. Id. K.S.’s request to reopen removal proceedings a second time was denied, and the BIA recently dismissed her appeal. Id. Consequently, K.S. is now subject
11 Although the record is not perfectly clear on this point, the Government’s declarant states that the IJ “reconsidered his decision finding K.M. removable and terminated proceedings.” 2d Cantrell Decl. ¶ 56. The Court infers that the IJ found K.M. to be “not deportable or inadmissible under immigration laws.” 8 C.F.R. § 239.2(a)(2).
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to a final order of removal, and ICE is actively working to effect her removal to Jamaica. Id. ¶ 52.
K.S. too takes hormone therapy, Decl. of K.S. (“K.S. Decl.”) ¶ 12, TRO Mot., Exh. 5, and has several medical conditions, including HIV, 2d Cantrell Decl. ¶ 58. K.S. was determined to be part of the Fraihat class, but an ERO officer determined that she was not suitable for release. Id. ¶ 61.
5. Aurora (Colorado) Detention Center Aurora is currently operating at 41% capacity, with 527 detainees held in the 1280-person facility. 2d Davies Decl. ¶ 6. Of the ten detainees who have been tested for COVID-19, one tested positive and is currently in medical isolation. Id. ¶ 18. Additionally, two Denver ICE employees tested positive for COVID-19. Neither employee had direct contact with detainees, though they interacted with other government employees who did interact with detainees. Id. Six employees of the private contractor that operates Aurora have tested positive for COVID-19, and the detainees who interacted with those employees were cohorted to prevent spread of the virus. Id. ¶ 29. Four named plaintiffs, D.B.M.U., M.J.J., M.M.S-M., and L.M., are detained at Aurora. All but L.M., who is in segregation, are housed in the same unit. That unit, currently at 33% capacity, has an open sleeping arrangement with twelve bunkbeds that are between four and six feet apart. Id. ¶¶ 48, 57, 66. The detainees eat in their dorm. Id. ¶ 59.
a. D.B.M.U. D.B.M.U. is a 19-year-old Honduran native detained at Aurora pursuant to mandatory detention under 8 U.S.C. § 1225(b), which provides for mandatory detention of noncitizens until removal. Decl. of Greg Davies (“Davies Decl.”) ¶¶ 67–68, 70, TRO Opp., Exh. 6. She is in
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removal proceedings and is charged as inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) (being present in the United States without a valid entry document). Id. ¶ 69. She has been detained at Aurora since March 24, 2020 and has not yet had a bond hearing. Id. ¶ 68. She takes genderaffirming hormones but no other medication. Decl. of D.B.M.U. (“D.B.M.U. Decl.”) ¶ 9, TRO Mot., Exh. 10. She has not been diagnosed with a CDC-recognized underlying medical condition that would increase her risk to COVID-19. Davies Decl. ¶ 76. On April 29, 2020, the Government reviewed D.B.M.U.’s custody pursuant to the order in Fraihat and declined to release her. Id. ¶ 81.12
b. M.J.J. M.J.J. is a 21-year-old Honduran native mandatorily detained pursuant to 8 U.S.C. § 1225(b). She is in removal proceedings and is charged as inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) (being present in the United States without a valid entry document). Davies Decl. ¶¶ ¶ 53. She has been detained at Aurora since March 2020 and has not yet had a bond hearing. M.J.J. takes hormone therapy but no other medication. Decl. of M.J.J. (“M.J.J. Decl.”) ¶¶ 8–9, TRO Mot., Exh. 9. She has not been diagnosed with a CDC-recognized preexisting medical condition that would increase her vulnerability to COVID-19. Davies Decl. ¶ 60. On April 29, 2020, ERO reviewed M.J.J.’s custody pursuant to Fraihat and declined to release her. Id. ¶ 63.
12 Although the Government’s declarant attests that “ERO reviewed D.B.M.U.’s. custody pursuant to Fraihat and declined to release her,” Davies Decl. ¶ 81, it is unclear what precisely occurred. Given that D.B.M.U. does not have a CDC-designated medical condition, id. ¶ 76, it is not apparent why she would have received a full Fraihat evaluation. The Court infers that D.B.M.U.—and the other similarly healthy named Plaintiffs detained at Aurora—were simply evaluated for inclusion in the Fraihat class.
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c. M.M.S-M. M.M.S-M. is a 22-year-old native and citizen of El Salvador who has been detained at under 8 U.S.C. § 1226(a) since May 2019. Davies Decl. ¶¶ 85–86, 88. She was convicted of illegal entry in the U.S. District Court for the Southern District of Texas and has been charged by ICE with being inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) (being present in the United States without a valid entry document). Id. ¶ 87. An IJ denied M.M.S-M.’s request to be released on bond and subsequently denied her application for relief from removal. Id. ¶¶ 90–91. Her appeal of the IJ’s determination that she is not entitled to relief is pending before the BIA. Id. ¶ 91. She has not been diagnosed with a CDC-recognized underlying medical condition that would increase her risk to COVID-19. Id. ¶ 96. On April 29, 2020, ERO reviewed M.M.S-M.’s custody pursuant to Fraihat and declined to release her. Id. ¶ 98.
d. L.M. L.M. is a 23-year-old citizen of Jamaica detained under mandatory detention pursuant to 8 U.S.C. § 1225(b). Davies Decl. ¶¶ 33–36. She is in removal proceedings and is charged as inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) (being present in the United States without a valid entry document). Id. ¶ 35. She has been detained at Aurora since March 2020 and not yet had a bond hearing. Id. ¶¶ 34, 37. Since April 3, 2020, L.M. has been held in segregation as a result of ignoring detention officers. Decl. of L.M. (“L.M. Decl.”) ¶ 43, TRO Mot., Exh. 7; 2d Davies Decl. ¶ 39. Consequently, she sleeps and eats alone. Id. ¶¶ 40–41. She does, however, continue to have access to shared dayrooms and outside recreation areas. Id. ¶ 44. L.M. reports that her physical health is fine. L.M. Decl. ¶¶ 13, 25. She takes hormone replacement therapy but no other medication. Id. ¶¶ 15–19. On April 29, 2020, ERO reviewed L.M.’s custody pursuant to Fraihat and declined to release her. Davies Decl. ¶ 47.
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6. El Paso Processing Center As of May 11, 2020, El Paso is operating at 39% of its normal capacity, with 165 detainees in the 840-detainee-capacity facility. 2d Acosta Decl. ¶¶ 7, 9. Of the 41 detainees who have been tested for COVID-19, ten tested positive, of which nine are currently receiving medical care. Id. ¶ 62. One staff member tested positive for COVID-19 but has since recovered and returned to work. Id. The 105 detainees who were exposed to other detainees or staff who tested positive for COVID-19 have been placed in cohorts in order to minimize the spread. Id. The only named plaintiff held at El Paso is M.R.P., a 22-year-old native of El Salvador detained pursuant to 8 U.S.C. § 1225(b) since June 2019. Id. ¶¶ 63–64, 73. She is in removal proceedings and is charged with being inadmissible under U.S.C. § 1182(a)(6)(A)(i) (being present in the United States without being admitted or paroled). Decl. of Juan Acosta (“Acosta Decl.”) ¶ 61, TRO Opp., Exh. 1. An IJ denied M.R.P. bond, citing flight risk, lack of ties in the United States, and manner of entry. Id. ¶ 66. M.R.P. is currently housed in an open-bay dormitory with twelve male detainees. Her unit ordinarily houses 64 detainees so is at only 19% capacity. 2d Acosta Decl. ¶ 11. Detainees have been assigned to beds that are separated by at least four feet and sleep feet-to-head if assigned to the same bunk. Id. ¶ 10. M.R.P. receives her meals at the El Paso dining hall, which has a capacity of 230 and 38 tables that typically seat six people apiece. Meal times have been staggered to allow for one detainee per table. Id. ¶ 54. The only medication that M.R.P. receives is hormone therapy. Id. ¶ 75. Although she has abnormal thyroid function, an active Hepatitis A infection, and a high hemoglobin count, she is not currently receiving any medical treatment because she is not symptomatic for thyroid disease and has normal liver enzymes. Id. Medical staff at El Paso continue to monitor those
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conditions. Id. ICE health professionals determined that M.R.P. is not a member of the Fraihat class. Id. ¶ 77.
E. Procedural Background On April 23, 2020, Plaintiffs filed suit against Chad Wolf, acting Secretary of the U.S. Department of Homeland Security (“DHS”), and William Barr, Attorney General of United States. Plaintiffs allege that ICE, the DHS component that oversees the civil detention of immigrants, has violated the Due Process Clause of the Constitution by failing to sufficiently protect transgender immigrant detainees from COVID-19 and the APA by failing to follow its internal guidelines. Simultaneously, Plaintiffs filed a motion for a temporary restraining order (“TRO”) compelling ICE to immediately release the named Plaintiffs and all other transgender detainees in ICE custody; declaring that ICE is violating the Constitution and the APA; directing Defendants to implement all CDC and World Health Organization (WHO) protocols designed to combat COVID-19; and prohibiting ICE from placing any additional transgender detainees in ICE custody until it has implemented sufficient protocols to prevent the transmission of COVID19. On May 5, 2020, Plaintiffs moved to certify a class consisting of all transgender people in civil immigration detention who are held, or who will be held, in any ICE detention center or facility across the country during the pendency of the COVID-19 pandemic. On May 11, 2020, Plaintiffs moved to join two new named plaintiffs—M.I.M.M., who is housed at the Otay Mesa Detention Center in San Diego, California, and Y.Z., who is housed at the Imperial Regional Detention Facility in Calexico, California. The Court held a telephonic hearing on the motion for temporary restraining order (but not on the Plaintiffs’ motions for class certification or joinder, which had not yet been fully
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briefed) on May 6, 2020. Thereafter, the Court held the hearing record open and requested additional, more recent evidence. In response to the Court’s order, the parties filed supplemental declarations under seal. All three motions are now ripe for resolution.
II. Legal Standards “The standard for issuance of the ‘extraordinary and drastic remedy’ of a temporary
restraining order or a preliminary injunction is very high, and by now very well established.” RCM Techs., Inc. v. Beacon Hill Staffing Grp., LLC, 502 F. Supp. 2d 70, 72–73 (D.D.C. 2007) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). The party seeking a temporary restraining order bears the burden of making a “clear showing that [she] is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). To make such a showing, the party must establish: “(1) that [she] is likely to succeed on the merits, (2) that [she] is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in [her] favor, and (4) that an injunction is in the public interest.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter, 555 U.S. at 20).13
III. Analysis At the heart of Plaintiffs’ suit is their request for the immediate release of all transgender
civil detainees in ICE custody. According to Plaintiffs, that extraordinary relief is warranted
13 “Before the Supreme Court’s decision in Winter, courts weighed these factors on a ‘sliding scale,’ allowing ‘an unusually strong showing on one of the factors’ to overcome a weaker showing on another.” Damus v. Nielsen, 313 F. Supp. 3d 317, 326 (D.D.C. 2018) (quoting Davis v. PBGC, 571 F.3d 1288, 1291–92 (D.C. Cir. 2009)). The D.C. Circuit has since suggested that Winter establishes that “likelihood of irreparable harm” and “likelihood of success” are “‘independent, free-standing requirement[s].’” Sherley, 644 F.3d at 392–93 (quoting Davis, 571 F.3d at 1296 (Kavanaugh, J., concurring)). It is clear, however, that “where the plaintiff can show neither harm nor success, no relief is warranted.” Damus, 313 F. Supp. 3d at 326 (citing Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 205 F. Supp. 3d 4, 26 (D.D.C. 2016)) (emphasis in original).
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because ICE has failed to implement the protective measures in the PRR across all of its detention facilities. This failure, Plaintiffs maintain, puts transgender detainees at an unacceptably high risk of harm from COVID-19 and, as a consequence, violates both the Fifth Amendment’s Due Process Clause and the APA and warrants a writ of mandamus. Before turning to the merits of injunctive relief for these claims, however, the Court must first address two threshold issues: Plaintiffs’ motion for class certification and their motion to join two additional named plaintiffs. Finding that the current Plaintiffs have not established grounds to certify a class or to add additional parties to the litigation, the Court will limit its consideration of the merits of injunctive relief to the named Plaintiffs.
A. Class Certification Plaintiffs move to certify a class of “all transgender people in civil immigration detention who are held, or who will be held, by [ICE] in any U.S. detention center or facility during the pendency of the COVID-19 pandemic.” Class. Cert. Mot. 1. The proposed class includes at least seventy transgender people being held in civil immigration detention centers across the country. Lederman Decl. ¶ 20. The Government opposes class certification on two grounds: first, that the Court lacks jurisdiction under the INA to issue the classwide relief sought; and second, that the Plaintiffs’ proposed class fails to meet the requirements of Federal Rule of Civil Procedure 23. The Court considers each ground in turn.
1. The INA’s Jurisdictional Bar to Classwide Relief The Government first argues that the Court may not certify the proposed class because the INA prohibits the Court from issuing the classwide injunctive relief sought by Plaintiffs—the wholesale release of all transgender detainees in ICE custody. It invokes 8 U.S.C. § 1252(f)(1), which provides that “[r]egardless of the nature of the action or claim . . . no court (other than the
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Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [8
U.S.C. §§ 1221–32], other than with respect to the application of such provisions to an individual
alien against whom proceedings . . . have been initiated.” 8 U.S.C. § 1252(f)(1) (emphasis
added). The clear import of § 1252(f)(1), the Supreme Court has held, is that district courts are
“prohibit[ed] . . . from granting classwide injunctive relief against the operation of §§ 1221– 1231.” Reno v. Am.-Arab Anti-Discrimination Comm. (“AADC”), 525 U.S. 471, 481 (1999).14
As relevant here, Section 1252(f)(1) bars courts from enjoining “the operation of” the INA’s detention provisions on a classwide basis.15 8 U.S.C. § 1252(f)(1); see, e.g., Hamama v.
Adducci, 912 F.3d 869, 877 (6th Cir. 2018) (holding that § 1252(f)(1), in light of AADC, 525
U.S. at 481, “unambiguously strips federal courts of jurisdiction to enter class-wide injunctive relief for . . . detention-based claims”).16 Numerous courts—including ones in this jurisdiction—
14 Relying on Padilla v. ICE, 953 F.3d 1134 (9th Cir. 2020), Plaintiffs argue that § 1252(f)(1) does not preclude classwide relief where each member of a proposed class is “an individual noncitizen against whom removal proceedings have been initiated.” Class Cert. Reply 7 (quoting Padilla, 953 F.3d at 1151). The Sixth Circuit has expressly rejected that reading of the statute, noting that “[t]here is no way to square the concept of a class action lawsuit with the wording ‘individual’ in the statute.” Hamama v. Adducci, 912 F.3d 869, 877 (6th Cir. 2018). The Supreme Court has not yet decided the question. See Jennings v. Rodriguez, 138 S. Ct. 830, 875 (2018) (Breyer, J., dissenting) (noting that “the Court in AADC did not consider, and had no reason to consider, the application of § 1252(f)(1) to . . . a class” where every member is an “individual alien against whom proceedings under such part have been initiated” (quoting 8 U.S.C. § 1252(f)(1))).
15 The provisions covered by § 1252(f)(1) include all those under which named Plaintiffs are being held.
16 Plaintiffs invoke Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 2404923 (D. Mass. May 12, 2020), which held that § 1252(f)(1) did not bar classwide injunctive relief that consisted of “merely taking one facility off the list of possible detention centers while litigation ensues . . . . absent some showing that the Attorney General cannot arrange for a detainee to be housed in another appropriate place.” Id. at *4. But even if that interpretation of the phrase “operation of [§§ 1221–31]” in § 1252(f)(1) is supportable, Plaintiffs are seeking far more here
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have held, however, that § 1252(f)(1) “prohibits only injunction of ‘the operation of’ the detention statutes, not injunction of a violation of the statutes.” R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 184 (D.D.C. 2015) (quoting Rodriguez v. Hayes, 591 F.3d 1105, 1120 (9th Cir. 2010)) (emphasis added); see also Abdi v. Duke, 280 F. Supp. 3d 373, 409 (W.D.N.Y. 2017), vacated in part on other grounds sub nom. Abdi v. McAleenan, 405 F. Supp. 3d 467 (W.D.N.Y. 2019) (“Where, as here, the moving party does not seek to enjoin the operation of §§ 1221–1231, and instead, seeks to enjoin violations of the statutory and regulatory framework, the class-wide prohibition on injunctive relief is inapplicable.”). The underlying logic of such decisions, the Supreme Court has observed, is that § 1252(f)(1) “d[oes] not affect . . . jurisdiction over . . . statutory claims because those claims d[o] not ‘seek to enjoin the operation of the immigration detention statutes, but to enjoin conduct . . . not authorized by the statutes.’” Jennings, 138 S. Ct. at 851 (quoting Rodriguez, 591 F.3d at 1120) (first emphasis and fifth alteration in original).17
But, “[t]his reasoning does not seem to apply to an order granting relief on constitutional grounds.” Jennings, 138 S. Ct. at 851 (emphasis added).18 That is precisely the type of
than an “injunction simply requir[ing] COVID-19 testing and [the] halt[ing] [of] admissions of new detainees to a particular facility.” Id.
17 The Jennings Court took no position on the soundness of this logic. Subsequently, in Nielsen v. Preap, 139 S. Ct. 954 (2019) (plurality op.), a plurality of the Court again declined to decide whether § 1252(f)(1) categorically bars classwide injunctive relief. Id. at 962.
18 The Jennings Court remanded to the Ninth Circuit to consider “whether it may issue classwide injunctive relief based on respondents’ constitutional claims.” 138 S. Ct. at 851. On remand, the Ninth Circuit remanded to the district court to “decide in the first instance whether § 1252(f)(1) precludes classwide injunctive relief, and if so, whether the availability of declaratory relief only can sustain the class” and “whether a declaration that the detention statutes are unconstitutional because they contain no process for seeking bail is an injunction or
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injunction that Plaintiffs seek here.19 Courts are divided on whether § 1252(f)(1) bars classwide injunctive relief based on constitutional claims. Compare Hamama, 912 F.3d at 880 n.8 (“Absent an explicit holding otherwise, we see no way to interpret [AADC, 525 U.S. at 481,] to allow injunctive relief on any basis,” including “constitutional claims[.]”) and Vazquez Perez v. Decker, No. 18-CV-10683 (AJN), 2019 WL 4784950, at *8 (S.D.N.Y. Sept. 30, 2019) (“This Court is stripped of its jurisdiction to grant such relief by Section 1252(f)(1) notwithstanding the argument that classwide relief is needed to address constitutional violations.”), with Padilla v. ICE, 354 F. Supp. 3d 1218, 1231 (W.D. Wash. 2018) (holding that § 1252(f)(1) does not bar “an injunction against actions and policies that violate those statutes and associated constitutional protections” (emphasis added)) and Saravia v. Sessions, 280 F. Supp. 3d 1168, 1205 n.19 (N.D. Cal. 2017), aff’d 905 F.3d 1137 (9th Cir. 2018) (holding that § 1252(f)(1) does not bar an injunction that “neither enjoins nor restrains the proper [(i.e., constitutional)] operation of any part of Part IV of the immigration statutes” (emphasis added)).
The Court need not decide at this juncture whether § 1252(f)(1) bars it from issuing classwide injunctive relief based on Plaintiffs’ constitutional claims. As it will explain, the Court declines to issue temporary injunctive relief—even as to the individual named Plaintiffs—on this basis. In any case, even if § 1252(f)(1) precludes classwide injunctive relief, it does not bar the classwide declaratory relief also sought by Plaintiffs. See Compl. ¶¶ 186–89, Prayer for Relief ¶¶ 2, 6–7. The plain language of § 1252(f)(1) only strips courts of the “jurisdiction or authority
restraint on the operation of the detention statutes.” Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018). The district court has not yet resolved those questions.
19 Plaintiffs also bring an APA claim, but they are unlikely to succeed on the merits of that claim, as the Court will explain later.
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to enjoin or restrain the operation of [8 U.S.C. §§ 1221–32].” 8 U.S.C. § 1252(f)(1) (emphasis added). The word “‘[e]njoin’ . . . refer[s] to permanent injunctions and the word ‘restrain’ . . . refer[s] to temporary injunctive relief[.]” Arevalo v. Ashcroft, 344 F.3d 1, 7 (1st Cir. 2003); see also Rodriguez, 591 F.3d at 1119 (adopting the same interpretation); Alli v. Decker, 650 F.3d 1007, 1012–14 (3d Cir. 2011) (same). Neither term encompasses declaratory relief.20 Because the Court retains jurisdiction to issue classwide declaratory relief, § 1252(f)(1) does not provide a standalone basis for denying Plaintiffs’ motion for class certification. The Court therefore proceeds to analyzing Plaintiffs’ motion for class certification under Federal Rule of Civil Procedure 23.
2. Federal Rule of Civil Procedure 23 A class action is “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)). Rule 23(a) establishes four requirements for class certification: (1) numerosity, that “the class is so numerous that joinder of all members is impracticable”; (2) commonality, that “there are questions of law or fact common to the class”; (3) typicality, that “the claims or defenses of the representative parties are typical
20 The Jennings majority suggested—but did not hold—that classwide declaratory relief is available under § 1252(f)(1). See 138 S. Ct. at 851 (“[I]f the Court of Appeals concludes that it may issue only declaratory relief [under § 1252(f)(1)], then the Court of Appeals should decide whether that remedy can sustain the class on its own.” (citing Fed. R. Civ. P. 23(b)(2)) (emphasis added)). The Jennings dissent expressly stated, moreover, that “[r]egardless [of § 1252(f)(1)], a court could order declaratory relief.” Id. at 875 (Breyer, J., dissenting). Subsequently, the Preap plurality held that § 1252(f)(1) did not deprive courts of “jurisdiction to entertain the plaintiffs’ request for declaratory relief.” 139 S. Ct. at 962 (plurality op.). There are thus “six Justices of the current Supreme Court now on record stating that section 1252(f) does not bar declaratory relief.” Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 1703844, at *5 (D. Mass. Apr. 8, 2020).
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of the claims or defenses of the class”; and (4) adequacy, that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). In addition to satisfying Rule 23(a), a putative class must also meet one of the Rule 23(b) requirements. Here, Plaintiffs seek to certify the class under Rule 23(b)(2) claiming that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
“The party seeking certification bears the burden of persuasion, and must show that the putative class[] meet[s] the requirements of Rule 23 by a preponderance of the evidence.” Garnett v. Zeilinger, 301 F. Supp. 3d 199, 204 (D.D.C. 2018) (Cooper, J.) (citing Hoyte v. District of Columbia, 325 F.R.D. 485, 491 (D.D.C. 2017) (Cooper, J.)). To carry that burden, Plaintiffs must “affirmatively demonstrate . . . compliance with the Rule—that is, [they] must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). The Court must undertake a “rigorous analysis” to confirm that the requirements of Rule 23 have been satisfied. Gen. Tel. Co. of SW v. Falcon, 457 U.S. 147, 161 (1982). “Frequently that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s underlying claim.” Wal-Mart, 564 U.S. at 351. Undertaking that analysis, the Court concludes that the proposed class does not meet the requirements of commonality and adequacy and therefore declines to certify it.21
21 Plaintiffs’ proposed class of at least seventy detainees likely meets the numerosity requirement. Lederman Decl. ¶ 20. In light of its disposition of commonality, the Court need not address typicality. See Wal-Mart, 564 U.S. at 350 n.5 (“The commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the
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a. Commonality “The crux of this case is commonality—the rule requiring a plaintiff to show that ‘there are questions of law or fact common to the class.’” Wal-Mart, 564 U.S. at 349 (quoting Fed. R. Civ. P. 23(a)(2)).22 Since any question can be crafted “at a sufficiently abstract level of generalization . . . to display commonality,” Love v. Johanns, 439 F.3d 723, 729–30 (D.C. Cir. 2006) (quoting Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998)), the key inquiry is whether “a class-wide proceeding [will] generate common answers apt to drive the resolution of the litigation,” Wal-Mart, 564 U.S. at 350 (emphasis in original) (citation and internal quotation marks omitted). In other words, each class member’s claim “must depend upon a common contention” and that contention “must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. Here, Plaintiffs advance as their common contention “whether ICE’s failure to protect transgender people in detention from the risks of contracting, suffering, and dying from the COVID-19 pandemic in detention renders class members’ confinement a punishment that violates their constitutional due process rights.” Class Cert. Mot. 12; see also Class Cert. Reply 4, 9. The Court agrees with the Government, however, that there are multiple subsidiary issues
named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” (quoting Falcon, 457 U.S. at 157 n.13)).
22 The Court’s commonality analysis encompasses both Rule 23(a)(2) and Rule 23(b)(2). See Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. 33, 47 n.17 (D.D.C. 2007) (“An inquiry into whether the defendant acted on grounds generally applicable to the 23(b)(2) class is often considered to be encompassed by the commonality requirement of Rule 23(a).”).
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necessarily involved in resolving that overarching contention that render the case incapable of classwide resolution.
As an initial matter, Plaintiffs struggle to crystallize precisely what discrete actions or policies of ICE constitute its purported failure to protect transgender detainees. They vaguely allege that the failure is ICE’s “lack of any policies or practices sufficient to protect transgender persons in detention.” Class Cert. Reply 9. But that allegation hardly identifies “a uniform policy or practice that affects all class members.” DL v. District of Columbia, 713 F.3d 120, 128 (D.C. Cir. 2013) (emphasis added). It turns instead on ICE’s day-to-day operations in each individual detention facility (and for that matter, in each individual unit in which putative class members are housed). Assessing the sufficiency of those operations requires the Court to evaluate thousands of “individual, discretionary . . . decisions” by various ICE officials, employees, and contractors across the country. Wal-Mart, 564 U.S. at 352, 358 (declining to permit a class to “sue about literally millions of employment decisions at once”). “Without some glue holding the alleged reasons for all those decisions together, it [would] be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial [common] question[s][.]” Id. at 351 (emphasis omitted).
This case can therefore be distinguished from Damus v. Nielsen, 313 F. Supp. 3d 317 (D.D.C. 2018), on which Plaintiffs rely. There, Judge Boasberg certified a class of asylum applicants who had been denied parole based on the common contention that ICE offices were engaged in a “system of de facto parole denial” in contravention of ICE’s own Parole Directive. Id. at 332–33 (emphasis added). Here, Plaintiffs have not offered “significant proof” that ICE has a “general policy” of failing to protect transgender detainees from COVID-19. Wal-Mart, 564 U.S. at 353, 355 (internal quotation marks omitted) (declining to uphold certification of a
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nationwide class of employees where they failed to identify “a uniform . . . practice that would provide the commonality needed for a class action”).23 Nor do they offer “significant proof” that ICE has a “general policy” with respect to transgender detainees that is constitutionally deficient. Plaintiffs invoke ICE’s PRR, but they do not challenge the promulgation of the PRR themselves—only ICE’s alleged failure (or inability) to implement the PRR in different detention facilities across the country. See TRO Tr. 49:21–50:5. But that purported failure does not stem from a “single or uniform policy or practice that bridges all [Plaintiffs’] claims.” DL, 713 F.3d at 127.
Even if ICE’s failure to protect transgender detainees from COVID-19 could be boiled down to a manageable set of uniform, discrete policies or practices, whether that failure amounts to punishment in violation of the Due Process Clause is not susceptible to a common classwide answer. To make that determination, the Court must—as it will later explain—determine whether “the challenged governmental action is not rationally related to a legitimate governmental objective or . . . is excessive in relation to that purpose.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2373–74 (2015) (relying on Bell v. Wolfish, 441 U.S. 520 (1979)). As the Supreme Court recently reiterated, due process is a “flexible” concept that “calls for such protections as the particular situation demands.” Jennings, 138 S. Ct. at 852 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)); see also Lujan v. G & G Fire Sprinklers, Inc., 532 U.S.
23 As this Court has previously noted, “[i]n Wal–Mart, the Supreme Court ostensibly heightened the standard for showing that a defendant’s custom, policy, or practice caused a classwide injury from a ‘preponderance of the evidence’ to ‘significant proof.’” Hoyte, 325 F.R.D. at 492. “In other words, the movant must do more than merely allege a common contention that conceivably could give rise to the conclusion that there has been the same classwide injury; he must support that allegation with significant evidence.” Id. (quoting Parker v. Bank of Am., N.A., 99 F. Supp. 3d 69, 81 (D.D.C. 2015)) (emphasis in original).
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189, 196 (2001) (observing that “[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation” (quoting Cafeteria & Rest. Workers v. McElroy, 367 U.S. 886, 895 (1961)). Therefore, due process claims may be difficult to resolve through classwide proceedings. See Jennings, 138 S. Ct. at 852 (remanding to the Ninth Circuit to consider whether plaintiffs’ due process claims could be resolved through a Rule 23(b)(2) class action). That is not to say that all due process claims are fundamentally incompatible with class actions. See, e.g., Hoyte, 325 F.R.D. at 492–94 (certifying a class asserting due process claims outside of the immigration detention context). Given the differences among the putative class members and the nature of their due process claims here, however, the Court cannot find that “a Rule 23(b)(2) class action litigated on common facts is an appropriate way to resolve [Plaintiffs’] Due Process Clause claims.” Jennings, 138 S. Ct. at 852.
First, as the Government points out, the putative class members differ in age and have varying medical conditions and consequently varying levels of susceptibility to COVID-19. While some putative class members have conditions that the CDC has identified as high-risk, most do not. See 2d Malakhova Decl. ¶ 19 (C.G.B.); Davies Decl. ¶ 43 (D.B.M.U.), ¶ 60 (L.M.), ¶ 76 (M.J.J.), ¶ 96 (M.M.S-M.); Acosta Decl. ¶ 75 (M.R.P.). This case therefore can immediately be distinguished from Fraihat, which certified a nationwide class that includes “[a]ll people who are detained in ICE custody who have one of the [CDC-recognized] Risk Factors placing them at heightened risk of severe illness and death upon contracting the COVID-19 virus.” 2020 WL 1932570, at *16. Arguably, the Fraihat plaintiffs at least all share a similar level of medical vulnerability to COVID-19, even if the underlying medical conditions causing
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that vulnerability are different.24 The same cannot be said of the proposed class here. Different risk levels may very well require different precautions. See, e.g., Money v. Pritzker, No. 20-CV2093, 2020 WL 1820660, at *15 (N.D. Ill. Apr. 10, 2020) (denying a motion to certify a class of inmates in state custody seeking release during the COVID-19 pandemic in part because “[e]ach putative class member comes with a unique situation,” including “different . . . age, medical history, places of incarceration, proximity to infected inmates, availability of a home landing spot, [and] likelihood of transmitting the virus to someone at home detention”); Derron B. v. Tsoukaris, No. 20-3679, 2020 WL 2079300, at *8 (D.N.J. Apr. 30, 2020) (noting in denying a TRO to release ICE detainees that “a petitioner’s individual circumstances (that is, his or her medical condition) are critical to the [due process] analysis”).
Plaintiffs’ contention that all transgender detainees are inherently more susceptible to COVID-19 is unsupported by the record. The CDC has not recognized being transgender as inherently raising an individual’s risk of contracting or of suffering serious complications from COVID-19. Lederman Decl. ¶¶ 11, 13; CDC, People Who Are at Higher Risk for Severe Illness (Apr. 15, 2020). And Plaintiffs’ allegation that transgender people, on average, are more likely to have the underlying conditions recognized by the CDC as increasing COVID-19 risk—such as
24 Plaintiffs also invoke Ferreyra v. Decker, No. 20 CIV. 3170 (AT), 2020 WL 1989417 (S.D.N.Y. Apr. 27, 2020). There, Judge Torres declined to sever a joint habeas petition by four detainees held across three New York facilities. Id. at *2. All four petitioners suffered from “chronic medical conditions” that put them at “imminent risk of serious injury or death if exposed to COVID-19.” Id. at *1. Judge Torres therefore noted that “the health risks posed by COVID-19 and the constitutional claims presented do not turn on facts unique to each Petitioner beyond their having preexisting conditions that make them vulnerable to the virus.” Id. at *2 (emphasis added). In any case, Judge Torres’s decision was made not under Rule 23, but pursuant to the court’s “inherent authority under the All Writs Act to fashion ‘expeditious methods of procedure in a specific case’” under habeas. Id. (citations omitted) (quoting United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125 (2d Cir. 1974)).
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HIV, hepatitis, diabetes, hypertension, and obesity—does not entitle all transgender detainees, many of whom are young and healthy, to heightened protection from COVID-19.
Even assuming that Plaintiffs have offered competent evidence to support their contention that transgender people are more likely than the general detainee population to have CDC risk factors, the Supreme Court has held that representative evidence is a “permissible method of proving classwide liability” only where “each class member could have relied on that sample to establish liability if he or she had brought an individual action.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1046–47 (2016) (emphasis added). Here, a plaintiff like C.G.B., who attests to having no underlying high-risk health condition, could not rely on evidence that only applies to those plaintiffs who do have high-risk health conditions to establish higher susceptibility to COVID-19 in an individual action. See In re Asacol Antitrust Litig., 907 F.3d 42, 56 (1st Cir. 2018) (noting “the core principle that class actions are the aggregation of individual claims, and do not create a class entity or re-apportion substantive claims”). At most, such evidence is only relevant to the claims of those who actually have underlying high-risk conditions. See generally In re Rail Freight Fuel Surcharge Antitrust Litig.-MDL No. 1869, 725 F.3d 244, 252 (D.C. Cir. 2013) (“[W]e do expect the common evidence to show all class members suffered some injury.” (emphasis added)). And, as Dr. Lederman has attested, “the detention status of any individual with co-morbidities or underlying conditions which present risk factors is already being reviewed [under Fraihat].” Lederman Decl. ¶ 18.
The same problem afflicts Plaintiffs’ contentions that transgender people are more vulnerable to COVID-19 because of an increased proclivity to “minority stress,” increased risk of contact through assault, increased interactions with medical staff due to the need to administer hormone therapy, and reduced access to healthcare due to an increased incidence of poverty.
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Gorton Decl. ¶ 10. The CDC does not recognize any of these conditions in and of themselves as risk factors for COVID-19. Lederman Decl. ¶ 10.25 Moreover, the Court is hard-pressed to see how these conditions are unique to transgender detainees: for example, a large proportion of civil immigration detainees—many of whom are asylum applicants who fled their home countries because of gang or domestic violence, discrimination, and other severe hardships—are probably prone to “minority stress.” In any case, evidence that minority stress, increased proclivity to assault, administering hormone therapy, or poverty increases susceptibility to COVID-19 only bears on the claims of the plaintiffs who actually exhibit these conditions. See Tyson Foods, 139 S. Ct. at 1046–47 (approving of reliance on classwide representative evidence only where “each class member could have relied on that sample to establish liability if he or she had brought an individual action” (emphasis added)). The plaintiffs who do not take hormone therapy, for example, cannot rely on evidence that administering the therapy increases vulnerability to COVID-19. And, the undisputed record shows that none of these factors are common to named Plaintiffs, let alone the entire putative class. See, e.g., 2d Malakhova Decl. ¶¶ 14–19 (C.G.B. does not take hormone therapy); A.F. Decl. ¶ 18 (same); K.R.H. Decl. ¶ 49 (same); Decl. of M.M.S-M. (“M.M.S-M. Decl.”) ¶ 8, TRO Mot., Exh. 3 (one of the three named Plaintiffs who claims to have been assaulted in ICE custody); 3d Decl. of K.R.H. (“3d K.R.H. Decl.”) ¶ 15,
25 Plaintiffs allege that hypercoagulability, the increased tendency for potentially fatal blood clots to form, is a common side effect of the hormone replacement therapy prescribed to transgender women and that hypercoagulability raises the likelihood of serious complications from COVID-19. Yet, the CDC does not identify hypercoagulability as a risk factor for complications from COVID-19. CDC, People Who Are at Higher Risk for Severe Illness (Apr. 15, 2020). Moreover, that proposition is disputed in the record. Compare 2d Decl. of R. Nick Gorton ¶ 7, TRO Mot., Exh. 6, with 2d Decl. of Captain Edith Lederman ¶ 4, Supp. TRO Opp., Exh. 9. The Court is not equipped, particularly given the expedited nature of these proceedings, to evaluate the testimony of dueling medical experts at this juncture.
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Joinder Mot., Exh. 9 (same); 2d Decl. of K.S. (“2d K.S. Decl.”) ¶ 42, TRO Reply, Exh. 2 (same).26
Moreover, the putative class members differ along another dimension: they are widely dispersed across the country at various detention centers. By contrast, except for Fraihat, the classes provisionally certified by courts in other COVID-19 related cases cited by Plaintiffs contain detainees from only one or two local facilities. See, e.g., Savino v. Souza (“Savino I”), No. CV 20-10617-WGY, 2020 WL 1703844, at *8 (D. Mass. Apr. 8, 2020) (provisionally certifying a habeas class action of ICE detainees at one detention center); Zepeda Rivas v. Jennings, No. 20-CV-02731-VC, 2020 WL 2059848, at *1 (N.D. Cal. Apr. 29, 2020) (provisionally certifying a habeas class action of ICE detainees at two facilities); Provisional Class Cert. Order, Roman v. Wolf, No. EDCV-20-00768 (TJH) (PVCX) (C.D. Cal. Apr. 23, 2020) (provisionally certifying a habeas class action of ICE detainees at one detention center); Gomes v. DHS, No. 20-CV-453-LM, 2020 WL 2113642, at *2 (D.N.H. May 4, 2020) (provisionally certifying a habeas class action of ICE detainees at one detention center). In those cases, the common question whether “facility-wide failure or inability to facilitate social distancing at [the one facility] violates the[] [plaintiffs’] Fifth Amendment Due Process rights” might be susceptible to a common answer. Gomes, 2020 WL 2113642, at *2 (emphasis added). But here, proof that, say, the La Palma Detention Center is inadequately implementing social
26 The Court does not discount transgender detainees’ susceptibility to experiencing verbal abuse and even physical assaults by other detainees, which could come at close quarters. But the Court cannot order classwide release of all transgender detainees in ICE custody on this basis alone, particularly where, by the Court’s count, only three of the ten named Plaintiffs even allege to have experienced such assaults. M.M.S-M. Decl. ¶ 8; 3d K.R.H. Decl. ¶ 15; 2d K.S. Decl. ¶ 42. Further, the Court is confident that every Detention Center forbids physical and sexual assault, and Plaintiffs do not challenge ICE’s policies concerning the treatment and protection of transgender detainees in general.
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distancing measures sheds little light on the situation at Nevada Southern. See Walsh v. Ford Motor Co., 807 F.2d 1000, 1017 (D.C. Cir. 1986) (noting the lack of “strong indications that major factual issues in each class member’s claim in this lawsuit are identical or virtually so” (internal quotation marks omitted)). Cf. Lewis v. Casey, 518 U.S. 343, 358 (1996) (holding that an illiterate prisoner could not bring claims on behalf of a class seeking injunctions “directed at special services or special facilities required by non-English speakers, prisoners in lockdown, or the inmate population at large” because those claims were unrelated to the inability to read legal materials). Put simply, Plaintiffs’ claims are not “susceptible to generalized, class-wide proof.” Tyson Foods, 136 S. Ct. at 1045 (internal quotation marks omitted).
Finally, as the Government points out, whether the Court has jurisdiction to issue the primary relief sought—an injunction ordering the release of all transgender detainees in ICE custody—raises thorny, individualized questions that are not common to the class. “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Wal-Mart, 564 U.S. at 360 (emphasis added); see Fed. R. Civ. P. 23(b)(2) (requiring that “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole” (emphasis added)). Here, the putative class members are detained pursuant to different provisions of the INA, including 8 U.S.C. § 1226(c), which mandates detention of noncitizens who have been convicted of certain crimes. See, e.g. 2d Cantrell Decl. ¶¶ 53–55 (K.M. held under § 1226(c)). The Court’s jurisdiction to order release may depend on each noncitizen’s posture “within this statutory scheme,” which determines “whether detention is mandatory or discretionary as well as the process available for contesting
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his or her detention.” Ramirez v. ICE, 338 F. Supp. 3d 1, 45 (D.D.C. 2018).27 The Court’s uncertainty about its authority to issue “an indivisible injunction benefiting all its members at once” is another reason to decline class certification. Wal-Mart, 564 U.S. at 362 (emphasis added); see also Jennings, 138 S. Ct. at 852 (directing the Court of Appeals to consider on remand “whether a Rule 23(b)(2) class action continues to be the appropriate vehicle” in light of its “acknowledge[ment] that some members of the certified class may not be entitled to bond hearings as a constitutional matter”); Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 499 (7th Cir. 2012) (holding that Rule 23(b)(2) is not satisfied where “the relief sought would merely initiate a process through which highly individualized determinations of liability and remedy are made”); Money, 2020 WL 1820660, at *15 (declining to certify a class of inmates seeking release during the COVID-19 pandemic in part “because th[e] standards [for release] largely are governed by the various state statutes authorizing different forms of release, which then are subject to wide discretion in their application”).
At bottom, to resolve Plaintiffs’ due process claims, the Court must look not just “at each class member and each facility individually” but “at the intersection of both at an individual level.” Class Cert. Opp. 17. Plaintiffs have not identified—and the Court is not aware of—any authority that granted certification of a nationwide class whose members differ both in levels of medical susceptibility to COVID-19 and conditions of confinement at various facilities. In other
27 The Ramirez class sought an injunction ordering ICE to comply with 8 U.S.C. § 1232(c)(2)(B) in determining whether to transfer unaccompanied minor noncitizens to adult detention facilities. 338 F. Supp. 3d at 17. Judge Contreras held that differences among the class “in procedural postures and in the authority under which individuals are detained” did not defeat commonality because the agency’s obligation to comply with § 1232(c)(2)(B) “arises upon their transfer to DHS custody and does not turn on the statutory authority under which a particular former unaccompanied minor is detained.” Id. at 45–46. Here, by contrast, an injunction ordering Plaintiffs’ release certainly implicates the INA’s detention provisions.
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words, “the permutations here are endless” and “rarely, if ever, will any two plaintiffs be alike on the factors that matter at the point of decision.” Money, 2020 WL 1820660, at *15. The putative class therefore fails to meet the commonality prong of Rule 23.
b. Adequacy These differences among the putative class also implicate another prong of Rule 23(a)— adequacy. The adequacy requirement “serves to uncover conflicts of interest between named parties and the class they seek to represent.” Hoyte, 325 F.R.D. at 490 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997)) (internal citation omitted). Adequacy is particularly important for a Rule 23(b)(2) class because members of such a class have “no opportunity . . . to opt out” and no entitlement to “notice of the action.” Wal-Mart, 564 U.S. at 362. Moreover, certification of a 23(b)(2) class precludes individual suits for the same injunctive or declaratory relief. See, e.g., United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1538 (2018) (noting that unnamed class members “may be ‘bound by the judgment’” in a class action (quoting Devlin v. Scardelletti, 536 U.S. 1, 7, 9–10 (2002)); McNeil v. Guthrie, 945 F.2d 1163, 1165–66 (10th Cir. 1991) (“Individual suits for injunctive and equitable relief from alleged unconstitutional prison conditions cannot be brought where there is an existing class action.”); Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir. 1988) (“To allow individual suits would interfere with the orderly administration of the class action and risk inconsistent adjudications.”). Here, certification of the proposed nationwide class would bind all transgender detainees to the Court’s resolution of issues arising from a rapidly evolving health crisis. Given the differences among the named plaintiffs and unnamed plaintiffs (and for that matter, among the named plaintiffs themselves) with respect to their conditions of confinement, health conditions, and suitability for parole, certifying such a broad class poses “potential unfairness to the
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[unnamed] class members bound by the judgment.” Falcon, 457 U.S. at 161.28 As the Government points out, the merits of all class members’ claims would necessarily be decided based on the evidence developed by the named plaintiffs, who are housed only at five detention centers. Were the Court to certify a class and conclude, based on evidence presented from those five facilities alone, that ICE’s national response to COVID-19 is constitutionally sufficient, that judgment would bind transgender detainees held across all detention centers, even those who may potentially be experiencing far worse conditions of confinement or have a higher level of susceptibility to COVID-19 than the named plaintiffs. See, e.g., Duong v. Jennings, No. 20-CV02864-RMI, 2020 WL 2524252, at *1 (N.D. Cal. May 18, 2020) (finding two individual petitioners’ habeas petitions to be “duplicative” of a pending class action challenging ICE’s response to COVID-19); Calderon v. Barr, No. 220CV00891KJMGGH, 2020 WL 2394287, at *5 (E.D. Cal. May 12, 2020), report and recommendation adopted, No. 2:20-CV-00891-KJMGGH-P, 2020 WL 2543805 (E.D. Cal. May 19, 2020) (same). The Court therefore struggles to see, given the rapidly changing and varied nature of the COVID-19 pandemic and ICE’s response to it, how the named plaintiffs could be said to adequately represent the interests of unnamed plaintiffs. See, e.g., Califano, 442 U.S. at 702 (noting that “nationwide class actions may have a detrimental effect by foreclosing adjudication by a number of different courts and judges” and “[i]t often will be preferable to allow several courts to pass on a given class claim in
28 The risk of potential unfairness is even greater for the putative class members who are future detainees. See, e.g., Savino I, 2020 WL 1703844, at *8 (declining to “include possible future detainees in th[e] class” because “the situation is rapidly evolving and future detainees may well be subject to different confinement conditions than those now obtaining” and therefore “it may be that the named representative cannot ‘fairly and adequately protect the interests’ of those future detainees” (quoting Fed. R. Civ. P. 23(a)(4)).
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order to gain the benefit of adjudication by different courts in different factual contexts”); Shvartsman v. Apfel, 138 F.3d 1196, 1201 (7th Cir. 1998) (upholding the district court’s decision not to certify a nationwide class in part because of “the range in [the agency’s conduct] across different geographic regions”).29
B. Joinder Plaintiffs also move to join two new plaintiffs in this suit: M.I.M.M., a transgender woman detained at the Otay Mesa Detention Center in San Diego, California, and Y.Z., a transgender woman detained at the Imperial Regional Detention Facility in Calexico, California. Federal Rule of Civil Procedure 20(a) permits plaintiffs to join in one action if: “(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P. 20(a)(1). To satisfy the first prong of Rule 20(a)(1)—that claims arise out of the same “transaction, occurrence, or series of transactions or occurrences”—the movant must show that the claims are “logically related.” Montgomery v. STG Int’l, Inc., 532 F. Supp. 2d 29, 35 (D.D.C. 2008). While the logical relationship test is flexible, it requires that the moving party show that there is “substantial evidentiary overlap in the facts giving rise to” each plaintiffs’ claim. In re EMC Corp., 677 F.3d 1351, 1358 (Fed. Cir. 2012). Stated differently, Plaintiffs’ claims “must share
29 The Government also points out that the “one-size-fits-all” nature of the injunction sought by Plaintiffs presumes that release would be the safest option for all putative class members. Class Cert. Opp. 23–24. Whether that is in fact the case, however, depends on each individual’s access to space, resources, and healthcare outside of detention, as well as her ability to travel to her host destination and the conditions she will face there. It thus cannot be said that “one [plaintiff’s] choice has no necessary effect on the care given to another [plaintiff].” J.D. v. Azar, 925 F.3d 1291, 1314 (D.C. Cir. 2019). “The remedy sought by the class” could in fact have “a deleterious effect on the care received by absent class members.” Id.
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an aggregate of operative facts.” Id. The movant, therefore, “cannot join parties ‘who simply engaged in similar types of behavior . . . [but are] otherwise unrelated[.]’” Pinson v. DOJ, 74 F. Supp. 3d 283, 289 (D.D.C. 2014) (quoting Spaeth v. Mich. St. Univ. College of Law, 845 F. Supp. 2d 48, 53 (D.D.C. 2012)) (second alteration in original). To satisfy the second prong of Rule 20(a), the movant need only show that there is “some common question of law or fact as to all of the plaintiffs’ claims[.]” Disparte v. Corp. Exec. Bd., 223 F.R.D. 7, 11 (D.D.C. 2004) (emphasis added). It does not require “that all legal and factual issues be common to all the plaintiffs.” Id. (emphasis added).
For courts applying Rule 20, “the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966). “But this application, however liberal, is not a license to join unrelated claims and defendants in one lawsuit.” McKinney v. Prosecutor’s Office, No. 13-2553, 2014 WL 2574414, at *14 (D.N.J. June 4, 2014) (internal quotation marks omitted). A district court has broad discretion in deciding whether to join a party pursuant to Rule 20. “Even if the requirements of Rule 20(a) are met, the final decision to sever [or join] claims remains with the court.” Pasem v. U.S. Citizenship & Immigration Servs., No. 20-CV-344 (CRC), 2020 WL 2514749, at *4 (D.D.C. May 15, 2020) (Cooper, J.) (quoting Pinson, 74 F. Supp. 3d at 289).
Applying this framework here, the Court concludes that Plaintiffs fail to satisfy the first prong of Rule 20(a). M.I.M.M.’s and Y.Z.’s claims fail the logical relationship test because there is not “substantial overlap in the facts” giving rise to their claims and the existing plaintiffs’ claims. In re EMC Corp., 677 F.3d at 1358. As discussed above, the merits of each Plaintiffs’ Fifth Amendment and APA claims are context-dependent. By and large, M.I.M.M. and Y.Z.’s
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claims require entirely different proof from each other and from the existing plaintiffs: they are held in different detention centers than the existing plaintiffs (and different detention centers than each other), have experienced different treatment during their time in detention, and have different medical histories. To be sure, both M.I.M.M. and Y.Z. are transgender women detained by ICE, like the named Plaintiffs. But—for the same reasons the Court explained in connection in connection with the class certification inquiry—that superficial level of similarity does not satisfy Rule 20(a). See McKinney, 2014 WL 2574414, at *15 (“The courts . . . have frowned on prisoners’ attempts to lump together their multifarious grievances about life in a single prison, let alone multiple prisons.”); Jones v. Wexford Health Sources, Inc., Civ. A. No. 19-00386, 2019 WL 6080202, *2 (S.D. Ill. Nov. 15, 2019) (severing claims because “actions taken by different officials at different prisons do not constitute the same series of transactions and occurrences”); Kokinda v. Penn. Dep’t of Corr., 663 F. App’x 156, 158–59 (3d Cir. 2016) (affirming severance of claims related to the events occurring at different prisons). Because Plaintiffs fail to satisfy the first prong of Rule 20(a), they may not join M.I.M.M. and Y.Z. in this action. The Court need not consider the second prong of the rule.
C. Motion for Temporary Restraining Order Having limited the suit to the ten Plaintiffs named in the complaint, the Court now considers the merits of their motion for a temporary restraining order. The Complaint presents three distinct legal grounds for ordering Plaintiffs’ immediate release and the other declaratory and injunctive relief they seek. Specifically, Plaintiffs allege that ICE’s failures to implement adequate COVID-19 prevention measures: (1) violate their due process rights under the Fifth Amendment; (2) are contrary to law under the APA; and (3) warrant a writ of mandamus.
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1. Due Process Claim The thrust of Plaintiffs’ due process claim is that ICE has failed to take constitutionally adequate measures to protect transgender detainees from COVID-19, which has resulted in their continued detention under conditions that violate the Due Process Clause.
a. Likelihood of Success on the Merits When the Government “takes a person into its custody and holds [her] there against [her] will, the Constitution imposes upon it a corresponding duty to assume some responsibility for [her] safety and general well-being[.]” DeShaney v. Winnebago Cnty. Dep’t. of Social Serv., 489 U.S. 189, 199–200 (1989). Confinement of a person in a way that “renders [her] unable to care for [her]self, and at the same time fails to provide for [her] basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety” violates the Eighth Amendment to the Constitution. Id. Accordingly, the Eighth Amendment prohibits the Government from “ignor[ing] a condition of confinement that is sure or very likely to cause serious illness.” Helling v. McKinney, 509 U.S. 25, 33 (1993). While civil immigration detainees are protected by the Fifth Amendment’s Due Process Clause, these Eighth Amendment protections nevertheless apply to them “because a [civil] detainee’s rights are ‘at least as great as the Eighth Amendment protections available to a convicted prisoner.’” Jones v. Wolf, No. 20-CV-361, 2020 WL 1643857, at *3 (W.D.N.Y. Apr. 2, 2020) (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)). To assess whether conditions of confinement violates due process, courts consider whether the conditions “amount to punishment of the detainee.” Bell, 441 U.S. at 535. Because civil immigration detainees, like pretrial criminal detainees, have not been convicted of any present crime, they “may not be subjected to punishment of any description.” Hardy v. District
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of Columbia, 601 F. Supp. 2d 182, 188 (D.D.C. 2009) (quoting Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992)).30
In determining whether conditions of confinement amount to punishment, “[a] court must
decide whether the disability is imposed for the purpose of punishment or whether it is but an
incident of some other legitimate governmental purpose.” Bell, 441 U.S. at 538. Plaintiffs do
not make “a showing of an expressed intent to punish on the part of detention facility officials.”
Id. (internal quotation marks omitted). The relevant inquiry, then, is whether the Plaintiffs’
confinement conditions are “rationally related to a legitimate nonpunitive governmental purpose
or . . . appear excessive in relation to that purpose.” Kingsley, 135 S. Ct. at 2373–74 (quoting Bell, 441 U.S. at 538).31
30 The Government contends that noncitizen immigration detainees are entitled to lesser due process protections than citizens. TRO Opp. 15. The Court is deeply skeptical of that contention. See, e.g., E.D. v. Sharkey, 928 F.3d 299, 306–07 (3d Cir. 2019) (holding that a civil immigration detainee is entitled to the “same due process protections” as a citizen pretrial detainee); Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000) (“We consider a person detained for deportation to be the equivalent of a pretrial detainee; a pretrial detainee’s constitutional claims are considered under the due process clause instead of the Eighth Amendment.”). For purposes of this analysis, the Court assumes that Plaintiffs are entitled to the same substantive due process rights as citizens.
31 The parties dispute whether the standard for sustaining a conditions-of-confinement claim under the Fifth Amendment Due Process Clause is the same as the Eighth Amendment excessive punishment standard. The Government maintains that Plaintiffs are required to show that government officials imposed a punitive conditions of confinement with “deliberate indifference” to the risks posed by such confinement. Plaintiffs respond that the standard is purely objective—i.e., they need only show that the conditions of confinement are not reasonably related to a legitimate governmental objective or is excessive in relation to the legitimate governmental objective.
In Kingsley, the Supreme Court construed Bell v. Wolfish in determining the standard that applies to a pre-trial detainee’s claim of excessive force. Although a post-conviction detainee is required to show deliberate indifference to the force used against her, a preconviction detainee, who may not be constitutionally subjected to punishment before a
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The Government plainly has a legitimate interest in the enforcement of immigration laws, which is furthered by detaining certain noncitizens. See, e.g., Landon v. Plasencia, 459 U.S. 21, 34 (1982) (characterizing “[t]he government’s interest in efficient administration of the immigration laws at the border” as “weighty”); Jorge V.S. v. Green, No. 20-3675, 2020 WL 1921936, at *2–4 (D.N.J. Apr. 21, 2020) (“[I]mmigration detention is clearly reasonably related to a legitimate government interest—the Government’s interest in securing those subject to removal proceedings pending the conclusion of those proceedings in order to ensure they do not abscond and that they attend those proceedings while also ensuring they are not a danger to the community in the meantime.”). Congress has recognized that the Government’s interest in detaining noncitizens who have been convicted of certain crimes or are subject to certain proceedings is so strong that it has made their detention mandatory. Compare 8 U.S.C. §§ 1225(b)(1)(B)(iii)(IV), 1226(c)(1) & 1231(a)(2) (mandating detention), with id. § 1226(a) (committing detention or parole determinations to DHS’s discretion).
conviction, need only show that the force used was objectively unreasonable. Does Kingsley apply here? While the D.C. Circuit has not addressed the issue, “many circuit courts have extended Kingsley’s objective standard to apply to . . . due process claims by pre-trial detainees.” Banks v. Booth, No. CV 20-cv-849 (CKK), 2020 WL 1914896, at *6 (D.D.C. Apr. 19, 2020); see, e.g., Darnell v. Pineiro, 849 F.3d 17, 35–36 (2d Cir. 2017) (applying Kingsley to a due process challenge to prison conditions for pre-trial detainees); Hardeman v. Curran, 933 F.3d 816, 822–23 (7th Cir. 2019) (applying Kingsley’s objective standard to “Fourteenth Amendment conditions-of-confinement claims brought by pretrial detainees”); Castro v. County of Los Angeles, 833 F.3d 1060, 1069–70 (9th Cir. 2016) (applying Kingsley to failure- to-protect claims brought by pre-trial detainees). At least two district courts in this jurisdiction have extended Kingsley to due process claims brought by pre-trial criminal detainees. See, e.g., Banks, 2020 WL 1914896, at *5–6; United States v. Moore, Case No. 18-cr-198 (JEB), 2019 WL 2569659, at *2 (D.D.C. June 21, 2019). The Court is persuaded, both by the language of Kingsley and by its fellow courts, to apply the Kingsley standard here as well. Accordingly, Plaintiffs need not prove deliberate indifference.
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Notwithstanding these substantial interests, several courts outside of this jurisdiction have concluded that the continued detention of medically vulnerable civil immigration detainees during the COVID-19 pandemic can constitute a violation of due process if such confinement is excessive in relation to the Government’s interests in protecting the community and ensuring noncitizens’ future attendance at immigration proceedings. See, e.g., Favi v. Kolitwenzew, No. 20-CV-2087, 2020 WL 2114566, at *12 (C.D. Ill. May 4, 2020); Pimentel-Estrada v. Barr, No. C20-495 RSM-BAT, 2020 WL 2092430, at *15–16 (W.D. Wash. Apr. 28, 2020); Bent v. Barr, No. 19-CV-06123-DMR, 2020 WL 1812850, at *6 (N.D. Cal. Apr. 9, 2020); Castillo v. Barr, No. 20-CV-00605-TJH (AFMx), 2020 WL 1502864, at *5–6 (C.D. Cal. Mar. 27, 2020); Valenzuela Arias v. Decker, No. 20-CV-2802 (AT), 2020 WL 1847986, at *6 (S.D.N.Y. Apr. 10, 2020). This Court concurs in that conclusion.
Even Plaintiffs must acknowledge, however, that “the Constitution does not require that detention facilities reduce the risk of harm to zero.” Benavides v. Gartland, Civ. A. No. 20-46, 2020 WL 1914916, at *5 (S.D. Ga. Apr. 18, 2020); see also Dawson v. Asher, Civ. A. No. 200409, 2020 WL 1704324, at *12 (W.D. Wash. Apr. 8, 2020). If it did, then any detention that does not allow detainees to perfectly practice social distancing would be per se unconstitutional. Rather, due process only requires the Government to provide detainees with “reasonable safety,” not perfect safety. DeShaney, 489 U.S. at 200 (emphasis added). Plaintiffs do not articulate precisely what “reasonable safety” means in the context of detention during a global pandemic. For the most part, Plaintiffs seem to hold the PRR as the constitutional minimum of “reasonable
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safety.”32 By failing to abide by the PRR, Plaintiffs maintain, ICE has violated the due process rights of all transgender detainees. Plaintiffs’ argument is based on the Accardi doctrine, which, as the Court will later explain in more detail, “stand[s] for the proposition that agencies may not violate their own rules and regulations to the prejudice of others.” Battle v. FAA, 393 F.3d 1330, 1336 (D.C. Cir. 2005) (citing United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954)). But, Accardi “enunciates[s] principles of federal administrative law rather than of constitutional law.” Bd. of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78, 92 n.8 (1978); see also Vanover v. Hantman, 77 F. 2d 91, 103 (D.D.C. 1999), aff’d, 38 F. App’x 4 (D.C. Cir. 2002) (“Accardi is based on administrative law principles, not constitutional due process requirements.”). In other words, “a violation under the Accardi doctrine is not always equivalent to a constitutional violation of due process.” Id.; see also 1 Admin. L. & Prac. § 4:22 (3d ed.) (“[E]ven though some language in Accardi suggests otherwise, an agency’s failure to follow a rule is not a due process violation.”). Therefore, the fact that ICE may not have implemented a small measure of the PRR does not automatically establish that the Plaintiffs’ constitutional rights have been violated.
In any case, the Court will follow the parties’ lead and assess the Plaintiffs’ due process claims in relation to the PRR. The Court is convinced that ICE’s capacity reductions and substantial compliance with the PRR would suffice to provide most people in civil immigration
32 At the same time, Plaintiffs seem to suggest that more is required of ICE than mere compliance with the PRR with respect to transgender detainees. In Plaintiffs’ view, ICE’s failure to implement additional, specific protections for transgender detainees violates their due process rights. Yet, Plaintiffs do not specify what those measures are. As the Court explained in denying class certification, supra pp. 35–38, Plaintiffs have not shown that transgender people are inherently more vulnerable to contracting or suffering serious symptoms of COVID-19. It is therefore unlikely that due process requires additional protections for transgender detainees.
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detention—certainly young and healthy ones—with at least a reasonable degree of safety. See DeShaney, 489 U.S. at 200. Developed in consultation with the CDC and tailored to the realities of congregate facilities, the PRR include all of the presently-known best practices for containing the spread of COVID-19, including that: detainees and staff should wear face coverings and maintain good hand hygiene; commonly touched surfaces should be cleaned multiple times a day; incoming detainees and staff should be screened for symptoms of COVID-19; social distancing should be practiced to the greatest extent possible; and detainees who exhibit symptoms of COVID-19 should be isolated and given appropriate medical care. PRR 7–13. Detention of individuals in facilities abiding by the PRR would not “amount to punishment” in most cases. Bell, 441 U.S. at 535. Rather, detention under such conditions would simply be incident to the Government’s legitimate interest in detaining certain immigrants in connection with the enforcement of the immigration laws.
In sum, due process requires evaluation of conditions of confinement on a sliding scale. In the COVID-19 context, the Court must consider, at a minimum, an individual detainee’s age and specific health conditions, the conditions at her detention facility, and the legal basis and factual circumstances of her detention. Under this standard, for example, an elderly detainee who has serious pre-existing health conditions, is held at a facility that is flagrantly disregarding the PRR, and has not committed a crime that subjects her to mandatory detention has a much stronger likelihood of establishing a due process violation than a young detainee who is generally healthy, is held a facility that is largely complying with the PRR, and is subject to mandatory detention due to commission of a serious criminal offense. The Court will therefore consider, facility-by-facility, the due process claims of each named Plaintiff.
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i. Florence C.G.B., the only named Plaintiff at Florence, fails to establish a likelihood of success on the merits of her Fifth Amendment claim. The Government’s declarants, who, again, are entitled to a presumption of good faith, see SafeCard Servs., 926 F.2d at 1200; California, 2020 WL 1643858, at *11, attest that Florence is, by and large, implementing the PRR. See 2d Malakhova Decl. ¶¶ 9–11, 14–17; Cantú Decl. ¶¶ 8, 12, 15, 20. Given that both the facility as a whole and C.G.B.’s individual unit are at just 55% capacity, the Court credits the Government’s evidence that social distancing is feasible and that ICE officials are doing their best to implement it at Florence. Cantú Decl. ¶¶ 5, 14. Moreover, the incidence of COVID-19 at the detention center is low and presently controlled: Of the 216 detainees, just 12 have contracted COVID-19 and all have recovered. 2d Malakhova Decl. ¶ 18. Further, although C.G.B. is held pursuant at DHS’s discretion under 8 U.S.C. § 1226(a), she has not shown that she is particularly vulnerable to COVID-19, given that she is young and does not have any serious underlying health conditions. Indeed, pursuant to Fraihat, ICE evaluated C.G.B. and determined that she does not qualify for the class of high-risk detainees in that case. Cantú Decl. ¶ 23. That is not to diminish the gravity of certain aspects of C.G.B.’s allegations. To recap, she contends that on April 2, 2020, the person sleeping above her started experiencing COVID19-like symptoms. C.G.B. Decl. ¶ 7. Her bunkmate, who had not initially been informed about how to request medical care, eventually requested a medical appointment with the help of fellow detainees and received care on April 7. Id. At that point, according to C.G.B., her bunkmate met with a doctor, who then sent him back to general population, where he continued to cough for days. On April 9, C.G.B. developed what she perceived to be symptoms of COVID-19, including a fever, vomiting, and pain in her throat and head. Id. ¶ 8. That day, C.G.B. was seen
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by a nurse, tested for COVID-19, and then placed in a cohort with other people showing symptoms of COVID-19. Id. ¶ 9. On April 29, C.G.B.’s cohort was placed back in the general population—but without first receiving renewed testing. 2d Decl. of C.G.B. (“2d C.G.B. Decl.”) ¶ 5, TRO Reply, Exh. 1.
These experiences, which reflect several violations of the PRR, are concerning, but nevertheless are unlikely to establish unconstitutional conditions of confinement. First, two of the most serious alleged lapses—the delay in treating and testing C.G.B.’s bunkmate and the failure to isolate him—occurred in early April, before the PRR were issued and implemented. Based on the Government’s more recent declarations, and the demonstrated containment of COVID-19 at Florence, the Court is persuaded that the officials at Florence have likely remedied these shortcomings. That explanation cannot, however, account for ICE’s alleged failure on April 29 to test those in the suspected COVID-19 cohort before returning them to the general population. The PRR plainly require facilities to isolate suspected COVID-19 cases. Florence officials may well have violated that requirement if some members of the suspected COVID-19 cohort had active infections but were allowed to return to the general population without a confirming test. That singular allegation, however, is insufficient to establish a likelihood of succeeding on the merits given C.G.B.’s generally good health and the Government’s declarations detailing ICE’s sustained efforts to comply with the PRR, both generally and at Florence.33
33 Plaintiffs urge the Court to disregard the Government’s declarations as inadmissible because the declarants purportedly lack factual bases for their testimony regarding the conditions at each facility. For example, Plaintiffs challenge the competency of Dr. Malakhova’s declaration because her testimony is based in part on her review of records and policies rather than on-the-ground, first-hand observations of the facilities. The Court will consider the
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ii. La Palma The Court next considers the due process claims of A.F. and K.R.H., the two detainees at La Palma. Here too, the record is replete with evidence, in the form of declarations from ICE officials, describing La Palma officials’ diligent efforts to implement the PRR. See 2d Ciliberti Decl. ¶¶ 11–22, 32, 34, 37. La Palma is operating at just 47% capacity. Id. ¶ 11. While 53 detainees have tested positive for COVID-19, that figure represents just 3.5% of the 1,531 detainees there. Id. ¶¶ 11, 35. The majority of those detainees—some 34 people—have recovered, while another 19 are receiving treatment. Id. Against that backdrop, A.F. is unlikely to establish that the conditions of her confinement at La Palma amount to punishment. To be sure, A.F.’s declaration from April 21, 2020 identifies a number of deficiencies in La Palma’s implementation of the PRR, including that she was still eating meals in group of 100 people in the cafeteria, was not given information about COVID19, had to wait a week after developing flu-like symptoms to get tested, and was not given free access to soap. A.F. Decl. ¶¶ 9, 12, 15–16, 19. However, the Court credits the more recent agency declaration proffered by the Government, which attests that A.F. now receives her meals in her unit, is given relevant information about how to protect herself from COVID-19, has timely access to medical care, and has free access to soap in the form of an all-in-one, body wash-shampoo product. 2d Ciliberti Decl. ¶¶ 17, 22, 37, 41. Moreover, it is undisputed that
declarations. Declarants need not limit their testimony to topics within their direct observation; they are generally permitted to rely on knowledge gained from their own review of documents. See generally United States v. Caballero, 277 F.3d 1235, 1247 (10th Cir. 2002) (holding that testimony from agents as to “relevant, readily-understandable INS procedures or operations of which they had firsthand knowledge” was admissible). Any gaps in the witness’ direct personal observation, which the Court has considered, go to the weight of their declarations, not their admissibility.
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A.F. sleeps alone in a single cell, which further reduces her risk of exposure. Id. ¶¶ 12, 14. A.F. is held at DHS’s discretion under 8 U.S.C. § 1226(a). Lopez Decl. ¶ 4. As for health conditions, A.F. asserts that she was born with a single kidney, although she has not offered evidence to that effect. Assuming that is true, however, she is nevertheless not entitled to release as she has not presented evidence that lack of a kidney is linked to COVID-19 vulnerability (apart, perhaps, from having to use a communal restroom more frequently) and the condition is not a CDCidentified risk factor. She is also young and otherwise healthy. 2d Ciliberti Decl. ¶ 46. For those reasons, ICE has determined that she is not part of the Fraihat high-risk class. Id. ¶ 47. Accordingly, the Court concludes that based on this record, A.F. has failed to establish a likelihood of success on the merits.
By contrast, K.R.H., who is housed in a different unit in La Palma than A.F., has established a likelihood of success on the merits based on the present record before the Court. Although La Palma overall is operating at 47% overall capacity, K.R.H.’s unit is at 77%— slightly above the PRR’s recommendation of 75%. Id. ¶ 15. Further, unlike A.F., K.R.H. shares her cell with another transgender detainee. Id. Significantly, K.R.H. disputes the Government’s assertions regarding social distancing. She attests that because everyone in her unit eats at the same time, she sits at a table with five to eight other people, “with everyone shoulder-toshoulder.” 3d K.R.H. Decl. ¶ 10. Along those same lines, she says that anytime she waits in line, as she does to use the telephone or to receive food, she is forced to stand within six feet of other detainees. Id. ¶ 11. While the Constitution does not demand perfect adherence to the sixfeet rule, K.R.H.’s experiences are concerning, particularly because the overall facility is operating at 47% capacity. Based on that figure, the Court infers that it would be possible to further disperse the detainees in a way that would better enable social distancing, particularly at
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meal times. Indeed, the PRR suggest that detention centers stagger meal times in order to prevent the exact problem described by K.R.H. Although these discrepancies may not have been insufficient for a perfectly healthy detainee, K.R.H. suffers from mild asthma and tachycardia, a heart condition. Further strengthening her case, she is detained at DHS’s discretion pursuant to 8 U.S.C. § 1226(a). In light of all of these factors, and while the question is a close one, the Court concludes on the present record that K.R.H. is likely to establish success on her Fifth Amendment claim.
iii. Nevada Southern Turning to Nevada Southern, where K.S. and K.M. are detained, the Court finds that both detainees have established a likelihood of success on the merits of their due process claims. On the one hand, the Court notes that both K.M. and K.S. are subject to mandatory detention. Further, there is considerable evidence from the Government that Nevada Southern is attempting to implement and comply with the PRR. Of note, the unit where both plaintiffs are housed is operating at around 39% capacity and each detainee sleeps alone on a two-person bunk bed, which K.M. and K.S. corroborate. 3d Decl. of K.M. (“3d K.M. Decl.”) ¶¶ 6, 9, Joinder Mot., Exh. 6; 3d Decl. of K.S. (“3d K.S. Decl.”) ¶ 9, Joinder Mot., Exh. 4. On the other hand, K.M. and K.S. are HIV positive and allege that they do not receive their antiretrovirals at the same time each day, which reduces the efficacy of those medications, making it more likely that their HIV infections become uncontrolled and therefore experience severe consequences from COVID-19. K.M. Decl. ¶¶ 10, 14; K.S. Decl. ¶¶ 9, 13. Further, although the Court finds the Government’s declarants generally credible, K.M. and K.S. have submitted consistent declarations that contradict the Government’s account of the conditions at Nevada Southern. Namely, they attest that the detainees continue to eat their meals all together, sitting one foot
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away from other detainees, 3d K.M. Decl. ¶ 18; 3d K.S. Decl. ¶ 16; that all detainees line up for meals with just one foot of space between each person, 3d K.M. Decl. ¶ 24; 3d K.S. Decl. ¶ 26; that the bathroom is shared by some 40 people, but is cleaned just once per day, 3d K.M. Decl. ¶ 19; 3d K.S. Decl. ¶ 18; that the detainees share a single water foundation, which is cleaned infrequently, 3d K.M. Decl. ¶ 23; 3d K.S. Decl. ¶ 23; and that it takes two to three weeks to receive medical care, 3d K.M. Decl. ¶ 26; 3d K.S. Decl. ¶ 28. Further, the agency declarant admits that not a single detainee at Nevada Southern has been tested for COVID-19. 2d Cantrell Decl. ¶ 40. While the lack of testing could indicate that no detainees have displayed symptoms and the facility is relatively free of the virus, it could just as easily confirm K.M. and K.S.’s allegation that medical care at Nevada Southern is unduly delayed. Although the issue is close and may well come out differently with the benefit of additional evidence, given K.M. and K.S.’s HIV-positive status, the Court concludes that they have established a likelihood of success on the merits of their due process claims.
iv. Aurora The Court next considers the four detainees housed at Aurora—D.B.M.U., M.J.J., M.M.S-M., and L.M. None have established a likelihood of success on the merits of their due process claims. To start, Aurora is currently operating far below its total capacity, at 41%. 2d Davies Decl. ¶ 6. Of the ten detainees who have been tested for COVID-19, only one has tested positive and is currently in medical isolation. Id. ¶ 18. This suggests that the facility has been successful in curbing the spread of the disease. Further, none of the named plaintiffs at Aurora allege that they have high-risk factors, and two plaintiffs, M.J.J. and D.B.M.U., are subject to mandatory detention under 8 U.S.C. § 1225(b). Most significantly, the agency’s attestations that the facility is ardently working to implement the PRR are largely corroborated by Plaintiffs’
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most recent declarations. Specifically, D.B.M.U., M.J.J., and M.M.S-M. all live in the same unit, which is at only 33% capacity. 2d Davies Decl. ¶¶ 48, 57, 66. ICE’s declarant attests—and Plaintiffs corroborate—that “[i]t is easy [for detainees] to wash [their] hands” and they each “get a small bar of soap every day.” 3d Decl. of D.B.M.U. ¶ 10, Joinder Mot., Exh. 8. Further, when the Plaintiffs go to the yard, they “maintain a distance in the hall.” Id. ¶ 21. And the detainees “clean the water fountains four times per day.” 3d Decl. of M.J.J. ¶ 22, Joinder Mot., Exh. 7. These plaintiffs’ declarations largely confirm the Government’s account of the conditions at Aurora. Although there are a few aberrations, such as M.J.J.’s contention that the detainees are forced to eat one foot away from each other, those allegations do not rise to the level of unconstitutional conditions of confinement in light of D.B.M.U.’s, M.J.J.’s, and M.M.S-M.’s generally good health and Aurora’s substantial compliance with the PRR.
L.M., who has been held in segregation as a result of ignoring detention officers since April 3, 2020, also does not establish a likelihood of success on the merits of her due process claim. She sleeps alone, eats alone, reports that her physical health is fine, and is subject to mandatory detention. 2d Davies Decl. ¶ 44; L.M. Decl. ¶¶ 13, 25, 47, 49.
v. El Paso Lastly, M.R.P., the only detainee housed at El Paso, also fails to establish a likelihood of success on the merits of her due process claim. As of May 11, 2020, El Paso is operating at 39% capacity, and M.R.P.’s unit is at just 19% capacity. 2d Acosta Decl. ¶¶ 7, 9, 11. Of the 41 detainees who have been tested for COVID-19, ten tested positive, of which nine are currently receiving medical care. Id. ¶ 62. Considerable evidence shows that ICE is complying with PRR. To start, M.R.P.’s April 16, 2020 declaration supports the agency declarants’ attestations as to the preventative measures taken at El Paso. M.R.P. acknowledges that information about
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COVID-19 is distributed to detainees, the dining hall is cleaned, guards wear gloves and face masks, detainees are given soap, and new entrants are quarantined for fourteen days. Decl. of M.R.P. (“M.R.P. Decl.”) ¶¶ 22–23, 28–31, TRO Mot., Exh. 13. While M.R.P. also states that the bathrooms are cleaned only once a day, that detainees are not given masks, and that social distancing while sleeping is impossible, id. ¶¶ 27, 30, 37, the Court credits the agency’s more recent and fulsome declarations, which indicate that commonly touched surfaces (including bathrooms) are cleaned multiple times a day, surgical masks were given to detainees on April 17 (and are replaced on a weekly basis), and that M.R.P. is able to sleep six feet away from others at night because no one else is assigned to her bunk or to the adjacent bunk given the unit’s low capacity level, 2d Acosta Decl. ¶¶ 12, 35–37. Although M.R.P. does have several health conditions, including Hepatitis A, the record indicates that her conditions are well controlled and the medical staff at El Paso are continuing to monitor them. Id. ¶ 75. Given that she is subject to mandatory detention and that El Paso appears to be substantially complying with the PRR, M.R.P. fails to establish a likelihood of success on the merits of her due process claim.
b. Irreparable Injury Next, the Court considers whether Plaintiffs have made a showing of irreparable harm. It is well established that the deprivation of constitutional rights “unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Thus, those Plaintiffs who have shown a likelihood of success on their Fifth Amendment claims—K.R.H., K.M., and K.S.—have also established irreparable harm. See Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314, 334 (D.C. Cir. 2018), cert. denied, 140 S. Ct. 1198 (2020). Conversely, the remaining Plaintiffs who have failed to establish a likelihood of success on the merits of their
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Fifth Amendment claims—C.G.B., A.F., D.B.M.U., M.J.J., M.M.S-M., L.M., M.R.P.—also fail to establish irreparable injury.
The Government contends that K.R.H., K.M. and K.S. have not established irreparable harm because they have not shown that they are imminently at risk of contracting COVID-19. This argument in unavailing. “It would be odd to deny an injunction to [detainees] who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.” Helling, 509 U.S. at 33. As many courts have recognized, the “risk of contracting COVID-19 and the resulting complications, including the possibility of death, is the prototypical irreparable harm.” Banks v. Booth, No. 20-CV-849(CKK), 2020 WL 1914896, at *11 (D.D.C. Apr. 19, 2020); see also Swain v. Junior, No. 1:20-CV-21457-KMW, 2020 WL 2078580, at *18 (S.D. Fla. Apr. 29, 2020); Barbecho v. Decker, No. 20-CV-2821, 2020 WL 1876328, at *6 (S.D.N.Y. Apr. 15, 2020); Malam v. Adducci, No. 20-CV-10829, 2020 WL 1672662, at *7 (E.D. Mich. Apr. 5, 2020). Said otherwise, “a remedy for unsafe conditions need not await a tragic event.” Helling, 509 U.S. at 33. Accordingly, the Court finds that K.R.H., K.M., and K.S. have established irreparable injury.
c. Balance of Equities & Public Interest Finally, Plaintiffs must show that the balance of equities tips in their favor and that an injunction would serve the public interest. Where the Government is a party, these two factors merge. See Pursuing Am.’s Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016). It is well established that the Government “cannot suffer harm from an injunction that merely ends an unlawful practice.” Open Cmties. Alliance v. Carson, 286 F. Supp. 3d 148, 179 (D.D.C. 2017) (quoting Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013)). Nevertheless, “where the Court has a less intrusive means” of ensuring legal compliance, “the public interest would weigh
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towards choosing such options, especially where . . . the plaintiffs seek a mandatory (‘do this’) rather than prohibitory (‘don’t do this’) injunction.” Garnett, 313 F. Supp. 3d at 160; see also Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969) (“The power to issue a preliminary injunction, especially a mandatory one, should be sparingly exercised.” (emphasis added) (internal quotation marks omitted)).
Judicial restraint is particularly warranted here, given that Plaintiffs challenge ICE’s operation of its detention facilities. As the Supreme Court has explained in the criminal detention context, because “[r]unning a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources,” administration of such facilities is “a task that has been committed to the responsibility of [the executive and legislative] branches, and separation of powers concerns counsel a policy of judicial restraint.” Turner v. Safley, 482 U.S. 78, 84–85 (1987). Although Plaintiffs are held in civil immigration detention centers, not prisons, the same concerns regarding institutional competence and the separation of powers apply here. Indeed, these concerns apply all the more here given that ICE must address the impact of a novel pandemic affecting the entire nation and must do so across the entire civil immigration detention system. See Lopez-Marroquin v. Barr, 955 F.3d 759, 762 (9th Cir. 2020) (Callahan, J., dissenting) (calling for judicial restraint in a case involving the COVID-19 pandemic because judges “are not epidemiologists and have no expertise managing either pandemics or detention facilities”).
Moreover, the primary remedy that Plaintiffs seek—their immediate release from ICE custody—is the most intrusive measure possible and Plaintiffs have failed to show that such incursion is necessary to redress the complained-of violations. In analogous cases concerning unconstitutional confinement, the D.C. Circuit has held that “once a right [under the Eighth
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Amendment] is established, the remedy chosen must be tailored to fit the violation.” Women Prisoners of D.C. Dep’t of Corr. v. District of Columbia, 93 F.3d 910, 928 (D.C. Cir. 1996) (quoting Inmates of Occoquan v. Barry, 844 F.2d 828, 836 (D.C. Cir. 1988)) (alteration in original). In accord with that reasoning, numerous district courts considering similar claims presented by detainees have concluded that immediate release would be an inappropriately sweeping remedy. See Urdaneta v. Keeton, No. CV-20-00654-PHX-SPL (JFM), 2020 WL 2319980, at *12 (D. Ariz. May 11, 2020) (With regard to detainees held at La Palma, “the Court is unable to conclude that there is no set of conditions short of release that would be sufficient to protect Petitioner’s constitutional rights.”); Jones, 2020 WL 1643857, at *1 (holding that “[i]mmediate release . . . is not the appropriate remedy—at least at this juncture” with respect to detainees held at a New York ICE facility); cf. Money, 2020 WL 1820660, at *14 (noting in the prison context that “the public interest—which must be taken into account when considering a TRO or preliminary injunction—mandates individualized consideration of any inmate’s suitability for release and on what conditions, for the safety of the inmate, the inmate’s family, and the public at large”). Indeed, in the prison context, the Supreme Court has admonished courts against becoming “enmeshed in the minutiae of prison operations,” Bell, 441 U.S. at 562, and has counseled them to instead exercise discretion “by giving prison officials time to rectify the situation before issuing an injunction,” Farmer v. Brennan, 511 U.S. 825, 847 (1994); see also Brown v. Plata, 563 U.S. 493, 501 (2011) (noting that ordering “the release of prisoners in large numbers . . . is a matter of undoubted, grave concern”).
The Court pauses here to consider if it would even have jurisdiction to order Plaintiffs’ release, particularly those that have applied for and been denied parole. Under the INA, DHS may parole noncitizens “on a case-by-case basis for urgent humanitarian reasons or significant
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public benefit,” including “to meet a medical emergency.” 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 235.3(b)(2)(iii). But, as the Government notes, the INA expressly commits such parole determinations to the “discretion” of the agency. 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 235.3(b)(2)(iii). The INA strips courts of jurisdiction to review or set aside these discretionary determinations. With respect to noncitizens detained prior to issuance of a final removal order, § 1226(e) expressly provides that “[n]o court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.” 8 U.S.C. § 1226(e). With respect to noncitizens detained subject to a final removal order, a catchall provision in § 1252 provides that “no court shall have jurisdiction to review . . . any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.” Id. § 1252(a)(2)(B)(ii).34
The scope of these jurisdictional bars is hotly contested. What is uncontroverted, the Supreme Court has observed, is that § 1226(e) precludes a noncitizen from “challenging a ‘discretionary judgment’ by the Attorney General or a ‘decision’ that the Attorney General has made regarding his detention or release.” Demore v. Kim, 538 U.S. 510, 516 (2003); see also R.I.L-R, 80 F. Supp. 3d at 176 (noting that § 1226(e) “clearly bar[s] [courts] from reviewing the Executive Branch’s exercise of discretion in determinations made under § 1226(a)”).
34 A third provision in the INA provides that “[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.” 8 U.S.C. § 1252(b)(9). The Government does not invoke this provision.
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Unreviewable discretionary decisions undoubtedly include “the [parole] determinations themselves—i.e., the actual balancing of the merits of each application for parole.” Damus, 313 F. Supp. 3d at 327 (emphasis in original); Abdi, 280 F. Supp. 3d at 385 (“[A]sking this Court to interfere with the ultimate decision regarding parole . . . would plainly fall outside this Court’s jurisdiction pursuant to § 1252(a)(2)(B)(ii).”).
That said, the Supreme Court has recognized that the INA does not preclude judicial review of all claims related to detention or parole. In Kim, the Court held that § 1226(e) does not preclude “challenges [to] the statutory framework that permits [a noncitizen’s] detention without bail.” 538 U.S. at 517. And, in Zadvydas v. Davis, 533 U.S. 678 (2001), the Court held that § 1252(a)(2)(B)(ii) does not bar judicial review of a “challenge [to] the extent of the Attorney General’s authority under the post-removal-period detention statute.” Id. at 688. In both Kim and Zadvydas, however, the Supreme Court emphasized that “[t]he extent of th[e] [agency’s] authority” under the statute “is not a matter of discretion.” Id.; Kim, 538 U.S. at 516 (“[R]espondent does not challenge a ‘discretionary judgment’ by the Attorney General or a ‘decision’ that the Attorney General has made regarding his detention or release.”). The Court could therefore review such structural challenges without running afoul of the INA’s bars to judicial review of the agency’s discretionary determinations.
Here, however, Plaintiffs are not making a structural argument that ICE is without authority to detain noncitizens during a global pandemic. Although Plaintiffs try to fit their claim into the mold of a “challenge [to] an overarching agency action as unlawful,” TRO Reply 18 (quoting Make the Rd. N.Y. v. McAleenan, 405 F. Supp. 3d 1, 32 (D.D.C. 2019)), their real challenge is to the particular conditions of their confinement. Resolving such a challenge, as this Court has explained, requires a fact-specific assessment of the circumstances of each individual’s
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confinement rather than the pure statutory interpretation inquiry undertaken in Kim and Zadvydas. See Kim, 538 U.S. at 517 (noting that “[s]ection 1226(e) . . . deals with challenges to operational decisions, rather than to the legislation establishing the framework for those decisions” (quoting Parra v. Perryman, 172 F.3d 954, 957 (7th Cir. 1999))). But see Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011) (“Like § 1226(e), § 1252(a)(2)(B)(ii) . . . does not limit habeas jurisdiction over questions of law, including application of law to undisputed facts, sometimes referred to as mixed questions of law and fact.” (internal quotation marks and citations omitted)).35
Courts appear divided on whether the INA’s jurisdictional bars preclude them from ordering ICE to release noncitizens who have been denied parole based on a conditions-ofconfinement claim. In the habeas context, some courts have concluded that they maintain jurisdiction to order release based on such a constitutional challenge. See, e.g., Jeferson V.G. v. Decker, No. CV 20-3644 (KM), 2020 WL 1873018, at *4–5 (D.N.J. Apr. 15, 2020) (exercising jurisdiction over plaintiff’s claim that his detention in an ICE facility during the COVID-19 pandemic imposed “conditions of confinement which amount to punishment under the Due Process Clause”); Sallaj v. ICE, No. CV 20-167-JJM-LDA, 2020 WL 1975819, at *2 (D.R.I. Apr. 24, 2020) (“[A]lthough the INA limits the jurisdiction of district courts in removal proceedings, a district court may review a question that is independent of removal or ‘cannot
35 In Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020), the Supreme Court held that the statutory phrase “questions of law” in § 1252(a)(2)(D) encompasses “the application of a legal standard to undisputed or established facts.” Id. at 1067. But neither § 1226(e) nor § 1252(a)(2)(B)(ii) expressly preserve judicial review for “questions of law.” Nor is there any contention here that resolution of Plaintiffs’ claims would only involve the application of law to undisputed or established facts.
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effectively be handled through the available administrative process,’ including a constitutional challenge.” (quoting Aguilar v. ICE, 510 F.3d 1, 11 (1st Cir. 2007))).36 Some courts have come out the other way. See, e.g., Jose D.M. v. Barr, No. CV 20-4031 (KM), 2020 WL 1969893, at *3–4 (D.N.J. Apr. 24, 2020) (construing petitioner’s claim that “his continued detention [in ICE during the COVID-19 pandemic] violates his due process rights” as one “directly challenging the decision to deny his request for parole, which th[e] Court is not authorized to review”); Emerson O.C.-S. v. Anderson, No. CV 20-3774 (JMV), 2020 WL 1933992, at *7 (D.N.J. Apr. 22, 2020) (“Assuming Petitioner is referencing the IJ’s last decision denying a change to his custody status, this Court does not have jurisdiction to entertain this claim.”). Others have ordered release without confronting the INA’s jurisdictional provisions at all. See, e.g., Refunjol v. Adducci, No. 2:20-CV-2099, 2020 WL 1983077, at *6 (S.D. Ohio Apr. 27, 2020) (ordering the release of detainees from ICE facility under habeas); Chavez Garcia v. Acuff, No. 20-CV-357-NJR, 2020 WL 1987311, at *3 (S.D. Ill. Apr. 27, 2020) (same); Ferreyra v. Decker, No. 20 CIV. 3170 (AT), 2020 WL 1989417, at *13 (S.D.N.Y. Apr. 27, 2020) (same). Notably, all of these cases involved habeas claims. Here, Plaintiffs do not bring their claims under habeas. They instead bring a direct constitutional challenge to the conditions of their confinement, the remedy for which, they
36 Judge Nichols opined in National Immigration Project of National Lawyers Guild v. EOIR, that “[t]he INA . . . does not appear to foreclose Plaintiffs’ claims based on the increased risk of contracting COVID-19 as a result of being forced to appear for in-person hearings, which likely could not be remedied through a petition to the relevant court of appeals.” No. 1:20-CV00852 (CJN), 2020 WL 2026971, at *9 n.77 (D.D.C. Apr. 28, 2020). Similarly, Judge Bernal held in Torres v. DHS, that that “claims regarding the conditions of immigration detention that are not challenges to removal proceedings likely fall outside of the channeling provisions.” 411 F. Supp. 3d 1036, 1048 (C.D. Cal. 2019). However, both courts were interpreting § 1252(b)(9), which channels judicial review of all questions arising from removal proceedings to review of the final removal decision. Importantly, the plaintiffs in neither case sought release from detention and therefore did not implicate § 1226(e) or § 1252(a)(2)(B)(ii).
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contend, is their release. See Shamal v. Barr, No. 19-CV-6375 CJS, 2020 WL 2193663, at *4 (W.D.N.Y. May 6, 2020) (noting that plaintiff “cites no legal authority by which the Court may order his release” from ICE custody during the COVID-19 pandemic).37
Plaintiffs contend that their challenge to their confinement conditions is wholly collateral to the agency’s decisions to deny parole. But, while Plaintiffs may not be directly questioning the agency’s discretionary weighing of factors in denying their parole, the relief they seek—an order compelling ICE to release all of them from detention—might effectively be an order “set[ting] aside an[] action or decision . . . regarding the detention or release of any alien or the . . . denial of bond or parole,” which the INA expressly prohibits. 8 U.S.C. § 1226(e). See generally Giammarco v. Kerlikowske, 665 F. App’x 24, 26 (2d Cir. 2016) (“[B]ecause [the] petition for a writ of habeas corpus ad testificandum essentially seeks to void discretionary decisions denying [a detainee] the same relief, his petition is inextricably linked to those decisions,” there is no “jurisdiction to consider the merits of [the] habeas petition [under 8 U.S.C. § 1252(a)(2)(B)].” (citations omitted)). The Court need not decide whether the INA strips it of jurisdiction to order Plaintiffs’ release. Still, the Court’s uncertainty over its
37 The habeas context presents distinct statutory and constitutional considerations. With respect to military detainees, the D.C. Circuit has held that “one in custody may challenge the conditions of his confinement in a petition for habeas corpus.” Aamer v. Obama, 742 F.3d 1023, 1032 (D.C. Cir. 2014). But see Ziglar v. Abbasi, 137 S. Ct. 1843, 1862–63 (2017) (“le[aving] open the question whether [detainees] might be able to challenge their confinement conditions via a petition for a writ of habeas corpus”). Neither case implicated the INA’s jurisdictional provisions. Moreover, the courts that have granted habeas petitions by ICE detainees have invoked their “inherent power to grant bail to habeas petitioners with ‘substantial claims’ and in ‘extraordinary circumstances.’” Shamal, 2020 WL 2193663, at *4 (quoting Mapp v. Reno, 241 F.3d 221, 230 (2d Cir. 2001)); see, e.g., Avendano-Hernandez v. Decker, No. 20-CV-1589 (JPO), 2020 WL 1547459, at *2 (S.D.N.Y. Mar. 31, 2020); Savino I, 2020 WL 1703844, at *8– 9. Plaintiffs do not invoke that authority here.
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jurisdiction to issue that relief is yet another reason to decline to release Plaintiffs at this juncture.
A less intrusive remedy for any constitutional violations at La Palma and Nevada Southern would be an injunction “simply requir[ing] [the agency] to observe their own policies and procedures in the running of their [detention facilities].” Women Prisoners, 93 F.3d at 931. However, it is not clear that an order requiring ICE to comply with the PRR at those two facilities would be in the public interest. The evidence before the Court, including the Plaintiffs’ own declarations, suggests that ICE is making steady progress towards constitutionally sufficient protections against COVID-19. Further, to the extent that judicial supervision of ICE’s implementation of the PRR is necessary, ICE is already operating under a nationwide injunction to implement the PRR at every detention facility in the country. See Fraihat, 2020 WL 1932570, at *29 (ordering ICE to “monitor and enforce facility-wide compliance with the Pandemic Response Requirements”). As part of the on-going Fraihat litigation, Judge Bernal continues to strictly monitor the Government’s compliance with the court’s April 20, 2020 injunction. Specifically, on May 15, 2020, Judge Bernal issued an order requiring the Government to provide plaintiffs’ counsel with biweekly updates including:
[3.] A spreadsheet with the following fields: name, alien number, detention facility, custody status (detained/released in the United States), alleged basis for detention, and the Risk Factor identified, for each Subclass Member; . . . 5. A document disclosing which Subclass Members have been released in the United States pursuant to custody determinations for each two-week period, and the conditions of their release; 6. A list of the titles and level of medical training of personnel making risk factor determinations for each facility; 7. Records showing the extent of compliance with the order to issue a new Performance Standard or supplement for individuals with Risk Factors;
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8. Records regarding monitoring and enforcement of facility-wide compliance with the PRR and subsequent Performance Standard, including:
• Positions and titles of individuals, including contractors, tasked with monitoring and ensuring compliance with the PRR;
• Documents illustrating whether, since March 11, 2020, any facility has been or will be subject to noticed or un-noticed in-person inspections, what forms or documents have been or will be used in connection with this, and the consequences if a facility is determined not to be in compliance with the PRR and the Performance Standard;
• On a biweekly basis, updates to the above documents, as well as reports generated from inspections[.]
Minutes re: Order Granting Pl.’s Ex Parte Application 9–10, Fraihat v. ICE, No. 5:19-cv-1546JBG-SHK (C.D. Cal. May 15, 2020), ECF No. 150.
Any injunction that this Court could issue requiring ICE to comply with the PRR would be duplicative of the Fraihat order. Overlapping and unnecessary judicial involvement in the Government’s management of its immigration detention facilities would be contrary to the public interest. See generally Garnett, 313 F. Supp. 3d at 159–62. The Court therefore declines to issue an injunction ordering ICE to comply with the PRR at this juncture. That does not mean that Fraihat precludes Plaintiffs from proceeding to the merits of this case. Nor does it mean that Fraihat prevents the Court from ordering future injunctive relief specific to the Plaintiffs as the rapidly changing circumstances surrounding COVID-19 continue to develop. To that end, in lieu of issuing an injunction at this time, the Court will order periodic reporting from the agency documenting the conditions at all five facilities and the situation of all Plaintiffs. The Court therefore directs the Government, by June 10, 2020, to provide updated declarations including the following information for each facility where a named Plaintiff is detained:
(1) the number of positive cases of COVID-19 among detainees and staff, and the number of detainees who have been tested;
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(2) the number of detainees at each facility and the facility’s total capacity, including the number of detainees in each unit where a named Plaintiff is being held and that unit's total capacity; (3) a description of the sleeping arrangements used by each named Plaintiff, if changed; (4) a description of the dining quarters for each named Plaintiff, if changed; (5) a description of the personal protective equipment provided to staff and detainees; (6) a description of the hand cleansing and cleaning materials provided to staff and detainees; (7) a description of detainees’ access to medical care, including whether K.M. and K.S. are being provided with their antiretroviral medication at a consistent time; and (8) clarification regarding the extent to which the detainees have been considered for release under the Fraihat injunction. See infra n.12. Upon review of these declarations, the Court will determine whether it is necessary for the Government to provide further updated reports.
2. APA Claim The Court next considers the Plaintiffs’ APA claim. As mentioned, the claim is largely based on the Accardi doctrine. In United States ex rel. Accardi v. Shaughnessy (“Accardi”), 347 U.S. 260 (1954), the Supreme Court vacated a deportation order that was issued in a manner contrary to “[r]egulations [that] prescribe[d] the procedure to be followed in processing an alien’s application for suspension of deportation.” Id. at 265. “[A]s long as the regulations remain operative,” the Court explained, “the Attorney General denies himself the right to sidestep the[m],” even if the statute otherwise grants him discretion. Id. at 267. “Accardi has come to stand for the proposition that agencies may not violate their own rules and regulations to the prejudice of others.” Battle, 393 F.3d at 1336. Rules that fall within Accardi’s ambit include
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“internal agency guidance” that are “intended” to be “binding norm[s].” Damus, 313 F. Supp. 3d at 336 (quoting Padula v. Webster, 822 F.2d 97, 100 (D.C. Cir. 1987)).
Plaintiffs contend that, under Accardi, ICE’s failure to abide by the PRR is arbitrary and capricious and contrary to law.38 The Government responds that Plaintiffs’ Accardi claim does not identify a final agency action, that the PRR are not the type of rules or regulations encompassed by the Accardi doctrine, and that, in any event, Plaintiffs have not established that ICE is violating the PRR. As the Court has already explained, most of the named Plaintiffs are unlikely to show that ICE has failed substantially to comply with the PRR at their detention facilities.39 The Accardi claims of those plaintiffs therefore stumble right out of gate. As to remaining Plaintiffs, their Accardi claims are nonetheless barred because they are not based on final agency action and are not the type of claims covered by Accardi.
Only “final agency action for which there is no other adequate remedy in a court” is reviewable under the APA. 5 U.S.C. § 704. The “final agency action” requirement involves two discrete inquiries. First, Plaintiffs must identify an “agency action.” The APA defines “[a]gency action” to “include[] the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” Id. § 551(13). “‘[A]s their definitions make clear,’” “[t]he five listed categories—and their equivalent or the denial thereof—all ‘involve circumscribed, discrete agency actions[.]’” CREW v. DHS, 387 F. Supp. 3d 33, 48–49 (D.D.C. 2019) (quoting Norton v. S. Utah Wilderness Alliance (“SUWA”), 542 U.S. 55, 62 (2004))
38 Plaintiffs clarified at oral argument that they do not challenge the promulgation of the PRR themselves as arbitrary and capricious. See TRO Tr. 49:21–50:5.
39 Plaintiffs concede that the Accardi doctrine only requires an agency to “take reasonable steps to comply with its own regulations,” not to achieve 100 percent compliance. TRO Tr. 52:2–13.
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(emphasis added). Second, that agency action must be “final.” An “agency action” is “final” if it (1) “mark[s] the consummation of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature” and (2) “[is] one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (internal quotation marks and citations omitted).
Plaintiffs’ APA claim is premised on ICE’s alleged failure to implement the PRR in the various detention facilities at which Plaintiffs are housed. Compl. ¶ 66; TRO Mot. 29. To be sure, “agency action” includes “failure to act.” 5 U.S.C. § 551(13). As the Supreme Court has recognized, however, “failure to act” is “properly understood as a failure to take an agency action—that is, a failure to take one of these agency actions . . . earlier defined in § 551(13).” SUWA, 542 U.S. at 62 (emphasis in original). Here, Plaintiffs challenge the “continuing (and thus constantly changing) operations” of ICE across many detention facilities. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 890 (1990). Such a challenge does not identify “an ‘agency action’ within the meaning of § 702, much less a ‘final agency action’ within the meaning of § 704.” Id. (holding that BLM’s so-called “land withdrawal review program”—which referred to “at least 1250 or so individual classification terminations and withdrawal revocations”—was not reviewable “agency action” (internal quotation marks omitted)); see also Cobell v. Norton, 240 F.3d 1081, 1095 (D.C. Cir. 2001) (“While a single step or measure is reviewable, an ongoing program or policy is not, in itself, a ‘final agency action’ under the APA.”).
In contending otherwise, Plaintiffs invoke Torres v. DHS, 411 F. Supp. 3d 1036 (C.D. Cal. 2019), which held that ICE’s alleged failure to enforce its Performance-Based National Detention Standards at a contracted detention facility was final agency action for the purposes of surviving a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss. Id. at 1068–69. There,
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however, the complaint’s factual allegations sufficiently established that “any past or ongoing non-compliance at [the detention facility] [wa]s allegedly the result of an agency decision not to enforce the terms of its contract.” Id. at 1069 (emphasis added). Here, as the Government points out, TRO Opp. 22 n.40, Plaintiffs do not identify any discrete final agency decision not to implement the PRR. See CREW, 387 F. Supp. 3d at 49 (“[A] plaintiff must challenge a ‘discrete agency action’ and cannot make ‘a broad programmatic attack’ on an agency’s compliance with a statutory scheme.”); RCM Techs., Inc. v. DHS, 614 F. Supp. 2d 39, 46 (D.D.C. 2009) (“Courts stand ready to entertain appeals from specific, concrete agency adjudications. But absent that, courts have neither the resources nor the expertise to superintend agency policy-making.”). To the contrary, the record shows the agency is making reasonable efforts to implement the PRR at the facilities at issue in the face of “the rapidly changing situation relating to the COVID-19 pandemic.” Nat’l Immigration Project of Nat’l Lawyers Guild v. EOIR (“NILPNLG”), No. 1:20-CV-00852 (CJN), 2020 WL 2026971 at *5 (D.D.C. Apr. 28, 2020).40
The Court finds persuasive the reasoning of other courts in this jurisdiction. In NIPNLG, Judge Nichols held that EOIR’s and ICE’s policies on detainees’ access to counsel during the COVID-19 pandemic were not reviewable final agency actions under the APA. Id. at *9– 10. ICE’s policies on the COVID-19 pandemic, Judge Nichols explained, “are implemented on a facility-by-facility and individual-by-individual basis, based on the particularized circumstances present at detention centers and the specific requests for attorney-client teleconferences, VTCs, or in-person meetings.” Id. at *10. Similarly, allegations of “general deficiencies in [ICE’s]
40 Plaintiffs also allege that “[b]y failing to establish and implement policies and procedures to protect Petitioners from the transmission of COVID-19 in the Detention Centers, Respondents have enacted a final decision.” Compl. ¶ 177. That allegation too “lack[s] the specificity requisite for agency action.” SUWA, 542 U.S. at 66.
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compliance” with the PRR in its day-to-day operations of detention facilities across the country “lack the specificity requisite for agency action.” SUWA, 542 U.S. at 66.
Damus, 313 F. Supp. 3d at 317, on which Plaintiffs heavily rely, is not to the contrary. There, Judge Boasberg found likelihood of success on the merits of an Accardi claim that ICE was not abiding by its own Parole Directive in making parole determinations. Id. at 336–42. But the Damus plaintiffs, asylum applicants who were found to have a credible fear of prosecution but detained, were clearly challenging the agency’s failure to abide its own regulations in the course of taking final agency actions—that is, in making parole determinations. Id.; see also Aracely, R. v. Nielsen, 319 F. Supp. 3d 110, 139 (D.D.C. 2018) (“The rejections of Plaintiffs’ parole requests—purportedly upon consideration of an improper factor—are agency actions that have actual or immediately threatened effects.”). Here, Plaintiffs do not purport to challenge the agency’s parole determinations themselves.
Even if ICE’s alleged non-compliance with the PRR were final agency action, it is far from clear that the PRR are the type of rules or regulations that can be enforced through the Accardi doctrine. Plaintiffs contend that ICE is “in violation of the Fifth Amendment Due Process Clause by depriving detainees the rights guaranteed under the COVID-19 regulations enacted by ICE.” TRO Mot. 29. But agency regulations do not create substantive due process rights. Accardi is rooted instead in notions of procedural due process.41 See, e.g., Lopez v. FAA, 318 F.3d 242, 246 (D.C. Cir. 2003) (noting that Accardi “require[s] agencies to abide by internal, procedural regulations”); Thomas W. Merrill, The Accardi Principle, 74 Geo. Wash. L.
41 As explained, to the extent that Plaintiffs’ constitutional due process claim is based on Accardi, it is well settled that “Accardi is based on administrative law principles, not constitutional due process requirements.” Vanover, 77 F. Supp. 2d at 103.
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Rev. 569, 577 (2006) (noting that all post-1950s Supreme Court cases “that reference the Accardi principle . . . involve procedural as opposed to substantive regulations”).42
Other cases from this jurisdiction are illustrative. In Damus, Judge Boasberg held that a challenge to ICE’s failure to comply with its own Parole Directive was cognizable under Accardi. 313 F. Supp. 3d at 336–37. The directive at issue there imposed “a number of procedural requirements for assessing asylum-seekers’ eligibility for release,” such as “an opportunity to submit documentation, the availability of an individualized parole interview, and an explanation of the reasons for a parole denial.” Id. at 324, 337 (emphasis added). Similarly, in Aracely, R., Judge Contreras recognized an Accardi claim based on ICE’s failure to comply with the Morton Directive, which “la[id] out specific factors to be applied when making individual parole determinations[] and . . . establishe[d] procedural rights for asylum seekers in connection with the parole process.” 319 F. Supp. 3d at 151 (emphasis added). It is not readily apparent that the PRR, which provide substantive guidelines on how ICE should operate its detention facilities, falls “within the ambit of those agency actions to which the [Accardi] doctrine may attach.” Damus, 313 F. Supp. 3d at 338.43
42 Under Accardi, “even where a procedural error has occurred, courts will not void the result of the proceeding if the error was harmless (or equivalently, ‘non-prejudicial’).” Vanover, 77 F. Supp. 2d at 106 (citing Mazaleski v. Treusdell, 562 F.2d 701, 719 (D.C. Cir. 1977)); see also Solomon v. Office of Architect of Capitol, 539 F. Supp. 2d 347, 351 (D.D.C. 2008). The Court is hard-pressed to see how to apply this type of harmless error rule to substantive regulations, which is another indication that Accardi only encompasses procedural rules.
43 Plaintiffs also invoke a recent case from outside this jurisdiction, Gayle v. Meade, No. 20-21553-CIV, 2020 WL 2086482 (S.D. Fla. Apr. 30, 2020). There, the court found that “ICE’s flout[ing] [of] own guidelines by, inter alia, failing to ensure that each detainee practices social distancing” could likely be shown to be an Accardi violation. Id. at *5. It does not appear that the parties in Gayle raised the threshold questions whether the plaintiffs had identified a final agency action or whether the guidelines were covered by Accardi. See Legal Servs. Corp. v.
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Plaintiffs are, accordingly, unlikely to succeed on the merits of their APA claim. The Court will therefore decline to issue a temporary restraining order on this basis.44
3. Mandamus Claim Plaintiffs also “seek a writ of mandamus to require the Respondents to act immediately in accordance with their legal obligations to protect Petitioners and class members and to follow their own parole guidelines and directives.” Compl. ¶ 184. “[M]andamus is a drastic remedy, to be invoked only in extraordinary circumstances.” Fornaro v. James, 416 F.3d 63, 69 (D.C. Cir. 2005) (citations and internal quotation marks omitted). Mandamus is only available where “(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to plaintiff.” Council of & for the Blind of Delaware Cty. Valley v. Regan, 709 F.2d 1521, 1533 (D.C. Cir. 1983) (en banc). As the Government observes, obligations that allow for judgment or discretion—such as how to mitigate the spread of a virus at a detention facility or whether to parole or release a detainee based on discretionary considerations—are not generally subject to writs of mandamus. TRO Opp. 25. Here, “Plaintiffs have failed to cite any legal source requiring the government to take any particular action or that otherwise cabins the agencies’ discretionary choices on how to
Velasquez, 531 U.S. 533, 557 (2001) (“Judicial decisions do not stand as binding ‘precedent’ for points that were not raised, not argued, and hence not analyzed.”). In any event, the Court obviously is not bound by a district court case from another jurisdiction.
44 In any case, the remedy for an Accardi violation appears to be limited to compelling the agency to abide by the PRR, not release from detention. See, e.g., Damus, 313 F. Supp. 3d at 343 (“To be clear, in finding that injunctive relief is warranted in this case, this Court is simply ordering that Defendants do what they already admit is required—follow the ICE Directive when adjudicating asylum-seekers’ detention.”). As the Court has explained, the Fraihat nationwide injunction already requires ICE to abide by the PRR in all detention centers.
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best respond to a pandemic.” NIPNLG, 2020 WL 2026971, at *10 (internal quotation marks omitted).
Moreover, other adequate remedies are available to Plaintiffs. Section 706(1) of the APA permits courts to “compel agency action unlawfully withheld or unreasonably delayed.”45 “The standards for APA relief under § 706(1) and for mandamus here are identical.” CREW v. SEC, 916 F. Supp. 2d 141, 151 (D.D.C. 2013). That is, Plaintiffs must “assert[] that an agency failed to take a discrete agency action that it is required to take.” SUWA, 542 U.S. at 64 (emphasis added). “[T]o the extent that [Plaintiffs are] unable to compel specific action under the APA, this Court is similarly unable to issue mandamus in such a circumstance.” CREW, 916 F. Supp. 2d at 151. And as the Court has explained, Plaintiffs have failed to identify discrete agency actions that ICE is required to and has failed to take with respect to protecting transgender detainees during the COVID-19 pandemic.
Because Plaintiffs are unlikely to succeed on the merits of their mandamus claim, the Court also declines to issue a TRO on this basis.
45 As the Government points out, Plaintiffs do not invoke § 706(1). TRO Opp. 26 & n.45. But the gravamen of their complaint seeks to compel agency action. See, e.g., Compl. ¶ 66 (alleging that “[d]espite the fact that transgender people in civil immigration detention are at high risk for contracting and suffering severe illness from COVID-19, ICE has not taken the steps necessary to protect transgender people from COVID-19”). “The Court [must] look[] through the form of the Complaint to the substance of the allegations to determine the true nature of [Plaintiffs’] claim[s].” Scottsdale Capital Advisors Corp. v. Fin. Indus. Regulatory Auth., 390 F. Supp. 3d 72, 82 (D.D.C. 2019) (Cooper, J.) (citing Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 477 (1982)).
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IV. Conclusion For the foregoing reasons, the Court will deny Plaintiffs’ motions for class certification,
joinder, and a temporary restraining order. A separate order follows.

Date: June 2, 2020

CHRISTOPHER R. COOPER United States District Judge

78

 
 Case 1:20-cv-01072-CRC Document 57 Filed 07/31/20 Page 1 of 15

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

C.G.B. et al.,

)

)

Plaintiffs,

)

)

v.

)

)

CHAD WOLF, Acting Secretary

)

U.S. Department of Homeland Security et al., )

)

Defendants.

)

)

)

Civil Action No. 20-1072 (CRC)

MOTION TO DISMISS

Defendants Chad Wolf, in his official capacity as the Acting Secretary of the Department

of Homeland Security (“DHS”), and William Barr, in his official capacity as the Attorney General,

hereby move to dismiss, in part, the Petition for a Writ of Mandamus and Complaint for

Declaratory and Injunctive Relief (the “Complaint”; ECF No. 3) pursuant to Federal Rule of Civil

Procedure 12(b)(1) and 12(b)(6). In support, Defendants submit the accompanying Memorandum

of Points and Authorities.

Dated: July 31, 2020

Respectfully submitted,

MICHAEL R. SHERWIN Acting United States Attorney

DANIEL F. VAN HORN, D.C. Bar #924092 Chief, Civil Division

/s/ Sean Tepe SEAN M. TEPE, DC Bar #1001323 Assistant United States Attorney 555 Fourth Street, N.W. Washington, D.C. 20530 Telephone: 202-252-2533 Sean.Tepe@usdoj.gov

Case 1:20-cv-01072-CRC Document 57 Filed 07/31/20 Page 2 of 15

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

C.G.B. et al.,

)

)

Plaintiffs,

)

)

v.

)

)

CHAD WOLF, Acting Secretary

)

U.S. Department of Homeland Security et al., )

)

Defendants.

)

)

)

Civil Action No. 20-1072 (CRC)

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

Case 1:20-cv-01072-CRC Document 57 Filed 07/31/20 Page 3 of 15 TABLE OF CONTENTS
LEGAL STANDARD..................................................................................................................... 2 ARGUMENT .................................................................................................................................. 3
I. The Claims of Certain Named Plaintiffs Should Be Dismissed as Moot ........................ 3 II. The Complaint Fails to State a Claim Under the Administrative Procedure Act ............ 5 III. The Complaint Fails to State a Claim for a Writ of Mandamus ...................................... 8 IV. The Declaratory Judgment Act Provides No Independent Cause of Action ................. 10 CONCLUSION............................................................................................................................. 11
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Defendants Chad Wolf, in his official capacity as the Acting Secretary of the Department of Homeland Security (“DHS”), and William Barr, in his official capacity as the Attorney General, hereby move to dismiss, in part, the Petition for a Writ of Mandamus and Complaint for Declaratory and Injunctive Relief (the “Complaint”; ECF No. 3).
The instant motion to dismiss seeks to further narrow the scope of an ambitious, but fatally overreaching, Complaint. As the Court is familiar, Plaintiffs, transgender aliens in the custody of U.S. Immigration and Customs Enforcement (“ICE”), filed a class-action Complaint seeking the release of all transgender people in immigration detention nationwide based on alleged conditions in ICE detention facilities that Plaintiffs claimed violated their Fifth Amendment due process rights and the Administrative Procedure Act (“APA”). See generally ECF No. 3. They filed a motion for a temporary restraining order (“TRO”) directing ICE to immediately release all transgender civil detainees across the country and even to refrain from detaining any additional transgender aliens until the COVID-19 pandemic ends. See generally ECF No. 4. Plaintiffs also moved to certify a nationwide class of transgender ICE detainees housed at detention facilities across the nation. ECF No. 21. On June 2, 2020, the Court denied both the Plaintiffs’ motion for a TRO and motion to certify a class. ECF No. 42 (“Opinion” or “Op.”). Now, Defendants move to dismiss most of the original named Plaintiffs and most of the claims in the Complaint.
When Plaintiffs filed the Complaint on April 23, 2020, there were thirteen named Plaintiffs in ICE detention. As a consequence of many Plaintiffs being released from detention or removed from the U.S., only three Plaintiffs remain in ICE detention: K.R.H., K.M., and K.S.1 See ECF No. 55 at 4. In fact the lead Plaintiff, C.G.B., was released on bond last week. The claims of the
1 Similarly, when the Complaint was filed, named Plaintiffs were housed at eight facilities. The remaining Plaintiffs reside at two facilities: La Palma Correctional Center (“La Palma”) and Nevada Southern Detention Center (“Nevada Southern”)).
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named Plaintiffs no longer in ICE detention should be dismissed because their claims are now moot, and the Court no longer maintains subject matter jurisdiction to hear their claims.
For the few remaining Plaintiffs, their claims under the APA and for a writ of mandamus should be dismissed. As suggested by the Court’s TRO Opinion, Plaintiffs have failed to allege a plausible APA claim because they have not identified a “final agency action” that could be considered a violation of the APA. Plaintiffs’ claims are premised on ICE’s alleged failure to implement its Pandemic Response Requirements (“PRR”)2 in various detention facilities at which Plaintiffs are housed. But alleged shortcomings in implementing a policy are not final agency actions, and Plaintiffs point to no final, discrete decision by ICE not to implement the PRR, which otherwise would be necessary to state an actionable APA claim. Plaintiffs’ mandamus claims fall for similar reasons.
* * * Given the extensive briefing and evidentiary submissions, as well as the Court’s thorough Opinion concerning the above-mentioned motions, Defendants have opted not to restate the wellknown allegations in the Complaint.
LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(1) governs motions to dismiss for lack of subject matter jurisdiction. As discussed below in further detail, courts lack subject matter jurisdiction where a plaintiff lacks constitutional standing to bring suit. Federal Rule of Civil Procedure 12(b)(6) governs motions to dismiss for failure to state a claim. “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
2 U.S. ICE Enforcement and Removal Operations, COVID-19 Pandemic Response Requirements, available at https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf
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Case 1:20-cv-01072-CRC Document 57 Filed 07/31/20 Page 6 of 15
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The plaintiff must allege sufficient facts to show “more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556).
ARGUMENT I. The Claims of Certain Named Plaintiffs Should Be Dismissed as Moot
To maintain an actionable claim, a plaintiff must possess standing under Article III of the Constitution, which means a plaintiff must have “‘a personal stake in the outcome of the controversy’ [so] as to warrant his invocation of federal-court jurisdiction.” Warth v. Seldin, 422 U.S. 490, 498 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). But even if standing once existed at the time the action was initiated, courts must ensure that jurisdiction continues to exist throughout all stages of the litigation. Davis v. FEC, 554 U.S. 724, 732–33 (2008) (“To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.”) (internal quotation marks omitted). Subsequent events may render a once-viable claim moot, and that is what has occurred here for most of the original named Plaintiffs. Advanced Mgmt. Tech., Inc. v. FAA, 211 F.3d 633, 636 (D.C. Cir. 2000) (noting that “[s]tanding is assessed at the time the action commences,” whereas mootness refers to when “a justiciable controversy existed but no longer remains”).
The claims of all named Plaintiffs who are no longer in ICE detention should be formally dismissed because their claims regarding their conditions of confinement are moot, and the court lacks subject matter jurisdiction. According to the D.C. Circuit, “a prisoner’s transfer or release from a prison moots any claim he might have for equitable relief arising out of the conditions of
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Case 1:20-cv-01072-CRC Document 57 Filed 07/31/20 Page 7 of 15
his confinement in that prison.” Scott v. District of Columbia, 139 F.3d 940, 941 (D.C. Cir. 1998). The same would be true of an immigration detainee released from ICE detention because the challenged conditions of confinement no longer apply to them. Likewise, the relief these Plaintiffs initially sought—freedom from these alleged conditions through release from immigration detention3—can no longer be effected. See Ortez v. Chandler, 845 F.2d 573, 575 (5th Cir. 1988) (“It is not the fact that [petitioner] has been deported that renders this appeal moot …. Rather, it is the fact that the habeas relief he requests—reduction of his bond—can no longer be effected.”). Finally, Plaintiffs have acknowledged that the release of a Plaintiff moots her claims. Op. at 10 n.9 (citing Transcript of Hearing on TRO Mot. (“TRO. Tr.”) 3:14–4:4 (May 6, 2020)).
Accordingly, Defendants request that the claims of the ten named Plaintiffs no longer in ICE detention be formally dismissed. C.G.B., the lead Plaintiff, is the most recent and tenth Plaintiff to have left ICE detention. On July 22, 2020, C.G.B. was released on bond from the Caroline Detention Center. Supplementary Declaration of Kevin Bourne ¶ 4. Three other Plaintiffs were released on bond ordered by an immigration judge.4 One was released on an order of supervision because she had a health condition that made her potentially vulnerable to COVID-
3 Plaintiffs made clear that release (rather than a more narrowly-tailored remedy) was the only relief they sought. See, e.g., ECF No. 3, Compl. at ¶ 2 (“Petitioners therefore seek the supervised release of all transgender people in immigration detention because ICE has not provided and cannot implement sufficient measures to curb the spread of COVID-19 in its facilities.”); id. at ¶ 136 (“Because ICE cannot provide adequate medical care to them, transgender people in civil immigration detention should be released immediately to safer environments.); id. at ¶ 137 (“Even if it followed its own requirements, ICE could not adequately protect transgender people in civil immigration detention from unconstitutional risks of infection posed by suspected or confirmed COVID-19 infections of other detainees or facility staff.”). 4 On April 24, 2020, R.H. was released on bond from the Caroline Detention Facility. ECF No. 20-12, Mullan Decl. ¶ 7–8. ICE released L.R.A.P. from La Palma on bond on May 1, 2020. ECF No. 27-3, Ciliberti Supp. Decl. ¶ 48. ICE released A.F. from La Palma on bond on May 14, 2020. ECF No. 45-3, Ciliberti Second Supp. Decl. ¶ 28.
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Case 1:20-cv-01072-CRC Document 57 Filed 07/31/20 Page 8 of 15
19.5 Three were granted humanitarian parole under 8 U.S.C. § 1182(d)(5) for non-detained removal proceedings.6 One Plaintiff was granted relief from removal by an immigration judge.7 One was removed from the United States.8 Although the grounds for their departure from ICE detention differ, they all departed through the operation of the existing immigration system without the need for judicial intervention. II. The Complaint Fails to State a Claim Under the Administrative Procedure Act
Plaintiffs have failed to state an APA claim because they are not challenging an identifiable “final agency action” of Defendants. Only “final agency action for which there is no other adequate remedy in a court” is reviewable under the APA. 5 U.S.C. § 704. A plausibly stated APA claim must identify an “agency action” and that action must be “final.” First, the APA defines “[a]gency action” to “include[] the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” Id. § 551(13). These are all “discrete” actions, and “when challenging the failure to take an agency action under 5 U.S.C. § 706(1) or § 706(2)(A), a plaintiff must challenge a ‘discrete agency action’ and cannot make ‘a broad programmatic attack’ on an agency's compliance with a statutory scheme.” CREW v. DHS, 387 F. Supp. 3d 33, 48–49 (D.D.C. 2019) (quoting Norton v. S. Utah Wilderness Alliance (“SUWA”), 542 U.S. 55, 62
5 On April 30, 2020, ICE released G.P. from Imperial Regional Detention Facility on an order of supervision because she had a health condition that made her vulnerable to COVID-19. ECF No. 20-13, Valenzuela Decl. ¶ 28–29. 6 ICE has released L.M., D.B.M.U., and M.J.J. from Aurora Contract Detention Facility (“Aurora”). ECF No. 55-2, Davies Third Supp. Decl. ¶ 4. They were granted humanitarian parole under 8 U.S.C. § 1182(d)(5) and were paroled into the United States for non-detained removal proceedings on June 1, 2020, May 27, 2020, and June 5, 2020, respectively. Id., ¶¶ 4a–c. 7 On July 14, 2020, ICE released M.R.P. from El Paso Processing Center after an Immigration Judge granted her relief from removal. ECF No. 55-1, Acosta Supp. Decl. ¶ 3. 8 On July 10, 2020, M.M.S-M. was removed from the United States to El Salvador after the Board of Immigration Appeals dismissed her appeal. ECF No. 55-2, Davies Third Supp. Decl. ¶ 5.
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Case 1:20-cv-01072-CRC Document 57 Filed 07/31/20 Page 9 of 15
(2004)). Second, for the agency action to be “final”: (1) “the action must mark the consummation of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature” and (2) “the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (internal citations and quotation marks omitted).
Here, the Court found that “Plaintiffs’ APA claim is premised on ICE’s alleged failure to implement the PRR in the various detention facilities at which Plaintiffs are housed.” Op. at 72 (citing Compl. ¶ 66); see also Compl. ¶¶ 114, 177. Plaintiffs’ Complaint, however, “does not identify ‘an agency action within the meaning of § 702, much less a final agency action within the meaning of § 704.’” Id. (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 890 (1990)). None of the alleged failures to implement the PRR or to protect Plaintiffs from the risks of COVID-19 plausibly state a “‘consummation’ of the agency’s decisionmaking process” with regard to a discrete agency action. Plaintiffs have not alleged facts indicating ICE made a discrete agency decision not to implement the PRR in whole or in part. “To the contrary, the record shows the agency is making reasonable efforts to implement the PRR at the facilities at issue in the face of “the rapidly changing situation relating to the COVID-19 pandemic.” Op. at 73 (quoting Nat’l Immigration Project of Nat’l Lawyers Guild v. EOIR (“NILPNLG”), No. 1:20-CV-00852, 2020 WL 2026971 at *5 (D.D.C. Apr. 28, 2020)).
Basing their APA claim on the so-called Accardi doctrine, originating from United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), does not salvage their claim. See Compl. ¶¶ 153-66. “Accardi has come to stand for the proposition that agencies may not violate their own rules and regulations to the prejudice of others.” Battle v. FAA, 393 F.3d 1330, 1336 (D.C. Cir.
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Case 1:20-cv-01072-CRC Document 57 Filed 07/31/20 Page 10 of 15
2005). Accordingly, Plaintiffs contend that, “under Accardi,” ICE’s failure to “abide by the PRR is arbitrary and capricious” in violation of the APA. Op. at 71.
The Court, however, has already ruled that Plaintiffs’ “Accardi claims are barred because they are not based on final agency action and are not the type of claims covered by Accardi.” Op. at 71. As Defendants established previously, Accardi does not allow a plaintiff to avoid the statutory requirement of identifying a “final agency” action. In other words, Plaintiffs would have to allege facts establishing that ICE made a “final” decision not to comply with the PRR. TRO Opp. at 22-24. Yet the Court held that “Plaintiffs do not identify any discrete final agency decision not to implement the PRR.” Op. at 73. Without a final agency action, any APA claim, premised on Accardi or not, must fail. Furthermore, as the Court held, Plaintiffs claim a violation of substantive due process resulting from ICE’s alleged failures and the Accardi doctrine is “rooted in notions of procedural due process.” Op. at 74-75 (citing authority). Therefore, Plaintiffs’ reliance on the Accardi doctrine does not support a plausibly alleged APA claim.
Finally, Plaintiffs’ APA claims are barred to the extent Plaintiffs’ claims challenge, directly or indirectly, Defendants’ parole decisions. Plaintiffs’ Complaint suggests that ICE should be using its discretionary authority to parole transgender people who are in detention. See Compl. ¶ 161. The Court has interpreted Plaintiffs’ Complaint as “not purport[ing] to challenge the agency’s parole determinations themselves.” Op. at 74. The Court recognized that such determinations are “[u]n reviewable discretionary decisions.” Id. at 64. The INA strips courts of jurisdiction to review or set aside these discretionary determinations.9 See 8 U.S.C. § 1252(a)(2)(B)(ii) (“no court shall have jurisdiction to review . . . any other decision or action of
9 Congress clearly committed the determination of whether to parole an alien to the agency’s discretion. See 8 U.S.C. § 1182(d)(5)(A).
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Case 1:20-cv-01072-CRC Document 57 Filed 07/31/20 Page 11 of 15
the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security”); 8 U.S.C. § 1226(e) (“No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.”); see also Sacal-Micha v. Longoria, Civ. A. No. 20-37, 2020 WL 1815691, at *7-8 (S.D. Tex. Apr. 9, 2020) (denying APA claim as basis for seeking release on parole because parole decisions are committed to the agency’s discretion and thus the court does not have jurisdiction). The INA is consistent with the APA, which itself bars judicial review of agency action “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). Therefore, an APA claim directly or indirectly challenging Defendants’ discretionary parole decision-making is barred.
For the foregoing reasons, Plaintiffs have not stated a plausible claim for a violation of the APA. III. The Complaint Fails to State a Claim for a Writ of Mandamus
Plaintiffs have also failed to allege the “extraordinary circumstances” that would justify the “drastic” remedy of issuing a writ a mandamus. Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002) (internal quotation marks omitted). Mandamus is available only where (1) a plaintiff has a clear and indisputable right to relief, (2) that the government agency or official is violating a clear duty to act, and (3) that no adequate alternative remedy exists. 10 United States v. Monzel,
10 These three threshold requirements are jurisdictional; unless all are met, a court must dismiss the case for lack of jurisdiction. See In re Medicare Reimbursement Litig., 414 F.3d 7, 10 (D.C. Cir. 2005) (internal quotation marks and alteration omitted). “Even when the legal requirements for mandamus jurisdiction have been satisfied, however, a court may grant relief only when it finds compelling equitable grounds.” Id. “The party seeking mandamus has the burden of showing that its right to issuance of the writ is clear and indisputable.” Power, 292 F.3d at 784 (internal quotation marks omitted).
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Case 1:20-cv-01072-CRC Document 57 Filed 07/31/20 Page 12 of 15
641 F.3d 528, 534 (D.C. Cir. 2011). It is “reserved only for the most transparent violations of a clear duty to act.” In re Bluewater Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000). The pleading in the Complaint has not met this high threshold.
A writ of mandamus requires the violation of a “clear duty to act,” which is a duty that is mandatory and non-discretionary. See CREW v. SEC, 916 F. Supp. 2d 141, 151-52 (D.D.C. 2013) (“To be enforceable through mandamus, the agency's duty must be ‘so plainly prescribed as to be free from doubt and equivalent to a positive command.’”) (quoting Wilbur v. United States, 281 U.S. 206, 218 (1930)). Obligations that allow for judgment or discretion—such as how to mitigate the spread of a virus at a detention facility or whether to parole or release a detainee—are not subject to writs of mandamus. Op. at 76; see also Beatty v. Washington Metro. Area Transit Auth., 860 F.2d 1117, 1127 (D.C. Cir. 1988) (“Generally speaking, a duty is discretionary if it involves judgment, planning, or policy decisions. It is not discretionary [i.e., ministerial] if it involves enforcement or administration of a mandatory duty . . . .”) (quoting Jackson v. Kelly, 557 F.2d 735, 737–38 (10th Cir.1977)).
Plaintiffs also have not alleged an “indisputable right to [the] relief” they seek, immediate release from immigration detention. Plaintiffs cite no statute or regulation, for example, which entitles them to release from detention even assuming a violation of a “clear duty.” A review of other mandamus cases illustrates how clear or indisputable the right to relief must be to justify a writ. In Walprin v. Corporation for National and Community Services, plaintiff sought a writ directing his restoration to the position of Inspector General. 630 F.3d 184, 186 (D.C. Cir. 2011). The relevant statute, however, did not grant such relief, as it prevented removal of an Inspector General only for a limited time, which was for thirty days after the President notifies Congress of the intent to remove. Id. at 187. Here, the Complaint does not point to a statute or any authority
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Case 1:20-cv-01072-CRC Document 57 Filed 07/31/20 Page 13 of 15
that is even related to the relief Plaintiffs seek much less one that provides an indisputable right to relief.
Finally, as the Court previously indicated, Plaintiffs have not alleged any facts establishing the lack of available alternative remedies. Indeed, Plaintiffs have asserted claims under the Fifth Amendment and the APA to challenge their alleged conditions of confinement. The Court found adequate remedies available in the form of the APA, albeit pursuant to 5 U.S.C. § 706(1), which authorizes a reviewing court to “compel agency action unlawfully withheld or unreasonably delayed,” and not under the provision alleged by Plaintiffs (§ 706(2)(A)). Here, the failing under either the APA or the writ of mandamus is the same: a failure to plausibly allege a duty or agency action that ICE was legally mandated and decided not to take to protect Plaintiffs during the COVID-19 pandemic. See CREW, 916 F. Supp. 2d 141, 151-52 (“The standards for APA relief under § 706(1) and for mandamus here are identical, [] and to the extent that it is unable to compel specific action under the APA, this Court is similarly unable to issue mandamus in such a circumstance.”) (citations omitted). In other words, the issue is not the lack of available remedies; the issue is whether Plaintiffs have sufficiently pled the causes of action underlying those remedies. IV. The Declaratory Judgment Act Provides No Independent Cause of Action
Count IV purports to state a claim under the Declaratory Judgment Act (“DJA”), but the DJA provides no independent cause of action. The DJA does not waive sovereign immunity. United States v. King, 395 U.S. 1, 5 (1969). It does not constitute an independent basis for jurisdiction. Schilling v. Rogers, 363 U.S. 666, 677 (1960) (citing Skelly Oil v. Phillips Petroleum Co., 339 U.S. 667, 671, (1950)). Rather, the statute merely creates a remedy where there is another cause of action within the Court’s jurisdiction. Id.; see also Seized Prop. Recovery, Corp. v. CBP, 502 F. Supp. 2d 50, 64 (D.D.C. 2007) (“Although Plaintiff purports to bring this claim under the Declaratory Judgment Act, it does not specify any cause of action through which the Court may
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exercise subject matter jurisdiction and grant declaratory relief.”). Therefore, Defendants request that this claim be dismissed to the extent there is no other viable claim available to a Plaintiff.
CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court dismiss (a) all claims of Plaintiffs C.G.B., R.H., G.P., L.R.A.P., A.F., L.M., D.B.M.U., M.J.J., M.M.S-M., and M.R.P. for lack of standing; (b) Count II (Violation of the Administrative Procedure Act) of the Complaint; (c) Count III (Writ of Mandamus) of the Complaint; and (d) Count IV (Declaratory Judgment Act) of the Complaint to the extent any Plaintiff has not plausibly alleged another claim.

Dated: July 31, 2020 Washington, DC

Respectfully submitted,
MICHAEL R. SHERWIN Acting United States Attorney
DANIEL F. VAN HORN, D.C. Bar #924092 Chief, Civil Division
/s/ Sean Tepe SEAN M. TEPE, DC Bar #1001323 Assistant United States Attorney 555 Fourth Street, N.W. Washington, D.C. 20530 Telephone: 202-252-2533 Sean.Tepe@usdoj.gov

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Case 1:20-cv-01072-CRC Document 57 Filed 07/31/20 Page 15 of 15

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

C.G.B. et al.,

)

)

Plaintiffs,

)

)

v.

)

)

CHAD WOLF, Acting Secretary

)

U.S. Department of Homeland Security et al., )

)

Defendants.

)

)

)

Civil Action No. 20-1072 (CRC)

[PROPOSED] ORDER Upon consideration of Defendants’ Motion to Dismiss, Memorandum of Points and Authorities, and any opposition or reply thereto, it is hereby ORDERED that: (1) All claims of Plaintiffs C.G.B., R.H., G.P., L.R.A.P., A.F., L.M., D.B.M.U., M.J.J., M.M.S-M., and M.R.P. are DISMISSED for lack of standing; (2) Count II (Administrative Procedure Act) of the Complaint is DISMISSED; (3) Count III (Writ of Mandamus) of the Complaint is DISMISSED; and (4) Count IV (Declaratory Judgment Act) of the Complaint is DISMISSED to the extent any Plaintiff has not plausibly alleged another claim. It is SO ORDERED this day of __________________, 2020.

Hon. Christopher R. Cooper

1

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 Case 1:20-cv-01072-CRC Document 60 Filed 08/19/20 Page 1 of 67

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

C.G.B., f/k/a D.G.B.; A.F., f/k/a O.E.R.F.; et al. )

M.M.S-M., f/k/a A.H.S-M.; L.R.A.P., f/k/a E.A.P.; ) Case No. 1:20-CV-01072-CRC

K.S., f/k/a J.H.S.; K.M., f/k/a G.M.;

)

R.H., f/k/a F.A.H.; L.M., f/k/a S.M.; M.J.J., f/k/a ) EMERGENCY VERIFIED PETITION

O.H.J.; D.B.M.U., f/k/a W.E.M.U.; K.R.H., f/k/a ) FOR A WRIT OF MANDAMUS AND

W.D.R.H.; G.P., f/k/a O.A.P.; and M.R.P., f/k/a ) COMPLAINT FOR DECLARATORY

J.N.R.P.,

) AND INJUNCTIVE

) RELIEFAMENDED COMPLAINT

Petitioners,

)

)

v.

)

)

Chad WOLF, in his official capacity as the acting )

Secretary of the U.S. Department of Homeland )

Security; and

)

Physical Address:

)

Office of the General Counsel

)

U.S. Department of Homeland Security )

Washington, D.C. 20528;

)

)

William BARR, in his official capacity as the

)

Attorney General of the United States,

)

Physical Address:

)

Office of the Attorney General

)

U.S. Department of Justice

)

950 Pennsylvania Avenue, N.W.,

)

Washington, D.C. 20530-0001,

)

)

WOLF et al.,

)

)

Respondents.

)

INTRODUCTION 1. This lawsuit seeks to vindicate the constitutional and statutory rights to reasonable protection from the COVID-19 pandemic for an especially vulnerable group: transgender people in civil immigration detention. These peopleImmigration and Customs Enforcement (“ICE”) has consistently failed to protect transgender people in its custody from abuse, harassment, and

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violence. The COVID-19 pandemic sweeping through ICE detention facilities has exacerbated these systematic failures. Transgender people in immigration detention are not being punished for any crime, but now they are being put at unreasonable and unconstitutional risk of infection, disease and death by the government’s failure to enact adequate rules and to follow even its own basicinadequate safety and health rules.
2. Although federal authorities recognize the severe risks posed by outbreaks of the COVID-19 virus in immigration detention centers, Immigration and Customs Enforcement (“ICE”)ICE has done little more than pay lip service to protecting those in its custody. Transgender people in civil immigration detention – many of whom came to this country seeking safety from violence and persecution in their home countries because of their gender identities – are among the most vulnerable during the current pandemic. Petitioners therefore seek the supervised release of themselves and all transgender people in immigration detention because ICE has not provided and cannot implement sufficient measures to curb the spread of COVID-19 in its facilitiesneither created nor implemented measures to protect them while in custody. Petitioners further seek an order requiring ICE to incorporate the model procedures outlined in Attachment 1 to the 2015 Transgender Care Memorandum1, entitled “ICE Detention Facility Contract Modification for Transgender Care” into its facility contracts with its service vendors. Finally, Petitioners seek an order requiring ICE to enact rules and regulations specifically designed to protect transgender detainees in its custody from the COVID-19 pandemic.
3. Since ICE first reported a COVID-19 infection in one of its detention centers on March 19, 2020, outbreaks have spread to at least 3270 detention centers across the country. As
1 Thomas Homan, Executive Associate Director, U.S. ICE, Further Guidance Regarding the Care of Transgender Detainees (June 19, 2015), available at https://www.ice.gov/sites/default/files/documents/Document/2015/TransgenderCareMemorandu m.pdf (hereinafter “Transgender Care Memorandum”).
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of April 21,August 14, 2020, ICE had publicly reported 2854,531 confirmed cases of COVID-19 in those facilities, including 253 detainees and 32 staff members. At least ten facilities where transgender people in civil immigration detention are housed are experiencing reported outbreaks with 103 detainees and 12 staff members infected.among detainees, five of whom died, out of a total current detainee population of 21,118. ICE Detainee Statistics, ice.gov/coronavirus (last visited Aug. 14, 2020). Shockingly, approximately one in five civil immigration detainees tested has or has had COVID-19.2
4. Immigration detention centers are congregate facilities in which detainees live in close proximity. That fact makes them especially dangerous during pandemics such as COVID-19, which easily spreads from person to person, both through the air and potentially via contamination on commonly used surfaces such as tables and toilets.
5. On April 10, 2020, a month after the World Health Organization declared a global pandemic, ICE finally recognized this problem and issued rules for its detention centers to take some steps designed to reduce the risk of COVID-19 outbreaks, and also required its facilities to follow guidance for detention centers published by the Centers for Disease Control (“CDC”) and Prevention (“CDC”). But ICE has systematically failed to provide even these fundamental protections to people in civil immigration detention.
6. ICE’s failures are dramatically illustrated by the experience of Petitioner C.G.B., a transgender woman who is being held at a detention facility in Arizona. The facility placed a newly arrived detainee in the bunk above C.G.B., and he began coughing uncontrollably. But he 2 ICE has publicly reported testing 22,580 detainees as of August 14, 2020, meaning test
results were positive for COVID-19 in approximately one of every five detainees tested. ICE Detainee Statistics, ice.gov/coronavirus (last visited Aug. 14, 2020). These numbers are unreliable and understate the numbers of infected detainees. Some of ICE’s declarants in this litigation have provided higher numbers of positive cases in their facilities than ICE had publicly announced on its website in the same time frame. See generally Petitioners’ Mot. for Expedited Discovery (ECF 33).
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was not seen by a medical provider for several days, and then he was returned to the general population. Days later, C.G.B. began experiencing symptoms of COVID-19, including vomiting, a fever, and what she described as pain in her bones. C.G.B. was tested for COVID-19 on April 9, 2020, but has not been told what the results of that test were. She is being held in a pod with a dozen other detainees suffering from COVID-19 symptoms, two of whom have confirmed cases of the disease. has a long history of systematically failing to protect and care for the transgender people in its custody. ICE guidelines and regulations explicitly recognize that people who are transgender face a higher risk of victimization and abuse in custody. For example, the federal regulations implementing the Prison Rape Elimination Act (“PREA”) in ICE detention facilities require ICE, in assessing a detainee’s risk of victimization and abuse, to consider “whether the detainee has self-identified as gay, lesbian, bisexual, transgender, intersex, or gender nonconforming.” 6 CFR § 115.41 (c) (7).
7. ICE’s own statistics bear out the increased risk of abuse and assault faced by transgender people in its care. ICE publicly reports its statistics on detainee allegations of sexual abuse and assault in custody in accordance with its obligations under PREA. In 2017, 264 detainees reported allegations of sexual abuse or assault. Of those 264, 12 or 5% were transgender. ICE, PREA Statistics. https://www.ice.gov/prea. In 2017, ICE booked 323,591 people into custody. ICE (2017), Fiscal Year 2017 ICE Enforcement and Removal Operations Report, available at ice.gov/sites/default/files/documents/Report/2017/iceEndOfYearFY2017.pdf. Of those more than three hundred thousand total detainees over the course of 2017, 247 self-identified as transgender. Elise Foley, LGBTQ Immigrant Detainees Reported Sexual Assault at Higher Rates, HuffPost (May 30, 2018)
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huffpost.com/entry/ice-lgbtq-immigrant-detainees-sexual-assault. Thus, while transgender people represented .07% of the total detainee population in 2017, they were the victims in 5% of reported instances of sexual abuse or assault. These numbers likely understate that extent of the problem as transgender detainees fear retribution and punishment and thus often decline to report abuse and assault while in custody.
8. In 2015, recognizing the unique issues transgender people face in detention, ICE promulgated its “Further Guidance Regarding the Care of Transgender Detainees,” which included an attached model “ICE Detention Facility Contract Modification for Transgender Care.” Transgender Care Memorandum, Attachment 1. See also ICE, ICE issues new guidance on the care of transgender individuals in custody, (Jun 29, 2015), available at https://www.ice.gov/news/releases/ice-issues-new-guidance-care-transgender-individuals-custod y (“this new guidance is the result of a six-month agency Working Group that examined these issues with subject matter experts, sought input from transgender individuals, and visited various non-federal facilities across the country to observe best practices.”) Though the Transgender Care Memorandum required ICE to “to incorporate the model procedures outlined in Attachment 2 [sic], ‘ICE Detention Facility Contract Modification for Transgender Care’ into facility contracts[,]” upon information and belief, ICE has not incorporated the model procedures in the facility contracts at any of its detention centers. Id. at § 5.
9. In January 2020, ICE suddenly closed the Transgender Protective Care Unit at Cibola Detention Center/Cibola County Correctional Center (“Cibola”) with no explanation. Since then, the Aurora Detention Center (“Aurora”) has been the only ICE detention facility with a unit specifically dedicated to housing transgender detainees. As a result, nearly all transgender
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women in civil immigration detention are housed with cisgender men, exposing them to risks of sexual assault and verbal and physical abuse.
10. Moreover, if transgender people complain of abuse, ICE places them in solitary confinement rather than intervening to stop the abuse. This practice has the effect of punishing transgender detainees for reporting mistreatment and leads to the chronic underreporting of abuse.
11. The extreme danger of harassment, abuse and sexual assault to transgender detainees further enhances their risk of contracting COVID-19. ICE has not even created policies to protect transgender people in their custody from the risk of contracting COVID-19, let alone implemented measures to protect transgender detainees during the pandemic, despite knowing of this group’s unique vulnerabilities to such abuse.
12. ICE also systematically fails to provide adequate and necessary medical care for transgender people in detention. Over the last two years, two transgender women have died due to lack of adequate medical care while in ICE custody. And Department of Homeland Security Office of the Inspector General reports published in 2017 and 2019 found inadequate medical care at multiple ICE detention facilities where transgender people are held.
13. This failure to provide medical care has exacerbated Petitioners’ risks of contracting COVID-19. For example, although two Petitioners are living with HIV, ICE has not only refused to release them, but also has failed to supply their necessary HIV medications on a consistent schedule. This irregular delivery of medication compromises their immune systems, making them more vulnerable to contracting COVID-19.
14. Despite these risks, ICE has no specific policies and has taken no specific measures to protect transgender people in its custody, not only from abuse and harassment, but
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also from contracting this deadly virus. Due to ICE’s failure to protect them, Petitioners K.S. and K.R.H. have been exposed to other detainees in their units who have subsequently tested positive for COVID-19. On July 2, 2020, K.S. reported that her unit, housing approximately 50 detainees, had been placed under quarantine three times. During these quarantines, facility staff, including counselors and commissary workers, does not enter the unit. This improper use of quarantine is in direct violation of the ICE pandemic guidelines, which mandate that only individuals with laboratory-confirmed cases of COVID-19 should be isolated as a cohort. ICE has been instructed not to cohort confirmed cases with suspected cases or case contacts. Yet, the overuse of cohorting is not unusual.
15. 7. Transgender people in civil immigration detention report that it is often impossible to practice social distancing – beds and tables are bolted to the floor, forcing detainees to sleep and sit only a few feet from each other, and some detainees are still lining up in large groups for meals as they did before the outbreak. Few guards and staff members wear face masks when interacting with detainees, and some wear no protective equipment at all – including a doctor who performed a physical examination of a transgender woman without even wearing gloves. Most detainees have not been provided face masks; some do not have access to soap and must wash their hands with shampoo. Detainees have assigned sleeping bunks and are unable to distance from others even when the numbers of detainees in a unit have dropped. Detainees report that all detainees in their units must share a single water fountain – drinking from this communal fountain is their only source of water in detention. Many detainees must clean their own living spaces without disinfectant. Detainees exhibiting symptoms such as coughing or fever are not always given a medical examination or isolated from the rest of the
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populationSeveral detainees report that they have been given a face mask that they have had to use for months, going without protection when the mask is damaged, soiled or being washed.
16. 8. Transgender people in civil immigration detention are particularly susceptible to COVID-19 infection because as a group they are more likely to have underlying medical conditions making them vulnerable, such as infection with HIV, diabetes and high blood pressure. Further, transgender people in civil immigration detention have not only suffered the trauma of being discriminated against, persecuted, tortured and raped because of their gender identity, they live with the constant stress of continuing discrimination, harassment and the risk of sexual assault. Such stress lowers their immune systems’ response to infection, meaning transgender detainees are more likely to become infected, become sick, and die from COVID-19.
17. 9. Petitioners have no other avenue to seek relief. ICE has announced that it has completed its release of detainees it determined to be at high risk of infection, yet Petitioners and dozens, if not hundreds, ofmany other transgender people remain in ICE custody as outbreaks inside immigration detention centers rapidly worsen. Absent this Court’s intervention, Petitioners and all other transgender people in civil immigration detention will continue to be at an unreasonably high risk of falling victim to this deadly virus.
18. 10. ICE’s failures have made detention centers death traps for transgender people in civil immigration detention. That situation violates Petitioners’ Fifth Amendment due process rights and the Administrative Procedure Act. Therefore, this Court should issue an injunction mandating the release on parole or other supervised release of all transgender people in civil immigration detention so they may take the necessary precautions against COVID-19. This Court could also direct Respondents to release all transgender people in civil detention on a supervised release program. Another option for this Court is to order Respondents to set
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individual bonds for all transgender people in custody. The nonprofit organizations and other groups supporting transgender people in civil immigration detention have the resources and plans necessary to support all of the transgender people in civil immigration detention in release. Short of the release of transgender detainees, Respondents should be directed to incorporate the model procedures outlined in Attachment 1 to the 2015 Transgender Care Memorandum, “ICE Detention Facility Contract Modification for Transgender Care” into its facility contracts with its service vendors and to enact rules and regulations specifically designed to protect transgender detainees in its custody from the COVID-19 pandemic.
PARTIES PETITIONERS IN ICE CUSTODY 19. 11. Petitioner C.G. B., f/k/a D.G.B., is a citizen of Mexico who has been detained at the Florence Correctional Center (“Florence”) in Florence, Arizona, since January 2020. D.G.B., a transgender woman, is seeking asylum because she fears persecution in Mexico because of her transgender status. C.G.B. has experienced COVID-19 symptoms since April 9, 2020, and is being held in quarantine with other detainees who are showing symptoms of the virus. She had a COVID-19 test performed on April 9, 2020, but despite being told she would have results in three days, she has not been told of those test results to date. C.G.B. was being held in a pod with approximately 64 other detainees when, on April 2, 2020, the newly arrived man in the bunk above her began coughing uncontrollably. He was eventually seen by a doctor five days later, but was returned to the general population and the bunk above C.G.B.. She saw nurses and then a doctor after she began vomiting, had a fever, had pain in her throat, head and bones, and began losing hair. She is now housed in a pod with a dozen people experiencing COVID-19 symptoms, two of whom have tested positive for the virus. Petitioner K.S., f/k/a J.H.S., is a citizen of Jamaica who is detained at the Nevada Southern Detention Center
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(“Nevada Southern”) in Pahrump, Nevada. She has been in ICE custody since March 27, 2019. K.S., a transgender woman, is seeking asylum because she has received death threats from her family and fears persecution in Jamaica because of her transgender status. K.S. is living with HIV and suffers from acute anxiety. At times, she has difficulty ensuring that she receives her antiretroviral medication as prescribed. She has not been allowed to wear her face mask when leaving her dorm to go to a medical appointment. ICE reviewed the custody of K.S. pursuant to the Fraihat injunction3 and determined that although she has risk factors due to her HIV positive status, she is not suitable for release. Dr. Carlos Franco-Paredes, an infectious disease expert who has treated HIV-positive transgender detainees, has specifically opined that K.S. falls into a high-risk category should she contract COVID-19, due to her HIV-positive status, and that she would, in his professional judgment, be significantly safer in the home of her sponsor for the duration of the COVID-19 pandemic. As of May 8, 2020, Nevada Southern had not tested a single detainee or staff member for COVID-19. By June 10, 2020, ICE reported one confirmed case of COVID-19 after testing two detainees at Nevada Southern. And as of August 14, 2020, a total of 10 detainees at Nevada Southern had tested positive for COVID-19.
12. Petitioner A.F., f/k/a O.E.R.F., is a citizen of Nicaragua who is detained at the La Palma Correctional Center (“La Palma”) in Eloy, Arizona. She has been in ICE custody since January 9, 2020. A.F., a transgender woman, intends to seek asylum because she was detained and tortured for her participation in a transgender rights organization. A doctor at La Palma told A.F. that she is at greater risk for COVID-19 infection because she was born with only one kidney. She is concerned because there is no way to practice social distancing at La Palma; for example, detainees have meals in groups of more than 100 people and cannot maintain a six-foot
3 See Fraihat v. United States Immigration & Customs Enf’t, No. EDCV 19-1546 JGB (SHKx), 2020 U.S. Dist. LEXIS 72015 (C.D. Cal. Apr. 20, 2020).
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distance while waiting in line or eating. Guards at La Palma refuse to answer questions about COVID-19, although ICE reports at least 13 confirmed cases of the disease among detainees there. She has not observed guards wearing face masks or gloves while interacting with detainees.
13. Petitioner M.M.S-M., f/k/a A.H.S-M., is a citizen of El Salvador who is detained at the Winn Correctional Center (“Winn”) in Winnfield, La. She has been in ICE custody for nearly a year. M.M.S-M., a transgender woman, is seeking asylum because she fears persecution and death in El Salvador because of her transgender status. She has been unable to obtain critical health care, including hormone replacement therapy, while in ICE custody. Because of her fear and anxiety from being housed with 40 cisgender men, M.M.S-M. has been placed in segregation, which is exacerbating her mental health issues. Nurses at Winn do not wear gloves or masks, and neither medical staff nor guards have provided M.M.S-M. with information about COVID-19.
14. Petitioner L.R.A.P., f/k/a E.A.P., is a citizen of Mexico who came to the United States when she was three or four years old. She has been detained at La Palma since December 16, 2019. L.R.A.P., a transgender woman, is seeking asylum because she fears persecution in Mexico because of her transgender status. L.R.A.P. has not received information about COVID-19 from the staff at La Palma and was not informed that there are 18 confirmed cases among detainees there. L.R.A.P. is “distressed, stressed, and panicked,” both out of fear of contracting the coronavirus and also because of the harassment she endures from both detainees and staff members, who often use anti-gay and anti-transgender slurs. Social distancing is impossible for her because detainees congregate together and must sit at tables one foot apart. She has not seen any guards wearing face masks or gloves
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15. Petitioner K.S., f/k/a J.H.S., is a citizen of Jamaica who is detained at the Nevada Southern Detention Center (“Nevada Southern”) in Pahrump, Nevada. She has been in ICE custody since March 27, 2019. K.S., a transgender woman, is seeking asylum because she has received death threats from her family and fears persecution in Jamaica because of her transgender status. K.S., who is living with HIV, at times has difficulty ensuring that she receives her antiretroviral medication as prescribed. Staff at Nevada Southern, including medical staff, do not always wear gloves and masks.
20. 16. Petitioner K.M., f/k/a G.M., is a citizen of Haiti who has been detained at Nevada Southern since March 27, 2019. K.M., a transgender woman, is seeking asylum because she fears persecution and violence in Haiti because of her transgender status. A cousin of hers in Haiti was beheaded because he was gay. K.M. suffers from acute anxiety. Staff at the facility sometimes do not provide K.M., who is living with HIV, with her antiretroviral medication, causing her to miss doses. She has observed other detainees in her pod showing possible COVID-19 symptoms such as coughing and fever; those detainees were sent to medical care but returned to the general population. K.M.’s medication for HIV is sometimes skipped entirely at night or given out after midnight. On three occasions, K.M. received her medications at 3:00 a.m. In June she missed 5 to 6 days of her HIV medication because it was out of stock. Missing doses of HIV medications can reduce their usefulness and increase the possibility of developing drug resistance, which makes certain HIV drugs lose their efficacy. ICE reviewed the custody of K.M. pursuant to the Fraihat injunction and determined that although she has risk factors due to her HIV positive status, she is not suitable for release. Dr. Franco-Paredes specifically opined that K.M. falls into a high-risk category should she contract COVID-19, due to her HIV-positive status, and that she would, in his professional judgment, be significantly safer in the home of her
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sponsor for the duration of the COVID-19 pandemic. As of May 8, 2020, Nevada Southern had not tested single detainee or staff member for COVID-19. By June 10, 2020, ICE reported one confirmed case of COVID-19 after testing two detainees at Nevada Southern. And as of August 14, 2020, a total of 10 detainees at Nevada Southern had tested positive for COVID-19.
17. Petitioner R.H., f/k/a F.A.H., is a citizen of Honduras who is detained at Caroline Detention Facility (“Caroline”) in Bowling Green, Virginia. She has been in ICE custody since January 18, 2020. R.H., a transgender woman, is seeking asylum because she fears persecution in Honduras because of her transgender status. She suffers from asthma, which requires her to use an inhaler three times a day. She also takes medically necessary hormones as part of her gender-affirming care. Upon being detained, her hormones were changed, and she experienced side effects including severe headaches. Because of her asthma, she is at high risk for severe illness or death if she contracts COVID-19. There are 35-40 people in her dorm, and she has experienced some harassment from the people with whom she is detained. These conditions have made it impossible for her to practice social distancing.
18. Petitioner L.M., f/k/a S.M., is a citizen of Jamaica who is detained at the Aurora Detention Center (“Aurora”) in Aurora, Colorado. She has been detained since she presented herself at the San Ysidro Port of Entry on February 17, 2020, seeking asylum because she has experienced beatings, death threats, discrimination and persecution in Jamaica because of her status as a transgender woman. At Aurora, it took approximately 3-4 weeks for her to obtain an appointment with a doctor, who resumed her prescribed hormone treatments at one-quarter of her previous dose, and who examined her without wearing gloves or a mask.
19. Petitioner M.J.J., f/k/a O.H.J., is a citizen of Honduras who is detained at Aurora. She has been detained for about one month – originally at El Paso Processing Center (“El Paso”)
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in El Paso, Texas, then transferred to Florence, and eventually to Aurora. M.J.J., a transgender woman, is seeking asylum because she fears persecution in Honduras because of her transgender status. She is in a dorm with seven other transgender women, five of whom are HIV positive. She does not believe that anyone in the dorm has been tested for COVID-19. She has not been given gloves or masks. The guards at Aurora wear gloves but do not wear masks.
20. Petitioner D.B.M.U., f/k/a W.E.M.U., is a citizen of Honduras who is detained at Aurora. She has been detained for more than a month – originally at El Paso, then transferred to Florence, and eventually to Aurora. D.B.M.U., a transgender woman, is seeking asylum because she fears persecution in Honduras because of her transgender status. She has not been given any information about why she has been transferred. She is detained in a room with seven other transgender women. She heard on the news that there was a confirmed case of COVID-19 at Aurora. She does not have access to any disinfectants, gloves, or masks, and she has not seen anyone at Aurora being tested for COVID-19. She is worried that she will contract COVID-19 and die.
21. Petitioner K.R.H., f/k/a W.D.R.H., is a citizen of Guatemala who has been detained in ICE custody at the La Palma Correctional Center (“La Palma”) in Eloy, Arizona since the beginning of April 2020.2019. K.R.H., a transgender woman, is seeking asylum because she fears persecution based on her LGBTQ+ identity in Guatemala, where she experienced threats and a kidnapping attempt. She suffers from tachycardia (an abnormally rapid heartbeat) and anxiety. In early April, K.R.H. suffered a headache and fever, which are potential symptoms of COVID-19, but a nurse at La Palma did not see her until a week later, did not test her for the virus, and did not provide medication for her symptoms. Although as of April 21,K.R.H. has been verbally and physically assaulted by other detainees, including an incident in which she was
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spit on, due to her transgender identity. K.R.H. has a history of asthma and tachycardia and suffers from acute anxiety. Between April 27 and May 8, 2020, eight detainees exhibiting symptoms of COVID-19 were taken from her housing unit. At least three of those detainees tested positive, but K.R.H. was denied a test when she requested one. As of May 8, 2020, ICE reported 1853 detainees at La Palma had been diagnosed with COVID-19, staff members have not notified K.R.H. about the presence of the virus at the facility. She learned of threetested positive for COVID-19. By June 10, 2020, ICE reported that number had risen to 78 confirmed cases of COVID-19 among the 98 detainees who had been tested at La Palma from other detainees who work in the medical area. K.R.H. is housed in a 120-person pod and does not have sufficient space in the pod to stay more than six feet away from other people; the detainees congregate in groups of 20 to 30 to have meals and watch television, and the beds in the two-person cells do not provide a six-foot distance for sleeping. . As of July 1, 2020, K.R.H. reported there were about 100 detainees in her unit, or 83% of its total capacity of 120 detainees. And as of August 14, 2020, a total of 122 detainees at La Palma had tested positive for COVID-19.
22. Petitioner G.P., f/k/a O.A.P., is a citizen of Honduras who has been detained at Imperial Regional Detention Facility (“Imperial”) in Calexico, California for fifteen months. G.P., a transgender woman, is seeking asylum because she fled Honduras due to persecution because of her transgender status. Until recently, she lived in a dorm with 64 people, which makes social distancing impossible. She does not know if anyone at Imperial has contracted COVID-19, but she does not believe that anyone has been tested. She does not have access to gloves or hand sanitizer and was offered a mask only in the past week. She does not feel safe, and she is concerned because there are still new people coming into the Detention Center.
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23. Petitioner M.R.P., f/k/a J.N.R.P., is a citizen of El Salvador who has been detained since June 11, 2019. Since February 2020, she has been detained at El Paso. She was previously detained at Cibola and Otero Detention Center (“Otero”) in Chaparral, New Mexico. M.R.P., a transgender woman, is seeking asylum because she fled persecution, torture and death threats in El Salvador because of her transgender status. She has respiratory issues, hypothyroidism, Hepatitis A, abnormally high bilirubin, and abnormally high hemoglobin. She has a family history of diabetes, and while she does not have a formal diagnosis, she knows she is at risk of getting diabetes. She sleeps in a barrack with nine cisgender men. The beds in the barrack are only three or four feet apart, so social distancing is impossible. She is afraid that she will become infected with COVID-19 and that she will develop serious medical issues because people with diabetes and respiratory issues are at a higher risk for serious symptoms if they contract COVID-19.
RESPONDENTS 22. 24. Respondent Chad Wolf is the acting secretary of the United States Department of Homeland Security (“DHS”). He is a legal custodian of Petitioners and is sued in his official capacity. Respondent Wolf is charged with the administration and enforcement of the immigration laws of the United States, 8 U.S.C. § 1103(a), and has supervisory authority over Immigration and Customs Enforcement (“ICE”), the Department of Homeland Security (“DHS”) component responsible for the civil detention of immigrants including Petitioners. 23. 25. Respondent William P. Barr is the United States Attorney General. In this capacity, he has supervisory authority over all operation of the Executive Office of Immigration Review (EOIR), which includes all the immigration courts and the Board of Immigration Appeals (BIA). 8 U.S.C.§ 1103(g); 8 C.F.R. § 1003.0. He is also charged with the administration and the
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enforcement of the immigration laws under 8 U.S.C. § 1103(a). Respondent Barr is a legal custodian of Petitioners. He is sued in his official capacity.
PROPOSED CLASS 24. 26. Petitioners file this action on behalf of a highly vulnerable putative class: all transgender people in civil immigration detention in the United States. 25. 27. On information and belief, transgender people in civil immigration detention are being held in at least the following 17six facilities: Adelanto Detention Center/Adelanto ICE Processing Center, Adelanto, California; Aurora Detention Center, Aurora, Colorado; Caroline Detention Facility, Bowling Green, Virginia; Cibola Detention Center/Cibola County Correctional Center, Milan, New Mexico; El Paso Processing Center, El Paso, Texas; Florence Correctional Center, Florence, Arizona; Imperial Regional Detention Facility, Calexico, California; Irwin County Detention Center, Ocilla, Georgia; La Palma Correctional Facility, Eloy, Arizona; Nevada Southern Detention Center, Pahrump, Nevada; Otay Mesa Detention Center, San Diego, California; Otero Detention Center/Otero County Processing Center, Chaparral, New Mexico; Pearsall Detention Center/South Texas ICE Processing Center, Pearsall, Texas; Prairieland Detention Center, Alvarado, Texas; Stewart Detention Center, Lumpkin, Georgia; Tacoma Northwest Detention Center, Tacoma, Washington; and Winn Correctional Center, Winnfield, Louisiana. 26. 28. Each transgender person in civil immigration detention is at imminent risk of contracting COIVDCOVID-19 because of the life-threatening conditions under which they are confined—conditions that violate CDC guidelines, ICE directives, and State and County orders as they pertain to COVID-19. This risk is heightened further because transgender people in civil immigration detention suffer from medical conditions such as HIV, diabetes, and mental illness,
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and have an increased likelihood of harassment and assault that put them at greater risk of contracting COVID-19 and suffering serious symptoms and death as a result.
27. 29. Named Petitioners bring this action as representatives of the following proposed class:
All transgender people in civil immigration detention who are held, or who will be held, by Respondents in any U.S. detention center or facility during the pendency of the COVID-19 pandemic. 28. 30. The proposed class meets the requirements of Federal Rules of Civil Procedure 23(a) and (b). 29. 31. The class is sufficiently numerous. Although ICE does not publish the number ofAs of May 2020, ICE attested that at least seventy transgender people were being held in civil immigration detention, Petitioners on information and belief estimate that the number is at least 60 and may be as many as several hundred. 30. 32. All members of the class are bound together by common questions of law and fact – most prominently, whether in the face of the lethal COVID-19 pandemic, the continued civil detention of the class members at the Detention Centers in violation of the CDC guidelinesICE’s failure to create and implement any measures protecting transgender people in its custody, placing the class members’ health and safety at grave risk, violates their constitutional rights. The class members are also united by the question of whether ICE has failed to implement measures to protect them from the increased risk of sexual assault and abuse they face in detention, including a total failure to incorporate the model procedures outlined in the Transgender Care Memorandum into any of its contracts with service vendors at its detention centers.
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31. 33. The named Petitioners are proper class representatives because their claims are typical of the absent class members and because they and their counsel will adequately and vigorously represent the class.
32. 34. Rule 23(b)(2) is also satisfied here because the Respondents have “acted or refused to act on grounds that apply generally to the class” through creatingfailing to implement their own model policies for the care of transgender detainees at a single facility, failing to create specific guidelines to protect the vulnerable population of transgender detainees from their increased risk of contracting and suffering from COVID-19, and maintaining conditions that put the class at imminent risk of contracting COVID-19, the deadly virus that is currently sweeping the globe.19.
VENUE 33. 35. Venue in the District Court for the District of Columbia is proper under 28 U.S.C. § 1391(b) and (e) because Respondents reside in this district and are sued in their official capacities.
JURISDICTION 34. 36. Respondents reside within the jurisdiction of this Court. 35. 37. This case arises under the United States Constitution and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. 36. 38. This Court has jurisdiction pursuant to the All Writs Act, 28 U.S.C. § 1651(a). 37. 39. This Court has jurisdiction pursuant to 28 U.S. Code § 1331 (Federal Question), 28 U.S. Code § 1361 (Action to compel an officer of the United States to perform his duty), and 28 U.S.C. § 2201(a), (Federal Declaratory Judgment Act).
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FACTS A. COVID-19 is a Global Pandemic that Poses a Significant Risk of Death or Serious
Illness to Petitioners. 38. 40. Since the first confirmed case of COVID-19 in the United States in late January 2020, the number of infected people in this country has exploded to more than 746,0005 million as of April 20, 2020,August 14, 2020 with more than 39,000166,000 deaths, according to the CDC. See Cases of Coronavirus Disease (COVID-19) in the U.S., Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited Apr. 20,August 14, 2020). 39. 41. State and local governments across the country have implemented measures intended to curb the spread of the disease, including banning large gatherings, closing non-essential businesses, ordering people to stay home except for essential activities, and requiring the use of face masks where large groupings of strangers are unavoidable, such as in grocery stores. 40. 42. COVID-19 is a respiratory illness that is spread through airborne droplets, such as those expelled when a person coughs or sneezes, or via contact with contaminated surfaces such as doorknobs and countertops. See What you should know about COVID-19 to protect yourself and others, Centers for Disease Control and Prevention (Apr. 15, 2020) (“CDC Factsheet”), available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/2019-ncov-factsheet.pdf. 41. 43. Some people who are infected with the novel coronavirus that causes COVID-19 do not experience symptoms, but may nonetheless be contagious. Even those who
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develop symptoms may be contagious before they exhibit symptoms and may be contagious afterwards.
42. 44. Those who do suffer illness from the disease often experience flu-like symptoms such as fever, coughing, body aches, and difficulty breathing, and, in severe cases, the infection can cause pneumonia, multiple organ failure, and death.
43. 45. Severe cases require hospitalization, often with breathing assistance ranging from supplemental oxygen to use of a ventilator; those who survive severe illness may have permanent lung damage and other disability. There is no vaccine or cure.
44. 46. Preventative measures recommended by public health experts include frequent and thorough hand washing; wearing a face mask in public; frequently disinfecting surfaces on which the virus could be deposited; and the now-familiar tactic of “social distancing” – staying at least six feet away from other people.
45. 47. Although young and otherwise healthy people can become ill and die from COVID-19, those at the highest risk for illness and death include those over age 55 and people with underlying medical issues such as asthma or other lung ailments; high blood pressure; suppressed immune systems; and diabetes. See CDC Factsheet. B. ICE Has Systematically Failed to Protect Transgender People in Civil Immigration
Detention. 46. The ICE civil detention system is ill equipped to care for transgender people in the best of times. ICE has consistently failed to protect transgender people in its custody from rampant abuse, harassment, and violence from both other detainees and from detention facility staff. ICE has also failed to provide adequate medical care to transgender people in its custody. 47. Although ICE has stated that discrimination against transgender people in civil immigration detention is prohibited, transgender people are subject to increased risks of
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harassment and assault, including sexual assault, in immigration detention. Transgender Care Memorandum “Background.”
48. ICE guidelines and regulations repeatedly recognize that people who are transgender face a higher risk of victimization and abuse in custody. For example, the 2011 Performance-Based National Detention Standards (“PBNDS”), to which ICE detention centers are held, require that ICE give “special consideration” “to any factor that would raise the risk of vulnerability, victimization or assault. Detainees who may be at risk of victimization or assault include […] persons who are transgender[.]” PBNDS § 2.2.V.C C. Similarly, the federal regulations implementing PREA in ICE detention facilities require ICE, in assessing a detainee’s risk of victimization and abuse, to consider “whether the detainee has self-identified as gay, lesbian, bisexual, transgender, intersex, or gender nonconforming.” 6 CFR § 115.41 (c) (7). In response to public comments on the proposed version of these regulations, the government stated “DHS agrees, however, that LGBTIGNC [Lesbian, Gay, Bisexual, Transgender, Inter-sex, or Gender Non-Conforming] status can contribute to vulnerability.” Federal Register Vol. 79 No. 45 13100, 13146 (Mar. 7, 2014).
49. Research has repeatedly demonstrated that transgender prisoners suffer substantially higher rates of abuse than the general population. See, e.g., Lori Sexton, Valerie Jenness & Jennifer Macy Sumner, Where the Margins Meet: A Demographic Assessment of Transgender Inmates in Men’s Prisons, Justice Quarterly, 27:6 (2010) at 835-866. This research correlates with ICE’s own statistics, which bear out the increased risk of sexual assault and abuse that transgender people face in detention.
50. From 2014 to 2018, ICE has publicly reported its statistics on detainee allegations of sexual abuse and assault in custody according to its obligations under the Prison Rape
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Elimination Act. These statistics include categorizing the allegations by victim gender, including a separate category for allegations by transgender detainees. In 2018, for example, 374 detainees reported sexual abuse or assault in ICE custody. ICE PREA Statistics. https://www.ice.gov/prea. Of those 374, 23 or 6% were transgender. Id. This percentage is quite substantial given the infinitesimal percentage of people detained by ICE each year who self-identify as transgender.
51. In 2017, 264 detainees reported allegations of sexual abuse or assault in ICE custody. Of those 264, 12 or 5% were transgender. ICE PREA Statistics, https://www.ice.gov/prea. In Fiscal Year 2017, ICE booked 323,591 people into custody. U.S. ICE (2017), Fiscal Year 2017 ICE Enforcement and Removal Operations Report, available at ice.gov/sites/default/files/documents/Report/2017/iceEndOfYearFY2017.pdf. Of those over three hundred thousand detainees in 2017, only 247 self-identified as transgender. Elise Foley, LGBTQ Immigrant Detainees Reported Sexual Assault at Higher Rates, HuffPost (May 30, 2018) huffpost.com/entry/ice-lgbtq-immigrant-detainees-sexual-assault. While transgender people represented .07% of the total detainee population in 2017, they were the victims in 5% of reported sexual abuse or assault. Put another way, while fewer than 1 in a thousand cisgender people in detention reported sexual assault or abuse, 1 in twenty transgender people in detention reported sexual abuse or assault.
52. These PREA statistics likely underreport the actual rates of sexual assault experienced by transgender people in detention because sexual assault is under-reported as a whole as victims fear the consequences they might face if they report. This phenomenon is especially pronounced among victims who are transgender because they fear if they report assault they will suffer retaliation, including being placed in administrative segregation.
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53. In 2015, ICE promulgated its Transgender Care Memo, which included an attached model “ICE Detention Facility Contract Modification for Transgender Care.” Though the Transgender Care Memo required ICE “to incorporate the model procedures outlined in Attachment 2 [sic.], ‘ICE Detention Facility Contract Modification for Transgender Care’ into facility contracts[,]” ICE has not implemented the model facility contract modification for transgender care at a single one of its detention centers – including La Palma and Nevada Southern.
54. Under the model procedures, the facility would be required to form a Transgender Classification and Care Committee (“TCCC”). Transgender Care Memorandum Attachment 1, at § 2. The TCCC would then be required to devise an individualized detention plan for each transgender detainee at the facility. Id. at § 3(d). The individualized detention plan would include, at a minimum, housing options including general housing consistent with the detainee’s sex assigned at birth, general housing consistent with the detainee’s gender identity, a protective custody unit, and medical or administrative segregation. Id. at § 3(e). Allowing transgender people in detention to select from among these housing options would reduce the risk of assault that transgender women face when forced to be housed with cisgender men.
55. ICE formerly maintained a Transgender Protective Care Unit, which was housed within a detention facility in Santa Ana, CA until the summer of 2017, when it was moved to Cibola. The unit was abruptly shut down, with no explanation, in January 2020. The only ICE unit dedicated solely to housing transgender detainees is at Aurora. As a result, nearly all transgender women in civil immigration detention are housed with cisgender men, exposing them to risks of sexual assault and verbal and physical abuse.
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56. Transgender women are typically forced to live with cisgender men in civil immigration detention. These housing conditions make transgender women acutely vulnerable to sexual assault by the cisgender men with whom they are housed. Transgender people in detention are often assaulted by their cell or dorm mates, typically at night.
57. Transgender people in ICE detention are harassed by other detainees as well as by staff and guards working in the detention facilities. Verbal harassment of transgender people may take the form of yelling derogatory terms or of whispering in someone’s ear. Another common form of harassment that transgender people face in detention is spitting. Many transgender detainees have reported being spit on. Verbal harassment of transgender people often escalates to physical abuse, including pushing, shoving, and punching. Transgender people who have been detained often report experiencing sexual assault while in detention.
58. If transgender people complain of abuse, ICE places them in solitary confinement rather than intervening to stop the abuse. When transgender people complain of abuse or harassment they are suffering, ICE often places them in segregation. Such solitary confinement constitutes cruel and unusual punishment and is not the appropriate means of protecting vulnerable individuals, and allows abusers to escape consequences for their actions.
59. ICE follows this practice of putting transgender people in segregation when they complain of abuse despite its own guidance on the use of segregation recognizing that people “who would be susceptible to harm in general population due in part to their sexual orientation or gender identity” have special vulnerabilities. ICE Review of the Use of Segregation for ICE Detainees, § 3.3 Special Vulnerability (Sept. 4, 2013). The guidance also directs that “[a] detainee’s age, physical disability, sexual orientation, gender identity, race or religion may not provide the sole basis for a decision to place the detainee in involuntary segregation.” Id. at §
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5.2 Segregation Placements Related to Disability, Medical or Mental Illness, Suicide Risk, Hunger Strike, Status as a Victim of Sexual Assault, or other Special Vulnerability.
60. Petitioners have suffered abuse and harassment at the hands of other detainees and ICE staff. K.R.H, has been harassed by male detainees, including an incident in which another detainee spit on her. She has also been sexually assaulted by ICE staff when being patted down. She and other transgender women at La Palma asked for a change of housing. ICE temporarily moved three transgender women being housed at La Palma to segregation at Eloy detention center but moved them back to the general cisgender male population at La Palma after a week.
61. ICE has also failed to provide adequate medical care to the detainee population overall and in particular to transgender people in detention. Transgender people in ICE detention have higher rates of underlying medical conditions, such as HIV, and many are on some form of gender-affirming hormone therapy.
62. A 2017 Department of Homeland Security Office of Inspector General (“OIG”) report of inspections of six facilities found inadequate medical care, including long delays for detainees to receive care, inadequate documentation of the care they received, and failure to use translation services to allow detainees to communicate their symptoms to medical workers and to understand and knowingly consent to medical treatment.4
63. 64. A June 2019 OIG report5
4 Report No. OIG-18-32, Concerns about ICE Detainee Treatment and Care at Detention Facilities, U.S. Department of Homeland Security, Office of Inspector General (Dec. 11, 2017), available at https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-32-Dec17.pdf.
5 Report No. OIG-19-47, Concerns about ICE Detainee Treatment and Care at Four Detention Facilities, U.S. Department of Homeland Security, Office of Inspector General (June 3, 2019), available at https://www.oig.dhs.gov/sites/default/files/assets/2019-06/OIG-19-47-Jun 19.pdf.
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65. found inadequate medical care at the Adelanto, California facility and other egregious health and safety violations at facilities in Aurora; Essex County, New Jersey; and LaSalle, Louisiana.
66. Two transgender women, Roxsana Hernandez and Joana Medina, died between May 2018 and June 2019 due to lack of adequate medical care while in ICE custody.
67. Congress has expressed concern about treatment of transgender people in civil immigration detention when approving the fiscal 2020 appropriations for DHS. The congressional report accompanying the appropriations directs ICE to limit the detention of transgender people to facilities operating under contracts that comply with ICE’s 2015 guidance on best practices for transgender detainees. See H. R. Rep. No. 116-180 at 37 (2019). Despite Congressional urging to push ICE to implement its own best practices, no ICE detention contracts so far have incorporated those improvements.
68. In the last year, two U.S. Senators and 45 members of the House of Representatives have written to the acting directors of ICE and DHS, citing “overwhelming evidence of systemic neglect and mistreatment of transgender individuals in immigration and detention facilities,” including a lack of adequate medical care, that “demonstrate ICE’s inability to provide adequate conditions for transgender immigrants.” Letter from Sens. Elizabeth Warren and Tammy Baldwin to Kevin McAleenan, Acting Secretary, U.S. Department of Homeland Security (Oct. 15, 2019), available at https://www.warren.senate.gov/imo/media/doc/ 2019.10.15%20Letter%20to%20DHS%20ICE%20and%20CPB%20regarding%20transgender%2 0migrants%20and%20asylum%20seekers.pdf; Letter from Rep. Mike Quigley, et al. to Chad Wolf, Acting Secretary, U.S. Department of Homeland Security (Jan. 14, 2020), available at https://quigley.house.gov/sites/quigley.house.gov/files/01.14.20%20ICE%20Letter.pdf.
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69. Advocacy organizations also have filed several complaints with DHS and ICE in the past year citing egregious examples of medical neglect and mistreatment of transgender people in civil immigration detention.
70. The Transgender Law Center and a dozen other nonprofit organizations filed a complaint with DHS and its Inspector General’s Office in September 2019 over ICE’s failure to provide adequate medical and mental health care to LGBT and HIV positive detainees, citing the maltreatment of 19 current and former detainees, most of them transgender.
71. Earlier this year, a coalition of eight groups led by the Santa Fe Dreamers Project filed a complaint with ICE, the DHS OIG, and the DHS Office for Civil Rights and Civil Liberties over conditions for transgender people in civil immigration detention at the Winn Correctional Center.
72. The complaint documented severe abuse and mistreatment of transgender people in civil immigration detention and medical care failings including interrupted and inconsistent provision of HIV medication; refusal to provide medically necessary gender-affirming hormone treatments; delayed or denied dental care causing extreme pain and weight loss; and refusal to allow a woman to perform physical therapy exercises after her leg was broken by another inmate because she was transgender.
73. ICE’s systematic failures to protect transgender people in its custody from assault and harassment as well as its failures to provide adequate medical care have only been exacerbated by this pandemic. These failures put transgender people in civil immigration detention at risk of serious illness or death should they become infected with COVID-19. C. Transgender People in Civil Immigration Detention Are At High Risk for Becoming
Infected, Experiencing Severe Illness, and Dying from COVID-19.
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74. 48. Transgender people in civil immigration detention, as a group, are at a greater risk of contracting the virus that causes COVID-19 than the general population and, if they do become infected, are more likely to become seriously ill or die.
75. 49. It is no exaggeration to state that during this pandemic, ICE detention facilities are death traps for the transgender people being held there.
76. 50. Several well-documented, preexisting factors combine to make transgender people in civil immigration detention a high-risk group for developing severe illness and death from COVID-19.
77. 51. First, as discussed above, transgender people in civil immigration detention are at higher risks of abuse, assault, and harassment. These assaults involve the kind of close personal contact that can spread COVID-19. For example, K.R.H. attested that she has been spit on.
78. ICE’s 2015 guidelines for the treatment of transgender detainees, as well as oversight actions by Congress and the DHS Office of Inspector General, show that the agency is well aware of the severe risks of such abuse to transgender people in civil immigration detention. Yet ICE has ignored these known dangers and has done absolutely nothing to protect transgender detainees from the increased risk of viral transmission posed by such abuses.
79. Second, transgender people are more likely to have underlying health conditions that put them at high risk for developing the most serious complications from COVID-19, including health conditions caused by tobacco use, immune suppression caused by HIV or viral hepatitis, diabetes, high blood pressure, and obesity.
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80. 52. For example, some studies have found that 20% to 25% of transgender women are HIV-positive, with even higher rates among transgender women of color and those who live in urban areas. Indeed, two Petitioners, K.S. and K.M. are both living with HIV.
81. Dr. Edith Lederman, ICE Health Service Corps’ subject matter expert for transgender care, admitted that the agency recognizes transgender individuals are more likely to have co-morbidities or underlying conditions which are risk factors for COVID-19 such that, specifically, all transgender people (rather than all detainees) being admitted to ICE detention are screened for HIV.
82. 53. SecondThird, transgender people in civil immigration detention also are far more likely to suffer from mental health issues such as depression, anxiety and post-traumatic stress disorder that cause immune suppression and other physical ailments.
83. 54. One common factor for transgender people is the mental and emotional trauma caused by the endemic discrimination, violence and social stigma against transgender people – a phenomenon known generally as “minority stress” – which, in turn, can further suppress the immune system and exacerbate other underlying medical conditions. This stress is in addition to and compounded by the stress all civil immigration detainees necessarily experience.
84. 55. Transgender people in ICE custody are especially vulnerable to mental health problems due to the fact that they left their native countries because of violence and persecution because of their transgender status, and thus have a profound history of trauma leading to high rates of depression, anxiety, and post-traumatic stress disorder. For example, a detainee at La Palma reports having her depression exacerbated by harassment by other detainees and staff. Another La Palma detainee reports being depressed by being called anti-transgender and anti-gay
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slurs by staff and other detainees, and being terrified when staff let men into the bathroom while she was showeringIn fact K.S., K.M., and K.R.H. all suffer from severe anxiety.
85. 56. In other words, transgender immigrants are at higher risk of infection for precisely the same reasons they fled their home countries and came to be in ICE custody.
86. 57. ThirdFourth, thatthe discrimination, violence and social stigma means transgender people experience means they also are more likely to live in poverty and less likely to have health insurance or the ability to pay for health care, and therefore are less likely to have received proper, ongoing medical care for their underlying medical conditions – or even diagnoses of them – prior to their detention.
87. 58. FourthFifth, because some transgender people in civil immigration detention cannot self-administer their injectablecertain hormone treatments while in ICE custody, they must have more frequent interactions with medical staff, who themselves are at higher risk of contracting – and thus spreading – the CoronavirusCOVID-19 because of their contact with sick people.
59. One transgender woman being detained in Aurora, for example, was examined by a doctor who was not wearing a face mask or gloves.
60. Another transgender woman being detained in Aurora has observed that the medical staff who distribute medication do so wearing gloves but not face masks.
61. Fifth, transgender people in ICE custody are far more likely to be victims of abuse and sexual assault than other detainees – indeed, ICE’s own data show that lesbian, gay, bisexual and transgender detainees are 97 times more likely to be sexually victimized than non-LGBT detainees.
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62. That abuse – and the fear of falling victim to it – only compounds the stress transgender people in civil immigration detention experience and exacerbates their other mental and physical health problems. For example, a transgender woman in civil immigration detention who was raped at age 12 suffered panic attacks when housed with dozens of cisgender men.
63. Further, physical and sexual assaults by definition involve the kind of close contact that can spread Coronavirus and are more likely to occur when detainees are kept in close quarters.
88. For example, Dr. Lederman reported that there are three transgender men in ICE custody who receive injectable testosterone, which must be administered by a medical professional.
89. 64. In sum, the distressing reality for transgender people in ICE custody is that they are more likely to be exposed to the Coronavirus; more likely to become infected if they are exposed; more likely to experience severe illness if they become infected; and more likely to die if they experience severe illness.
90. 65. The heightened susceptibility of transgender people in civil immigration detention to COVID-19 means that releasing them from detention will not only help curb their risks of illness and death, it will help protect any remaining detainees, guards and staff who might otherwise be exposed to enhanced spread of the virus and avoid further overwhelming area health care facilities. . Short of humanitarian release, supervised releases, or issuance of an ICE bond, ICE should protect transgender people from their increased risks of contracting COVID-19 in its custody by implementing its model procedures outlined in the 2015 Transgender Care Memorandum, including allowing each transgender detainee to select housing consistent with the detainee’s gender identity or a protective custody unit.
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CD. ICE’s Failure to Provide the Most Basic Pandemic Precautions Has Increased the Risk of Illness and Death to Transgender People in Civil Immigration Detention. 91. 66. Despite the fact that transgender people in civil immigration detention are at
high risk for contracting and suffering severe illness from COVID-19, ICE has not created policies to protect transgender people in their custody from the risk of contracting COVID-19, let alone taken the steps necessary to protect transgender people from COVID-19, nor have the19. ICE has not even ensured that its detention centers holding transgender people followedfollow the COVID-19 response requirements that ICE itself sets forth.
92. 67. To the contrary, ICE’s actions and inactions unacceptably and unconstitutionally have put transgender people in civil immigration detention at increased risk of suffering and dying from this pandemic.
i. Social Distancing 93. 68. As government and private sector medical experts have repeatedly
emphasized, limiting the spread of the pandemic requires “social distancing” – keeping at least six feet away from other people. ICE detention centers have not and cannot provide sufficient space for transgender detainees to do so.
94. 69. The consequences of the lack of opportunity for social distancing in ICE custody are dramatically illustrated by the experience of C.G.B., who became ill with a suspected case of COVID-19 after a newly arrived bunkmate spent days coughing before being seen by a doctor and then returned to the general population. The pod where C.G.B. became ill has beds spaced approximately three feet apart. unit where K.S. and K.M. are housed at Nevada Southern, Unit F4, was at 54% capacity as of June 10, 2020. New detainees are being brought in regularly.
70. At Winn, detainees stay in pods of approximately 44 people, sleeping in beds that are approximately four or five feet apart.
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71. At La Palma, some 100 to 120 detainees eat meals together, where they must sit approximately one foot away from each other and cannot keep a six-foot distance while waiting in line. Approximately 60 detainees at a time are allowed on a patio, where they also do not have enough room to stay six feet apart.
72. At the El Paso Processing Center, detainees sleep in beds four feet apart. 73. At Aurora, beds, as well as the tables and seating where detainees eat, are bolted to the floor and cannot be moved to increase the distance between detainees. Detainees are not able to practice social distancing. 95. 74. AtThough ICE attests it is making efforts to assign one detainee to each bunk bed at Nevada Southern Nevada, the, there were, as of June 10, 2020, 52 detainees being housed in a unit with 48 bunk beds – meaning detainees are forced to share bunks. These bunk beds are close enough for detainees to reach across the aisle and touch the adjacent bed. DetaineesICE attests the beds are four feet ten inches apart. Both K.S. and K.M. attest that all detainees sleep with their heads in the same direction. Detainees have assigned bunks. 96. Detainees in Unit F4 at Nevada Southern are required to eat at tables seating four people that are too small to accommodate all four food trays at once. Detainees line up for meals, often less than a foot apart. ICE attests adjacent seats are three feet three inches apart. All the detainees in Unit F4 use a single water fountain. This is their only source of water. Detainees have not seen the water fountain cleaned. 75. At the Caroline detention facility, detainees cannot maintain proper social distancing because they sleep four to a room in close quarters, in dormitories of approximately 35-40 people. Detainees from each dorm at Caroline travel as a group to the cafeteria for meals and to the law library, providing additional opportunities for disease to spread.
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97. Although La Palma was at 39% of capacity as of June 10, 2020, the unit where K.R.H. is housed, Zuni Delta, was, as of July 1, 2020, housing about 100 detainees, 83% of its total capacity of 120. K.R.H. is housed in a two-person cell with another transgender woman. They share one bunk with upper and lower beds.
98. The only telephones available for detainees to use in Zuni Delta are only two feet apart from each other and are in use all day. The phones are not disinfected between uses.
ii. Hand-washing and Hygiene 99. 76. Since the beginning of the pandemic, public health experts have emphasized
that proper hand washing, cleaning and other hygiene practices are key preventative measures that everyone should follow. E.g., How to Protect Yourself and Others, Centers for Disease Control and Prevention (last updated Apr. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.
100. 77. ICE’s pandemic response requirements – issued on April 10, 2020, a month after the World Health Organization declared a global pandemic – mandate that detention facilities require everyone in the facility, staff and detainees alike, “to maintain good hand hygiene by regularly washing their hands with soap and water for at least 20 seconds,” and to provide at no cost sufficient supplies such as hand soap and tissues to allow detainees to meet these requirements.16
101. ICE also requires its detention facilities to follow the guidance for detention facilities published by the CDC. ICE Pandemic RequirementsPRRs at 5-6.
16 ERO COVID-19 Pandemic Response Requirements at 9, U.S. Immigration and Customs EnforcementICE (Version 1.0, Apr. 10, 2020), available at https://www.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdfhttps://w ww.ice.gov/doclib/coronavirus/eroCOVID19responseReqsCleanFacilities.pdf (hereinafter, “ICE Pandemic RequirementsPRRs”).
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102. 78. The CDC guidance also mandates that facilities provide staff and detainees with sufficient supplies and opportunities for frequent and adequate hand washing.27
103. 104. 79. Despite these basic requirements, ICE detention centers lack sufficient facilities to allow all detainees to practice frequent hand washing. ICE detention centers also fail to provide detainees with sufficient supplies. 80. At the Imperial Regional Detention Facility, 32 detainees residing on one floor of a dormitory share four sinks and one soap dispenser. 81. At Winn, approximately 44 detainees share one bathroom with three sinks and toilets. The only regular cleaning is sweeping by detainees once per day. A transgender woman detained in segregation is able to clean her cell only once or twice a week, whenever a guard gets around to providing her with cleaning supplies. 82. At Southern Nevada, 46 detainees share one bathroom with eight sinks and toilets. 83. The bathroom sink in a dormitory housing transgender detainees in Aurora has been clogged for an extended period of time, and the detainees do not have the equipment to fix it. Detainees use a container to capture the dirty water and pour it in the shower. 84. ICE detention centers also fail to provide detainees with sufficient supplies. 85. At La Palma, for example, detainees are provided with shampoo, but have to purchase soap—which indigent detainees are unable to do. Detainees at Southern Nevada and Caroline also have to purchase soap at the commissary.
27 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities at 10, U.S. Centers for Disease Control and Prevention (last updated Mar. 23, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-detention.pdfhtt ps://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-detention.pdf (hereinafter, “CDC Guidance.”).
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105. Detainees at Nevada Southern are not allowed hand sanitizer. 106. 86. ICE also requires that its detention centers use household cleaners and disinfectants several times a day to “clean and disinfect surfaces and objects that are frequently touched, especially in common areas (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment.)” ICE Pandemic RequirementsPRRs at 10.38 107. 87. ICE detention facilities holding transgender people in civil immigration detention are not even coming close to fulfilling this mandate. 108. 88. Frequently used surfaces such as sinks and toilets are cleaned, at most, once a day, and detainees often are not provided with the cleaning and disinfecting supplies necessary to protect themselves. 89. For example, detainees in Aurora, who are responsible for cleaning their own living areas, attempt to clean three times daily but are provided only two rags, one for the living area and one for the bathroom. 90. Sinks and bathrooms in the El Paso facility are cleaned only once daily, and the detainees are not provided with disinfectant to clean more often. 109. 91. ICE has failed to provide detainees with the supplies to permit them to follow the most basic hygiene measures required by its own regulations or required them to risk their health to use strong disinfectants without proper protection. 110. 92. The agency’s inability to sufficiently provide for such common-sense and low-tech preventative measures shows that supervised release from detention is the only way to remedy the unacceptable risk of infection, disease and death ICE has created for transgender people in civil immigration detention.
38 The mandatory CDC guidelines also require this kind of cleaning and disinfecting several times per day. CDC Guidance at 9.
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iii. Protective Equipment 111. 93. ICE regulations mandate that “[c]loth face coverings should be worn by
detainees and staff . . . to help slow the spread of COVID-19.” ICE Pandemic RequirementsPRRs at 9. ICE facilities are not complying with this requirement, either.
94. Many detainees report that they have not been provided with face masks, despite asking for them. One detainee states that she has not asked for a mask because she assumes they are unavailable since guards do not wear them.
95. Detainees at La Palma were provided with one paper mask each on April 14, 2020, and were told that it would not be replaced if it was damaged. Facility staff initially tried to require detainees to sign a liability waiver to obtain a mask, but relented after detainees refused to sign. Detainees at Nevada Southern were not provided with cloth masks until April 16, 2020.
112. K.S. only has one mask that she was given in April. Some detainees have two masks but she thinks she was asleep when the second set of masks was given out so she has never received one. If her only mask is being washed, she does not have protection.
113. K.R.H. was given two cloth masks but when one broke and she requested a replacement she was told they have no more masks available.
114. 96. Guards and other staff frequently interact with detainees without wearing protective equipment or wearing it improperly, such as having face masks pulled down around their necks rather than covering their nose and mouth.
115. 97. A doctor at AuroraLa Palma performed a hands-on medical examination without wearing gloves or a mask. So did a doctor at La Palma.
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98. Medical personnel delivering medication to detainees at Aurora also do not wear masks.
116. 99. Ironically, a guard giving detainees a presentation on COVID-19 at Nevada Southern Nevada did so without wearing a mask or gloves. Guards at Southern Nevada also perform pat-down searches of detainees without wearing gloves or masks.
100. Several detainees report observing guards wearing gloves, but not masks. 101. Guards at La Palma do not even wear gloves or masks.
117. 102. ICE’s failure to provide protective gear such as face masks to detainees and to ensure that staff members use the required equipment further heightens the unconstitutional risk of infection to which transgender people in civil immigration detention are subjected through their continued detention.
iv. Information and Training 118. 103. Both the ICE rules and the CDC guidance require that detainees be provided
with accurate and up-to-date information about COVID-19, precautions they can take to reduce the risk of infection, and the presence of the virus in their facility. ICE Pandemic RequirementsPRRs at 7, 9; CDC Guidance at 6, 10, 12, 22.
119. 104. ICE has failed to provide any of this required lifesaving information to many detainees, has not provided regular updates to the limited amount of information it has provided to other detainees, and in some instances has misled detainees by falsely denying the presence of COVID-19 at their facility. As of July 2020, K.S. reported that the detainees at Nevada Southern had not received any information, formal or informal, from any ICE official.
120. 105. Many current and recently released detainees report that guards or other staff gave them no information about COVID-19. They include C.G.B., who received no information
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about COVID-19 from the staff at La Palma despite being quarantined with a suspected case of the disease. Another La Palma detainee reports that she has not received any information from staff regarding COVID-19 and guards refuse to answer questions about the virus. This problem also has occurred at Aurora.
106. One detainee at Aurora said that the only information she received was a suggestion to wash her hands. 107. At Nevada Southern Nevada, for example, a guard gave a COVID-19 presentation in the morning while some detainees were sleeping and did not ensure that all detainees attended.
121. 108. The CDC Guidelines, which ICE facilities are required to follow, require that information about COVID-1019 must be provided “in a manner that can be understood by non-English speaking individuals and those with low literacy.” CDC Guidelines at 22; see also id. at 6, 10 (same).
122. 109. Some statements made by facility staff have contradicted ICE’s public statements. For example, staff informed detainees at Nevada Southern on April 15, 2020 that there was one person with COVID-19 at the facility, but ICE hashad not reported onethat case to the public.
110. Worse, ICE has violated the CDC Guidelines by affirmatively misinforming detainees about the presence of COVID-19 at their facility.
111. Although ICE now reports that two staff members at Aurora have tested positive for the COVID-19 virus,4 officials falsely denied to detainees that anyone at the facility had been infected.
4 See ICE Guidance on COVID-19, https://www.ice.gov/coronavirus (last visited Apr. 20, 2020).
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123. 112. By failing to provide any information about the virus to many detainees and providing incomplete, false and misleading or incorrect information to others, ICE has not only violated its own rules and mandatory CDC guidance, but also has further heightened the risks of COVID-19 transmission to transgender people in civil immigration detention.
124. 113. ICE regulations acknowledge that “[b]oth good hygiene practices and social distancing are critical in preventing further transmission” of COVID-19. ICE Pandemic RequirementsPRRs at 11.18. In practice, however, neither are being implemented at ICE detention facilities.
125. 114. ICE’s failure to follow its own regulations and inability to take the most basic precautions against the spread of this deadly virus pose dangers to transgender people in civil immigration detention that can be remedied only by the detainees’ immediate release to safer areas. DE. ICE’s Inadequate Medical Care For Transgender People in Civil Immigration
Detention Enhances Their Risk. 126. 115. ICE detention centers are plagued by chronic and well-documented failures to provide proper medical care to transgender people in civil immigration detention – problems that have been exacerbated by the pandemic and pose another enhanced risk of infection, disease and death for transgender people in civil immigration detention. 127. 116. ICE’s past handling of infectious disease outbreaks in detention centers has been inept—foreshadowing the impact COVID-19 will have if transgender people in civil immigration detention are not released. Just last year, for example, a mumps outbreak across 57 immigration detention facilities throughout the country led to almost 900 cases of mumps, including among multiple transgender women in ICE custody, overwhelmingly contracted inside the facilities before the outbreak spread to surrounding communities.
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128. The explosive growth in COVID-19 cases in ICE detention centers illustrates the agency’s inability and/or unwillingness to take the precautions necessary to slow the spread of the virus. ICE reported 77 confirmed cases among detainees on April 14, 2020, a number that increased by more than 50 times in four months to 4,531 confirmed detainee infections on August 14, 2020. At least five infected detainees have died.
129. In fact, due to ICE’s failure to implement the PRRs, all of the Petitioners have likely been exposed to COVID-19. Three detainees from K.R.H’s pod were taken to another pod after three days of suffering COVID-19 symptoms. All three detainees subsequently tested positive for COVID-19. Her pod was then put into quarantine but she was denied a COVID-19 test. Two people removed from the unit housing K.S. and K.M. tested positive for COVID-19.
130. 117. As explained by Dr. Carlos Franco-Paredes, an infectious disease expert who has treated HIV-positive transgender detainees at the Aurora facility:
[I]t is my professional opinion that the medical care available in immigration detention centers cannot properly accommodate the needs of patients should there be an outbreak of COVID-19 in these facilities. Immigration detention centers are often poorly equipped to diagnose and manage infectious disease outbreaks. Many of these centers lack onsite medical facilities or 24-hour medical care. 118. Besides C.G.B., whose bunkmate was not isolated for many days despite showing classic COVID-19 symptoms, several other transgender people in civil immigration detention report that they or other detainees showing possible COVID-19 symptoms have not been tested, quarantined or isolated. One detainee reports that when she had a cough, she saw medical personnel who gave her aspirin and returned her to the general population; another states that when she suffered COVID-19-like symptoms including a fever, she had to wait a week before seeing a nurse, who told her she was fine, did not test her or provide any medication, and did not schedule a follow-up appointment; and another reports that a fellow detainee with a fever and
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flu-like symptoms was told to make a regular medical request rather than receiving immediate attention.
119. This is a violation of ICE regulations and CDC guidance, which require that people suspected or confirmed to have COVID-19 must be placed in medical isolation and their close contacts must be quarantined. ICE Pandemic Requirements at 14-16; CDC guidance at 10-11. Notably, ICE did not issue its regulations until the day after C.G.B. had her COVID-19 test, which was more than a week after she was first exposed to the coughing bunkmate. ICE Pandemic Requirements at 1.
131. 120. Another alarming example of ICE’s bungling of medical care during the pandemic is the failureICE has failed to provide adequate treatment to transgender people in civil immigration detention living with HIV, which further threatens their already compromised immune response.
121. Prior to the outbreak, Dr. Franco-Paredes, a doctor specializing in infectious diseases, was treating transgender people in civil immigration detention living with HIV at Aurora.
122. Since the outbreak began, authorities at Aurora have barred Dr. Franco-Paredes from providing care to any if his patients there; as a result, Dr. Franco-Paredes has been unable to see any of his patients in person, and even has had difficulty in scheduling virtual evaluations.
132. 123. Dr. Franco-Paredes is concerned that the lack of adequate treatment will expose HIV-positive detainees to a high risk of contracting COVID-19, noting that one patient he evaluated had been given prescriptions for medications that negatively interacted with each other and thus could suppress the patient’s immune response.
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133. 124. Multiple transgender people in civil immigration detentionBoth K.S. and K.M., who are living with HIV, report that they do not receive their medication at regular times, which puts them at greater risk of contracting life-threatening infections such as COVID-19 because it can lessen their immune response. and increase the possibility of developing drug resistance, which makes certain HIV drugs lose their effectiveness. Indeed, ICE has confirmed that K.M. received her HIV medications on a schedule that is irregular at best, at times receiving her evening medication at 3 a.m. Both K.S. and K.M. have missed days of their medications, including necessary antiretrovirals, when their prescriptions have run out. In June 2020, K.M. missed nearly a week of her HIV medication.
125. Other transgender people in civil immigration detention have had their medically necessary gender-affirming hormone treatments or other prescribed medications denied or changed without explanation.
126. The COVID-19 outbreak has exacerbated the problems with a system that was already ill equipped to provide adequate medical care to transgender people in civil immigration detention. Although ICE has stated that discrimination against transgender people in civil immigration detention is prohibited,5 detainees report continued harassment; one detainee reports that when notified of such harassment, a facility psychologist said there was nothing to be done because “we aren’t big on trans rights here.”
5 Thomas Homan, Executive Associate Director, U.S. Immigration and Customs Enforcement, Further Guidance Regarding the Care of Transgender Detainees (June 19, 2015), available at https://www.ice.gov/sites/default/files/documents/Document/2015/TransgenderCareMemorandu m.pdf.
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127. A June 2019 Department of Homeland Security Office of Inspector General report6
found inadequate medical care at the Adelanto, California facility and other egregious health and safety violations at facilities in Aurora; Essex County, New Jersey; and LaSalle, Louisiana.
128. A 2017 OIG report of inspections of six facilities found inadequate medical care including long delays for detainees to receive care, inadequate documentation of the care they received, and failure to use translation services to allow detainees to communicate their symptoms to medical workers and to understand and knowingly consent to medical treatment.7
129. Congress has expressed concern about treatment of transgender people in civil immigration detention when approving the fiscal 2020 appropriations for DHS. The congressional report accompanying the appropriations directs ICE to limit the detention of transgender people to facilities operating under contracts that comply with ICE’s 2015 guidance on best practices for transgender detainees. See H. R. Rep. No. 116-180 at 37 (2019). Despite Congressional urging to push ICE to implement its own best practices, no ICE detention contracts so far have incorporated those improvements.
134. In the last six months, two U.S. Senators and 45 members of the House of Representatives have written to the acting directors of ICE and DHS, citing “overwhelming evidence of systemic neglect and mistreatment of transgender individuals in immigration and
6 Report No. OIG-19-47, Concerns about ICE Detainee Treatment and Care at Four Detention Facilities, U.S. Department of Homeland Security, Office of Inspector General (June 3, 2019), available at https://www.oig.dhs.gov/sites/default/files/assets/2019-06/OIG-19-47-Jun 19.pdf.
7 Report No. OIG-18-32, Concerns about ICE Detainee Treatment and Care at Detention Facilities, U.S. Department of Homeland Security, Office of Inspector General (Dec. 11, 2017), available at https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-32-Dec17.pdf.
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detention facilities,” including a lack of adequate medical care, that “demonstrate ICE’s inability to provide adequate conditions for transgender immigrants.” Letter from Sens. Elizabeth Warren and Tammy Baldwin to Kevin McAleenan, Acting Secretary, U.S. Department of Homeland Security (Oct. 15, 2019), available at https://www.warren.senate.gov/imo/media/doc/2019.10.15%20Letter%20to%20DHS%20ICE%2 0and%20CPB%20regarding%20transgender%20migrants%20and%20asylum%20seekers.pdf; Letter from Rep. Mike Quigley, et al. to Chad Wolf, Acting Secretary, U.S. Department of Homeland Security (Jan. 14, 2020), available at https://quigley.house.gov/sites/quigley.house.gov/files/01.14.20%20ICE%20Letter.pdf. Dr. Franco-Paredes has specifically opined that K.S. and K.M. fall into a high-risk category should they contract COVID-19, due to their HIV-positive status. He further opined that both K.S. and K.M. would, in his professional judgment, be significantly safer in the homes of their sponsors for the duration of the COVID-19 pandemic where they would be able to practice social distancing and take other preventative measures. Dr. Franco-Paredes concluded that continued detention of K.S. and K.M. would place them are a significantly heightened unacceptable risk of complications and death if they become infected with COVID-19.
131. Advocacy organizations also have filed several complaints with DHS and ICE in the past year citing egregious examples of medical neglect and mistreatment of transgender people in civil immigration detention.
132. Just last month, a coalition of eight groups led by the Santa Fe Dreamers Project filed a complaint with ICE, the DHS Office of Inspector General, and the DHS Office for Civil Rights and Civil Liberties over conditions for transgender people in civil immigration detention at the Winn Correctional Center.
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133. The complaint documented severe abuse and mistreatment of transgender people in civil immigration detention and medical care failings including interrupted and inconsistent provision of HIV medication; refusal to provide medically necessary gender-affirming hormone treatments; delayed or denied dental care causing extreme pain and weight loss; and refusal to allow a woman to perform physical therapy exercises after her leg was broken by another inmate because she was transgender.
134. The Transgender Law Center and a dozen other nonprofit organizations filed a complaint with DHS and its Inspector General’s Office in September 2019 over ICE’s failure to provide adequate medical and mental health care to LGBT and HIV positive detainees, citing the maltreatment of 19 current and former detainees, most of them transgender.
135. ICE’s failures to provide adequate medical care during the pandemic—building upon its inability to do so even in the best of times—put transgender people in civil immigration detention at further risk of serious illness or death should they become infected with the Coronavirus.
135. 136. Because ICE cannot provide adequate medical care to them, transgender people in civil immigration detention should be released immediately to safer environments. E. ICE Protocols for Dealing With COVID-19 Are Inadequate. G. ICE Has Discretionary Authority to Release Petitioners on Parole or under a
Supervised Release Program, or to Issue an ICE bond. 136. ICE has vigorously opposed release of the three Petitioners remaining in ICE custody, arguing that some of them are subject to so-called mandatory detention. 137. 137. Even if it followed its own requirements, ICE could not adequately protect transgender people in civil immigration detention from unconstitutional risks of infection posed by suspected or confirmed COVID-19 infections of other detainees or facility staff. Indeed, the
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shortcomings of these rules actually increase the risk that transgender people in civil immigration detention would contract, suffer and die from the virus. ICE has discretion and authority to release all Petitioners. Since this suit was filed, ICE has released four Petitioners on bond (C.G.B. on July 22, A.F. on May 14, L.R.A.P. on May 4, and R.H. on April 24), three Petitioners under humanitarian parole pursuant to 8 U.S.C. § 1182(d)(5) (L.M. on June 1, M.J.J. on June 5, and D.B.M.U. on June 10), one Petitioner after being diagnosed with a health condition that increased her vulnerability to COVID-19 (G.P. on April 30), and one Petitioner after an immigration judge granted her relief from removal (.M.R.P. on July 14). Three of the Petitioners ICE has released were being detained under 8 U.S.C. § 1225(b), which ICE has contended requires mandatory detention (L.M., M.J.J., and D.B.M.U.). Accordingly, there is no impediment to Petitioners’ release.
138. The screening procedures ICE has announced are insufficient to keep those infected with COVID-19 from spreading the disease.
139. The ICE rules require facilities to screen employees and detainees upon entry for COVID-19 symptoms – fever, cough, and shortness of breath – and to bar entry to staff with those symptoms and to isolate incoming detainees with those symptoms. ICE Pandemic Requirements at 12.
140. However, many infected with the Coronavirus either never show symptoms or become infectious before they develop symptoms; and many with COVID-19 have gastrointestinal or other symptoms, not respiratory symptoms like a cough.
141. Thus, ICE’s screening would miss many infections which could then spread extensively in a crowded detention setting.
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142. ICE’s website states that in detention centers, “cohorting” – keeping people together in a contained group – “serves as an alternative to self-monitoring at home” for those potentially exposed to the virus who do not have symptoms. See ICE Guidance on COVID-19, www.ice.gov/coronavirus (last visited Apr. 19, 2020). The CDC Guidelines, which the ICE Pandemic Requirements make mandatory, state that cohorting should only be used as a last resort, however. CDC Guidelines at 16.
143. ICE’s rules for its detention centers say “facilities should consider cohorting” all detainees who arrive on one or more days. ICE Pandemic Requirements at 14.8 Cohorting is a dangerous practice for detention facilities because it could amplify, rather than prevent, an outbreak, because unless the detainees are able to stay six feet away from each other, one infected person could spread the virus to the entire cohort.
144. The risk is particularly acute for anyone in the cohort with increased susceptibility to the virus, such as transgender people in civil immigration detention or others with underlying medical conditions.
145. C.G.B.’s experience illustrates this problem. Although she has been separated from the general population, she is not isolated in a single room but stays in a room with a dozen patients, two of whom have confirmed cases of COVID-19. Thus, even if she and the other nine detainees without confirmed COVID-19 infections did not have the virus when they went into quarantine, they almost certainly do now.
146. Because ICE’s own guidelines are insufficient to reduce the risk of infection to transgender people in civil immigration detention and actually enhances that risk, transgender people in civil immigration detention should be paroled to safer quarters. 8 For suspected or confirmed COVID-19 cases, the rules state that “[c]ohorting should only be
practiced if there are no other available options” and that only those who have tested positive should be “cohorted” together. ICE Pandemic Requirements at 14.
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LEGAL FRAMEWORK A. Violation of Constitutional Rights.
138. 147. When the government detains or incarcerates a person, it has an affirmative duty to guarantee conditions of reasonable health and safety: “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989). As a result, the government must provide those in its custody with “food, clothing, shelter, medical care, and reasonable safety.” Id. at 200.
139. 148. The Supreme Court has held that the Eighth Amendment protects against future harm to incarcerated people, as “it would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.” Helling v. McKinney, 509 U.S. 25, 33 (1993). Further, in this context, “[t]he science is well established – infected, asymptomatic carriers of the coronavirus are highly contagious,” and therefore “[t]he Government cannot be deliberately indifferent to the Petitioners’ potential exposure to [COVID-19] on the ground that they are not, now, infected or showing current symptoms.” Castillo v. Barr, No. 20-00605, 2020 U.S. Dist. LEXIS 54425, at *13–14 (C.D. Cal. Mar. 27, 2020) (citing Helling, 509 U.S. at 33).
140. 149. The Eighth Amendment requires that “inmates be furnished with the basic human needs, one of which is ‘reasonable safety.’” Helling, 509 U.S. at 33 (quoting DeShaney, 489 U.S. at 200). The Supreme Court in Helling recognized that the risk of contracting a communicable disease may constitute such an “unsafe, life-threatening condition” that threatens “reasonable safety.” Id.
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141. 150. These Constitutional protections also apply in the context of immigration detention because immigrant detainees, even those with prior criminal convictions, are civil detainees held pursuant to civil immigration laws. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Because detained immigrants are civil detainees, they are entitled to the due process protections derived from the Fifth Amendment, which prohibit punishment. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”). Because the Fifth Amendment rather than the Eighth Amendment governs civil detention, the “deliberate indifference” standard required to establish a constitutional violation in the latter context does not apply to civil detainees like Petitioners. Jones v. Blanas, 393 F.3d 918, 934 (9th Cir. 2004), cert. denied, 546 U.S. 820 (2005). Still, the Eighth Amendment’s guarantees represent a “constitutional floor” that must also be met for detainees who are not being punished, such as those jailed prior to trial and civil immigration detainees. United States v. Moore, No. 1:18-cr-198 (JEB), 2019 U.S. Dist. LEXIS 104300, at *6-7 (D.D.C. June 21, 2019).
142. 151. A condition of confinement for a civil immigration detainee violates the Constitution “if it imposes some harm to the detainee that significantly exceeds or is independent of the inherent discomforts of confinement and is not reasonably related to a legitimate governmental objective or is excessive in relation to the legitimate governmental objective.” Unknown Parties v. Johnson, No. CV-15-00250-TUC-DCB, 2016 U.S. Dist. LEXIS 189767, at *13 (D. Ariz. Nov. 18, 2016), aff’d sub nom. Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017). This Court has held that detaining people during the COVID-19 pandemic in such a manner that they are unable to practice social distancing or take other precautions necessary to contain the spread of the virus creates an unreasonable risk of damage to detainees’ health. Banks v. Booth, No. 20-849, 2020 U.S. Dist. LEXIS 68287, at *27–30 (D.D.C. Apr. 19, 2020) (holding that pre-trial
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detainee plaintiffs established a likelihood of success on the merits on their Fifth Amendment due process claim).
143. Other courts addressing TRO motions for injunctive relief by civil detainees during the COVID-19 pandemic have found that detaining people under conditions such that they are unable to practice social distancing or take other precautions necessary to contain the spread of the virus is sufficient to establish a likelihood of success on the merits of a Fifth Amendment due process claim. See, e.g., Urdaneta v. Keeton, No. CV-20-00654-PHX-SPL (JFM), 2020 U.S. Dist. LEXIS 83551, at *29 (D. Ariz. May 11, 2020) (“Because reasonable measures have not been implemented in LPCC to limit the risk of Petitioner’s exposure … Petitioner has a medical condition which places him at high-risk of severe illness or death, the conditions under which Petitioner is detained poses a substantial risk of serious harm to his health and safety.”); Valenzuela Arias v. Decker, No. 20 Civ. 2802, 2020 U.S. Dist. LEXIS 81544, at *18 (S.D.N.Y. May 8, 2020) (“Petitioners argue that a return to confinement in the Essex County Jail would violate their due process rights. …The Court agrees.”); Thakker v. Doll, 1:20-480, 2020 U.S. Dist. LEXIS 75362, at *18 (M.D. Pa. Apr. 27, 2020) (“PCCF Petitioners are likely to succeed on the merits of their due process claim that their conditions of confinement expose them to serious risks associated with COVID-19.”); Castillo, 2020 U.S. Dist. LEXIS 54425, at *16 (plaintiffs established more than a mere likelihood of success on the merits of their due process claim where the conditions of confinement did not allow detainees to socially distance); Thakker v. Doll, No. 1:20-480, 2020 U.S. Dist. LEXIS 59459, at *25 (M.D. Pa. Mar. 31, 2020) (plaintiffs established likelihood of success on the merits of their due process claim where plaintiffs were detained in “tightly-confined, unhygienic spaces” and unable to socially distance).
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144. 152. Similarly, here, Plaintiffs have established that theyHere, even before the pandemic, ICE failed to take any measures to protect transgender people in detention from higher risks of abuse, harassment, and violence. ICE has also systematically failed to provide appropriate and necessary medical care to transgender people in its care. ICE’s consistent and systematic failures to care for transgender people have been exacerbated by this pandemic. Transgender detainees are unable to practice social distancing or take other precautions to contain the spread of the virus under their current conditions of confinement. Therefore, they have established a likelihood of success on the merits of theirAnd ICE has not created any policy or procedure to specifically protect transgender people in its custody from the risk of COVID-19. Therefore, those conditions of confinement violate transgender detainees’ Fifth Amendment Due Process claimrights.
B. Violation of the Administrative ProceduresProcedure Act. 145. 153. Respondents are also in violation of the Fifth Amendment Due Process
Clause by depriving detainees the rights guaranteed under the COVID-19 regulations enacted by ICE.
146. 154. When the government has promulgated “[r]egulations with the force and effect of law,” those regulations “supplement the bare bones” of federal statutes. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266, 268 (1954) (reversing in immigration case after review of warrant for deportation). Agencies must follow their own “existing valid regulations,” even where government officers have broad discretion, such as in the area of immigration. Id. at 268; see also Morton v. Ruiz, 415 U.S. 199, 235 (1974) (“[I]t is incumbent upon agencies to follow their own procedures . . . even where [they] are possibly more rigorous than otherwise would be required.”); Battle v. FAA, 393 F.3d 1330, 1336 (D.C. Cir. 2005) (“Accardi has come
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to stand for the proposition that agencies may not violate their own rules and regulations to the prejudice of others.”). Breaches of Accardi’s rule constitute violations of both the Administrative ProceduresProcedure Act (“APA”) and the Fifth Amendment’s Due Process Clause.
147. 155. While violations of “internal agency procedures” do not always require a remedy, Accardi’s rule applies with full force when “the rights or interests of the objecting party” are “affected.” Monitlla v. INS, 926 F.2d 162, 167 (2d. Cir. 1991) (citing cases) (“Accardi doctrine is premised on fundamental notions of fair play underlying the concept of due process”); see also Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 545-46 (6th Cir. 2004) (noting that an Accardi violation may be a due process violation, and the government’s action may be set aside pursuant to the APA); Sameena, Inc. v. U.S. Air Force, 147 F.3d 1148, 1153 (9th Cir. 1998) (“An agency’s failure to follow its own regulations . . . may result in a violation of an individual’s constitutional right to due process.”).
148. 156. Under the Accardi doctrine, due process and the basic principle of administrative law dictate that rules promulgated by a federal agency regulating the rights and interests of others are controlling upon the agency. That doctrine is premised on the fundamental notion of fair play underlying the concept of due process. 322. The Accardi doctrine applies with particular force when “the rights of individuals are affected.” Morton, 415 U.S. at 235.
149. 157. The D.C. Circuit has explained “that ‘agencies cannot relax or modify regulations that provide the only safeguard individuals have against unlimited agency discretion.’” Damus v. Nielsen, 313 F. Supp. 3d 317 (D.D.C. 2018), (citing Lopez v. FAA, 318 F.3d 242, 247 (D.C. Cir. 2003) as amended (Feb. 11, 2003)).
150. 158. On March 18, 2020, ICE issued a statement on enforcement during the COVID-19 crisis:
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159. In the statement, ICE states that as a result of the COVID-19 epidemic, “ICE Enforcement and Removal Operations (ERO) will focus enforcement on public safety risks and individuals subject to mandatory detention based on criminal grounds. For those individuals who do not fall into those categories, ERO will exercise discretion to delay enforcement actions until after the crisis or utilize alternatives to detention, as appropriate.” Id.
151. 160. ICE did not issue its mandatory rules for COVID-19 response until April 10, 2020, nearly a month later. See ICE Pandemic RequirementsPRRs at 1.
152. Since April 2020, ICE has consistently failed to even implement its own mandatory rules for COVID-19 responses, resulting in deadly conditions in detention centers and ultimately, the deaths of several people in immigration detention from COVID-19 and related complications. See, e.g., Center for Migration Studies, Immigrant Detention and COVID-19: How a Pandemic Exploited and Spread through the U.S. Immigrant Detention System (Aug. 2020), available at cmsny.org/publications/immigrant-detention-covid/.
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153. 161. ICE has the authority to comply with its constitutional requirements by paroling transgender people in civil immigration detention, who are vulnerable to severe illness or death if they contract COVID-19. Section 212(d)(5)(A) of the Immigration and Nationality Act permits the Attorney General, at his or her discretion, to parole any noncitizen into the United States “temporarily under such conditions as [she or] he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A). Further, 8 C.F.R. § 235.3(b)(2)(iii) vests the Attorney General with the discretion to parole detained aliens with negative credible/reasonable fear findings as required “to meet a medical emergency.” Responding to the current pandemic appropriately by releasing transgender people in civil immigration detention who are not a threat to public safety meets all three standards: a medical emergency, a legitimate law enforcement objective and a “significant public benefit.” Even if the government paroles a detainee, it can still issue notices to appear and place parolees in removal proceedings, thus ensuring that their immigration court cases continue even if they are released from detention. See 8 C.F.R. § 235.3(c).
154. 162. Here, ICE’s failure to implement even the most basic protections its rules require violates both the Fifth Amendment and the APA. See Torres v. United States Dep’t of Homeland Sec., 411 F. Supp. 3d 1036, 1068-69 (C.D. Cal. 2019) (detainees stated Accardi claim with allegations an ICE detention center did not follow the agency’s standards for treatment of detainees).
155. 163. Even if Respondents have taken some proactive measures to address the crisis, this is not enough to achieve compliance with CDC guidelines or to eliminate risk of exposure. See Cristian A.R. v. Decker, No. 20-3600, 2020 U.S. Dist. LEXIS 66658, at *34 (D.N.J. Apr. 12, 2020). For example, because detainees cannot avoid coming into close contact
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with frequently used surfaces and shared spaces, Respondents’ failure to ensure proper disinfecting of detainees’ living areas at the recommended intervals of several times per day exposes detainees to a high risk of infection, even if some cleaning is performed.
156. 164. Respondents’ failure to act in a timely manner to protect Petitioners interferes with the rights of Petitioners in an arbitrary and capricious manner and is without justification.
157. 165. The continued refusal to establish and implement policies and procedures designed to prevent the transmission of COVID-19 to transgender detainees violates the substantive and procedural due process rights of Petitioners and all transgender people in civil immigration detention. Courts have consistently held that detainees are likely to succeed on the merits of their claims under similar circumstances. See, e.g., Castillo, 2020 U.S. Dist. LEXIS 54425, at *16 (“Civil detainees must be protected by the Government. Petitioners have not been protected”).
158. 166. By failing to establish and implement any policies andor procedures to protect to prevent Petitioners, as transgender people in detention, from the transmissionstransmission of COVID-19 in the Detention Centers, Respondents have enacted a final decision that violates both the APA and the Fifth Amendment. See Torres, 411 F. Supp. 3d at 1069.
CLAIMS FOR RELIEF Count I
(Violation of Fifth Amendment Right to Due Process – Unlawful Punishment; Freedom from Cruel Treatment and Conditions of Confinement)
159. 167. Petitioners re-allege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
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160. 168. The Fifth Amendment to the U.S. Constitution guarantees that civil detainees, including all immigrant detainees, may not be subjected to punishment. The federal government violates this substantive due process right when it subjects civil detainees to treatment and conditions of confinement that amount to punishment or does not does ensure those detainees’ safety and health.
161. 169. Respondents’ conditions of confinement subject Petitioners and all class members to heightened risk of contracting COVID-19, for which there is no vaccine, known treatment, or cure.
162. 170. Respondents are subjecting Petitioners and all class members to a substantial risk of serious harm, in violation of Petitioners’ and class members’ rights under the Due Process Clause.
163. 171. As public health experts in correctional medical care and infectious disease agree, transgender people in immigration detention are at grave risk of COVID-19 infection, illness and death.
164. 172. Accordingly, Respondents are subjecting Petitioners and class members to detention conditions that amount to punishment and that fail to ensure their safety and health.
165. 173. For these reasons, Respondents’ ongoing detention of Petitioners and all class members violates the Due Process Clause.
Count II (Violation of the Administrative Procedure Act as to All Respondents) 166. 174. Petitioners re-allege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
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167. 175. Respondents’ failure to act in a timely manner to protect Petitioners and class members interferes with the rights of Petitioners and class members in an arbitrary and capricious manner and is without justification.
168. Respondents’ failure to implement and enforce their own 2015 model procedures in the care of transgender detainees in any of ICE’s detention facilities violates Petitioners’ and class members’ constitutional and substantive due process rights by exposing them to unwarranted risks or harassment and abuse, which have been magnified by the current pandemic.
169. 176. The continued refusal to establish and implement policies and procedures designed to prevent the transmission of COVID-19 is contrary to Petitioners’ and class members’ constitutional rights as it violates their substantive and procedural due process rights, as outlined above.
170. 177. By failing to establish and implement policies and procedures to protect Petitioners from the transmission of COVID-19 in the Detention Centers, Respondents have enacted a final decision.
171. 178. This decision constitutes a final agency action and is reviewable by this Court.
172. 179. When a government agency detains people for civil immigration purposes during a pandemic crisis and fails to adhere to the most basic and minimally adequate plan or procedure it is “arbitrary, capricious, an abuse of discretion, [and] not in accordance with law.” 5 U.S.C. § 706(2)(A).
173. 180. Here, detaining Petitioners and class members without a minimally adequate plan or procedure for their safety is arbitrary and capricious and an abuse of discretion. The
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failures to comply with Respondents’ own policies and procedures is not in accordance with law – in violation of the Administrative Procedure Act.
Count III (Writ of Mandamus) 174. 181. Petitioners re-allege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 175. 182. As set forth above, Respondents are in violation of federal statutes and regulations and the U.S. Constitution. 176. 183. These legal obligations for care of people held in civil immigration detention create affirmative duties to act, which Respondents have failed to respect. 177. 184. Petitioners accordingly seek a writ of mandamus to require the Respondents to act immediately in accordance with their legal obligations to protect Petitioners and class members and to follow their own parole guidelines and directives. 185. Petitioners are contemporaneously filing a motion for a temporary restraining order.
Count IV (Declaratory Judgment Act) 178. 186. Petitioners re-allege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 179. 187. The Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202, provides that “[i]n a case of actual controversy within its jurisdiction … any court of the United States … may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a).
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180. 188. There is an actual controversy between the parties because Respondents are failing to implement adequate protocols to prevent the transmission of COVID-19 in the ICE detention centers.
181. 189. The Court should exercise its authority under the Declaratory Judgment Act to declare that Respondents have no basis to refuse to implement adequate protocols to prevent the transmission of COVID-19 and should order Respondents to immediately release on parole or other supervised released Petitioners and all class members to protect them from the dangers of COVID-19 transmission.
PRAYER FOR RELIEF WHEREFORE, Petitioners respectfully request this Court to:
1. Assume jurisdiction over this matter; 2. Declare that the Respondents’ conduct constitutes a danger to public health and
safety; 3. Order the immediate release on parole or other supervised release of Petitioners and
all class members pending the completion of these proceedings, pursuant to the Court’s inherent powers; 4. Order Respondent to issue an ICE bond for all Petitioners and all class members pending the completion of these proceedings, pursuant to the Court’s inherent powers; 5. 4. Prohibit Respondents from placing any new transgender people in civil immigration detention;Order Respondents to incorporate the model procedures outlined in Attachment 1 to the 2015 Transgender Care Memorandum, “ICE Detention Facility Contract Modification for Transgender Care” into each of its facility contracts with its service vendors;
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6. 5. Order Respondents to immediately implement all protocols designed to prevent the transmission of COVID-19 as indicated in the attached expert declarations or protocols of the CDC;
7. 6. Declare that Respondents’ detention of Petitioners and class members creates an undue increased risk of infection, disease and death, and therefore is unconstitutional in violation of the Fifth Amendment;
8. 7. Declare that Respondents have violated the Administrative ProceduresProcedure Act;
9. 8. Award Petitioners and the Class their costs and reasonable attorneys’ fees pursuant to the Equal Access to Justice Act; and
10. 9. Grant such further relief as the Court deems just and proper.

April 23.Dated: August 14, 2020

Respectfully submitted,

/s/ Matthew E. Kelley Matthew E. Kelley (Bar No. 1018126)

Gregory P. Copeland

Matthew E. Kelley (Bar. No. 1018126)

(D.D.C. Bar # NY0311)

Leslie E. John **(admitted pro hac vice)

Sarah T. Gillman

Elizabeth Weissert **(admitted pro hac vice)

(D.D.C. Bar # NY0316)

Alex Levy **(admitted pro hac vice)

RAPID DEFENSE NETWORK

BALLARD SPAHR LLP

11 Broadway, Suite 615

1909 K Street, NW - 12th Floor

New York, NY 10004-1490

Telephone: (202) 661-2200

Phone: (212) 843-0910

Facsimile: (202) 661-6299

FaxFacsimilie: (212) 257-7033

Email: kelleym@ballardspahr.com

Email: gregory@defensenetwork.org

Email: johnl@ballardspahr.com

Email:

Email: weisserte@ballardspahr.com

sarah@defensenetwork.orgsarah@defensenetwork.orEg mail:

levya@ballardspahr.comlevya@ballardspahr.com

Lynly S. Egyes** (admitted pro hac vice)

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Case 1:20-cv-01072-CRC Document 60 Filed 08/19/20 Page 63 of 67 TRANSGENDER LAW CENTER PO Box 70976 Oakland, CA 94612-0976 Telephone: (973) 454-6325 Facsimile: (917) 677-6614 lynly@transgenderlawcenter.org Email: lynly@transgenderlawcenter.org Attorneys for Petitioners ** Application for admission pro hac vice forthcoming
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Case 1:20-cv-01072-CRC Document 60 Filed 08/19/20 Page 65 of 67

VERIFICATION I am submitting this verification on behalf of the Petitioners because I am one of the Petitioners’ attorneys. I have discussed the claims and the events described in this Emergency PetitionAmended Complaint with Petitioners’ legal team. On the basis of those discussions, on information and belief, I hereby verify that the factual statements made in the attached Emergency Verified Petition for a Writ Of MandamusAmended Complaint are true and correct to the best of my knowledge.

Dated: August 14, 2020

/s/ Matthew E. Kelley Matthew E. Kelley (Bar. No. 1018126)

Case 1:20-cv-01072-CRC Document 60 Filed 08/19/20 Page 66 of 67 66

Case 1:20-cv-01072-CRC Document 60 Filed 08/19/20 Page 67 of 67

CERTIFICATE OF SERVICE I hereby certify that, on this date, I caused the foregoing Amended Complaint to be filed and served electronically via the Court’s ECF System upon counsel of record.

Dated: August 14, 2020

/s/ Matthew E. Kelley Matthew E. Kelley

Dated: April 23, 2020

By: /s/ Matthew E. Kelley Matthew E. Kelley (Bar No. 1018126)

 
 Case 1:20-cv-01072-CRC Document 65 Filed 01/05/21 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

C.G.B., et al., Petitioners,
v. CHAD WOLF, et al.,
Respondents.

) ) ) Case No. 1:20-CV-01072-CRC ) ) ) ) ) ) ) ) )

STIPULATION OF DISMISSAL

Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), the parties to this action,

through undersigned counsel, hereby stipulate to its dismissal, with each side to bear its own

costs. A proposed order is attached.

Dated: January 5, 2021

Respectfully submitted,

/s/ Matthew E. Kelley Matthew E. Kelley (Bar No. 1018126)

Gregory P. Copeland (D.D.C. Bar # NY0311) Sarah T. Gillman (D.D.C. Bar # NY0316) RAPID DEFENSE NETWORK 11 Broadway, Suite 615 New York, NY 10004-1490 Phone: (212) 843-0910 Facsimilie: (212) 257-7033 Email: gregory@defensenetwork.org Email: sarah@defensenetwork.org
Lynly S. Egyes (admitted pro hac vice) TRANSGENDER LAW CENTER PO Box 70976 Oakland, CA 94612-0976 Telephone: (973) 454-6325

Matthew E. Kelley (Bar. No. 1018126) Leslie E. John (admitted pro hac vice) Elizabeth Weissert (admitted pro hac vice) Alex Levy (admitted pro hac vice) BALLARD SPAHR LLP 1909 K Street, NW - 12th Floor Telephone: (202) 661-2200 Facsimile: (202) 661-6299 Email: kelleym@ballardspahr.com Email: johnl@ballardspahr.com Email: weisserte@ballardspahr.com Email: levya@ballardspahr.com

Case 1:20-cv-01072-CRC Document 65 Filed 01/05/21 Page 2 of 2
Facsimile: (917) 677-6614 Email: lynly@transgenderlawcenter.org Attorneys for Petitioners
Michael R. Sherwin Acting United States Attorney Daniel F. Van Horn, D.C. Bar No. 924092 Chief, Civil Division _/s/ Sean M. Tepe__________________ Sean M. Tepe, D.C. Bar No. 1001323 Assistant United States Attorney 555 Fourth Street, NW Washington, DC 20530 Telephone: (202) 252-2533 Sean.Tepe@usdoj.gov Attorneys for Respondents
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Case 1:20-cv-01072-CRC Document 65-1 Filed 01/05/21 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

C.G.B. et al. Petitioners,
v. CHAD WOLF et al.,
Respondents.

) ) ) Case No. 1:20-CV-01072-CRC ) ) [PROPOSED] ORDER ) ) ) ) ) ) )

[PROPOSED] ORDER GRANTING STIPULATED DISMISSAL

Based upon consideration of the parties’ stipulation of dismissal, it is hereby ORDERED

that this action is DISMISSED, with each party to bear its own costs.

IT IS SO ORDERED.

Date: _____________

_____________________________ Hon. Christopher R. Cooper United States District Judge